         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs August 7, 2001

                   STATE OF TENNESSEE v. PAUL H. CLEVER

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 99-10172   James C. Beasley, Jr., Judge



                  No. W2000-01810-CCA-R3-CD - Filed September 14, 2001


The defendant pled guilty to driving under the influence and was sentenced as a multiple offender.
In this appeal as of right, the defendant alleges that (1) the trial court erred in finding that he was a
third offender for purposes of sentencing, and (2) the DUI sentencing statute is unconstitutional
because it is vague and has an ex post facto effect. After careful review, we affirm the defendant’s
conviction and sentence.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G. RILEY,
JJ., joined.

Bill Anderson, Jr., Memphis, Tennessee, for the appellant, Paul H. Clever.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jim Powell, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

                                        DISCUSSION
        On August 8, 1999, the defendant was charged in a three-count indictment, the first two
counts for DUI, Tenn. Code Ann. § 55-10-401, and the third count for reckless driving, Tenn. Code
Ann. § 55-10-205. The indictment alleged that he had two prior DUI convictions, both in Shelby
County, on December 27, 1990, and on November 18, 1986, with the 1990 conviction being in the
Shelby County Criminal Court and the 1986 conviction in the Shelby County General Sessions
Court.

       He pled guilty to driving under the influence of an intoxicant. At the sentencing hearing, the
defendant not contesting his 1990 conviction, the State introduced evidence of his 1986 DUI
conviction through the testimony of the general sessions court presiding judge and a general sessions
court clerk. The trial court then sentenced the defendant as a third offender, a Class A misdemeanor,
imposed a fine of $1100, and ordered that the defendant be confined for eleven months, twenty-nine
days, with all but 120 days suspended and the balance to be served on probation. He was ordered
to serve the 120 days consecutively day for day, and his license was suspended for three years. This
appeal as of right results from that judgment.

                                                      ANALYSIS

                                         Validity of the 1986 Conviction

      Tennessee Code Annotated Section 55-10-403(a)(3) (Supp. 2000) provides for enhanced
punishment for a defendant with prior DUI convictions within given time periods:

                   [A] person who is convicted of a violation of § 55-10-401 shall not
                   be considered a repeat or multiple offender and subject to the
                   penalties prescribed in subsection (a), if ten (10) or more years have
                   elapsed between such conviction and any immediately preceding
                   conviction for a violation. If, however, a person has been convicted
                   of a violation of § 55-10-401 within ten (10) years of the present
                   violation, then such person shall be considered a multiple offender
                   and is subject to the penalties imposed upon multiple offenders by the
                   provisions of subsection (a). If a person is considered a multiple
                   offender under this subdivision, then every conviction for a violation
                   of § 55-10-401, within ten (10) years of the immediately preceding
                   violation shall be considered in determining the number of prior
                   offenses, but in no event shall a conviction for a violation occurring
                   more than twenty (20) years from the date of the instant conviction
                   be considered for such purpose.

        The defendant argues that the trial court improperly sentenced him as a DUI third offender
under Tennessee Code Annotated Section 55-10-403(a)(3), because there was inadequate proof as
to his 1986 DUI conviction. Because of a policy of the Shelby County Public Records Commission,
certain records of the Shelby County General Sessions Court were destroyed after ten years.1 The
record of his first DUI conviction consists of a copy of the November 18, 1986, docket sheet of
Judge Tim Dwyer and a certified copy of a computer-generated printout. The defendant argues that
“[b]ecause the official Court records have been destroyed, the trial Court in this matter did not have
the ability to adequately review the records and ascertain the validity and sufficiency of the
judgments therein.”




       1
           This po licy has be en recen tly chang ed to allow destruction after twen ty years.

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        In determining whether this testimony is sufficient to establish the fact of the defendant’s
1986 conviction for DUI and that he was represented by counsel, we first compare the deficiencies
in records in this matter with those in Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391
(1992), in which a Kentucky prosecutor sought to utilize prior convictions for enhancement
purposes.

         Ricky Harold Raley had been charged by the State of Kentucky with robbery and with being
a persistent felony offender in the first degree because of two prior burglary convictions to which he
had entered pleas of guilty in 1979 and 1981 and had not appealed. He argued that the two
convictions could not be used for enhancement purposes because the record did not contain
transcripts of the pleas and, thus, there was no showing that they were knowing and voluntary. The
court, however, noted the “presumption of regularity” that attaches to the acts of a court of
competent jurisdiction. Id. at 29, 113 S. Ct. at 523 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 468,
58 S. Ct. 1019, 1023, 1025, 82 L. Ed. 1461 (1938)). Additionally, the court observed that no
nefarious motive could be inferred from the absence of transcripts of the pleas of guilty. Such
transcripts were not prepared, absent a direct appeal or a judge’s order, and, additionally, court
reporter’s tapes normally were retained for only five years. Recognizing the difficulty in attacking,
in a recidivism proceeding, a prior conviction, given the unavailability of records and inaccessibility
of witnesses after the passage of time, the court concluded that the prosecution must satisfy a “clear
and convincing” evidence standard. Id. at 34-35, 113 S. Ct. at 526.

        In the instant case, contending generally that the State failed to prove, for purposes of
enhancement, his 1986 DUI conviction alleged in the indictment, the defendant argues that he is not
making a collateral attack upon the conviction, but, instead, questioning whether it can be used for
enhancement purposes. Although our supreme court made it clear in State v. McClintock, 732
S.W.2d 268, 273 (Tenn. 1987), that an earlier facially valid DUI conviction could not be attacked
during a sentencing hearing following a subsequent DUI conviction, the record in the earlier case
consisted of the arrest warrant/judgment of conviction including the defendant’s signed waiver of
counsel. In this matter, however, the record of the 1986 charge shows only that the defendant was
convicted of DUI, and sets out the resulting sentence. It is silent as to whether he was represented
by counsel at the proceeding, and the law is clear that representation by counsel cannot be presumed
from a silent record. Burgett v. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 262, 19 L. Ed. 2d 319
(1967).

        However, the State sought to establish, through testimony, the fact and validity of the 1986
DUI conviction so that it could be utilized for enhancement purposes. At the sentencing hearing,
the State called Judge Tim Dwyer, who testified that he was the presiding judge in Division VIII of
the Shelby County General Sessions Court on November 18, 1986. He explained the procedure in
general sessions court regarding a plea of guilty:

               Q.    And could you tell The Court what your – is it your practice
                     and procedure before accepting a guilty plea to advise a



                                                 -3-
                    defendant of their constitutional rights regarding the right to a
                    trial?

              A.    Yes, sir.

              Q.    And has it been your practice and procedure while you were on
                    the bench to advise defendants that they have a right to cross
                    examine witnesses as well at that trial?

              A.    Yes, sir.

              Q.    That they could testify if they chose to but did not have to
                    testify?

              A.    Yes, sir.

              Q.    That they had a right to an attorney, were they advised of that
                    right?

              A.    Yes, sir.

              Q.    And if a person chose to represent themself [sic] are they
                    allowed to do that if they can establish to your satisfaction that
                    they are capable of representing themselves?

              A.    It’s a general rule if it’s a Class C misdemeanor occasionally
                    we’ll let somebody pro se, but if it’s a B or an A and it involves
                    enhancement punishment then we require the person to have a
                    lawyer, private lawyer or we’ll appoint the public defender.

              Q.    In regards to Class A misdemeanors and specifically the offense
                    of driving under the influence, have you ever while on the
                    bench accepted a plea of guilty from a defendant who is not
                    represented by counsel?

              A.    No, sir.

The State introduced a photocopy of the docket sheet of November 18, 1986, on which Judge Dwyer
had made notations regarding the defendant’s guilty plea. Judge Dwyer explained his notes on the
docket sheet:

              Okay. It would show to the plea of guilty to driving under the
              influence, that the defendant was ordered to pay a $250 fine plus

                                                -4-
               court costs, that he was sentenced to 15 days in jail with 13 days
               suspended, that he had credit for 12 hours, we had 36 hours to serve,
               that the other charges were nol prossed.

       Regarding the additional documents which once existed, Judge Dwyer, referring to the
docket sheet, stated:

               Q.    This document shows a guilty plea and a sentence for Mr.
                     Clever for the offense of driving under the influence. Can you
                     say without any uncertainty that these notations reflect that
                     there was a Plea Waiver form signed by Mr. Clever, and that
                     there was an Order of Sentence that was signed by Mr. Clever?

               A.    I could say this, I don’t remember Mr. Clever, but I know that
                     if I broke that down there was paperwork that I signed off on.

               Q.    So you would have signed those papers?

               A.    I wouldn’t have just put it on my docket and done anything
                     else.

        The State also introduced a certified copy of a computer printout from the court clerk’s office
which showed the guilty plea, the date of disposition, and the $250 fine. Mike Triplett, a supervisor
in the Shelby County General Sessions Court Clerk’s office, testified that he had been a courtroom
deputy in Judge Dwyer’s court in 1986, the year that, according to the records, the defendant had
entered a guilty plea to DUI. He said that he had no memory of that particular matter. However, he
said that one of the responsibilities of the clerk, following the disposition of a matter, was to enter
the information regarding the matter into their computer system and, then, enter onto the clerk’s
docket the same information which had been recorded into the computer. He said that these entries
would be made at the time the matter was being disposed of. Additionally, he would compare the
entries on the judge’s docket as to the disposition with entries on the other records, to make certain
that the information was consistent, before entering it into the computer.

       Based upon this proof, the trial court concluded that the State had sufficiently proven that the
defendant was convicted of DUI in 1986:

                     In my opinion there’s been proof of a conviction. That proof
               consists of the testimony of Judge Dwyer, the record of his blotter
               which he noted a conviction of Mr. Clever, the testimony from Judge
               Dwyer as to the punishment that he imposed, a computer print-out,
               Exhibit 2, which evidences the sentence that was imposed against a
               Paul Clever on the day in question that Judge Dwyer indicated he did
               so that’s consistent with his findings, the judgment was entered on

                                                 -5-
               that date according to the clerk and to the judge of that court, and
               with nothing to the contrary to indicate that that, in fact, did not occur
               this Court is going to accept the testimony that’s present that, in fact,
               a conviction did occur.

                     The validity of that conviction in my opinion, is not before this
               Court. The fact that a conviction occurred for purposes of
               enhancement, in my opinion, has been proven. And, again, I would
               reiterate that I do not feel that the validity of that conviction is before
               me, and for that reason I will accept the testimony that’s been
               presented by the State as to Mr. Clever’s 1986 conviction, and would
               rule that Mr. Clever, based upon the testimony that I’ve heard, would
               qualify as a third offender under the Driving Under The Influence
               Statutes.

         Based upon the proof presented at the sentencing hearing, we agree with the ruling of the trial
court. As for the fact of the 1986 conviction, Judge Dwyer, testifying from his docket, stated that
it had occurred, and the conviction was shown by the clerk’s computer printout, as well.
Additionally, we note that the testimony of Judge Dwyer was unequivocal that he had never allowed
a defendant to plead guilty to a Class A misdemeanor, as DUI was, unless the defendant was
represented by counsel. Although the defendant argues that the State did not prove that the dictates
of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), were complied with, he overlooks the fact that
this is not a post-conviction proceeding, and even if it were, the Mackey precepts which exceed the
requirements imposed by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d274 (1969),
cannot be raised in a post-conviction proceeding. Blankenship v. State, 858 S.W.2d 897, 905 (Tenn.
1993); Teague v. State, 789 S.W.2d 916, 917 (Tenn. Crim. App. 1990).

       Additionally, we disagree that State v. Beck, 950 S.W.2d 44 (Tenn. Crim. App. 1997),
requires, as the defendant asserts, that a prior DUI conviction can be proven only by a “certified
copy” of the conviction. Id. at 47. Beck held that a jury could not infer that the defendant had earlier
been convicted of DUI from a “certified copy of a March 1990 Robertson County conviction for
DUI, second offense.” Id. Without additional proof of the first such conviction, it cannot be
determined whether it is within the period allowing it to be used for enhancement purposes. We do
not understand Beck to conclude that, absent a certified copy, a conviction cannot be proven.

        We cannot conclude that the trial court erred in ruling that the State had presented sufficient
proof as to the defendant’s 1986 DUI conviction, and we conclude, further, that the proof was
sufficient to show that he was represented by counsel. The proof as to both of these issues was clear
and convincing.




                                                  -6-
                                 Constitutionality of the Statute

        As his second issue, the defendant argues that the language contained in Tennessee Code
Annotated Section 55-10-403(a)(3) is void for vagueness and for being ex post facto in its effect.
He asserts that the statute sets out two separate standards for determination of multiple offender
status because the first sentence clearly states a ten-year period running from conviction to
conviction, whereas the last sentence sets the measure from the last conviction to the present
violation.

        This issue has previously been argued. Two other panels of this court have already
acknowledged that while the statute could have been more artfully drafted, it does not fail to give
a person of ordinary intelligence fair notice of the conduct which is forbidden by the statute. See
State v. Russell Snider, No. W2000-01240-CCA- R3-CD, 2001 WL 721030 (Tenn. Crim. App. at
Jackson, June 26, 2001); see also State v. Sean W. Conway, No. M2000-01263-CCA-R3-CD, 2001
WL 487689 (Tenn. Crim. App. at Nashville, May 8, 2001). In both Snider and Conway, this court
concluded that the ten-year period is measured from conviction to conviction. We also conclude that
the defendant in this case qualifies as a multiple offender since his immediately preceding conviction
is within the ten-year period, regardless of how the time frame is measured.

        The defendant argues that this statute is unconstitutional, because at the time of his second
DUI conviction in 1990, he could not have foreseen that the legislature would allow the courts to go
back an additional ten years for purposes of enhancement. He further contends that had he known
about the statute, he would not have pled guilty to the 1990 offense. Thus, the defendant argues that
the statute is ex post facto.

        In State v. Johnson, 970 S.W.2d 500, 505 (Tenn. Crim. App. 1996), this court rejected a
similar ex post facto argument made by a defendant facing enhanced punishment as a multiple rapist
because of a prior rape conviction:

               [I]t is well-established that penalty enhancing statutes only enhance
               the sentence for the triggering offense, rather than punish prior acts.
               See Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L.
               Ed. 1683 (1948) (citations omitted) (“[T]he fact that one of the
               convictions that entered into the calculations by which petitioner
               became a fourth offender occurred before the Act was passed, [does
               not] make the Act invalidly retroactive.”); State v. Bomar, 213 Tenn.
               487, 376 S.W.2d 446, 447 (1964); Conrad v. State, 202 Tenn. 36, 302
               S.W.2d 60 (1957). See also Suzanne M. McDonald, Foreseeability
               as a Limitation on the Retroactive Application of Judicial Decisions:
               Davis v. Nebraska, 26 CREIGHTON L.REV. 931, 948-49 (1993);
               Joel W.L. Millar, Nichols v. United States, The Right to Counsel, and
               Collateral Sentence Enhancement: In Search of a Rationale, 144


                                                 -7-
               U.PA.L.REV. 1189, 1191-93 (1996). The punishment is enhanced
               for the latest crime alone.

        Since the defendant received multiple offender punishment for an offense committed after
enactment of the DUI enhanced punishment statute, his claim is without merit that the statute cannot
utilize his 1990 DUI conviction because he would not have pled guilty had he known of the
enhancement possibilities. He is not being punished anew for his prior convictions, but rather for
a subsequent offense. Thus, we conclude that the DUI statute, enhancing punishment for future
offenses based upon prior DUI convictions, is not ex post facto.

                                         CONCLUSION

        After careful review of the record, we conclude that the State presented sufficient evidence
of the defendant’s 1986 DUI conviction to use it for enhancement purposes. We also conclude that
Section 55-10-403(a)(3) is not void for vagueness, nor does it violate ex post facto prohibitions.
Accordingly, we affirm the judgment of the trial court.




                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




                                                -8-
