        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                      NOVEMB ER SESSION, 1998          April 14, 1999

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,          )   C.C.A. NO. 03C01-9807-CR-00239
                             )
      Appellee,              )
                             )
                             )   HAMILTON COUNTY
VS.                          )
                             )   HON. DOUGLAS A. MEYER,
PHILLIP TODD SWORDS,         )   JUDGE
                             )
      Appe llant.            )   (DUI—Third Offense)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF HAMILTON COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

JERRY H. SUMMERS                 JOHN KNOX WALKUP
500 Lindsay Street               Attorney General and Reporter
Chattanooga, TN 37403-3496
                                 ELIZABETH B. MARNEY
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 BILL COX
                                 District Attorney General

                                 PARKE MASTERSON
                                 District Attorney General
                                 600 Market Street - Courts Building
                                 Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION

       The Defenda nt, Phillip Todd S words, appe als as of right from his conviction

for third offense DUI in the Criminal Court for Hamilton County. In this ap peal,

he asserts two primary claims: (1) that he was denied liberty without due process

as a result of deficie ncies in the cu stom ary arre st and bail procedures in Hamilton

County, and (2) that the trial court erred by enhancing the conviction at bar due

to two prior DUI convictions that Defe ndan t argue s are fa cially invalid. We a ffirm

the dec ision of the trial court.



                                    I. DUE PROCESS

       To support his argument that he was denied due process of law, Defendant

directs our attention to four alleged violations: (1) that he was denied the right to

be taken before a ma gistrate or judge at the time of his arrest, (2) that he was

denied the right to have an arrest warrant issued by a neutral and detached

magistrate, (3) that the procedures for setting bail do not conform to the Release

from Custod y and B ail Act, and (4) that he was punished without due process by

being detained in the H amilton Co unty Jail for at least six hours after being

booke d.



                        A. App earanc e Before a Mag istrate

       According to Defen dant, the procedure by which a probable cause

determination was ma de following his wa rrantless arrest by po lice failed to “serve

as a protection against unfounded interference with liberty” and failed to “‘provide

a fair and reliable determination of probable cause as a condition for any



                                         -2-
significant pretrial restraint of liberty.’” Defendant’s Brief (quoting Gerstein v.

Pugh, 420 U.S. 103, 124-25 (1975)). Defendant correctly maintains that he

shou ld have been brought before a magistrate “w ithout unnece ssary delay”

following his arrest. See Tenn. R. Crim. P. 5; Tenn. Code Ann. § 55-10-203.

Furthermore, as Defendant insists, the magistrate should have informed him at

this appearance of the nature of the charge s agains t him, as w ell as his righ t to

couns el during th e proce edings . See Tenn . Code Ann. § 4 0-10-10 1.



      Defendant testified that he received no opportunity to appear b efore a

magis trate or judge on the morning of his arrest. Moreover, a deputy clerk from

the Hamilton County Clerk’s office explained the usual procedure for those

defend ants arrested overnigh t without a warrant: The arresting officer delivers a

recitation of probable cause to a depu ty clerk, who then grants the warrant and

sets bail for the defendant as a matter of course. Customarily, she testified, the

accused is seated elsewhere and does not app ear befo re or provid e facts to the

deputy c lerk, just as h appen ed in this ca se.



       Defendant clearly did not receive the proper hearing before a judicial

officer, nor was he app rised by su ch an o fficer of the nature of the charges

against him or of his right to counsel. How ever, Defendant is not entitled to a

remedy in this Court. The Tennessee Supreme Court in State v. Cam pbell, 641

S.W.2d 890 (Ten n. 1982), a case in which the defendant received no hearing

before a magistrate, but was instead permitted to make an appearance bond,

concluded,

            The failure to bring the Defendant before a magistrate, as
      provided by T.C.A. Sec. 55-10-203(a)(3), results only in release
      from custody of an accused who is still in jail when the issue is

                                          -3-
       raised, or results in possib le exclusio n of evide nce, [for exa mple,] a
       confession that occu rs during the delay . In short, the delay has no
       conse quenc e in the law unless th e defen dant is pre judiced b y it.

State v. Cam pbell, 614 S.W.2d 890, 893 (Tenn . 1982) (c itations om itted); see

also State v. Billy L. D avis, No. 85-343-III, 1986 WL 5681, at *2 (Tenn. Crim.

App., Nashville, May 20, 1986 ). Here , Defe ndan t mad e bon d app roxim ately six

hours after he was booked, and he produced no evidence during that time that

was later used against him. We find no prejudice to Defendan t; theref ore, this

issue lac ks me rit.



                         B. Probable Cause Determination

       Defendant next argues that the Ham ilton Cou nty policy violates his right to

have a probable cause determination by a neutra l and deta ched m agistrate, see

Steag ald v. United States, 451 U.S. 204, 216 (1981), in two ways: He asserts that

(1) a deputy clerk cannot constitutionally make such a determination and thus

issue a warrant, and (2) the office of the cou rt clerk has a financia l incentive to

issue wa rrants be cause of filing costs.



       With respect to his first point, Defe ndan t adm its that o ur Ge neral A ssem bly

granted deputy court clerks the authority to issue a rrest warra nts. See Tenn.

Code Ann. § 41-6 -214. H owev er, he c onten ds tha t the sta tute is unconstitutional

in light of the United States Supreme Court’s opinion in United States v. Leon,

469 U.S. 897 (1984), in which the Court upheld a warrant not supported by

proba ble cause based upon the officer’s relianc e that th e ma gistrate ’s

determina tion was “objectively rea sonable.” Id. at 919-21. Defendant argues,

       This “good faith” exception insures that the final decision on the
       validity of a warrant will virtually always be decided by the magis trate
       issuing the warrant and not by the appellate court. . . . However, the

                                            -4-
      basic underlying assumption of the Court’s decision in Shadwick [v.
      City of Tampa, 407 U.S. 345 (1972),] was that the decisions made
      by persons not trained in the law would always be subject to
      appellate review, an assu mption wh ich is no longer valid after Leon.

Hence, the absenc e of appellate review for probable cause determinations by

those with no legal training constitutes the basis for this prong of Defendant’s due

process challenge.



      The State correctly responds that Tennessee Code Annotated § 40-6-214

provides, “Clerk s of co urts of g enera l sessio ns an d their duly sworn deputies

have jurisdiction and authority, concurrent with that of the judges thereof, to issue

warran ts for the arrest of perso ns.” Ten n. Cod e Ann. § 40-6-21 4. We decline to

hold this statute unconstitutional as applied to deputy clerks of court who may

lack legal training. Althoug h we rec ognize the distinct p ossibility that d eputy

clerks without legal training may not be “capable of the probable cause

determination” as required by Tennessee Rule of Criminal Procedure 3,

Defendant has not made such a factual showing in this case. To otherwise

specu late whethe r the dep uty clerks s erving H amilton C ounty are gene rally

incap able of properly recognizing the notion of probable cause due to a lack of

legal training would b e to encr oach u pon the doma in of our sta te legislature .



      Second, Defendant argues that because the Hamilton County Clerk’s office

receives a fee for each arrest warrant issued, it has a financial incentive to issue

the warrants, disturbing its ability to serve as a neutral and detached adjudicator

of probab le cause . Defendant contends that “[w]hile the deputy clerk issuing the

warrant does not get the fee personally, the General Sessions Clerk’s Office




                                         -5-
certain ly gets the fee, and this fe e is used with other revenues to determine how

many deputy c lerks can be hired .”



      W e conc lude th at this claim ha s no m erit. First, Defendant has not shown

that the co mpe nsatio n for H amilto n Cou nty Ge neral S essio ns de puty cle rks is

“contingent in any m anne r upon the issuance or non-issuance” of the arrest

warrant at issue in this case, as prohibited by Tennessee Code Annotated § 40-

5-106. In addition, we decline to infer that as the clerk’s office accrues revenue,

the salary of the deputy clerks increases accordingly, influencing their decisions

to grant arrest warrants. Furthermore, the State correctly observed that “the

proof that defendant did offer by way of [the deputy clerk’s] testimony evidenced

no inkling that she issued the arrest warrant for any reason other than the fa cts

attested to by the arresting officer and no inkling that she was anything other than

detach ed and neutral.”



                                C. Bail Procedures

      In a related argument, Defendant asserts that he was denied due process

(1) when he was not granted a bail hearing be fore a judge, ma gistrate, or court

clerk, but by a deputy court clerk, and (2) when his bail was “assigned from a

sche dule poste d on th e wall of the ja il,” with no regard to the statutory factors

which should be considered to achieve the functions of bail—assuring the

defen dant’s contin ued p resen ce in court and preventive detention. The deputy

clerk set Defendant’s bail at the maximum the law allows a court cle rk to set for

the offens e of DU I. See Tenn. C ode Ann . § 40-11-105 (b)(1).




                                         -6-
       Defendant first challenges the authority of the Hamilton County General

Sessions deputy clerk to set bail. He contends that having his bail set by a

deputy clerk of General Sessions violates Tennessee Code Annotated § 40-11-

105, which provides that bail determinations may be made “by the committing

magistrate, by any judge of the circuit or criminal court, or by the clerk of any

circuit or criminal court.” Tenn. Code Ann. § 40-11-105(a)(1) (empha sis added).



       W e conclude that even if the depu ty clerk of the Hamilton County General

Sessions court lacked authority to set Defendant’s bail, he nevertheless has no

remedy in this Court. Tennessee Code Annotated § 40-11-144 states,

              (a) The actions by a trial court from which an appeal lies to
       the supreme court or court of criminal appeals in granting, denying,
       setting or altering conditions of the defendant’s release shall be
       review able in the manner provided in the Tennessee Rules of
       Appe llate Proce dure.
              (b) If the action to be reviewed is that of a court from which an
       appeal lies to a court inferior to the supreme court or court of
       crimin al appeals, review shall be sought in the next higher court
       upon writ of ce rtiorari.

Tenn. Code Ann. § 4 0-11-14 4. See Tenn. R. App. P. 8. The proper method of

review for the determination of Defendant’s bail was appeal to the Hamilton

Coun ty Criminal Court. This issue has been waived. Any other remedy now lies

outside th is Court’s ju risdiction.



       With regard to his seco nd argu ment, D efenda nt specifica lly asserts tha t

       the bail procedures in Hamilton County are contrary to the principles
       and procedures of the Bail Act since the procedures reflect an
       arbitrary sche me w hich determin es the form a nd am ount o f bail.
       First, alternative forms of release are not conside red in lieu o f a
       cash bond. The Jail does not hold any hearing to determine (i) the
       defend ant’s relation to the c omm unity, (ii) th e defe ndan t’s
       background, or (iii) whether the defendant had a prior criminal
       record. Second, the bail is set according to a pre-arrange d “Bond
       Sched ule” which lists various o ffenses a nd a bo nd am ount.

                                         -7-
He also cites Ten nessee C ode Ann otated § 40-1 1-118, which man dates that “ba il

shall be set as low as the co urt determine s is necessa ry to reasonab ly assure the

appearance of the defendant as required,” and also prescribes factors which “the

magis trate shall consider,” including the defendant’s length of residence in the

comm unity; emp loyme nt statu s and history; financ ial con dition; fa mily ties and

relationships; reputation, chara cter, and me ntal condition; record of prior

presence at or flight from court appearances; nature of the offense, probability of

conviction, and likely sentence; prior criminal record and perceived risk of danger

to the pu blic; an d resp onsib le members of the community who will vouch for the

defen dant’s reliability. See Ten n. Co de An n. § 40 -11-1 18(a) , (b) (em phas is

added).



       W e find that Defendant’s bail was set in accordance with neither the letter

nor the principles underlying the Bail Act noted above. However, we further find

that again , any re med y lies ou tside th is Cou rt, as we find no prejudice in the

record. The bail set by the depu ty clerk, a lthoug h the m aximu m ba il perm issible

by the cle rk for this offense, did not prevent Defendant from release. In fact, he

contends in his next argument that he could have made his bond sooner than the

time he was permitted to leave. We conclude, therefore, that Defendant did not

suffer prejudice sufficient to permit this Court to find a due process violation

warran ting revers al of his con viction.



                               D. Six-Hour Detention

       Defe ndan t’s final due pro cess ch allenge c ontests th e Ham ilton Cou nty

policy of holding persons charged with DUI for a period of at least six hours. The

record reflects that Defendant was arrested shortly after 1:40 a.m., he was taken

                                            -8-
to the Ham ilton Cou nty Jail and booke d at 3:45 a .m., and he was released to the

bail bonds man a t 9:30 a.m .     This de tention, Defendant claims, constitutes

punish ment w ithout due proces s of law.



      The State argues that the detention policy is “not unconstitutional” based

upon an op inion b y our su prem e cou rt in State v. Pennington, 952 S.W.2d 420

(Tenn. 1997), and by this Court in State v. Donnie Lamar Carden, No. 03C01-

9610-CR-00378, 1997 WL 789933 (Tenn. Crim. App., Knoxville, Dec. 23, 199 7),

in which the policy was h eld no t to invok e dou ble jeopardy protections, preventing

further prosecution for DUI, because the detention is primarily remedial rather

than punitive and because jeopardy had not yet attached. This argument does

not directly decide the issue at hand. We do not examine whether the detention

violates doub le jeopardy by punishing a defend ant twice fo r the offens e of DU I;

instead, we determine whether the policy (1) constitutes punishment for refusing

to take a breathalyser test (a non-offense), or (2) constitutes punishment for DUI

without due process of law.



      This Court discussed the due process issue in addition to double jeopardy

in State v. Martha L. Pennington, No. 01C01-9607-CC-00323, 1997 WL 602909,

at *3-*4 (Tenn. Crim. App., Nashville, Sept. 30, 1997).           In that case, the

defendant was arre sted, reg istered a 0 .13 on a n Intoxim eter 300 0 test, arranged

to make her bond, and was not permitted to be released for eight hours pursuant

to a policy requiring defendants to be held for a minimum of six hours . We

addressed a certified qu estion of la w appe aled by th e defen dant: “Whether or not

the detention of the defe ndant, in th is case, u nder the policy of the Dickson

Coun ty Sheriff’s Department, constitutes punishment so as to preclude further

                                         -9-
prosecution on double jeopardy grounds or violates the defendant’s due process

rights.” Id. at *1.



       In Martha L. Pennington, we recited the two-p art test of State v. Coolidge,

915 S.W.2d 820, 824 (Tenn. Crim. App. 1995), to determine whether pretrial

detention qualified as punishment for due process purposes: “(1) whether the

detention served an alterna tive pur pose , and (2 ) wheth er dete ntion is excessive

in relation to the purpose.” 1997 WL 602909, at *4. In that case, we found that

“[d]etention for the p urpos e of de toxification may qu alify as a legitim ate

government goal,” id. (citing Coolidge, 915 S.W.2d at 823); and the pe riod of s ix

hours of confine ment w as not sh own to b e “exces sive in relation to the stated

purpos e.” Id. We therefore conc luded that the trial court in that case did no t err

by denying the defendant’s motion to dismiss.



       W e believe the same analysis and result is appropriate in this case. The

arresting officer testified that Defendant was “swerving back and forth across the

road,” and that he was “all over the road, . . . crossed the center line and back to

the right . . . , [and] kept weaving down the highway.” The officer stated that

Defendant had an odor of alcohol and responded that he had indeed been

drinking that evening—“about six plus beers.” Officer H ill adm inistere d field

sobriety tests; Defen dant failed the one -leg stand and refu sed to take a walk-and-

turn test. He then refused to take a breath or blood test to determine the precise

level of intoxication. Subsequent to Defendant’s arrest, the officer found two

twelve packs of beer in the vehicle in addition to several open beers, at least one

of which w as cold a nd half-e mpty.




                                        -10-
      From this eviden ce, we find that the policy of holding Defendant, an

appa rently intoxicated individual charged with DUI, for a period of six hours from

the time of booking was primarily for the purpose of detoxific ation, a nd tha t this

period of time was not excessive in relation to the facts of this case. Therefore,

we conclude that this pretrial detention did not violate Defendant’s right to due

proces s of law.



      Finally, we decline to find that the cumulative effect of errors discussed

above operated to deny Defendant the right to a fair trial or the right to due

process of law such th at reve rsal of h is conv iction is w arran ted. T his cas e is

distinguishable from decisions such as State v. Livesay, 941 S.W.2d 63 (Tenn.

Crim. App. 1996), in which this Court affirmed the trial court’s dismissal of

charges based upon a deprivation of due process where the defendant was

denied the right to draw and te st a blo od sa mple indep ende nt of the sam ple

drawn a nd tested by the Sta te.



      The State argued in Livesay that the defendant must show actual prejudice

to be entitled to relief from this Cou rt. Id. at 67. We held that while the defendant

could not show that the evid ence of which he was deprived would have been

favora ble enough to effect a dismissal, it was sufficient to show that the evidence,

if favorable to the defe ndant, “could easily have secured his a cquittal.” Id. at 66

(emp hasis adde d).     W e can not find a para llel dep rivation in this case.

Defen dant’s du e proce ss argu ment m ust fail.




                                        -11-
                             II. PRIOR CONVICTIONS

        In his second major issue, Defendant contends that his sentence should

not have been enhanced to third-offense DUI based upon his two prior guilty

pleas becau se those pleas we re invalid. Defendant pleaded guilty to DUI in 1989

and 1992. He argues that he should be p ermitted to attack the validity of the

former conviction becau se the re cord fails to show that the trial court (1) advised

him of the specific ramifications of waiving counsel, (2) informed him of various

constitutional rights as required by Boykin v. Alabama, 395 U.S. 238 (1969), and

(3) followed procedural protec tions s uch a s ens uring a factua l basis for the plea

and creating a verbatim record of the plea hearing. He argues that he should be

permitted to attack the validity of the latter conviction because the record does

not reflect that Defe ndan t was a dvised his gu ilty plea c ould be used to enhance

the sentences for subsequent convictions. See State v. Mackey, 553 S.W.2d 337

(Tenn . 1977).



        According to our supreme court in State v. McClintock, 732 S.W .2d 268

(Tenn. 1987), “The rule ha s bee n firmly e stablis hed in Ten ness ee tha t a facia lly

valid, unreversed judgmen t in a court with jurisdiction over the subject matter and

the person cannot be collaterally attacked in a subsequent proceeding except by

the authorized routes of attack.”       Id. at 272 .   We declin e to ho ld the ru le

announced in McClintock unconstitutional following institution of a statute of

limitations for post-conviction petitions, as Defendant requests tha t this Court

hold.



        The McClintock court indic ated the meaning o f facial invalidity in its

conclus ion base d upon the facts o f that case :

                                         -12-
      [T]he present proceeding in the case sub judice, a direct appeal of
      Defendant’s most recent conviction, is not the forum in which
      Defe ndan t’s Constitutional claims may be raised because nothing
      on the face of the reco rd “disclos es any w ant of auth ority to
      pronounce that judgm ent.        Hen ce, collater al attack [is] not
      permis sible.”

Id. (alteration in original) (quoting Boma r v. State ex rel. Stewart, 300 S.W.2d

885, 887-88 (Tenn. 1957)).       In addition, this Court examined “whether [a]

judgment is void on its face and thus subject to collateral attack,” in State v.

Gross, 673 S.W.2d 552 (Tenn. Crim. App. 1984). In that case, we concluded,

      The record shows the appellee, represented by counsel, appeared
      before the general session court. He and his attorney signed a
      waiver of indictment, presentment, etc., and the appellee entered a
      plea of guilty to the charge of DUI. . . . The General Sessions Court
      of Sullivan Coun ty had jurisdiction over the subject matter of the
      charge and it had person al jurisdiction of this app ellee.

Id. at 553-54. Furthermore, in State v. Gallaher, 730 S.W .2d 622 (Te nn. 1987),

our suprem e court held a co nviction facially valid where

      [t]he record shows on its face that [the defendant] executed waivers
      to the effect that sh e was fully adv ised o f her righ ts and expre ssly
      advised of her right to the a id of counsel at every stage of the
      proceeding and if necessary an attorney would be appointed to
      represent her; that she expressly waived her right to counsel, to a
      preliminary hea ring, to a grand jury indictm ent, and a trial by jury.

Id. at 623.



      Likewise, we find nothing on the face of the records that discloses any

invalidity to the guilty-p lea conv ictions for D UI in 198 9 and 1 992. See Maurice

Wilson v. State, No. 01C01-9310-CR-00352, 1994 WL 151322, at *2 (Tenn.

Crim. App., Nashville, Apr. 28, 1994) (“[The defendant’s] claims of an involuntary

guilty plea and ineffective assistance of couns el, while the y might s erve to void




                                        -13-
the judgm ent, do not m ake it fa cially void .”). The refore , we co nclude that the

Post-Conviction Procedure Act is the authorized potential route of attack for

Defen dant.



      W e conclude that Defendant is not entitled to relief in this Court based

upon the asserted violations of due process, and that he is not entitled to attack

the validity of his prior DUI convictions to preve nt them from e nhan cing h is

current sentence for third-offense DUI. The judgment of the trial court is affirmed.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JAMES CURWOOD WITT, JR., JUDGE


___________________________________
L.T. LAFFERTY, SPECIAL JUDGE




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