        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 7, 2012

     STATE OF TENNESSEE v. CHRISTOPHER BOMAR WENZLER

               Direct Appeal from the Circuit Court for Fayette County
                        No. 6582     Weber McCraw, Judge




                No. W2011-00873-CCA-R3-CD - Filed March 6, 2013


Defendant, Christopher Bomar Wenzler, was indicted by the Fayette County Grand Jury for
driving under the influence of an intoxicant (DUI) in Count 1, and for DUI, third offense, in
Count 2. Defendant pled guilty to DUI as charged in Count 1, and waived a jury trial and
submitted to a bench trial as to the issues in Count 2. Count 2 alleged two prior DUI
convictions: (i) in the Justice Court of DeSoto County, Mississippi on June 7, 2006, and (ii)
in the General Sessions Court of Shelby County on February 9, 2006. Defendant argued in
the trial court that the Mississippi conviction could not be lawfully used to enhance his
current offense to DUI, third offense, but the trial court found Defendant guilty as charged.
The trial court merged the conviction in Count 1 with the conviction in Count 2, and
sentenced Defendant to serve 11 months and 29 days, with all but 120 days suspended as a
third offense DUI offender. Defendant appeals, arguing that he should have been sentenced
for DUI, second offense, because the judgment form used to prove Defendant’s prior
conviction in DeSoto County, Mississippi is silent as to whether he was represented by
counsel or waived his right to counsel. After review of the record, we affirm the judgment
of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OGER A. P AGE, JJ., joined.

John B. Curtis, Germantown, Tennessee, (on appeal), and David Willis, Memphis, Tennessee
(at trial), for the appellant, Christopher Bomar Wenzler.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Matt Hooper, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

       In this appeal Defendant asserts that the DeSoto County, Mississippi conviction could
not be used to enhance his punishment to DUI, third offense, on the following grounds:

        (1)     The Mississippi judgment is facially invalid because it does not
                indicate that Defendant was represented by counsel and it is silent as
                to whether Defendant waived his right to counsel;

        (2)     The Mississippi judgment is facially invalid because the State failed
                to prove that Defendant had counsel in the Mississippi proceedings,
                or that Defendant had waived counsel in the Mississippi
                proceedings;

        (3)     The Mississippi judgment is facially invalid because the charging
                instrument failed to state any facts in support of the charges
                constituting the underlying offense.

        (4)     The Mississippi judgment affirmatively establishes that Defendant
                was neither represented by counsel nor waived his right to counsel
                because the judge signed the judgment form immediately below the
                unchecked options, thereby validating that Defendant did not have
                counsel and Defendant did not waive his right to counsel.

       We will first dispense with Defendant’s third and fourth grounds for relief, that the
Mississippi charging instrument failed to state any facts constituting the criminal offense and
that the judgment affirmatively shows that Defendant did not have counsel or waive his right
to counsel. These grounds for relief were not raised pre-trial or during the trial court
proceedings. Defendant raised these issues for the first time on appeal. Since these issues
were raised for the first time on appeal, they are waived. Black v. Blunt, 938 S.W.2d 394,
403 (Tenn. 1996).

       Regarding the remaining grounds asserted by Defendant, we will address the merits.
Defendant only contests the use of the Mississippi conviction to enhance his sentence in the
case on appeal to a third offense DUI. Defendant’s request for relief in this court is for his
sentence for DUI, third offense, be reversed and that he be sentenced for DUI, second
offense.

        The records from the DeSoto Justice Court in Mississippi reflect that Defendant pled
guilty to the offense of DUI, first offense, on June 7, 2006. The offense occurred on January

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15, 2006. Defendant was sentenced to two days in jail. The jail sentence was suspended, and
Defendant was placed on supervised probation for six months. He was also ordered to attend
alcohol safety school, and submit to random drug and alcohol screens. The charging
instrument in Defendant’s case was a “Uniform Traffic Ticket” specifically designated for
DUI Offenses with the pre-printed designation “Driving Under the Influence” in bold print
at the top of the ticket. At the bottom of the ticket, below where it is designated that
Defendant was found guilty, and directly above where the Judge signed his name, the
following pre-printed information is displayed, as set forth below without any blanks filled
in:

                         THE DEFENDANT CHARGED HEREIN:

         ______________ WAIVED defendant’s right to an attorney after having
         been advised by the trial judge of the defendant’s right to an attorney, and,
         if the defendant could not afford an attorney that one would be appointed
         free of charge to represent the defendant; or

         _______________ W AS REPRESENTED (EM PLOYED OR
         APPOINTED) by an attorney whose name, address and telephone number
         is

         Name: ___________________________ Phone: ___________________
         Address: ___________________________________________________

       Defendant did not testify at the hearing and did not submit any direct evidence
regarding whether he had counsel or waived counsel in the Mississippi proceedings.
Defendant relied solely upon his argument that since the Mississippi judgment did not
affirmatively show that he had either been represented by counsel or had waived his right to
counsel that it could not be used to enhance his DUI from a second offense to a third offense.

        The crux of the first issue in this appeal is whether the Mississippi judgment is facially
invalid for DUI enhancement purposes because it is silent as to whether Defendant was either
represented by counsel or had waived his right to be represented by counsel. Defendant
relies upon several cases which we will now analyze.

        In State v. McClintock, 732 S.W.2d 268 (Tenn. 1987), our supreme court succintly set
forth the issue in that case as follows:

               This case is before the Court to resolve significant questions
         concerning the proper procedure for determining the validity of a facially

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        sufficient conviction under T. C. A. § 55-10-401, et seq. (DUI), when such
        a conviction is used to enhance punishment on subsequent DUI convictions.
        Defendant, Robert McClintock, voluntarily entered a plea of guilty to DUI;
        his sentence was enhanced by the trial court under T.C.A. § 55-10-403 on
        the basis of a prior DUI conviction.

McClintock, 732 S.W.2d at 268.

       In McClintock, the judgment of the prior conviction included the Defendant’s signed
waiver of his right to counsel. Id. at 269. Defendant asserted, however, that he had not
validly waived his right to counsel. Id. The court in McClintock concluded that defendant’s
signed written waiver of his right to counsel made it a facially valid conviction. See id. at
273.

        As in the case sub judice, the defendant in McClintock relied upon Baldasar v.
Illinois, 446 U.S. 222 (1980) in support of his argument that the prior conviction could not
be used to enhance his punishment to second offense DUI. The supreme court distinguished
Baldasar from defendant McClintock’s case with the following holding:

        We have considered [Baldasar] carefully and find it readily distinguishable.
        In that case the record affirmatively revealed that the defendant had neither
        been represented by counsel nor waived his right to counsel. [citation
        omitted] Such a conviction is void on its face for the purposes of recidivist
        provisions upon subsequent convictions.

Id. (emphasis added).

       In Baldasar, the defendant’s applicable “prior conviction” at issue in the case was a
conviction for misdemeanor theft for which the defendant was fined $159.00 and sentenced
to one year of probation. Baldasar, 446 U.S. at 223. Pertinent to the case sub judice, the per
curium opinion in Baldasar noted that in Scott v. Illinois, 440 U.S. 367 (1979), “the Court
held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is
not incarcerated.” Baldasar, 446 U.S. at 222 (emphasis added). The court in Baldasar then
immediately stated the issue in that case to be,

        This case [Baldasar] presents the question whether such a conviction may
        be used under an enhanced penalty statute to convert a subsequent
        misdemeanor into a felony with a prison term.”

Id. (emphasis added)

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      Therefore, the Baldasar per curium opinion implicitly concludes that a misdemeanor
conviction wherein a defendant receives a fine and a sentence of probation is a misdemeanor
conviction where the defendant is not incarcerated.

      In Nichols v. U.S., 511 U.S. 738 (1994), the court adhered to Scott and overruled
Baldasar, holding,

         Accordingly we hold, consistent with the Sixth and Fourteenth
         Amendments of the Constitution, that an uncounseled misdemeanor
         conviction, valid under Scott because no prison term was imposed, is also
         valid when used to enhance punishment at a subsequent conviction.

Nichols, 511 U.S. at 748-49.

       However, the court in Nichols also recognized in a footnote to the above holding that,

         Of course States may decide based on their own constitutions or public
         policy, that counsel should be available for all indigent defendants charged
         with misdemeanors. Indeed, many, if not a majority, of States guarantee the
         right to counsel whenever imprisonment is authorized by statute, rather than
         actually imposed.

Id. at 749 n. 12.

      Tennessee is one such state described in the above quoted footnote from Nichols.
Tennessee Rule of Criminal Procedure 44(a) explicitly states:

         (a) R IGHT T O A SSIGNED C OUNSEL.– Every indigent defendant is entitled to
         have assigned counsel in all matters necessary to the defense and at every
         stage of the proceedings, unless the defendant waives counsel. (emphasis
         added).

       This provision is applicable to all proceedings in courts of record in Tennessee, in
Tennessee General Sessions Courts, and other courts exercising jurisdiction of General
Sessions Courts. See Tenn. R. Crim. P. 1(a), (b), and (d). Also the right to counsel or to
waive counsel for a non-indigent defendant can be no different than the right to have, or
waive, counsel for an indigent defendant. State v. Armes, 673 S.W.2d 174, 177 (Tenn. Crim.
App. 1984) (“Nevertheless, we believe the best procedure would require a written waiver of
counsel in all cases where an accused insists on self-representation.”)



                                             -5-
       The State argues in its brief that under Nichols, Defendant is not entitled to relief on
appeal because he did not have to serve any time by incarceration for the Mississippi DUI
conviction. Footnote 12 of Nichols, and Tennessee Rules of Criminal Procedure 1 and 44,
show that the State’s argument is misplaced. Furthermore, it makes no difference that the
conviction was in Mississippi rather than Tennessee. An uncounseled misdemeanor
conviction in a foreign state should not afford the State a better legal position than an
uncounseled misdemeanor conviction in Tennessee. State v. Whaley, 982 S.W.2d 346, 348
(Tenn. Crim. App. 1997).

       Therefore, we conclude that in Tennessee a prior misdemeanor conviction where the
defendant was not imprisoned is subject to the same analysis as a prior misdemeanor
conviction where the defendant was imprisoned for purposes of mandatory enhancement of
a sentence based upon the prior misdemeanor conviction. The determinative issue to resolve
the two grounds for relief raised by Defendant is whether the Mississippi judgment is facially
invalid, or if it is facially valid, whether the State still has the burden of proof to show
Defendant had counsel or waived counsel in the situation of a “silent” record.

         Defendant relies upon State v. O’Brien, 666 S.W.2d 484 (Tenn. Crim. App. 1984).
In O’Brien, where the defendant appealed a DUI, fourth offense conviction, the court
reversed and dismissed the conviction for fourth offense DUI but remanded to the trial court
for re-sentencing as a DUI first offender. The O’Brien court relied upon Baldasar and stated
“an uncounseled misdemeanor conviction [can] not be used to enhance a subsequent offense
into a felony.” O’Brien, 666 S.W.2d at 485. Notwithstanding the fact Baldasar was
overruled in Nichols, pertinent to Defendant’s appeal in the case sub judice, the court in
O’Brien held “[however, the waiver of counsel cannot be presumed from a silent record.
Burnett v. Texas, 389 U.S. 109 . . . (1967).” We note, again, that Nichols overruled the
Baldasar court’s holding that a prior uncounseled misdemeanor conviction, even where no
sentence of imprisonment was imposed, could not be used to enhance a second misdemeanor
conviction into a felony. Nichols, 511 U.S. at 743, 748-49. However, since applicability of
this ruling in Nichols to state proceedings was limited to cases where a State has not decided
“that counsel should be available for all indigent defendants charged with misdemeanors,”
Nichols, 511 U.S. at 748, n. 12, and Tennessee does not fall into that category, the “no
imprisonment” exception does not apply to State court proceedings in Tennessee. Therefore,
an uncounseled DUI conviction, whether or not imprisonment is imposed, cannot be used to
enhance a subsequent DUI conviction under established precedent of the United States
Supreme Court. We are thus required to address whether a “silent record,” without more,
prohibits a court from concluding that a defendant waived counsel in the prior proceeding.
It is clear that the court in O’Brien relied upon Burgett in holding that “waiver of counsel
cannot be presumed from a silent record.” O’Brien, 666 S.W.2d at 485. The viability of



                                              -6-
continued reliance upon Burgett, and thus O’Brien, for this proposition is questionable. In
Parke v. Raley, 506 U.S. 20 (1992) the Supreme Court addressed the following issue:

         The narrow question we face is whether due process permits Kentucky to
         employ its particular burden-of-proof scheme when allowing recidivism
         defendants to attack previous convictions as invalid under Boykin. In our
         view, Kentucky’s burden-shifting rule easily passes constitutional muster.

Id. at 28.

        In Parke, the criminal defendant in Kentucky had challenged the validity of prior
convictions used to sentence him under Kentucky’s “Persistent felony offender sentencing”
statute. Id. at 22. The defendant in Parke was charged with robbery and with being “a
persistent felony offender.” The prior convictions were two convictions for burglary based
upon guilty pleas entered in November 1979 and October 1981. The defendant argued that
the prior convictions were invalid because there were no transcripts of the guilty plea
proceedings to affirmatively show that his guilty pleas were knowing and voluntary. Id. at
23. The Parke Court upheld the constitutionality of Kentucky’s “burden shifting” rule
described as follows:

         When a defendant challenges a previous conviction through a suppression
         motion [specifically allowed by the recidivist statute], the Commonwealth
         must prove the existence of the judgment on which it intends to rely. Once
         this is done, a presumption of regularity attaches, and the burden shifts to
         the defendant to produce evidence that his rights were infringed or some
         procedural irregularity occurred in the earlier proceeding.

Id. at 24.

        Thus, even on a silent record, it is not a violation of a constitutional right to presume
the regularity and validity of a prior conviction. Important to the case under consideration
in the instant appeal, the Court in Parke found Burgett to be inapplicable.

         Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), does
         not necessitate a different result. There the Court held that a prior
         conviction could not be used for sentence enhancement because the record
         of the earlier proceeding did not show that the defendant had waived his
         right to counsel. Id., at 114-115, 88 S.Ct., at 262. Respondent suggests that
         because Burgett involved a state recidivism proceeding, it stands for the
         proposition that every previous conviction used to enhance punishment is

                                               -7-
        “presumptively void” if waiver of a claimed constitutional right does not
        appear from the face of the record. Brief for Respondent 14-15. We do not
        read the decision so broadly. At the time the prior conviction at issue in
        Burgett was entered, state criminal defendants’ federal constitutional right
        to counsel had not yet been recognized, and so it was reasonable to
        presume that the defendant had not waived a right he did not possess.

Parke, 506 U.S. at 31 (emphasis added).

       Parke, stands not only for the position that waiver can be presumed from a silent
record, but also that the State does not have the initial burden to prove complete compliance
with the right to counsel if there is a facially valid judgment, even if waiver is presumed. Id.
at 34.

       Our analysis does not end with a possible rejection of the analysis in O’Brien, decided
in 1984, because of the Parke opinion’s analysis of Burgett in 1992. Almost five years after
Parke was decided, this court decided the case of State v. Whaley, 982 S.W.2d 346 (Tenn.
Crim. App. 1997). Without analyzing, or even mentioning O’Brien, Parke, or Burgett, the
Court in Whaley granted that defendant the very relief sought by Defendant in the case sub
judice. In Whaley the defendant appealed her conviction for second offense DUI. In one of
her issues the Defendant challenged the use of her prior DUI conviction in Georgia because
it was invalid on its face. This court agreed and reversed the conviction for DUI, second
offense, but remanded to the trial court for resentencing for a conviction of DUI, first
offense. This court held that the Georgia judgment, which lacked both a judge’s signature
and “did not indicate the appellant was represented by counsel or waived her right to
counsel,” Whaley, 982 S.W.2d at 348, n. 3, i.e., a “silent record,” was a facially invalid
judgment. Id. at 348. Relying upon McClintock the court in Whaley held,

        In the McClintock case, the Tennessee Supreme Court announced that a
        facially invalid judgment could not be used to enhance punishment in a
        subsequent prosecution.

Whaley, 982 S.W.2d at 348.

        Without overruling or citing Whaley, the Supreme Court of Tennessee in Hickman v.
State, 153 S.W.3d 16 (Tenn. 2004) clearly and unequivocally held in a habeas corpus case
that,




                                              -8-
                The judgment’s silence as to whether the petitioner was represented
         by counsel or waived the right to counsel does not defeat the presumption
         of regularity and render the judgment void.

Hickman, 153 S.W.3d at 25.

       The court in Hickman distinguished Baldasar and Burgett and held that its prior
decisions in McClintock and State v. Ritchie, 20 S.W.3d 624 (Tenn. 2000),

       stand for the proposition that a judgment is entitled to a presumption of
       regularity and is not void unless a defect appears on the face of the judgment.

Id. at 25.

       The court in Hickman pointed out that in McClintock, it had

         noted that, a conviction should be considered void on its face when “the
         record affirmatively reveal[s] that the defendant had neither been
         represented by counsel nor waived his right to counsel . . . .” [citations
         omitted]

Hickman, 153 S.W.3d at 25.

       Describing the holding in Ritchie, the court in Hickman stated,

         Similarly, in Ritchie, this Court denied habeas corpus relief and held that a
         conviction is void on its face only when the face of the judgment or the
         record of the proceedings “clearly and indisputably” reflects that the court
         of conviction lacked territorial jurisdiction.

Id. at 25.

        In Hickman, the petitioner argued that a criminal judgment is facially void unless it
affirmatively recites that the defendant was either represented by counsel or had waived the
right to counsel. Id. The court stated that McClintock and Ritchie did not support that
argument. Applying the facts of the case to the applicable law, the court in Hickman
concluded,

                Returning to the record in this case, we conclude that the judgment
         is not void on its face and is instead entitled to the presumption of

                                              -9-
            regularity. The judgment contains a blank line where defense counsel is
            ordinarily listed, and the pre-printed “Waiver of Attorney” was not signed
            by the defendant. This judgment does not clearly reflect that the defendant
            was denied the right to counsel. The judgment is merely silent. Additional
            information outside the judgment would be needed to establish that
            Hickman in fact was not represented by counsel. As we previously stated,
            where additional proof is needed, the judgment is at most voidable, rather
            than void, and a post-conviction petition is the proper method for attacking
            a voidable judgment.

Id. at 27

        Defendant argues in the case sub judice that the holding in Hickman should be limited
to only habeas corpus proceedings, and not be applicable to proceedings, such as his,
involving the use of a prior DUI conviction to enhance punishment for a later DUI
conviction. In Hickman our supreme court clearly rejected the proposition that “the waiver
of counsel cannot be presumed from a silent record,” O’Brien, 666 S.W.2d at 485, and as a
result, such a judgment is thus facially invalid. Id. Cases with inconsistent holdings, such
as O’Brien and Whaley, were implicitly overruled to the extent they contradict the court’s
holding in Hickman. We can find no reasonable basis to conclude that a criminal judgment
may be facially valid for a habeas corpus proceeding but the same judgment would be
facially invalid for a DUI proceeding.

        In summary, we reject the State’s argument that since the Mississippi judgment did
not require actual incarceration, rather than just a suspended jail sentence and probation, that
the rule in McClintock would not apply. However, under the definition of a “facially invalid”
or “facially void” judgment set forth in Hickman, we conclude that O’Brien, Whaley, and
their progeny no longer offer relief to Defendant. Furthermore, the applicable case law does
not require the State to affirmatively prove that Defendant had counsel or waived counsel in
Defendant’s case. Accordingly, Defendant is not entitled to relief in this appeal.


                                         CONCLUSION

       The judgment of the trial court is affirmed.


                                              _________________________________________
                                              THOMAS T. WOODALL, JUDGE



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