IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
June 18, 2002 Session
STATE OF TENNESSEE v. WILLIAM ROBERT POSEY
Appeal from the Criminal Court for Hamilton County
No. 232588 Stephen M. Bevil, Judge
No. E2001-02665-CCA-R3-CD
August 26, 2002
The Defendant, William Robert Posey, appeals as of right from the judgment of the trial court, which
found him guilty of driving under the influence (DUI) as a third offender. The Defendant raises two
central issues on appeal. First, the Defendant argues that the two preceding DUI convictions are
invalid on their face and therefore cannot be used to enhance his punishment for the present
conviction. Second, the Defendant argues that the trial court committed error by failing to hold a
hearing pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999), to determine whether the
Defendant personally waived his right to testify. Because the record is void of any evidence that the
Defendant did personally waive his right to testify, we remand the case to the trial court for a hearing
to determine whether the Defendant’s right to testify was violated, and if so, whether the violation
of the Defendant’s right to testify was harmless beyond a reasonable doubt.
Tenn. R. App. P. 3 Appeal as of Right; Remanded to the Trial Court
DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE , J., joined.
Lloyd A. Levitt, Chattanooga, Tennessee, for the appellant, William Robert Posey.
Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Bill Cox, District Attorney General; and Thomas E. Kimball, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
On October 24, 1999, the Defendant was arrested for driving under the influence of an
intoxicant in violation of Tennessee Code Annotated section 55-10-401. At the bench trial on May
14, 2001, Brian Ashburn of the Hamilton County Sheriff’s Department testified that he was on patrol
on October 24, 1999. While he was driving southbound on a two-lane road, he observed a vehicle,
driven by the Defendant, traveling northbound. The Defendant’s vehicle crossed the center line and
almost struck Officer Ashburn’s vehicle head-on. To avoid a collision, Officer Ashburn swerved
off the road into a parking lot. He then turned his patrol car around, activated his lights, and
followed the Defendant. The Defendant pulled his vehicle into a parking lot and drove to the rear
of a building, where he stopped. Officer Ashburn drove his patrol car behind the Defendant, and,
as he was exiting his vehicle, saw the Defendant open his door and jump out of his vehicle. Officer
Ashburn then pursued the Defendant on foot to the front of the building, where another officer who
had arrived on the scene stopped the Defendant.
Officer Ashburn testified that upon talking with the Defendant, he noticed a strong odor of
alcohol on the Defendant’s breath. The Defendant was very unsteady on his feet. He was unable
to produce a driver’s license, and he gave Officer Ashburn false information about himself. The
Defendant refused to submit to field sobriety tests and a breathalyzer test. In Officer Ashburn’s
opinion, the Defendant was clearly intoxicated.
After hearing the evidence, the trial court found beyond a reasonable doubt that the
Defendant was guilty of driving under the influence on October 24, 1999. Because the Defendant
had two prior convictions for DUI, the court sentenced him as a third offender pursuant to Tennessee
Code Annotated section 55-10-403(a)(1). It is from this judgment the Defendant now appeals.
The first of the two main arguments that the Defendant advances is that the judgments of his
two prior DUI convictions are facially invalid and therefore cannot be used to enhance the penalty
for the instant conviction.1 We begin our analysis by noting that the Tennessee Supreme Court has
recognized the rule “that a facially valid, unreversed judgment 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.” State v. McClintock, 732 S.W.2d 268, 271 (Tenn. 1987). “The
authorized route for attacking a facially valid, final judgment of conviction is by the Post-Conviction
Procedure Act.” Id. at 272. However, if a judgment is facially invalid, then it may not be used to
enhance punishment in a subsequent prosecution. See id; see also State v. Whaley, 982 S.W.2d 346,
348-49 (Tenn. Crim. App. 1997) (holding that a Georgia conviction, which was facially invalid
because it lacked the judge’s signature and any indication that the defendant was represented by
counsel or had waived her right to counsel, could not be used to enhance a subsequent Tennessee
conviction).
The Defendant was first convicted of driving under the influence in Rhea County, Tennessee,
in 1990. The Defendant alleges that this conviction is invalid on its face merely because it fails to
contain written advice of an enhanced penalty for a subsequent conviction or a warning that a
conviction in another state may be used to enhance the punishment for a DUI committed in
1
In his brief, the Defendant also asserts that the portion of Tennessee Code Annotated section 55-10-403(a)(3)
which allows the prosecution to go back mo re than ten years from the date of the present conviction when assessing prior
convictions for enhancement purpose s is void as an ex post facto law . However, he co nced es in his brief that this
argument has already been rejected by this Court in State v. Clever, 70 S.W.3d 771 (T enn. Crim. App. 2001). Ha ving
made said concession, the Defendant opts to not further argue the issue in his brief. Because Clever is controlling
authority, we cho ose not to ad dress the issue further. See Tenn. S. C t. R. 4(H )(2).
-2-
Tennessee. The Defendant states that these omissions render the 1990 conviction void so that it may
be collaterally attacked and should not have been used to enhance the punishment for his present
DUI conviction. We disagree.2
Tennessee Code Annotated section 55-10-403(g)(1) states that “[a]ny person convicted of
an initial or subsequent [DUI] offense shall be advised, in writing, of the penalty for second and
subsequent convictions” and “[w]ritten notice by the judge shall inform the defendant that a
conviction for the offense of driving under the influence of an intoxicant committed in another state
shall be used to enhance the punishment for a violation of § 55-10-401 committed in this state.”
However, “the statute does not require that a defendant have received such notice prior to being
sentenced on a second or subsequent offense.” State v. George S. Mercier, No. 02C01-9404-CC-
00066, 1994 Tenn. Crim. App. LEXIS 695, at *2 (Tenn. Crim. App. Oct. 19, 1994). Prior to
Mercier, this Court held in State v. Rea, 865 S.W.2d 923, 924 (Tenn. Crim. App. 1992), that the
defendant’s claim that she had not been warned in writing by the Alabama trial court of the
enhancing penalties for subsequent DUI convictions was without merit. More recently, this Court
held that “the fact that the defendant did not have the benefit of being warned pursuant to Tenn.
Code Ann. § 55-10-403(g)(1) of enhanced punishment for future DUI’s before he was charged a
second time for DUI is of no consequence.” State v. Bowen, 67 S.W.3d 826, 828 (Tenn. Crim. App.
2001). “The statute does not provide that failure to warn bars enhanced sentencing for subsequent
DUI’s.” Id. Because precedent clearly states that the failure to warn of enhanced punishment does
not bar enhanced sentencing for subsequent DUI’s, we hold in this case that the failure to include
in the Defendant’s 1990 judgment a written warning of enhancement does not render the judgment
facially invalid. Therefore, McClintock prohibits the Defendant’s collateral attack on his 1990 DUI
conviction.
We now address the validity of the Defendant’s second conviction of DUI, which occurred
in the General Sessions Court of Hamilton County, Tennessee, in 1997. The Defendant alleges that
this conviction is invalid on its face for two reasons: (1) It failed to contain a warning that a
conviction in another state may be used to enhance the punishment for a DUI committed in
Tennessee, and (2) the judge who accepted the Defendant’s guilty plea was a special judge who was
not properly appointed. Having previously concluded that the failure to warn of the future possibility
of enhanced punishment does not render a judgment of conviction facially void, we now consider
the Defendant’s second ground for attacking the 1997 conviction, that the special judge who
2
The Defendant’s reliance on Boykin v. Alabama, 395 U.S. 238 , 89 S . Ct. 1709, 23 L. Ed. 271 (1969), and State
v. Mackey, 553 S.W.2d 337 (Te nn. 19 77), in this regard is misplaced. The se case s add ress the requirement that a guilty
plea be entered into kno wingly, intelligently, and voluntarily. While the understanding that the resulting conviction may
be used to enhance the punishment of subsequent criminal activity is an important factor to consider when assessing the
intelligence and voluntariness o f guilty pleas, these cases in no way stand for the proposition that the lack of a warning
of enhancement possibilities renders an otherwise valid conviction void.
-3-
accepted the guilty plea was not duly elected pursuant to Tennessee law.3 Tennessee Code
Annotated section 16-15-209 addresses the procedure to be followed when appointing a special
judge to preside over a court of general sessions or a juvenile court. First, the judge who finds it
necessary to be absent from court should attempt to locate a judge, current, former, or retired, to sit
as special judge. See Tenn. Code Ann. § 16-15-209(a)(1)-(2). If necessary, the absent judge may
apply for assistance from the administrative office of the courts in finding a judge to sit as special
judge. Id. § 16-15-209(a)(3). “Only after exhausting the procedures set out in subdivisions (a)(1),
(2) and (3), a judge may appoint a lawyer from a list, on a rotating basis, of lawyers that have been
previously approved by the judge or judges of the district or county . . . .” Id. § 16-15-209(a)(4).
Where a lawyer is sitting as a special judge, the parties and counsel must be notified that the lawyer
is a special judge who is sitting in the regular judge’s absence. See id. § 16-15-209(a)(4)(A). Then
the parties must choose to proceed and have their case heard by the special judge rather than await
the return of the regular judge. See id. § 16-15-209(a)(4)(B).4
The record before us contains no proof whatsoever of the procedure followed in the election
of attorney William Hall as a special judge to hear the Defendant’s case on June 10, 1997. The only
evidence in the record to support the Defendant’s position is the testimony of the Defendant and that
of Shawn Johnson, the Court Administrator of Hamilton County, Tennessee, who, at the time of
Defendant’s guilty plea in 1997, was the Assistant Court Administrator. Mr. Johnson testified that
in 1997, the general practice for appointing special judges in Hamilton County was to have the Court
Administrator, then Ms. Bobbie Helton, attempt to find a retired judge who would sit as special
judge. If she was unable to find a retired judge, she would consult a list of practicing attorneys and
call one of them with the request that they serve as a special judge for the day. Mr. Johnson stated
that he was not aware of any formal election held by the attorneys who were present in court, but he
admitted that he was not particularly involved in the process. Mr. Johnson further testified that he
was unable to find a record indicating that William Hall had taken an oath as special judge on June
10, 1997. However, he stated that the records from 1997 were “mixed up” and he had not had time
to thoroughly go through them. Finally, Mr. Johnson said that at the time of the Defendant’s 1997
guilty plea, no form was used for obtaining the consent of all the parties to a special judge hearing
their case. He did not know whether the special judges orally informed the parties of their right to
have their cases heard by a regular judge. The Defendant testified that at the time of his 1997 plea,
no one informed him that William Hall was a special judge as opposed to a regular judge, and no one
asked him to consent, either orally or in writing, to William Hall presiding over his case.
It appears doubtful that the procedure utilized by the Hamilton County Court Administrator
in 1997 for appointing special judges fully complied with Tennessee Code Annotated section 16-15-
3
In his brief, the Defendant argues that the special judge was not duly elected pursuant to Tennessee Code
Annotated section 17-2 -118 . However, this provision is applicable only to courts o f record. B ecause the D efendant’s
1997 judgment of conviction was entered in a general sessions court, the applicable statute is section 16-15-209.
4
Prior to enactment of existing law, prior law contained similar provisions concerning the appo intment of a
special general sessions judge. See Tenn. Code A nn. § 1 6-15 -209 (Rep l. 199 4). The differences between prior law and
current law are not relevant to our disposition of this issue.
-4-
209. First of all, the Court Administrator is not authorized under the statute to seek a special judge.
Second, other than Mr. Johnson’s testimony that the Court Administrator “tried to get a retired judge
first,” there is no indication that the procedures set out in Tennessee Code Annotated section 16-15-
209(a)(1)-(3) were exhausted before she consulted the list of private attorneys. Finally, the
Defendant testified that he was neither apprised of Mr. Hall’s status as a special judge nor asked to
consent to the special judge hearing his case.
However, even assuming that the statute was not strictly adhered to in selecting a special
judge, our analysis does not end there. The judge who presided over the Defendant’s case could act
as a de facto judge even if he were not properly appointed or selected. The position of de facto judge
has long been recognized in Tennessee and is widely accepted throughout the country:
A judge de facto is one acting with the color of right and who is
regarded as, and has the reputation of, exercising the judicial function
he assumes. He differs, on the one hand, from a mere usurper of an
office who undertakes to act without any color of right: and on the
other hand, from an officer de jure who is in all respects legally
appointed and qualified to exercise the office . . . .
48A C.J.S. Judges § 2 (1981). The Tennessee Supreme Court has recognized “that even where there
are constitutional infirmities in the manner in which a judge took office, that judge may still be
deemed to be acting under color of authority as a de facto judge.” State ex rel. Newsome v. Biggers,
911 S.W.2d 715, 718 (Tenn. 1995). The court drew a distinction between the situation where the
judgment of a de facto court is directly challenged and where the Defendant seeks to collaterally
attack the judgment. “Because Newsome did not challenge the municipal court’s exercise of
jurisdiction either during the trial phase in which he pleaded guilty or on direct appeal, he acquiesced
to the court’s exercise of jurisdiction.” Id. at 719.
This Court has recognized the doctrine of de facto judges as recently as 1999. In State v.
Mark John Turner, No. 01C01-9703-CR-00071, 1999 Tenn. Crim. App. LEXIS 584, at *12-13
(Tenn. Crim. App. June. 16, 1999), a defendant sought to have his prior DUI conviction declared
void as an enhancement factor because the record did not reflect that the special judge who accepted
his guilty plea had been properly elected. In affirming the judgment of the trial court, this Court
stated,
[T]he special judge was, at a minimum, a de facto judge . . . . There
was no objection to the special judge’s exercise of authority at the
time the plea was entered in 1990, and no appeal was taken from the
resulting conviction. “Like any judgment, a presumption of regularity
in the proceedings attaches upon becoming final.” Because the
special judge acted with de facto authority and because this authority
was not challenged during trial or on appeal, the defendant cannot
now attack the integrity of the judgment.
-5-
Id. (citations omitted); see also Bankston v. State, 908 S.W.2d 194, 198 (Tenn. 1995) (holding that
because the defendant did not challenge the jurisdiction of the municipal court either in that court
or on direct appeal, the municipal court was a de facto court).
We see no reason to depart from the above precedent. Although William Hall may not have
been elected according to the specific statutory provisions regarding special judges, he was a de facto
judicial officer whose judicial acts are valid and not subject to collateral attack.
Having concluded that neither of his prior DUI convictions is facially invalid and subject to
collateral attack, we now address the Defendant’s second principal issue, that the trial court erred
by not holding a hearing to determine whether the Defendant personally waived his right to testify.5
The State argues that the Defendant has waived this issue by failing to raise it in a timely motion for
a new trial. Although the Defendant did not raise this issue in a motion for a new trial, this Court
has discretion pursuant to Rule 52(b) of the Tennessee Rules of Criminal Procedure to take notice
at any time of a plain error which affects a substantial right of the accused where it may be necessary
to do substantial justice. See State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984); Veach v. State, 491
S.W.2d 81, 83 (Tenn. 1973); Herron v. State, 3 Tenn. Crim. App. 39, 51, 456 S.W.2d 873, 878
(1970), vacated on other grounds, 408 U.S. 937, 92 S. Ct. 2865, 33 L. Ed. 756 (1972). When
deciding whether an error constitutes “plain error,” we consider five factors:
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached; (c)
a substantial right of the accused must have been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and (e)
consideration of the issue is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641 (Tenn. Crim. App. 1994)). With respect to the first factor, the record is clear that no
hearing was had pursuant to the mandate of Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999),
to determine whether the Defendant personally waived his right to testify. In Momon, 18 S.W.3d
at 161, the Tennessee Supreme Court held that the right of a defendant to testify in his own
behalf is a fundamental constitutional right that may only be waived personally by the defendant;
thus the second and third factors are satisfied. There appears to be no tactical reason for the
Defendant to have waived the issue of not having a Momon hearing; therefore the fourth factor is
satisfied. And finally, if the Defendant did not personally waive his right to testify on his own
behalf, which is a fundamental right, it is necessary that we consider the issue to ensure justice.
Therefore, we find that the failure to conduct a hearing pursuant to Momon to determine whether
the Defendant did personally waive his right to testify was plain error. As such, the failure of the
Defendant to raise this issue in a motion for a new trial does not preclude this Court from
considering the issue. See Tenn. R. Crim. P. 52(b).
5
The Defendant also asserts that, if the 1997 conviction were declared invalid, the 1990 conviction would be
more than 10 years prior to the present conviction and therefore unavailable to be used to enhance the penalty for the
present conviction pursuant to Tennessee Code Annotated section 55-10-403(a)(3). Because we find that the 1997
judgment is valid, it is not necessary to ad dress this argum ent.
-6-
To ensure that the defendant’s right to testify has been personally waived by the
defendant, the court in Momon adopted procedural guidelines that call for defense counsel to
request a jury-out hearing to demonstrate that the defendant’s waiver of the right to testify has
been knowingly, intelligently, and voluntarily made. See Momon, 18 S.W.3d at 163.6 There is
no evidence in the record that the procedural guidelines established by Momon were followed.
Furthermore, there is no “evidence in the record to establish that the right was otherwise
personally waived by the defendant.” Id. The waiver of a defendant’s right to testify on his own
behalf will not be presumed from a silent record. See id. at 162. “In the absence of evidence to
show that [a] defendant personally waived [the] right to testify, we must presume that he did
not.” State v. Dwayne Simmons, No. M2000-01199-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 359, at *17 (Tenn. Crim. App. May 11, 2001).
On remand, the trial court must first consider whether the Defendant did personally waive
his right to testify. It may be that the Defendant did not desire to testify. The record is void of
any indication one way or the other. If the Defendant did not desire to testify, and the court finds
from the evidence that he personally waived his right to testify, then no further inquiry need be
made. However, if the Defendant did wish to testify, but was deprived of that right, then the trial
court must determine whether the violation of the Defendant’s right to testify was harmless error
beyond a reasonable doubt. See Momon, 18 S.W.3d at 166 (holding that the denial of the right to
testify on one’s own behalf may be found harmless beyond a reasonable doubt).
In determining whether the State has proven that the constitutional violation is harmless
beyond a reasonable doubt, courts should consider the following factors: (1) the importance of
the defendant’s testimony to the defense case; (2) the cumulative nature of the testimony; (3) the
presence or absence of evidence corroborating or contradicting the defendant on material points;
and (4) the overall strength of the prosecution's case. See id. at 167. The above factors “are
merely instructive and not exclusive considerations.” Id.
As was the case in Momon, there is not sufficient evidence in the record for this Court to
give full consideration to these factors. We have no indication of what the substance of the
Defendant’s testimony would have been had he testified. The record does not reflect whether the
Defendant desired to testify. The record does not reflect that the Defendant personally waived
his right to testify. The Defendant simply asserts that the trial court did not comply with the
Momon guidelines. Finding this to be the case, we conclude that the case must be remanded to
the trial court for the determination of whether the Defendant did, in fact, wish to testify on his
own behalf. If he did, then a hearing must be held at which the State will bear the burden of
establishing that the denial of the Defendant’s right to testify on his own behalf was harmless
beyond a reasonable doubt. If the trial court concludes that the State has met its burden, the
Defendant’s conviction will be sustained. However, if the State fails to prove that the error was
6
This Court has held that the Momon requirements app ly to bench trials as well as jury trials. See State v.
Charles Randall Elrod, No. M 2001-01 125-CC A-R3-CD , 2002 T enn. Crim. App. LEX IS 83, at *8 (Tenn. Crim. App.
Jan. 31, 1999).
-7-
harmless beyond a reasonable doubt, the trial court must vacate the Defendant’s conviction and
grant the Defendant a new trial.
We therefore remand this case to the trial court for a determination of whether the
Defendant waived his right to testify and, if he did not, whether the violation of the Defendant’s
right to testify on his own behalf was harmless error.
___________________________________
DAVID H. WELLES, JUDGE
-8-