State v. Gwen

[Cite as State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046.]

THE STATE OF OHIO, APPELLEE, v. GWEN, APPELLANT.
[Cite as State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046.]
Criminal law—Domestic violence—Method of proving prior convictions for
purposes of elevating level of offense under R.C. 2919.25(D)(4)—R.C.
2945.75(B)(1)—Judgment entry showing prior conviction is not exclusive
method of proof—Judgment entry of prior conviction must comply with
Crim.R. 32(C).
(No. 2011-0632—Submitted May 8, 2012—Decided November 1, 2012.)
CERTIFIED by the Court of Appeals for Summit County,
No. 25218, 2011-Ohio-1512.
__________________
SYLLABUS OF THE COURT
1. The method set forth in R.C. 2945.75(B)(1) is not the exclusive method for
proving a prior conviction.
2. When, pursuant to R.C. 2945.75(B)(1), the state offers a judgment entry to
prove the element of a prior domestic-violence conviction in order to
increase the offense level of a later domestic-violence charge under R.C.
2919.25(D)(4), the judgment entry must comply with Crim.R. 32(C).
__________________
LANZINGER, J.
{¶ 1} We accepted this case to resolve a conflict between the Ninth and
Sixth Appellate Districts regarding the proper method for proving prior
convictions for purposes of elevating the degree of the offense of domestic
violence. State v. Gwen, 129 Ohio St.3d 1407, 2011-Ohio-3244, 949 N.E.2d
1003. The question certified to us is “[w]hether, for purposes of enhancing the
offense level in a domestic violence case, the State is required to prove the prior
 SUPREME COURT OF OHIO

domestic violence convictions by providing a judgment of conviction executed in
conformity with Crim.R. 32(C).” State v. Gwen, 130 Ohio St.3d 1407, 2011-
Ohio-5477, 955 N.E.2d 1018. The certified question contains an ambiguity, for it
may be read to ask either (1) whether the state must use only certified judgment
entries to prove prior offenses or (2) whether, when certified entries are offered as
proof of prior convictions, they must comply with Crim.R. 32(C). We answer
both questions as follows. We hold that while R.C. 2945.75(B)(1) permits the
state to prove a prior conviction by submitting a judgment entry of the conviction,
the statute does not restrict the manner of proof to that method alone. We hold
further that when the state chooses to prove a prior conviction by using a
judgment entry, that entry must comply with Crim.R. 32(C).
{¶ 2} We also affirm the judgment of the court of appeals, including the
remand for resentencing on Gwen’s conviction of domestic violence as a felony
of the fourth rather than the third degree. The appellate court was correct in
holding that the state proved only one, not two, prior convictions, and therefore
the offense may be elevated only to a fourth-degree felony. But as we will
explain, we disapprove of the court of appeals’ statement that a journal entry of
conviction need not comply with Crim.R. 32(C). Id. at ¶ 35-37.
I. Background
{¶ 3} Appellant, Jeffrey Gwen, was arrested on March 24, 2009, after his
girlfriend called 9-1-1 alleging an incident of domestic violence. The state
charged Gwen with one count of domestic violence, in violation of R.C.
2919.25(A), and one count of illegal possession of drug paraphernalia, in
violation of R.C. 2925.14(C)(1). The domestic-violence charge was enhanced to
a third-degree felony under the statute applicable to third-time offenders, R.C.
2919.25(D)(4). Gwen pled not guilty; a jury found him guilty on both counts. He
was sentenced to one year of incarceration for domestic violence and 30 days for
the drug offense, to be served concurrently.

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{¶ 4} On appeal, Gwen challenged the two items that were admitted as
evidence of prior domestic-violence convictions, arguing that they did not comply
with Crim.R. 32(C) and State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893
N.E.2d 163. One item, State’s Exhibit 4, is a certified journal entry from the
Summit County Court of Common Pleas, showing that Gwen pled guilty in 2002
to domestic violence as a minor misdemeanor in violation of R.C. 2919.25(A).
This was erroneous, however, because domestic violence does not exist as a
minor misdemeanor and under R.C. 2919.25(A) is a misdemeanor of the first
degree. R.C. 2919.25(D)(2). Gwen was sentenced to six months, which was
suspended, and placed on probation for one year.
{¶ 5} The second item, State’s Exhibit 3, consists of a series of
documents relating to a charge of domestic violence prosecuted against Gwen in
the Akron Municipal Court during 2000 to 2001. It includes a docket statement, a
police incident report, a criminal complaint charging Gwen with domestic
violence under R.C. 2919.25(A), a temporary protection order, and a journal
entry. The certified journal entry is a printed form with spaces provided for the
relevant data, such as plea entered, disposition, sentence, and the like. The spaces
provided for recording whether Gwen had been found guilty or not guilty are
blank. The entry does show that Gwen pled not guilty and that he was sentenced
to 30 days, with credit for three days served, fined $50, and ordered to pay costs
on the domestic-violence charge. The 30-day sentence was apparently suspended
on the condition that Gwen complete a “Time Out” program. On the left margin
of the entry appears a handwritten note that says, “2/01 [illegible word] D.V—M4
Menacing.”
{¶ 6} The court of appeals rejected Gwen’s argument that State’s Exhibit
4 was fatally defective because it misidentified the offense as a minor
misdemeanor, finding no authority that such an error renders the evidence of
conviction inadmissible. Nevertheless, the court held that even if it was error to

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rely on this entry as proof of a prior conviction, that error was harmless because
Gwen had testified that he had been convicted of domestic violence. State v.
Gwen, 9th Dist. No. 25218, 2011-Ohio-1512, ¶ 39. But on State’s Exhibit 3, the
court found the Akron Municipal Court’s disposition of that case to be unclear,
and there was no other evidence that Gwen had been convicted of or previously
pled guilty to domestic violence in that case.
{¶ 7} The Ninth District therefore affirmed Gwen’s domestic-violence
conviction, but as a fourth-degree rather than a third-degree felony, because the
state had not presented evidence of at least two prior domestic-violence
convictions. Id. at ¶ 28. The court also held that compliance with Crim.R. 32(C)
was not a prerequisite to proving a prior offense for purposes of increasing a
subsequent charge. Id. at ¶ 36.
{¶ 8} Gwen filed a motion to certify a conflict between districts, arguing
that the Ninth District’s opinion conflicts with the Sixth District’s decision in
State v. Finney, 6th Dist. No. F-06-009, 2006-Ohio-5770, which held that the state
was required to prove a prior conviction by providing a judgment of conviction
that was executed in conformity with Crim.R. 32(C). We recognized the conflict
as certified.
{¶ 9} We revise the question into two parts. The first part, which asks
whether a judgment of conviction is the exclusive method of proving a prior
conviction under R.C. 2945.75(B)(1), is answered “no.” The second part, which
asks whether the judgment entry must comply with Crim.R. 32(C) when the state
elects to use it to prove a prior conviction, is answered “yes.”
II. Analysis
A. Proving Prior Convictions of Domestic Violence—“Pleaded Guilty to” or
“Convicted of”
{¶ 10} The offense of domestic violence is defined by R.C. 2919.25(A),
(B), and (C). A first-time offense is either a misdemeanor of the fourth degree or

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a misdemeanor of the first degree, depending upon the section of the statute under
which the defendant is charged. R.C. 2919.25(D)(2). A second offense is either a
felony of the fourth degree or a second-degree misdemeanor. R.C.
2919.25(D)(3). If the offender has “pleaded guilty to or been convicted of two or
more offenses of domestic violence,” a subsequent domestic-violence offense is
elevated to either a felony of the third degree or a first-degree misdemeanor. R.C.
2919.25(D)(4). Because the state contended that he had already been convicted
twice of domestic violence, Gwen was charged with a third-degree felony.
{¶ 11} When the existence of a prior conviction affects the degree of the
offense and not just the punishment available upon conviction, it is an essential
element of the offense. See State v. Allen, 29 Ohio St.3d 53, 54, 506 N.E.2d 199
(1987) (an element elevates the degree of the offense; an enhancement provision
increases only the penalty). Thus, the state was required to prove that Gwen had
“pleaded guilty to or been convicted of two or more offenses of domestic
violence.” By using the phrase “pleaded guilty to” as an alternative to “convicted
of” in R.C. 2919.25(D)(4), the General Assembly has allowed the state to offer
evidence of a defendant’s guilty plea as proof of a prior offense of domestic
violence. And no matter how the state chooses to prove this element, it must be
proven beyond a reasonable doubt before the level of the offense may be
increased. State v. Henderson, 58 Ohio St.2d 171, 173, 389 N.E.2d 494 (1979).
{¶ 12} In Gwen’s case, the state’s offer of State’s Exhibit 3 as proof of a
prior conviction is the only point requiring analysis. State’s Exhibit 4 referred to
“minor misdemeanor” domestic violence, which is a nonexistent offense, making
the use of the exhibit improper. But Gwen admitted that he had been convicted,
so Gwen’s admission served as proof of the prior offense to which Exhibit 4
referred. Any reliance on the document was therefore harmless error.

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B. Proof under R.C. 2945.75(B)
{¶ 13} The General Assembly has enacted a statute specifically
addressing proof of a prior conviction. R.C. 2945.75(B) provides:

(1) Whenever in any case it is necessary to prove a prior
conviction, a certified copy of the entry of judgment in such prior
conviction together with evidence sufficient to identify the
defendant named in the entry as the offender in the case at bar, is
sufficient to prove such prior conviction.
(2) Whenever in any case it is necessary to prove a prior
conviction of an offense for which the registrar of motor vehicles
maintains a record, a certified copy of the record that shows the
name, date of birth, and social security number of the accused is
prima-facie evidence of the identity of the accused and prima-facie
evidence of all prior convictions shown on the record. The accused
may offer evidence to rebut the prima-facie evidence of the
accused’s identity and the evidence of prior convictions. Proof of a
prior conviction of an offense for which the registrar maintains a
record may also be proved as provided in division (B)(1) of this
section.
(3) If the defendant claims a constitutional defect in any
prior conviction, the defendant has the burden of proving the
defect by a preponderance of the evidence.

(Emphasis added.)
{¶ 14} R.C. 2945.75(B)(1) sets forth one way to provide “sufficient”
proof of a prior conviction, but does not provide the only method to prove it. For

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example, an offender may, and often does, stipulate to a prior conviction to avoid
the evidence being presented before a jury.
{¶ 15} The question is whether certified entries, when offered as proof,
must comply with Crim.R. 32(C) before they may prove a prior conviction.
C. The Conflict Between the Ninth and Sixth Districts
{¶ 16} The Ninth District relied on an earlier decision of its own to say
that the state is not required to offer judgment entries that comply with Crim.R.
32(C). State v. McCumbers, 9th Dist. No. 25169, 2010-Ohio-6129. In
McCumbers, the defendant had been convicted of operating a motor vehicle while
under the influence of alcohol or drugs, an offense elevated to a felony when the
defendant “previously has been convicted of or pleaded guilty to” five or more
similar violations within the last 20 years. R.C. 4511.19(G)(1)(d). To prove the
five previous offenses, the state offered McCumbers’s previous sentencing
entries, traffic citations, and BMV records into evidence. R.C. 2945.75(B)(2)
specifically provides that in cases where the prior offense is one for which the
registrar of motor vehicles maintains a record, a certified copy of the record is
prima facie evidence of the identity of the accused and of all convictions shown
on the record. The state’s evidence was unrebutted. Id. at ¶ 4.
{¶ 17} On appeal, McCumbers contended that three of the entries offered
to prove prior convictions were defective under Crim.R. 32(C). R.C.
2941.1413(A). The Ninth District held that the statutory reference to pleas of
guilty or convictions meant that the General Assembly intended “the word
‘convicted’ to refer only to a determination of guilt and not a judgment of
conviction.” Id. at ¶ 13. In other words, the state would not have to offer a
judgment entry of conviction to prove a prior offense. Thus, compliance with
Crim.R. 32(C) was not required.
{¶ 18} In the case certified as being in conflict with Gwen’s, the Sixth
District considered whether the state had provided sufficient evidence of five

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prior DUI offenses to raise later charges to felonies of the fourth degree under
R.C. 4511.19(G)(1)(d). State v. Finney, 6th Dist. No. F-06-009, 2006-Ohio-5770.
The statutory language under review was the same as in McCumbers, i.e., a DUI
offense being elevated to a felony if, within 20 years of the offense, the defendant
previously has been convicted of or pleaded guilty to five or more equivalent
offenses. R.C. 2941.1413(A) and 4511.19(G)(1)(d). The Sixth District did not
analyze the phrase “or pleaded guilty to” but merely held that because the prior
convictions are “an element of the offense, the state was required to prove the
prior convictions by providing a judgment of conviction executed in conformity
with Crim.R. 32(C).” Id. at ¶ 18.
D. Resolution—Proving a Prior Conviction to Raise the Level of an Offense
{¶ 19} The state would rewrite the statute to say that if court records show
that a defendant has either entered a guilty plea or been found guilty of a
domestic-violence offense in two prior instances, he or she is subject to being
charged with an increased level of domestic violence. But as noted above, R.C.
2919.25(D)(4) requires the state to prove beyond a reasonable doubt that a
defendant “previously has pleaded guilty to or been convicted of two or more
offenses of domestic violence” before being subject to a penalty for a third-degree
felony. When the state chooses to prove a prior offense not through a guilty plea,
but via a conviction, and the defendant does not stipulate to the fact of the
conviction, the judgment entry of conviction offered must contain the four
elements described in Crim.R. 32(C) and in State v. Lester, 130 Ohio St.3d 303,
2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus. A finding of
guilt is not enough.
{¶ 20} We do not agree with the Ninth District’s acceptance of the
argument that the word “convicted” refers only to a determination of guilt and not
a judgment of conviction. In State v. Henderson, 58 Ohio St.2d at 178, 389
N.E.2d 494, this court held that a sentence must have been imposed before an

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offender may be regarded as having a prior conviction. “ ‘[C]onviction’ includes
both the guilt determination and the penalty imposition.” (Emphasis deleted.)
State v. Poindexter, 36 Ohio St.3d 1, 5, 520 N.E.2d 568 (1988). A judgment of
conviction does not exist without a sentence. State v. Robinson, 187 Ohio App.3d
253, 2010-Ohio-543, 931 N.E.2d 1110, ¶ 27 (1st Dist.). And we have determined
that a judgment entry of conviction must follow Crim.R. 32(C) to be appealable.
State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. A final,
appealable judgment entry of conviction must contain (1) the fact of the
conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp
indicating the entry upon the journal by the clerk. State v. Lester, 130 Ohio St.3d
303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus. When the
state chooses to provide a judgment of conviction pursuant to R.C. 2945.75(B)(1),
the entry must comply with Crim.R. 32(C). This will be “sufficient” proof of the
conviction.
{¶ 21} Gwen objects to the admission of State’s Exhibits 3 and 4, arguing
that the entries do not meet the requirements of Crim.R. 32(C) and State v. Baker.
The court of appeals agreed that State’s Exhibit 3 was insufficient, and we agree
on that point. However, we do not agree that Exhibit 3 need not comply with
Crim.R. 32(C). As to State’s Exhibit 4, we also agree with the court of appeals
that although the entry is not technically correct in stating the level of offense,
Gwen’s own admission that he had been convicted of domestic violence in the
case to which that entry referred proves at least one prior offense. Id. at ¶ 39.
III. Conclusion
{¶ 22} We answer the certified question, as modified, in the following
way. First, the method set forth in R.C. 2945.75(B)(1) is not the exclusive
method for proving a prior conviction. We agree with those appellate courts that
have held that other methods may exist to prove the element beyond a reasonable
doubt. See, e.g., State v. Frambach, 81 Ohio App.3d 834, 843, 612 N.E.2d 424

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(9th Dist.1992); State v. Chaney, 128 Ohio App.3d 100, 105-106, 713 N.E.2d
1118 (12th Dist.1998); In re R.B., 6th Dist. Nos. H-10-018 and H-10-019, 2011-
Ohio-5042, ¶ 10.
{¶ 23} Secondly, we hold that when, pursuant to R.C. 2945.75(B)(1), the
state chooses to offer judgment entries to prove the element of prior domestic-
violence convictions in order to increase the offense level of a later domestic-
violence charge under R.C. 2919.25(D)(4), the judgments must comply with
Crim.R. 32(C). In that event, the judgment entry must set forth (1) the fact of a
conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp
indicating the entry upon the journal by the clerk. State v. Lester, 130 Ohio St.3d
303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus, explaining
Crim.R. 32(C), and modifying State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-
3330, 893 N.E.2d 163.
{¶ 24} For the reasons stated, while we disapprove of part of the
reasoning contained in the court of appeals’ opinion, we affirm its judgment. See
State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, 784
N.E.2d 99, ¶ 18 (this court will not reverse a correct judgment merely because the
reasoning is flawed).
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, CUPP, and MCGEE BROWN, JJ., concur.
LUNDBERG STRATTON and O’DONNELL, JJ., concur in part and dissent in
part.
__________________
O’DONNELL, J., concurring in part and dissenting in part.
{¶ 25} In this appeal, we confront two issues: one, whether R.C.
2945.75(B)(1) provides the exclusive method by which the state must prove a
prior conviction for purposes of enhancing the level of a subsequent domestic-
violence offense and two, whether an entry of judgment offered for that purpose

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must comply with the finality requirements of Crim.R. 32(C). Although I concur
in the holding of the majority that the state is not restricted to the method for
proving a prior conviction set forth in R.C. 2945.75(B)(1), I respectfully dissent
from the determination that an entry of judgment offered for that purpose must
comply with Crim.R. 32(C).
Enhancement of a Subsequent Offense of Domestic Violence
{¶ 26} Domestic violence is a third-degree felony if the offender
“previously has pleaded guilty to or been convicted of two or more offenses of
domestic violence.” R.C. 2919.25(D)(4). A prior conviction is an essential
element of a crime when it enhances the level of the subsequent offense, State v.
Allen, 29 Ohio St.3d 53, 54, 506 N.E.2d 199 (1987), and the state is required to
prove this element beyond a reasonable doubt, State v. Henderson, 58 Ohio St.2d
171, 173, 389 N.E.2d 494 (1979). Thus, to sustain a conviction for domestic
violence as a third-degree felony in accordance with R.C. 2919.25(D)(4), the state
assumed the burden to prove beyond a reasonable doubt that Gwen “previously
has pleaded guilty to or been convicted of two or more offenses of domestic
violence.”
{¶ 27} Regarding such proof, R.C. 2945.75(B)(1) provides:

Whenever in any case it is necessary to prove a prior
conviction, a certified copy of the entry of judgment in such prior
conviction together with evidence sufficient to identify the
defendant named in the entry as the offender in the case at bar, is
sufficient to prove such prior conviction.

(Emphasis added.)
{¶ 28} Following this framework, the first issue is whether R.C.
2945.75(B)(1) provides the exclusive method by which the state must prove a

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prior conviction for purposes of enhancing a subsequent domestic-violence
offense, and its resolution requires interpretation of the statute. The goal of
statutory construction is to ascertain and give effect to the intent of the legislature.
State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 11.
When analyzing a statute, we first examine its plain language and apply the
statute as written when the meaning is clear and unambiguous. State v. Lowe, 112
Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9.
{¶ 29} R.C. 2945.75(B)(1) provides that a certified copy of an entry of
judgment and identification of the defendant named in the entry constitute
sufficient evidence of a prior conviction. The language of that statute is plain and
its meaning is unambiguous; when the state needs to prove a prior conviction to
enhance a subsequent offense, specific evidence offered to identify the defendant
together with the judgment of conviction is sufficient proof. R.C. 2945.75(B)(1),
however, does not contain any language suggesting that this method is the
exclusive method of proof; it merely identifies evidence that is sufficient proof.
{¶ 30} Therefore, I agree with the determination that R.C. 2945.75(B)(1)
provides one method by which the state may prove a prior conviction, but it is not
the only method by which the state must do so, and, thus, I concur in this holding
of the majority.
{¶ 31} The second issue we confront is whether an entry of judgment
offered by the state as proof of a prior conviction must comply with the finality
requirements of Crim.R. 32(C). Resolution requires that we construe R.C.
2919.25(D), which provides for enhancement of a subsequent domestic-violence
offense if the offender “previously has pleaded guilty to or been convicted of two
or more offenses of domestic violence.”
{¶ 32} The terms “pleaded guilty” and “convicted” are at the core of this
controversy and provide the starting point for analysis, which requires that we
read these terms in context and construe them according to the ordinary rules of

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grammar and common usage. R.C. 1.42. The language here is plain and its
meaning is unambiguous; these terms connote past action, identifying the means
by which an offender possesses a prior conviction for domestic violence, and read
together in context denote a determination of guilt.
{¶ 33} Further, R.C. 2919.25(D) does not mention or contain any
reference to Crim.R. 32(C), and it contains no language suggesting that an entry
of judgment offered by the state to prove a prior conviction must include the
technical requirements for finality, which have developed in the context of
appealable orders for the purpose of providing a date certain from which the time
for appeal begins to run, and which share neither context nor purpose with offense
enhancement. Thus, in my view, reading R.C. 2919.25(D) as requiring
compliance with Crim.R. 32(C) adds an element that does not exist in the statute.
As such, that reading violates the rule of construction that we give legal effect to
the words of a statute, as well as the principle that an unambiguous statute may
not be modified by adding or deleting words. State v. Teamer, 82 Ohio St.3d 490,
491, 696 N.E.2d 1049 (1998).
{¶ 34} Interpreting R.C. 2919.25(D) in this manner is inconsistent with
our decision in State ex rel. Watkins v. Fiorenzo, 71 Ohio St.3d 259, 643 N.E.2d
521 (1994), which construed language in former R.C. 2921.41(C)(1) providing
that any official who is “convicted of or pleads guilty to” theft in office is forever
disqualified from holding any public office. This court concluded that the statute
required only a determination of guilt, because its plain language allowed for a
guilty plea to invoke disqualification. Id. at 260. In Watkins, the court further
explained that in so wording the statute, “the General Assembly placed
‘convicted’ on equal footing with a guilty plea.”
{¶ 35} The rationale of State ex rel. Watkins v. Fiorenzo is applicable and
supports interpreting R.C. 2919.25(D) in the same manner. Here, too, the General
Assembly placed “pleaded guilty to” and “convicted of” on equal footing because

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either can serve as the basis for enhancing a subsequent domestic-violence
offense. The context in which those terms are used in both cases is also similar,
further buttressing that determination.
{¶ 36} A careful reading of State v. Henderson, 58 Ohio St.2d 171, 389
N.E.2d 494 (1979), discloses that it likewise lends support for this construction.
There, the defendant pled guilty to receiving stolen property in violation of R.C.
2913.51. However, before the trial court imposed sentence, in a separate
indictment, the state alleged that the offense to which the defendant had pled
guilty was grand theft pursuant to former R.C. 2913.02(B), which enhanced the
offense from a misdemeanor to a fourth-degree felony. The statutory language
provided that if the offender had “previously been convicted of a theft offense,
then violation of this section is grand theft, a felony of the fourth degree.” 1972
Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1927. Guided by the mandate of
R.C. 2901.04(A) to construe definitions of criminal offenses against the state and
in favor of the accused, as well as by the fact that a prior conviction constituted an
element of the crime of grand theft, this court concluded that the term “convicted”
in the statute meant a final judgment of conviction. In addition, our analysis
expressed agreement with “the reasoned conclusion” of the appellate court that “if
the allegation of a plea of guilty is legally insufficient to charge an offense of
which a prior conviction is a requisite element, then the proof of such plea is
necessarily insufficient to establish this element of the charged offense.”
Henderson at 177.
{¶ 37} The syllabus paragraphs of Henderson appear to support a contrary
result, but the differences in statutory language and purposes between that case
and this make Henderson irrelevant. Unlike former R.C. 2913.02(B) in
Henderson, R.C. 2919.25(D) does not limit enhancement to past convictions. It
includes guilty pleas, which expresses a legislative intent to lessen the state’s

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burden of proof. Instead, the majority increases the state’s burden by requiring
compliance with Crim.R. 32(C).
{¶ 38} Notably, the author of the majority dissented in State v. Whitfield,
and advanced arguments similar to those expressed in this dissent. 124 Ohio
St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 31-34 (Lanzinger, J., dissenting).
{¶ 39} In my view, the language of R.C. 2919.25(D) is plain and its
meaning is unambiguous, and it contains no language suggesting that an entry of
judgment must comply with Crim.R. 32(C). Thus, reading R.C. 2919.25(D) to
mandate that an entry of judgment include all the elements of finality adds a
requirement that is not found in the statute. Such a construction violates the duty
to apply a statute as written and not to read words into a statute that the legislature
did not place there. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895
N.E.2d 149, ¶ 37.
{¶ 40} Accordingly, an entry of judgment offered by the state pursuant to
R.C. 2945.75(B)(1) to prove a prior conviction for purposes of enhancing a
subsequent domestic-violence conviction need not comply with Crim.R. 32(C);
enhancement in R.C. 2919.25(D) is premised on a determination of guilt and not
on a judgment containing all the requisites of finality, which developed in an
unrelated context and for a different purpose.
{¶ 41} The purpose and legislative history of R.C. 2919.25 remove any
doubt as to legislative intent. First, the General Assembly’s concern with the
special nature and seriousness of domestic violence is reflected in its decision to
allow the state more leeway in proving prior offenses. A plea of guilty is
sufficient. The legislature could have limited enhancement to cases in which
there is a judgment entry of conviction, but it did not do so.
{¶ 42} Further, in 2002 the 124th General Assembly in Am.Sub.H.B. No.
327 amended R.C. 2919.25(D), adding the phrase “pleaded guilty to” and placed
it next to “convicted of,” joined by the disjunctive “or.” 149 Ohio Laws, Part IV,

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7548. The Act Summary of the Final Bill Analysis sets forth the intent of the
legislature:

Under preexisting law retained by the act, generally, a violation of
the third prohibition is a misdemeanor of the fourth degree, and a
violation of either of the first two prohibitions is a misdemeanor of
the first degree. But under former law, if the offender previously
had been convicted of domestic violence, * * * a violation of the
third prohibition was a misdemeanor of the third degree, and a
violation of either of the first two prohibitions was a felony of the
fifth degree. (R.C. 2919.25.)
***
The act expands the circumstances in which former law
enhanced the penalty for the offense of domestic violence. Under
the act, the penalty also is enhanced when the offender previously
pleaded guilty to any of the offenses described above in
“Formerly.” Under former law, the statutory language provided
for enhancement of the penalty only when the offender previously
had been convicted of any of those offenses. The act also expands
the list of offenses that is relevant in determining the enhancement.
Under the act, the penalty also is enhanced when the offender
previously has been convicted of or pleaded guilty to a violation of
a law of the United States or another state, or a municipal
ordinance of a municipal corporation in another state that is
substantially similar to the violations described above in
“Formerly.” (R.C. 2919.25(D).)

(Emphasis and boldface sic.)

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 January Term, 2012

{¶ 43} The above demonstrates that the legislature added “pleaded guilty”
to expand the circumstances for enhancement, and in doing so, placed guilty pleas
and convictions on an equal footing. Requiring an entry of judgment offered as
proof of a prior conviction to comply with Crim.R. 32(C) narrows the
circumstances for enhancement by disqualifying entries that, coupled with
evidence of identification, would otherwise constitute sufficient evidence of a
prior conviction.
Conclusion
{¶ 44} The language of R.C. 2945.75(B)(1) is plain and its meaning
unambiguous: when the state needs to prove a prior conviction to enhance a
subsequent domestic violence offense, R.C. 2945.75(B)(1) identifies evidence that
constitutes sufficient proof without restricting the state to this method of proof
exclusively.
{¶ 45} I respectfully dissent from the holding of the majority requiring an
entry of judgment offered as proof of a prior conviction for purposes of enhancing
a subsequent domestic-violence offense to comply with Crim.R. 32(C), as such a
construction imposes a new requirement not in the statute and contravenes
expressed legislative intent.
{¶ 46} For these reasons, I would resolve the conflict by holding that a
certified copy of an entry of judgment offered by the state pursuant to R.C.
2945.75(B)(1) to prove a prior conviction for purposes of enhancing a subsequent
domestic-violence offense need not comply with Crim.R. 32(C). I would reverse
that portion of the judgment of the court of appeals and remand for proceedings
consistent with this opinion.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
__________________
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven
DiMartino, Assistant Prosecuting Attorney, for appellee.

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 SUPREME COURT OF OHIO

Neil P. Agarwal, for appellant.
______________________

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