[Cite as State v. Meyers, 2015-Ohio-5499.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals Nos. E-15-042
E-15-043
Appellant
Trial Court Nos. 2015 CR 0075
v. 2015 CR 0205
James Meyers DECISION AND JUDGMENT
Appellee Decided: December 30, 2015
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, Mary Ann
Barylski, Chief Assistant Prosecuting Attorney, and Jeanne Lippert,
Assistant Prosecuting Attorney, for appellant.
Jeffrey J. Whitacre, for appellee.
*****
SINGER, J.
{¶ 1} Appellant, state of Ohio, brings this accelerated appeal from the Erie County
Court of Common Pleas judgments granting the motions to dismiss of appellee, James
Meyers. We conclude the trial court erred in granting appellee’s motions; thus, we
reverse.
{¶ 2} The state sets forth two assignments of error:
Assignment of error No. One: The trial court committed prejudicial
error when the trial court ruled that appellee’s 2001 conviction for
operating a motor vehicle while intoxicated was constitutionall [sic] infirm
so that the conviction could not be used for purposes of penalty
enhancement.
Assignment of error No. Two: The trial court committed prejudicial
error when the trial court dismissed the indictments after ruling that
appellee’s 2001 conviction for operating a motor vehicle while intoxicated
was constitutionally infirm.
{¶ 3} On February 11, 2015, appellee was indicted by an Erie County Grand Jury,
in case No. 2015 CR 0075, for two counts of operating a motor vehicle under the
influence of alcohol or drugs (“OVI”) on December 21, 2014, in violation of R.C.
4511.19(A)(1)(a) and (G)(1)(d). The indictment stated appellee had previously been
convicted of OVI five times within the past twenty years, elevating the offense to a
fourth-degree felony. On May 14, 2015, appellee was indicted by an Erie County Grand
Jury, in case No. 2015 CR 0205, for two counts of driving while intoxicated on April 4,
2015. This indictment also stated appellee had previously been convicted of OVI five
times within the past twenty years, elevating the offense to a fourth-degree felony.
2.
{¶ 4} On May 29, 2015, appellee filed motions to dismiss the indictments and
argued the state was trying to enhance the penalty for the alleged offenses based on a
constitutionally deficient prior conviction from March 2001. Appellee asserted the case
sheet from this 2001 conviction, which he attached to his motions, showed the conviction
was uncounseled and the waiver of counsel was “undocumented.” Appellee contended
absent proof of a valid waiver of counsel, the state may not enhance his charges to
felonies. The state opposed the motions.
{¶ 5} On July 6, 2015, appellee filed supplements to his motions to dismiss
arguing that the colloquy between the municipal court and appellee regarding waiver of
counsel was constitutionally deficient for several reasons. First, appellee asserted the
court did not inquire about his financial status or advise him if he could not afford
counsel that counsel would be appointed. Next, appellee contended the court did not
fully explain all possible penalties and did not mention collateral consequences of the
conviction. Last, appellee claimed the court did not reference any possible defenses or
mitigating circumstances that could be raised. The state opposed appellee’s supplemental
motions.
{¶ 6} On July 24, 2015, the trial court granted the motions to dismiss and
dismissed both cases without prejudice. The state appealed the rulings then moved to
have the cases consolidated since each case raised the same issues and law; we granted
the motion.
3.
{¶ 7} In the first assignment of error, the state contends the trial court erred when
it ruled appellee’s 2001 OVI conviction was constitutionally infirm and could not be used
to enhance a subsequent OVI charge from a misdemeanor to a felony.
Standard of Review—Motion to Dismiss
{¶ 8} A trial court’s ruling on a motion to dismiss is subject to de novo review.
State v. Benton, 136 Ohio App.3d 801, 805, 737 N.E.2d 1046 (6th Dist.2000). Thus, we
will independently review the record, giving no deference to the trial court’s decision.
Grine v. Sylvania Schools Bd. of Edn., 6th Dist. Lucas No. L-06-1314, 2008-Ohio-1562,
¶ 41.
Right to Counsel/Waiver of Counsel
{¶ 9} The Sixth and Fourteenth Amendments to the United States Constitution
require that no indigent criminal defendant be sentenced to a term of imprisonment unless
the state has made available to the defendant the right to assistance of counsel. Scott v.
Illinois, 440 U.S. 367, 373-374, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). A criminal
defendant also has an independent right to self-representation. Faretta v. California, 422
U.S. 806, 818-819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). To proceed pro se, a
defendant must knowingly, voluntarily and intelligently waive the Sixth Amendment
right to counsel. Id. at 819. Thus, the trial court must make a sufficient inquiry to decide
whether a defendant fully understands and intelligently waives counsel. State v. Gibson,
45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the syllabus.
4.
OVI
{¶ 10} R.C. 4511.19(A)(1)(a) provides that “[n]o person shall operate any vehicle
* * * within this state, if, at the time of the operation, * * * [t]he person is under the
influence of alcohol, a drug of abuse, or a combination of them.” An offender who
violates this provision is guilty of a first degree misdemeanor. R.C. 4511.19(G)(1)(a).
However, the offense of OVI becomes chargeable as a fourth degree felony if, within
twenty years preceding the charged offense, the offender has been convicted of OVI on at
least five prior occasions. R.C. 4511.19(G)(1)(d). The Ohio Supreme Court has held, in
cases where “existence of a prior conviction does not simply enhance the penalty but
transforms the crime itself by increasing its degree, the prior conviction is an essential
element of the crime and must be proved by the state.” State v. Brooke, 113 Ohio St.3d
199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 8. R.C. 2945.75(B)(2) requires the state to
make a prima facie showing of the prior convictions.
{¶ 11} In repeat OVI offender cases where prior convictions for OVI are used to
enhance the penalty for a later OVI conviction, a defendant may attack the
constitutionality of a prior conviction if the conviction was obtained in violation of the
defendant’s right to counsel. Brooke at ¶ 9. “‘Where questions arise concerning a prior
conviction, a reviewing court must presume all underlying proceedings were conducted
in accordance with the rules of law and a defendant must introduce evidence to the
contrary in order to establish a prima-facie showing of constitutional infirmity.’ State v.
Brandon, 45 Ohio St.3d 85, 543 N.E.2d 501 [(1989)], syllabus.” Id. at ¶ 11. “With
5.
respect to ‘uncounseled’ pleas, we presume that the trial court in the prior convictions
proceeded constitutionally until a defendant introduces evidence to the contrary.” State v.
Thompson, 121 Ohio St.3d 250, 2009-Ohio-314, 903 N.E.2d 618, ¶ 6.
{¶ 12} A defendant must prove a prima facie case of constitutional infirmity by a
preponderance of the evidence. R.C. 2945.75(B)(3). Preponderance of the evidence is
evidence which has greater weight or is more convincing than the evidence presented in
opposition to it. Burris v. The Esmond Dairy Co., 6th Dist. Erie No. E-78-61, 1979 WL
207139, *3 (June 15, 1979).
{¶ 13} A defendant presents a prima facie showing of constitutional infirmity by
establishing “the prior convictions were unconstitutional because the defendant had not
been represented by counsel and had not validly waived the right to counsel and that the
prior convictions had resulted in confinement[.]” Thompson at ¶ 6; Brooke at ¶ 11. The
burden then shifts to the state to demonstrate the defendant’s right to counsel was
properly waived. Id.
{¶ 14} In order to determine whether a defendant properly waived counsel in a
prior case, a distinction has been recognized between serious offenses and petty offenses.
Brooke at ¶ 13. A petty offense is defined as “a misdemeanor other than [a] serious
offense.” Crim.R. 2(C). A serious offense is “any felony, and any misdemeanor for
which the penalty prescribed by law includes confinement for more than six months.”
Crim.R. 2(D). In petty offense cases, waiver of counsel shall be made in open court and
6.
recorded. See Crim.R. 22; Crim.R. 44(C). In serious offense cases the waiver shall be in
writing, made in open court and recorded. Id.
Analysis
{¶ 15} Information in the record shows appellee had been convicted of OVI a total
of six times prior to the 2015 indictments for OVI. Appellee’s OVI conviction in March
2001 was his second conviction for OVI; his first conviction for OVI was in 1993.
{¶ 16} The events leading up to appellee’s second OVI conviction occurred on
March 11, 2001, when appellee was charged with OVI, a first degree misdemeanor. On
March 20, 2001, appellee appeared before the Sandusky Municipal Court; he was not
represented by counsel. A transcript of that proceeding is a part of the record. The
transcript shows appellee was queried by the court whether he had an opportunity to
review a form entitled “Your Rights In Court”; appellee responded in the affirmative.
Appellee was then asked if he had any questions regarding the penalties which the court
had explained to him; he replied in the negative. Next, appellee was informed by the
court that he had the right to be represented by an attorney. The court stated, “[a]nd the
section that I specifically want to draw your attention to then is one dealing with
counsel.” The court then said, “it is my understanding this morning that you knowingly,
intelligently, and voluntarily are waiving your right to counsel at this time?” Appellee
responded, “Yes.”
{¶ 17} The record indicates appellee entered a no contest plea, was found guilty
and was sentenced to 90 days in jail with 87 days suspended. The record is less than
7.
clear as to whether appellee ultimately served three days in jail for this 2001 OVI
conviction. Moreover, nothing in the record shows appellee filed a direct appeal of his
conviction.
{¶ 18} In its July 24, 2015 judgment entries, the trial court observed appellee had
five prior convictions for OVI in twenty years, and was represented by counsel in four of
those convictions. Regarding the one conviction when appellee was not represented by
counsel, the trial court noted “[t]here is no written waiver; however, on or about
March 12, 2001 it was placed on the record that Defendant waived his right to an
attorney.” The court recognized the state had argued the written waiver was destroyed
due to the length of time that had elapsed since the conviction. The trial court determined
appellee had made a prima facie showing that he did not validly waive his right to
counsel in the 2001 case and the state did not satisfy its subsequent burden. The court
held, with respect to the 2001 conviction, appellee had not been sufficiently advised of
the significance of his decision to waive legal counsel. Specifically, the court found
appellee was not informed of the “full range of possible penalties including court costs,
all possible license reinstatement fees and subsequent enhancements, collateral
consequences * * *, defenses * * * or * * * mitigating circumstances.”
{¶ 19} In our de novo review of the trial court’s judgments, we must determine
whether appellee presented a prima facie showing of constitutional infirmity regarding
his 2001 conviction. In accordance with Thompson, supra, we start with the presumption
that the court in the 2001 conviction proceeded constitutionally unless and until appellee
8.
introduced evidence to the contrary. Consequently, to make a prima facie showing,
appellee had to produce evidence that he was not represented by counsel, he did not
validly waive his right to counsel and his 2001 conviction resulted in confinement.
{¶ 20} A review of the record, including the March 20, 2001 transcript, shows
appellee did prove by a preponderance of the evidence that he was not represented by
counsel at the time of his 2001 OVI conviction.
{¶ 21} As to whether appellee’s 2001 conviction resulted in confinement,
information in the record, though scarce, indisputably shows he was given a 90-day jail
sentence with 87 days suspended. Even a suspended sentence constitutes a period of
confinement for penalty enhancement cases. State v. Noble, 9th Dist. Lorain No.
07CA009083, 2007-Ohio-7051, ¶ 13. See also Alabama v. Shelton, 535 U.S. 654, 658,
122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) (“[A] suspended sentence that may ‘end up in
the actual deprivation of a person’s liberty’ may not be imposed unless the defendant was
accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged.”
(Citation omitted.)). We therefore conclude appellee did prove by a preponderance of the
evidence that his 2001 conviction resulted in confinement.
{¶ 22} Regarding whether appellee validly waived his right to counsel, the record
indicates appellee’s 2001 OVI conviction was for a petty offense, thus a waiver of his
right to counsel had to be in open court and recorded, but did not have to be in writing.
Crim.R. 22; Crim.R. 44(C). The record shows appellee appeared in open court and a
recording was made of the proceeding. The record also shows the court explained to
9.
appellee the penalties associated with a second OVI offense in six years. The record
further reveals appellee reviewed a form regarding his rights and the court specifically
brought to appellee’s attention the section of the form addressing one’s right to counsel
before appellee waived that right. The form is not a part of the record and the record is
silent as to what information the form contained. While appellee argues his waiver was
constitutionally deficient, he did not introduce any evidence to support his argument.
Had appellee provided an affidavit to the trial court which stated his 2001 conviction was
uncounseled because the form he reviewed did not contain sufficient or appropriate
cautionary advice regarding waiving his right to counsel, this would have established a
prima facie showing of constitutional infirmity. However, “[a] bald allegation of
constitutional infirmity is insufficient to establish a prima facie showing with respect to
an ‘uncounseled’ plea.” Thompson at ¶ 7. Without evidence in the record to the
contrary, we presume the court in the 2001 conviction proceeded constitutionally in
advising appellee of his right to counsel.
{¶ 23} Since appellee did not present a prima facie showing of constitutional
infirmity regarding his 2001 conviction, the burden does not shift to the state to
demonstrate the right to counsel was properly waived and there was no constitutional
infirmity. Therefore, appellee’s 2001 OVI conviction could be used to enhance the
penalty in the present case. Accordingly, the state’s first assignment of error is well-
taken.
10.
{¶ 24} Based on our finding that appellee’s 2001 OVI conviction was not
constitutionally infirm and could be used to enhance a subsequent OVI charge, the state’s
second assignment of error, wherein the state argued the trial court erred in dismissing
the indictments after ruling the 2001 conviction was constitutionally infirm, is well-taken.
{¶ 25} The judgments of the Erie County Court of Common Pleas granting
appellee’s motions to dismiss and dismissing the indictments are reversed and the matter
is remanded for further proceedings consistent with this decision. Pursuant to App.R. 24,
costs of this appeal are assessed to appellee.
Judgments reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
11.