DECISION AND JOURNAL ENTRY. {¶ 1} Appellant, Edward Kelly, IV, appeals from the judgment of the Medina Municipal Court, which convicted him of driving under the influence and enhanced his sentenced based upon a prior juvenile adjudication. We affirm.
I. {¶ 2} In 1998, Appellant had been adjudicated a juvenile traffic offender for DUI. As a result of that adjudication, Appellant was placed on probation and was sentenced to commitment in the detention facility for a period of five days. The court suspended the commitment, conditioned upon Appellant's compliance with the rules of probation.
{¶ 3} On September 4, 2001, Appellant was charged with driving under the influence ("DUI"), in violation of R.C. 4511.19(A)(1). He originally entered a plea of not guilty; however, he subsequently changed his plea to no contest. *Page 287
{¶ 4} Appellant filed a motion challenging the use of his prior juvenile adjudication to enhance his current offense, arguing that his juvenile adjudication cannot be used to enhance a subsequent offense because the adjudication was uncounseled and he had not waived his right to counsel. A hearing was held on Appellant's motion. The court found that Appellant had established a prima facie case that his juvenile conviction was uncounseled and that he had not validly waived his right to counsel. However, the court found that his juvenile adjudication resulted in no actual incarceration, and, therefore, the juvenile adjudication could be used to enhance the penalties of his current conviction. Appellant was sentenced to ten days incarceration for a second DUI within six years. This appeal followed.
II. Assignment of Error "The lower court erred * * * in finding that defendant's juvenile adjudication could be used as a prior conviction for sentencing on the adult omvi conviction."
{¶ 5} In his sole assignment of error, Appellant argues that the trial court erred in using a prior juvenile adjudication to enhance the penalty for his current DUI conviction. We agree.
{¶ 6} R.C. 4511.99 sets forth the penalties for DUI convictions, based upon the offender's prior convictions for DUI. Pursuant to R.C.4511.99(A)(2)(a), if the offender has previously pleaded guilty to, or has been convicted of, one violation of R.C. 4511.19(A) or (B) within the preceding six year period, the penalty for the second offense consists of a mandatory sentence of ten days imprisonment. If the offender has not previously been convicted of DUI within the preceding six years, the mandatory sentence is three days; however, the court may suspend the three days if the court places the offender on probation and requires the offender to attend a drivers' intervention program. R.C. 4511.19(A)(1). In the case sub judice, if the court uses Appellant's prior juvenile adjudication to enhance the penalties for the current offense, Appellant will be subject to the mandatory ten day sentence.
{¶ 7} R.C. 2901.08 provides that a prior juvenile adjudication is considered a prior conviction for purposes of determining the offense with which a person is charged and in determining the proper sentence to be imposed. R.C. 2901.08 states:
"If a person is alleged to have committed an offense and if the person previously has been adjudicated a * * * juvenile traffic offender for a violation of a law or ordinance, the adjudication as a * * * juvenile traffic offender is a *Page 288 conviction for a violation of the law or ordinance for purposes of determining the offense with which the person should be charged and, if the person is convicted of or pleads guilty to an offense, the sentence to be imposed upon the person relative to the conviction or guilty plea."
{¶ 8} At least one court has found that R.C. 2901.08 applies to juvenile adjudications of DUI. See State v. Glover (Aug. 19, 1999), 5th Dist. No. 99CA30.
{¶ 9} A defendant facing an enhancement of penalties for an offense due to a prior conviction may challenge the use of the prior conviction on the basis that the prior conviction was constitutionally infirm. See generally State v. Brandon (1989), 45 Ohio St.3d 85; Statev. Adams (1988), 37 Ohio St.3d 295; State v. Gerwin (1982),69 Ohio St.2d 488. The defendant must present sufficient evidence to establish a prima facie showing of the constitutional infirmity of the prior conviction. Adams, at paragraph two of the syllabus. Once a prima facie showing is made, the burden then shifts to the State to prove that the defendant was afforded his right to counsel. State v. Maynard (1987), 38 Ohio App.3d 50, 52-53. A valid waiver will be not presumed upon a silent record. See, e.g., Boykin v. Alabama (1969), 395 U.S. 238,242, 23 L.Ed.2d 274.
{¶ 10} In Nichols v. United States (1994), 511 U.S. 738, 749, the United States Supreme Court held that a sentencing court may consider a defendant's prior uncounseled conviction when it imposes sentence on a subsequent offense if the defendant did not validly waive his right to counsel in the previous case, so long as the prior uncounseled conviction did not result in a term of imprisonment. See, also, Gerwin,69 Ohio St.2d 488.
{¶ 11} In this case, the trial court determined that Appellant had established a prima facie case that his prior juvenile adjudication was uncounseled and that he had not validly waived his right to counsel. Appellant contends that because he was uncounseled in his juvenile adjudication, the prior adjudication cannot be used to enhance a subsequent sentence.
{¶ 12} In addressing a similar issue, this Court recently stated:
"In State v. Brandon, (1989), 45 Ohio St.3d 85, 86, the Supreme Court of Ohio stated: `It is unquestioned that an indigent defendant may not be sentenced to a term of imprisonment unless the state has afforded said defendant the right to assistance of counsel.' Where an indigent defendant is not represented by counsel, has not validly waived counsel, and is sentenced to a term of incarceration, `such a conviction may not be used to *Page 289 enhance a sentence in any subsequent conviction.' (Emphasis sic.) Id. at 87. Crim.R. 44(B) provides, in relevant part:
"`When a defendant charged with a petty offense is unable to obtaincounsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel.' (Emphasis added.)
"The Supreme Court discussed what a court's obligation to provide counsel entails in State v. Tymcio (1975), 42 Ohio St.2d 39, 43-44:
"`The constitutionally protected right to the assistance of counsel is absolute. "* * * absent a knowing and intelligent waiver, no person may be imprisoned for any offense * * * unless he was represented by counsel at his trial."' Argersinger v. Hamlin (1972), 407 U.S. 25, 37,32 L.Ed.2d 530, 92 S.Ct. 2006; Gideon v. Wainwright (1963), 372 U.S. 335,9 L.Ed.2d 799, 83 S.Ct. 792.
"`The obligation to provide counsel is often said to run to the "indigent." Generally speaking, such a statement is true, because undisputed indigence, and the inability for that reason alone to obtain counsel, is the major reason requiring the assistance of court-appointed counsel. In fact, the temptation is to say that where nonindigency can be factually found, the appointment of counsel by the court not only is not required, but may not be permitted.
"`Such a rigid requirement would be arguable if indigency were judicially definable as an abstract term without regard to the circumstances of the particular case, and if indigency, as so defined, were the only actual fact bearing on the inability to obtain counsel in this and other cases. But it is not.
"`* * *
"`Many factors may impinge upon a defendant's inability to obtain counsel, factors which may differ greatly from case to case.
"`* * *
"`To make the right to the assistance of court-appointed counsel a factual reality, the determination of need must turn, not upon whether an accused ought to be able to employ counsel, but whether he is in fact able to do so. Absent a knowledgeable and intelligent waiver, a defendant may not be imprisoned unless he was represented by counsel at his trial. (Emphasis sic.) Argersinger, supra; Gideon, supra.'
"In the present case, there is no evidence that appellant was indigent at the time of his prior conviction, and he has not claimed on appeal that he was indigent. See State v. Francis (May 4, 1994), 9th Dist. No. 16351. Furthermore, there is no evidence in the record to suggest that appellant was otherwise unable to obtain counsel, and he has not argued on *Page 290 appeal that he was otherwise unable to obtain counsel. Absent evidence that appellant was indigent or otherwise unable to obtain counsel, appellant could not make a prima facie showing that his prior conviction was uncounseled. See, State v. Lamb, 5th Dist. No. 2002-CA-00083, 2002-Ohio-5569, at ¶ 9. See, also, State v. Ocepek (Apr. 15, 1998), 9th Dist. No. 18542; State v. Tymcio, supra." State v. Smith, 9th Dist. No. 21274, 2003-Ohio-3159, at ¶¶ 8-10.
{¶ 13} The same analysis applies in the present appeal. Appellant does not even allege he was indigent. Moreover, at the hearing before the trial court, evidence of a written waiver of counsel signed by appellant and his parents was admitted into evidence. Appellant did not testify that he was not informed of his right to counsel; he only testified that he did not remember whether he was informed. This is insufficient. Consequently, the trial court reached the right result, but for the wrong reasons. See State v. Blank (1997), 118 Ohio App.3d 441.
{¶ 14} Appellant's assignment of error is overruled.
III. {¶ 15} Appellant's sole assignment of error is overruled. The judgment of the Medina Municipal Court is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the, County of, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Exceptions.
LYNN C. SLABY, P.J., and CARR, J., concur.
REECE. J, dissents.
JOHN W. REECE, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to Article IV, § 6(C), Constitution.)