Summary
holding that a trial court could not use a prior uncounseled conviction, obtained without a valid waiver, to enhance the penalty of a later criminal offense.
Summary of this case from State v. CarnesOpinion
No. 88-1294
Submitted May 30, 1989 —
Decided August 23, 1989.
Criminal law — Sentencing — Evidence — Constitutionality of prior conviction — Reviewing court must presume all underlying proceedings were conducted in accordance with rules of law — Constitutional infirmity established, how.
O.Jur 3d Criminal Law §§ 135, 413.
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.
APPEAL from the Court of Appeals for Summit County, No. 13380.
On June 12, 1987, Keith D. Brandon, appellee, was indicted by the Summit County Grand Jury and was charged with one count of robbery, in violation of R.C. 2911.02, and one count of kidnapping, in violation of R.C. 2905.01(A)(2). The indictment stemmed from an incident which occurred on March 19, 1987, between appellee, his companion Lavaile D. Thomas, and Richard Williams.
Lavaile D. Thomas was also indicted for these same offenses but he is not involved in this appeal.
On that date, Williams was walking down the street when a car, driven by appellee, pulled up alongside. Thomas allegedly exited the car, approached Williams, struck him in the face, and dragged Williams into appellee's car. Once Williams was inside the car, Thomas allegedly took all the money Williams had in his wallet, totalling $35, and forced Williams out of the car. Williams then notified the police of the incident. Subsequently, Williams identified photographs of appellee and Thomas as being those of Williams' assailants.
At trial, appellee testified on his own behalf. During cross-examination, appellee admitted that he had previously been convicted of petty theft. Regarding this prior conviction, appellee testified that "I walked in. I went in the courtroom and they asked me how you plead [ sic], I said, `Guilty' and he sentenced me to six months in Ravenna, Ohio, county jail for petty theft, first offense."
In addition, appellee admitted that he had a second prior conviction for petty theft:
"Q. So you got a theft conviction in Ravenna and a theft conviction in the Akron Municipal Court?
"A. Yes, I do.
"Q. Did you walk right in and just plead guilty to that one as well?
"A. Yes, I did; no contest.
"Q. No contest?
"A. I said I believe I pled no contest or guilty, one of them, would be of the charges, it was either guilty or no contest.
"Q. So since you have been 18 years old you have been twice arrested and convicted of theiving [ sic]?
"A. Yes, I have."
At the close of trial, appellee's counsel asked that the jury be given an instruction on the lesser included offense of theft. The court granted this request. The court also decided to submit to the jury a special interrogatory asking the jury whether they found beyond a reasonable doubt that appellee had been previously convicted of a theft offense. Appellee's attorney objected to the interrogatory, arguing that appellee's prior theft offenses could not be used for enhancement because the prior offenses were not mentioned in the indictment and because it was uncertain whether appellee had the benefit of counsel for his prior convictions. Counsel's exact words were that "[t]here has been no evidence that he was represented by counsel, that he was fully advised of his rights at the time that he entered a plea. I do not believe that is correct, Your Honor. I believe in order to enhance the penalty or the crime, it has to be made in part and parcel of the indictment." The special interrogatory was submitted to the jury.
After deliberations, the jury returned a verdict of not guilty to the kidnapping charge and not guilty to the robbery charge. Appellee was found guilty of the lesser included offense of theft. The jury also found beyond a reasonable doubt that appellee had been convicted of a prior theft offense. The court concluded that the jury had found appellee guilty of a felony crime of grand theft and sentenced him to one and one-half years in prison.
On appeal, the court of appeals, citing State v. Maynard (1987), 38 Ohio App.3d 50, 526 N.E.2d 316, noted that appellee had presented some evidence that his prior theft convictions had been uncounseled. Therefore, according to the court of appeals, the state had the duty to prove that the prior convictions were counseled before those convictions could be used for sentence enhancement purposes. Because the state had not done so, appellee's conviction was modified by the court of appeals with appellee being found guilty of petty theft.
This cause is before this court on a motion for leave to appeal.
Lynn C. Slaby, prosecuting attorney, and Marc R. Wolff, for appellant.
Annette L. Powers and Richard Kasay, for appellee.
The issue before this court is whether appellee's testimony before the trial court constituted evidence indicating that his prior convictions had been uncounseled. We do not believe that appellee's statements constituted such evidence and, therefore, reverse the judgment of the court of appeals.
As noted supra, the jury found appellee not guilty of robbery but guilty of the lesser offense of theft. The jury also, by special interrogatory, found that appellee had a prior conviction for theft. R.C. 2913.02(B) provides in pertinent part that "* * * if the offender previously has been convicted of a theft offense, a violation of this section is theft, a felony of the fourth degree. * * *" Therefore, based on this statute, the trial court was justified in imposing a sentence of one and one-half years.
The crucial question becomes whether appellee was represented by counsel for his prior theft convictions. 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. See Scott v. Illinois (1979), 440 U.S. 367; Argersinger v. Hamlin (1972), 407 U.S. 25; Gideon v. Wainwright (1963), 372 U.S. 335.
This is not to say that counsel is required in all instances. Indeed, in Scott, supra, the court essentially held that uncounseled misdemeanor convictions are constitutionally valid if the offender is not actually incarcerated. However, even though this type of uncounseled conviction may be constitutionally valid, the Supreme Court has specifically stated that such a conviction may not be used to enhance a sentence in any subsequent conviction. In Baldasar v. Illinois (1980), 446 U.S. 222, the court held at 226 that "* * * petitioner's prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction."
Clearly, if it is established that appellee's prior convictions were uncounseled, then it would have been inappropriate for the trial court to use these convictions for the purpose of enhancement of sentence. The question then becomes whether appellee raised the issue of lack of counsel in an appropriate manner.
In State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph two of the syllabus, this court held: "When a defendant raises a constitutional question concerning a prior conviction, he must lodge an objection as to the use of this conviction and he must present sufficient evidence to establish a prima facie showing of a constitutional infirmity." It is our view that appellee failed to meet this burden.
The record indicates that appellee's counsel did object to the interrogatory concerning appellee's prior convictions, arguing that "[t]here has been no evidence that he [appellee] was represented by counsel * * *." We do not agree, however, with appellee or the court of appeals that the record contains any evidence that appellee was not represented by counsel.
Indeed, the most reasonable presumption is just the opposite. Appellee testified that he was found guilty of petty theft and sentenced to six months in jail. As discussed supra, a criminal defendant may not be sentenced to a period of incarceration unless the defendant is represented by counsel or the defendant knowingly waives his right to counsel. Nothing in the record before us indicates any objections were made or appeals taken from appellee's prior convictions. Therefore, we must presume them to be proper. Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium. (All things are presumed to have been rightly and duly performed until it is proved to the contrary.) See State v. Edwards (1952), 157 Ohio St. 175, 47 O.O. 122, 105 N.E.2d 259; Jaffrin v. DiEgidio (1949), 152 Ohio St. 359, 40 O.O. 381, 89 N.E.2d 459. Furthermore, if the presumption of a given set of facts is necessary, we must presume the set of facts that validates, rather than invalidates, the judgment. Fisher Lanning v. Quillen (1907), 76 Ohio St. 189, 81 N.E. 182.
"* * * We are not to presume a state of facts which would invalidate the journal entries, when a different state of facts may be reasonably presumed which would make them regular and valid." Fisher Lanning, supra, at 199, 81 N.E. at 184, citing Sheehan v. Davis (1867), 17 Ohio St. 571, 580.
The court of appeals, citing State v. Maynard, supra, held that appellee presented some evidence that his prior convictions were uncounseled. We disagree. Appellee's testimony merely indicated that he had two prior petty theft convictions. No mention is made of whether these convictions were counseled or not. We presume that appellee's prior convictions were counseled because this presumption validates the judgment of the trial court.
The presumption we entertain is not irrebuttable. Appellee simply failed in his burden of presenting sufficient evidence to establish a prima-facie showing that his prior convictions were uncounseled. Adams, supra. Indeed, appellee's burden in this regard was hardly difficult. Had appellee's counsel simply asked appellee during testimony whether his prior convictions were counseled, a negative response would have established a prima-facie showing of constitutional infirmity. This one question and answer would have then placed on the state the burden of proving that appellee's prior convictions were counseled. Because appellee failed to meet his burden, we presume his prior convictions were counseled and that, therefore, the convictions could be used to enhance his penalty in the case before us to felony theft.
In summation, 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.
Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for reinstatement of sentence.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.