Opinion
CASE NO. 16 MA 0047
12-14-2016
STATE OF OHIO PLAINTIFF-APPELLANT v. BRIAN FAIRCHILD DEFENDANT-APPELLEE
APPEARANCES: For Plaintiff-Appellant Attorney Paul Gains Mahoning County Prosecutor Attorney Ralph Rivera Assistant Prosecutor 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503-1426 For Defendant-Appellee Attorney Anthony Meranto 5111 Market Street, Suite 5 Youngstown, Ohio 44512
OPINION CHARACTER OF PROCEEDINGS: Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 15 CR 325 JUDGMENT: Reversed and Remanded. APPEARANCES:
For Plaintiff-Appellant Attorney Paul Gains
Mahoning County Prosecutor
Attorney Ralph Rivera
Assistant Prosecutor
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503-1426 For Defendant-Appellee Attorney Anthony Meranto
5111 Market Street, Suite 5
Youngstown, Ohio 44512 JUDGES: Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite DeGENARO, J.
{¶1} Plaintiff-Appellant, State of Ohio, appeals the judgment of the trial court excluding Fairchild's 1996 Operating a Vehicle While Impaired conviction from evidence in his 2015 OVI case. As Fairchild did not make a prima facie showing of a constitutional infirmity regarding the 1996 OVI, the trial court erred in sustaining Fairchild's motion to exclude. Accordingly the judgment of the trial court is reversed and the case remanded for further proceedings.
Facts and Procedural History
{¶2} On March 22, 2015, Brian Fairchild was cited for OVI, R.C. 4511.19(F), a fourth degree felony due to his prior convictions. A preliminary hearing was scheduled and Fairchild executed a waiver. The matter was bound over to the grand jury. Fairchild was indicted by the grand jury for Operating a Vehicle While Impaired, R.C. 4511.19(A)(1)(a)(G)(1)(d), and Operating a Vehicle While Impaired, R.C. 4511.19(A)(1)(h) (G)(1)(d), both fourth degree felonies.
{¶3} On November 20, 2015, Fairchild filed a motion to exclude one of his prior OVI convictions, specifically the Youngstown Municipal Court conviction in Case No. 1996 TR 216C, on the basis that there was "a serious question as to whether this Defendant was counseled at the time of said conviction." The trial court held an evidentiary hearing on the motion. Fairchild testified that he was not represented by counsel for the 1996 OVI. The State presented "a certified copy of every record that we could obtain" from the 1996 OVI conviction. The trial court sustained Fairchild's motion to exclude on April 18, 2016. The State timely appealed as of right pursuant to Criminal Rule 12(K) and R.C. 2945.67(A).
State's Appeal
{¶4} In its sole assignments of error, the State asserts:
THE TRIAL COURT SHOULD HAVE DENIED DEFENDANT'S MOTION TO EXCLUDE, BECAUSE THE BURDEN NEVER SHIFTED TO THE STATE TO PROVE DEFENDANT'S PRIOR OVI CONVICTION WAS CONSTITUTIONALLY SOUND AFTER DEFENDANT FAILED TO PRESENT A PRIMA FACIE SHOWING
THAT HE WAS UNCOUNSELED.
{¶5} R.C. 4511.19(G)(1)(d) provides "an offender who, within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more violations of that nature is guilty of a felony of the fourth degree." "When 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, citing State v. Allen, 29 Ohio St.3d 53, 506 N.E.2d 199 (1987).
{¶6} When prosecuting a R.C. 4511.19 charge the State must first establish the existence of prior convictions. State v. Lowe, 7th Dist. No. 08 CO 37, 2010-Ohio-2788, ¶ 26. Generally, "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." R.C. 2945.75(B)(1). But where the defendant makes a prima facie showing that a prior conviction was unconstitutional because it was uncounseled, the burden of proof shifts back to the State which must prove the defendant properly waived the right to counsel. Brooke, paragraph one of the syllabus; State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶ 20. (Brooke not limited to cases where conviction actually resulted in confinement).
{¶7} Although Fairchild does not dispute his conviction for the 1996 OVI offense, he successfully argued in the trial court that this prior conviction should be excluded from evidence because it was uncounseled. In the trial court and on appeal the State contends that Fairchild never made the prima facie showing of constitutional infirmity necessary to shift the burden back to the State to prove compliance. Specifically, that Fairchild failed to prove that he did not validly waive counsel.
{¶8} "[A]ny waiver of counsel must be made on the record in open court and in cases involving serious offenses where the penalty includes confinement of more than six months, the waiver must also be in writing and filed with the court." Brooke, ¶ 24. A first OVI offense is a first-degree misdemeanor and petty offense. State v. Faulkner, 2d Dist. No. 2013-CA-43, 2015-Ohio-2059, ¶ 11. Fairchild's 1996 conviction was his first OVI offense. As such, it was a petty offense which only required that the waiver of counsel be made on the record in open court; a written, filed waiver was not required.
{¶9} Thus, the first step in our analysis is whether Fairchild made a prima facie showing that his conviction for the 1996 OVI was uncounseled. To that end, the Ohio Supreme Court clarified the definition of uncounseled as previously articulated in Brooke:
[A] defendant cannot establish a prima facie showing as to "uncounseled" merely by establishing that he or she had been convicted without representation. For one thing, it is beyond dispute that a person has a constitutional right to represent himself or herself; therefore, it is not possible to establish a constitutional infirmity merely by showing that a person did not have counsel. See Section 10, Article I, Ohio Constitution; State v. Gibson (1976), 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399, paragraph one of the syllabus. Furthermore, in State v. Brandon (1989), 45 Ohio St.3d 85, 543 N.E.2d 501, syllabus, we stated, "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." With respect to "uncounseled" pleas, we presume that the trial court in the prior convictions proceeded constitutionally until a defendant introduces evidence to the contrary. Thus, we conclude that for purposes of penalty enhancement in later convictions under R.C. 4511.19, after the defendant presents a prima facie showing that the prior convictions were unconstitutional because the defendant had not been represented by counsel and had not validly
waived the right to counsel * * * the burden shifts to the state to prove that the right to counsel was properly waived.State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314, 903 N.E.2d 618, ¶ 6-7.
* * * [N]either R.C. 2945.75 nor Brooke requires the state to prove that Thompson had been represented or that he had validly waived representation. According to Brooke, the state does not have the burden of proving that Thompson had been represented or that he had validly waived representation unless Thompson makes a prima facie showing that he had been "uncounseled" in his prior convictions—that is, that he had not been represented and that he had not validly waived representation. Thompson made no such showing. Unlike in Brooke, the defendant here did not submit evidence, whether testimony, affidavits, or transcripts, to bolster his argument that his waiver of counsel was constitutionally infirm. A bald allegation of constitutional infirmity is insufficient to establish a prima facie showing with respect to an "uncounseled" plea. Because Thompson has not introduced evidence to the contrary and established a prima face showing, we presume that the trial courts in the prior convictions proceeded constitutionally.
{¶10} To summarize the Ohio Supreme Court's holding in Thompson, in order to overcome the presumption that the trial court in the prior convictions proceeded constitutionally, a defendant must make a two-fold prima facie showing of an uncounseled conviction for purposes of R.C. 4511.19: that he or she was unrepresented and did not validly waive counsel. Only then does the burden shift to the State to prove either the defendant did have representation or validly waived counsel.
{¶11} Fairchild failed to support his motion with an affidavit or any supporting exhibits. He briefly testified that he went to court by himself, didn't have a lawyer, and pled. However, Fairchild failed to assert and demonstrate that he did not validly waive his right to counsel.
{¶12} Pursuant to Thompson and Brooke, we presume the trial court in Fairchild's 1996 OVI case proceeded constitutionally, and hold the burden of proof did not shift to the State because Fairchild failed to demonstrate that he was not only unrepresented, but that he did not validly waive counsel. Accordingly, the State's assignment of error is meritorious and this matter is reversed and remanded for further proceedings. Donofrio, P. J., concurs. Waite, J., concurs.