Use of Prior Convictions to Enhance Penalties in OVI cases

In order to be used against you, a previous conviction for OVI must not be constitutionally infirm.  Previous convictions can only be used against you if you had a lawyer or validly waived your right to counsel.

In State v. Brooke, 113 Ohio St.3d 199, 2007 Ohio 1533, at P8, 863 N.E.2d 1024, the Supreme Court of Ohio stated:

“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. Allen (1987), 29 Ohio St.3d 53, 54, 29 Ohio B. 436, 506 N.E.2d 199.  Thus, since the … earlier convictions are elements of [a defendant's] fourth-degree felony, they must be proved beyond a reasonable doubt.  State v. Henderson (1979), 58 Ohio St.2d 171, 173, 389 N.E.2d 494.”

When the state proposes to use a past conviction to enhance the penalty of a later criminal offense, a defendant can challenge that past conviction if the conviction was constitutionally infirm. Id. at P9.  ”A conviction obtained against a defendant who is without counsel, or its corollary, an uncounseled conviction obtained without a valid waiver of the right to counsel, has been recognized as constitutionally infirm.” Id., citing State v. Brandon (1989), 45 Ohio St.3d 85, 86, 543 N.E.2d 501.

In State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph two of the syllabus, the Supreme 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.’”

The Supreme Court stated more recently in Brooke:  ”‘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.’ Brandon at the syllabus.  Once a prima facie showing is made that a prior conviction was uncounseled, the burden shifts to the state to prove that there was no constitutional infirmity. Id. at 88.  For purposes of penalty enhancement in later convictions under R.C. 4511.19, when the defendant presents a prima facie showing that prior convictions were unconstitutional because they were uncounseled and resulted in confinement, the burden shifts to the state to prove that the right to counsel was properly waived.” Brooke at P11.

Absent a prima facie case for constitutional infirmity, “a reviewing court must presume all underlying proceedings were conducted in accordance with the rules of law.” Brandon, supra, at the syllabus.

The  Supreme Court further explained in Brandon, “The presumption we entertain is not irrebuttable. [Brandon] simply failed in his burden of presenting sufficient evidence to establish a prima-facie showing that his prior convictions were uncounseled.  Adams, supra.  Indeed, [Brandon's] burden in this regard was hardly difficult. Had [Brandon's] counsel simply asked [him] 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 [Brandon's] prior convictions were counseled. Because [Brandon] 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.” Id. at 87-88.

In addition, defendants may also easily meet this burden by filing a motion prior to trial, along with an affidavit stating they were unrepresented by counsel and did not validly waive their right to counsel, or other evidence showing the same. See Brooke at P31.  But if the defendant in an OVI case never puts forward some evidence that the previous convictions were uncounseled, or that the right to counsel was not validly waived, then the burden never shifts to the State to put forward evidence on that issue.