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.

Rule Against Enhancing DUI OVI Penalties with Prior Uncounseled Convictions

In a recent case before Ohio’s Ninth District Court of Appeals, an OVI DUI suspect was charged with a third offense within six years of operating a vehicle while intoxicated under Section 4511.19(A)(1) of the Ohio Revised Code. Under that statute, each offense carries an increasingly serious penalty including fines, license suspensions, and mandatory terms of incarceration. R.C. Section 4511.19(G)(1). The third offense within six years carries a mandatory sentence of 30 days in jail with a maximum possible term of one year of incarceration. R.C. Section 4511.19(G)(1)(c). In contrast, a second offense carries a mandatory sentence of ten days in jail with a maximum possible term of six months of incarceration. R.C. Section 4511.19(G)(1)(b).

In that case, the suspect argued that the State should not be permitted to use her 2004 conviction to enhance the penalty for her current charge because that conviction is constitutionally infirm. She bases this conclusion on her assertion that when she pleaded no contest to the first charge, she was without legal counsel and had not knowingly waived that right. The suspect did not attack her second conviction for operating a motor vehicle while intoxicated. Thus, the question before the Court was whether her current charge should be considered a second offense as opposed to a third offense for sentencing purposes.

Generally, the law does not permit a criminal defendant to attack a previous conviction in a subsequent case. State v. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P9, 863 N.E.2d 1024 (2007). There is an exception, however, “when the state proposes to use the past conviction to enhance the penalty of a later criminal offense.” Id. In that situation, a defendant may attack the constitutionality of a prior conviction if it was obtained in violation of the defendant’s Sixth Amendment right to counsel. Id. The Supreme Court of Ohio has held that an uncounseled conviction, obtained without a valid waiver of the Sixth Amendment right to counsel, is “constitutionally infirm” if the result was a sentence of incarceration. Id. at Paragraph 9 (citing State v. Brandon, 45 Ohio St. 3d 85, 86, 543 N.E.2d 501 (1989); Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994)).
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