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.

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)).

Thus, an uncounseled conviction cannot be used to enhance the penalty for a later conviction if the earlier conviction resulted in a sentence of confinement. Brooke, 113 Ohio St. 3d 199, at P12, 2007 Ohio 1533, 863 N.E.2d 1024 (citing Nichols v. United States, 511 U.S. 738, 749, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994)).

If a defendant questions the use of a prior conviction based on her having entered an uncounseled plea in the earlier case, the burden is on the defendant to make “a prima facie showing of constitutional infirmity.” Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at Paragraph 11, 863 N.E.2d 1024 (citing State v. Brandon, 45 Ohio St. 3d 85, 543 N.E.2d 501, syllabus (1989)). In order to meet that burden, the defendant must present evidence showing that her earlier plea was uncounseled and resulted in a sentence of incarceration. Id. Then the burden shifts to the state to prove the defendant’s right to counsel was properly waived. Id. In order to meet its burden, the State must prove there was a knowing, voluntary, and intelligent waiver of the defendant’s Sixth Amendment right to counsel. In this case, the Court must consider whether the suspect’s first conviction was constitutionally infirm.

The parties stipulated that the suspect was not represented by counsel when she pleaded guilty to her first violation of Section 4511.19. They also stipulated that she did not sign a written waiver of her right to counsel and served three days of incarceration for that conviction. Ohio’s Ninth District Court of Appeals held that the suspect met her burden of showing constitutional infirmity as she provided evidence, by stipulations of fact, that her first misdemeanor conviction was uncounseled and resulted in a sentence of incarceration. Thus, the burden shifted to the State to prove a valid waiver of her right to counsel.

On a procedural note, the Ninth District Court of Appeals pointed out that the suspect brought this objection to the trial court’s attention in the form of a pre-trial motion to dismiss. This was actually not the appropriate vehicle for this objection because, in this case, the enhancement only affected the penalty and did not raise the degree of the offense charged. A prior conviction is not an essential element of the crime that must be alleged and proven by the State unless the enhancement actually increases the degree of the crime charged. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P8, 863 N.E.2d 1024 (citing State v. Allen, 29 Ohio St.3d 53, 54, 29 Ohio B. 436, 506 N.E.2d 199 (1987)). In this case, the enhancement from a second to third offense merely increased the penalty without affecting the degree of the crime charged. As the prior conviction was not an essential element of the crime, the issue would not have arisen until the sentencing phase. Allen, 29 Ohio St.3d at 55 (citing State v. Cichy, 18 Ohio App. 3d 6, 18 Ohio B. 30, 480 N.E.2d 90 (1984)).

The suspect argued in her motion that her first conviction could not be used for enhancement of her sentence. She placed sufficient evidence of constitutional infirmity before the trial court to shift the burden to the State to prove the validity of the 2004 conviction for sentence enhancement purposes. Ms. Combs then appealed the trial court’s enhanced sentence because it was based on the constitutionally infirm prior conviction. Although objecting at the sentencing phase, rather than before trial, would have been preferable, this Court has determined that Ms. Combs fully presented this issue to the trial court and has preserved the issue for appeal.

WAIVER OF THE RIGHT TO COUNSEL

The Sixth Amendment to the Constitution of the United States of America provides that “In all criminal prosecutions, the accused shall enjoy the right to. . . have the assistance of counsel for his defense.” If an uncounseled conviction results in a sentence of incarceration, that conviction cannot be used to enhance the penalty for a later conviction. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P12, 863 N.E.2d 1024 (citing Nichols v. United States, 511 U.S. 738, 749, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994)). In this case, the parties agree that the suspect was not represented by counsel when she pleaded guilty to her first violation of Section 4511.19 of the Ohio Revised Code. In order to meet its burden in this case, the State must prove there was a knowing, voluntary, and intelligent waiver of Ms. Combs’ right to counsel when she entered her guilty plea in 2004. Id. at P11.

“In all cases where the right to counsel is waived, the court ‘must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.’” Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P53, 863 N.E.2d 1024 (quoting State v. Gibson, 45 Ohio St. 2d 366, 345 N.E.2d 399, paragraph two of the syllabus (1976)). In petty offense cases, involving a penalty of no more than six months incarceration, all waivers of counsel must be made on the record in open court. Id. at P22-23. In serious offense cases, involving penalties including more than six months of incarceration, any waiver of counsel must be made both on the record in open court and in writing filed with the court. Id. at Paragraph 24.

Section 4511.19(G)(1) of the Ohio Revised Code, provides that operating a motor vehicle while intoxicated, as a first offense, is a first degree misdemeanor for which the penalty includes a term of incarceration for a maximum of six months. Accordingly, Ms. Combs’ first conviction for a violation of that section in 2004 was a petty offense. Therefore, a waiver of counsel for that plea hearing was required to have been “in open court” with the “advice and waiver . . . recorded as provided in Rule 22.” Brooke, 113 Ohio St. 3d 199, at P22, 2007 Ohio 1533, 863 N.E.2d 1024 (citing Rule 22 of the Ohio Rules of Criminal Procedure, requiring waivers of counsel in petty offense cases to be recorded).

A knowing, voluntary, and intelligent waiver cannot be presumed from a silent record. Brooke, 113 Ohio St. 3d 199, at P25, 2007 Ohio 1533, 863 N.E.2d 1024 (citing State v. Wellman, 37 Ohio St. 2d 162, 309 N.E.2d 915, at paragraph two of the syllabus (1974)). Thus, “[t]he record must show, or there must be an allegation and evidence which shows, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” Brooke, 113 Ohio St. 3d 199, at P25, 2007 Ohio 1533, 863 N.E.2d 1024 (quoting State v. Wellman, 37 Ohio St. 2d 162, 309 N.E.2d 915, at paragraph two of the syllabus (1974) (citing Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962))). The Ohio Supreme Court has determined that, in a petty offense case, even in the absence of a hearing transcript, a waiver of counsel form signed by the judge and the defendant at the plea hearing and filed with the court may be sufficient to satisfy these requirements. Id. at P47. In this case, the question is whether the record contains evidence that shows that Ms. Combs waived her Sixth Amendment right to counsel during her 2004 plea hearing.

There is nothing in the record indicating that the 2004 plea hearing was recorded as required by Rule 22 of the Ohio Rules of Criminal Procedure. Therefore, it is impossible to determine whether the suspect was advised of her right to counsel and voluntarily waived that right in open court. The only evidence tending to show that the trial court advised Ms. Combs of her right to counsel and gave her the opportunity to voluntarily reject the offer, was the journal entry from the plea hearing. That entry purported to recount the details of the hearing including that “[Ms. Combs] was advised of the . . . right to counsel [and] the right to have counsel appointed if indigent . . . [Ms. Combs] knowingly waived these rights.” That entry was, however, only signed by the judge. Ms. Combs did not sign it. Accordingly, that document cannot be relied upon as evidence of Ms. Combs’ voluntary waiver of her right to counsel. A knowing, voluntary, and intelligent waiver cannot be presumed from a silent record. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P25, 863 N.E.2d 1024 (citing State v. Wellman, 37 Ohio St. 2d 162, 309 N.E.2d 915, at paragraph two of the syllabus (1974)). Without an acknowledgment form signed by Ms. Combs and in the absence of a hearing transcript, it is impossible to say that she voluntarily waived her Sixth Amendment right to counsel when she pleaded guilty to her first offense of operating a vehicle while intoxicated. Accordingly, the 2004 conviction was uncounseled and cannot be used to enhance the penalty for her current offense.

The State has argued that despite the uncounseled nature of the suspect’s first conviction, it was not error for the trial court to use that conviction to sentence Ms. Combs to the mandatory minimum sentence for a third time offender under Section 4511.19 of the Ohio Revised Code. In support of this argument, the State has relied upon the United States Supreme Court case of Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994). Specifically, the State has pointed to language in that opinion regarding the United States Supreme Court having upheld the constitutionality of laws that allowed the consideration of “a wide variety of factors” in sentencing a criminal defendant, including “past criminal behavior, even if no conviction resulted from that behavior.” Nichols, 511 U.S. at 747.

Nichols, however, is inapplicable to this case. Mr. Nichols was being sentenced under the United States Sentencing Guidelines and was assessed one criminal history point for a prior uncounseled misdemeanor conviction that had resulted in a fine, but no sentence of incarceration. The relevant sentencing guidelines specifically authorized assessment of points for prior uncounseled misdemeanor convictions, provided they had not resulted in a sentence of incarceration. The Supreme Court affirmed the conviction and sentence, adhering to a previous holding that rested upon the bright line distinction “between criminal proceedings that resulted in imprisonment, and those that did not.” Nichols, 511 U.S. at 746 (citing Scott v. Illinois, 440 U.S. 367, 372, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979)). In Nichols, the Court held that an uncounseled misdemeanor conviction, valid because it did not result in a sentence of incarceration, “is also valid when used to enhance punishment at a subsequent conviction.” Nichols, 511 U.S. at 749. The Ohio Supreme Court has since relied on Nichols for the proposition that any uncounseled conviction that did result in a sentence of incarceration cannot be used for subsequent penalty enhancement. Brooke, 113 Ohio St. 3d 199, at P12, 2007 Ohio 1533, 863 N.E.2d 1024 (citing Nichols, 511 U.S. at 749).

The State’s reliance on Nichols is, therefore, misplaced. The facts are distinguishable primarily because Ms. Combs’ 2004 conviction did result in a sentence of incarceration. Furthermore, Ms. Combs was not sentenced under the federal guidelines used in the Nichols case. The suspect was sentenced under Section 4511.19 of the Ohio Revised Code. Section 4511.19(G)(1)(c) provides that “an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to two violations of division (A) or (B) of this section or other equivalent offenses is guilty of a misdemeanor” carrying a “mandatory jail term of thirty consecutive days” and a maximum term of one year. This is a statutory penalty enhancement requiring certain conditions to be met. The statute requires a prior conviction or a guilty plea. It does not allow for the consideration of mere allegations of prior criminal behavior that did not result in either a conviction or a guilty plea.

According to the trial court’s judgment entry from which this appeal was taken, the suspect was sentenced as a third time offender within six years. She was given the mandatory minimum sentence of 30 days in jail with the maximum possible sentence for a third time offender hanging over her head in the form of 335 additional days suspended. As discussed above, Ms. Combs did not, in fact, qualify as a third time offender under the terms of the statute. For the reasons discussed above, the suspect’s first offense was unavailable for use to enhance a later penalty. Therefore, the suspect’s record contained only one valid prior conviction for a violation of this section at the time she was charged with her current offense. Accordingly, the trial court’s judgment enhancing the sentence for operating a motor vehicle while intoxicated is reversed and the cause is remanded for resentencing.

CONCLUSION

The trial court’s judgment sentencing the suspect as a third time offender under Section 4511.19 of the Ohio Revised Code was reversed. The suspect’s guilty plea in her 2004 case was accepted without the benefit of legal counsel and in the absence of a knowing, voluntary, and intelligent waiver of her Sixth Amendment right to counsel. Therefore, the suspect’s uncounseled conviction, which resulted in a sentence of incarceration, cannot be used to enhance the penalty for a subsequent offense under Section 4511.19.

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