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Prior OVI Convictions: State v. Brooke

Dayton DUI Attorney Charles Rowland > DUI Law  > Case Law  > Prior OVI Convictions: State v. Brooke

Prior OVI Convictions: State v. Brooke

prior ovi convictionDo You Have A Prior OVI Conviction? We Can Help With That

In State v. Brooke (2007), 113 Ohio St.3d 199 the Ohio Supreme Court addressed the issue of a prior OVI conviction. Via Justice Lanziger held the state to its burden in proving the voluntariness of waivers of counsel in prior OVI convictions.  The State will be required to show more than that a conviction was recorded and, when challenged, carries the burden of proving the waiver of counsel was voluntary and complied with applicable law.  If you face a 2nd, 3rd, 4th or 5th DUI make sure your attorney makes the State live up to this burden. Below are some relevant excerpts from the decision.

Proof of Prior OVI Conviction

{¶7} The General Assembly has provided that a fourth DUI conviction within a stated period is a felony. R.C. 4511.19(G)(1)(d) states that “an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to three or four violations of division (A) or (B) of this section or other equivalent offenses or 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.” Although both parties referred at oral argument to the statutory 20-year “look-back period”2 and the need for courts to retain records for this length of time, we note that in this case, the three prior convictions occurred within six years.

{¶8} 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 OBR 436, 506 N.E.2d 199. Thus, since the three earlier convictions are elements of Brooke’s fourth-degree felony, they must be proved beyond a reasonable doubt. State v. Henderson (1979), 58 Ohio St.2d 171, 173, 12 O.O.3d 177, 389 N.E.2d 494. R.C. 2945.75(B) states, “Whenever in any case it is necessary to prove a prior conviction, 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.”

{¶9} Brooke does not dispute the existence of the prior convictions. Instead, she asserts that because she has made an unrebutted showing that her three prior convictions were uncounseled and resulted in sentences of confinement, the convictions cannot be used to enhance the penalty for her current conviction. Generally, a past conviction cannot be attacked in a subsequent case. However, there is a limited right to collaterally attack a conviction when the state proposes to use the past conviction to enhance the penalty of a later criminal offense. 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. State v. Brandon (1989), 45 Ohio St.3d 85, 86, 543 N.E.2d 501; Nichols v. United States (1994), 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745. As a result of this exception, and to determine whether her prior convictions are available for penalty enhancement, Brooke’s uncounseled convictions must be examined as they relate to her current offense.

Need for Valid Waiver of Right to Counsel For Prior OVI Conviction

{¶10} The state argues that a written waiver should have legal significance so that it may be relied upon by the state in charging a felony DUI. Brooke concedes that she signed and filed a written waiver of her right to counsel in all three previous cases. She argues, however, that a written waiver alone does not show that it was made knowingly, intelligently, and voluntarily. We are asked, therefore, to determine what effect a written waiver of the right to counsel has upon the reliability of prior uncounseled convictions.

{¶11} “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.” State v. Brandon, 45 Ohio St.3d 85, 543 N.E.2d 501, 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, 543 N.E.2d 501. 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.

{¶12} The state urges that a defendant must show both indigency and incarceration before the burden shifts. Although there is no showing that Brooke was indigent during her earlier prosecutions, this fact is irrelevant. The state confuses the right to counsel with an indigent’s right to appointed counsel. An uncounseled conviction cannot be used to enhance the penalty for a later conviction if the earlier conviction resulted in a sentence of confinement. Nichols v. United States, 511 U.S. at 749, 114 S.Ct. 1921, 128 L.Ed.2d 745. Brooke provided an affidavit that she was unrepresented by counsel and sentenced to confinement, which is sufficient to raise the issue of whether her waiver was valid. The state claims that it has satisfied its burden by demonstrating that Brooke waived her right to counsel in all three prior convictions and that she cannot now raise the lack of counsel as an impediment to enhancing the penalty.

{¶13} In each of her earlier cases, Brooke entered a plea of guilty. Several Criminal Rules address the proper procedure for taking pleas, including uncounseled pleas. There is a distinction made between “serious” and “petty” offenses. Crim.R. 2(C) defines “serious offense” as “any felony, and any misdemeanor for which the penalty prescribed by law includes confinement for more than six months,” while Crim.R. 2(D) defines “petty offense” as “a misdemeanor other than a serious offense.”

{¶14} With respect to the taking of misdemeanor pleas, Crim.R. 11 provides:

{¶15} “(D) In misdemeanor cases involving serious offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first addressing the defendant personally and informing the defendant of the effect of the pleas of guilty, no contest, and not guilty and determining that the defendant is making the plea voluntarily. Where the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he or she has the right to be represented by retained counsel, or pursuant to Crim.R. 44 by appointed counsel, waives this right.

{¶16} “(E) In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty. {¶17} “The counsel provisions of Crim.R. 44(B) and (C) apply to division (E) of this rule.” (Emphasis added.)

{¶18} Crim.R. 44 states:

{¶19} “(B) Counsel in petty offenses

{¶20} “Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel.

{¶21} “(C) Waiver of counsel

{¶22} “Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing.” (Emphasis added.)

{¶23} Crim.R. 22 provides that “in petty offense cases all waivers of counsel required by Rule 44(B) shall be recorded.” (Emphasis added.)

{¶24} At the very least, then, any waiver of counsel must be made on the record in open court, and in cases involving serious offenses where the penalty includes confinement for more than six months, the waiver must also be in writing and filed with the court.

{¶53} It is important to recognize that this last offense was a serious, rather than a petty offense, for the maximum penalty was one year in jail. Therefore, a simple statement on the record that the defendant waives counsel is insufficient. Although the same waiver form was used as was used in her first Chardon Municipal Court case, the first case was a petty offense, and the trial court questioned her, albeit minimally. For a serious offense, the waiver must be in open court, recorded, and in writing. Crim.R. 11(C). 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.” State v. Gibson (1976), 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399, paragraph two of the syllabus. Here, there was only one leading question: “Okay, Betsy, you don’t wish to have an attorney?” Arguably, this question relates to voluntariness of her choice to proceed without an attorney. But there is no question asking whether she understands she has a right to counsel to begin with. This uncounseled conviction may not be used for enhancement of a later offense, since the record fails to demonstrate compliance with the requirements of Crim.R. 44 and 11.


{¶54} When a defendant challenges the proceeding used to take an uncounseled plea, the state must establish that a proper waiver of the right to counsel occurred. In a misdemeanor case, every waiver of the right to counsel must be made on the record in open court. For a petty offense, voluntary and knowing waiver may be shown through the court’s colloquy with the defendant. In a serious-offense case, in addition, the waiver must be in writing. Unless the defendant properly waived the right to counsel before entering a plea, the conviction may not be used to enhance a later offense.

{¶55} We reverse the judgment of the Court of Appeals for Lake County in part, because the state showed that Brooke made a knowing, intelligent, and voluntary waiver of counsel in two of her three earlier misdemeanor cases. Nevertheless, with only two prior DUI convictions counted within six years, her current DUI offenses may not be raised to fourth-degree felonies, and we therefore affirm the judgment of the Court of Appeals for Lake County in part and remand the cause to the trial court for further proceedings.

As you can see, the possibility to have a prior OVI conviction thrown out is a real possibility. If you have a prior OVI conviction, please give me a call at (937) 318-1384 to discuss your case.

Charles Rowland


Charles M. Rowland II has been representing the accused drunk driver for over 20 years. Contact him at (937) 318-1384 if you find yourself facing a DUI (now called OVI) charge.

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