[Cite as State v. Bigelow, 2016-Ohio-1073.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellant : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : JEFFREY G. BIGELOW : Case No. 15CA49 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2014-CR-0415
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 14, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
LILLIAN R. SHUN WILLIAM T. CRAMER 38 South Park Street 470 Olde Westerville Road Mansfield, OH 44902 Suite 200 Westerville, OH 43082 Richland County, Case No. 15CA49 2
Farmer, P.J.
{¶1} On August 12, 2014, the Richland County Grand Jury indicted appellee,
Jeffrey Bigelow, on two counts of operating a motor vehicle while intoxicated (OMVI) in
violation of R.C. 4511.19. Each count contained a specification pursuant to R.C.
2941.1413 that appellee had been convicted of or pleaded guilty to five or more equivalent
offenses within the past twenty years.
{¶2} On April 9, 2015, appellee filed a motion to dismiss the indictment or in the
alternative, strike prior uncounseled convictions against him. Appellee conceded that he
had five prior OMVI convictions within twenty years, but challenged his second OMVI
conviction in 2005 in the Shelby Municipal Court. A hearing was held on May 12, 2015.
By order filed May 22, 2015, the trial court found the Shelby case involved an invalid
waiver of the right to counsel, granted the motion, and dismissed the indictment as a
felony, "but without prejudice to further prosecution of the offense at some other level of
offense."
{¶3} Appellant, the state of Ohio, filed an appeal and this matter is now before
this court for consideration. Assignment of error is as follows:
I
{¶4} "THE JUDGMENT ENTRY REFLECTING THE APPELLANT'S PRIOR DUI
PLEA CONSTITUTED A VALID WAIVER FOR ENHANCEMENT PENALTIES,
BECAUSE THE APPELLANT FAILED TO SATISFY HIS BURDEN OF PROOF
ESTABLISHING A VIOLATION OF HIS CONSTITUTIONAL RIGHTS." Richland County, Case No. 15CA49 3
{¶5} Appellant claims the trial court erred in finding the Shelby OMVI conviction
involved an invalid waiver of the right to counsel and therefore erred in granting appellee's
motion to dismiss the indictment as a felony. We disagree.
{¶6} R.C. 4511.19(G)(1)(d) states the following:
Except as otherwise provided in division (G)(1)(e) of this section, 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.
{¶7} In State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, syllabus, the
Supreme Court of Ohio held the following:
1. 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.
2. Waiver of counsel must be made on the record in open court, and
in cases involving serious offenses where the penalty includes confinement Richland County, Case No. 15CA49 4
for more than six months, the waiver must also be in writing and filed with
the court. (Crim.R.44(C), applied.)
{¶8} In its order filed May 22, 2015, the trial court relied on Brooke in dismissing
the indictment as a felony, finding the following:
The evidence at the May 12, 2015 hearing showed that Mr. Bigelow
was summoned to Shelby Municipal Court for trial of a misdemeanor OMVI
charge on April 14, 2015. He came late to trial or failed to enter the
courtroom. The judge called defendant's case just after 11:30 a.m., and
authorized a bench warrant when defendant did not appear. Less than
twenty minutes later the judge went back on the record to say that the
defendant had come to the courthouse and was talking to the prosecutor.
At some point after that announcement, the judge talked to defendant in the
municipal court clerk's office where the written waiver of counsel and
judgment entry were presented to the judge for signature. After he
answered the judge that he understood the documents, the judge signed
the judgment entry sentencing defendant to ten days in jail.
***
In the present case, the waiver was in writing and the defendant told
the judge he understood it. But that's not good enough according to Brooke.
The waiver also had to be made on the record in open court. Richland County, Case No. 15CA49 5
{¶9} In response to Brooke, appellant argues State v. Thompson, 121 Ohio St.3d
250, 2009-Ohio-314, ¶ 6, is controlling as it modified Brooke:
Even though nothing in the body of Brooke can be construed as
suggesting that "a prima facie showing that prior convictions were
unconstitutional" can be established merely by stating that the defendant
had not been represented in the prior convictions and that the convictions
had resulted in confinement, that is the interpretation that Thompson has
taken. This case highlights the "limitations in the English language with
respect to being both specific and manageably brief." United States Civ.
Serv. Comm. v. Natl. Assn. of Letter Carriers AFL–CIO (1973), 413 U.S.
548, 578–579, 93 S.Ct. 2880, 37 L.Ed.2d 796. Our use of the word
"uncounseled" in Brooke encompassed the combined definition, not the first
alone. Thus, 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 Richland County, Case No. 15CA49 6
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
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[Cite as State v. Bigelow, 2016-Ohio-1073.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellant : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : JEFFREY G. BIGELOW : Case No. 15CA49 : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2014-CR-0415
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 14, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
LILLIAN R. SHUN WILLIAM T. CRAMER 38 South Park Street 470 Olde Westerville Road Mansfield, OH 44902 Suite 200 Westerville, OH 43082 Richland County, Case No. 15CA49 2
Farmer, P.J.
{¶1} On August 12, 2014, the Richland County Grand Jury indicted appellee,
Jeffrey Bigelow, on two counts of operating a motor vehicle while intoxicated (OMVI) in
violation of R.C. 4511.19. Each count contained a specification pursuant to R.C.
2941.1413 that appellee had been convicted of or pleaded guilty to five or more equivalent
offenses within the past twenty years.
{¶2} On April 9, 2015, appellee filed a motion to dismiss the indictment or in the
alternative, strike prior uncounseled convictions against him. Appellee conceded that he
had five prior OMVI convictions within twenty years, but challenged his second OMVI
conviction in 2005 in the Shelby Municipal Court. A hearing was held on May 12, 2015.
By order filed May 22, 2015, the trial court found the Shelby case involved an invalid
waiver of the right to counsel, granted the motion, and dismissed the indictment as a
felony, "but without prejudice to further prosecution of the offense at some other level of
offense."
{¶3} Appellant, the state of Ohio, filed an appeal and this matter is now before
this court for consideration. Assignment of error is as follows:
I
{¶4} "THE JUDGMENT ENTRY REFLECTING THE APPELLANT'S PRIOR DUI
PLEA CONSTITUTED A VALID WAIVER FOR ENHANCEMENT PENALTIES,
BECAUSE THE APPELLANT FAILED TO SATISFY HIS BURDEN OF PROOF
ESTABLISHING A VIOLATION OF HIS CONSTITUTIONAL RIGHTS." Richland County, Case No. 15CA49 3
{¶5} Appellant claims the trial court erred in finding the Shelby OMVI conviction
involved an invalid waiver of the right to counsel and therefore erred in granting appellee's
motion to dismiss the indictment as a felony. We disagree.
{¶6} R.C. 4511.19(G)(1)(d) states the following:
Except as otherwise provided in division (G)(1)(e) of this section, 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.
{¶7} In State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, syllabus, the
Supreme Court of Ohio held the following:
1. 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.
2. Waiver of counsel must be made on the record in open court, and
in cases involving serious offenses where the penalty includes confinement Richland County, Case No. 15CA49 4
for more than six months, the waiver must also be in writing and filed with
the court. (Crim.R.44(C), applied.)
{¶8} In its order filed May 22, 2015, the trial court relied on Brooke in dismissing
the indictment as a felony, finding the following:
The evidence at the May 12, 2015 hearing showed that Mr. Bigelow
was summoned to Shelby Municipal Court for trial of a misdemeanor OMVI
charge on April 14, 2015. He came late to trial or failed to enter the
courtroom. The judge called defendant's case just after 11:30 a.m., and
authorized a bench warrant when defendant did not appear. Less than
twenty minutes later the judge went back on the record to say that the
defendant had come to the courthouse and was talking to the prosecutor.
At some point after that announcement, the judge talked to defendant in the
municipal court clerk's office where the written waiver of counsel and
judgment entry were presented to the judge for signature. After he
answered the judge that he understood the documents, the judge signed
the judgment entry sentencing defendant to ten days in jail.
***
In the present case, the waiver was in writing and the defendant told
the judge he understood it. But that's not good enough according to Brooke.
The waiver also had to be made on the record in open court. Richland County, Case No. 15CA49 5
{¶9} In response to Brooke, appellant argues State v. Thompson, 121 Ohio St.3d
250, 2009-Ohio-314, ¶ 6, is controlling as it modified Brooke:
Even though nothing in the body of Brooke can be construed as
suggesting that "a prima facie showing that prior convictions were
unconstitutional" can be established merely by stating that the defendant
had not been represented in the prior convictions and that the convictions
had resulted in confinement, that is the interpretation that Thompson has
taken. This case highlights the "limitations in the English language with
respect to being both specific and manageably brief." United States Civ.
Serv. Comm. v. Natl. Assn. of Letter Carriers AFL–CIO (1973), 413 U.S.
548, 578–579, 93 S.Ct. 2880, 37 L.Ed.2d 796. Our use of the word
"uncounseled" in Brooke encompassed the combined definition, not the first
alone. Thus, 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 Richland County, Case No. 15CA49 6
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 and that the prior convictions had resulted in
confinement, the burden shifts to the state to prove that the right to counsel
was properly waived.
{¶10} Unlike the defendant in Thompson, appellee presented evidence including
the pertinent records from his second OMVI conviction in the Shelby Municipal Court. T.
at 12-13; Defendant's Exhibit B, C, D, and E. Appellee testified he was originally
represented by counsel in the Shelby case, but because of a lack of funds, proceeded
without counsel. T. at 14. Appellee explained he signed a no contest plea form
(Defendant's Exhibit C) and a waiver of the right to counsel form (Defendant's Exhibit D)
in the prosecutor's office. T. at 17-20, 22-23. After signing the forms, appellee never
went into court, but stood in the hallway by the glass window to the Clerk of Court's Office.
T. at 19. The judge was on the opposite side of the glass and "he asked me to raise my
right hand, that I agreed to all the terms that was written" on the plea form. T. at 19-20. Richland County, Case No. 15CA49 7
Appellee never entered the courtroom and the judge never engaged in a colloquy with
him regarding his plea and his waiver of the right to counsel. T. at 20-21, 33. As a result
of his no contest plea, appellee served ten days in jail. T. at 21. An audio tape of the
proceedings in court that day indicates appellee "was present in the hall" and the case
was "being handled by the prosecutor." T. at 30; Defendant's Exhibit E. The tape
concludes with appellee never entering the courtroom and being addressed by the trial
court in open court. Id.
{¶11} The exhibits substantiate appellee's position that although he signed a
waiver of counsel, he never appeared in open court that day nor was the plea and waiver
placed on the record. We find the trial court was correct in its assessment of the waiver
being constitutionally defective.
{¶12} Upon review, we find the trial court did not err in granting the motion to
dismiss the indictment as a felony.
{¶13} The sole assignment of error is denied. Richland County, Case No. 15CA49 8
{¶14} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, P.J.
Gwin, J. and
Delaney, J. concur.
SGF/sg 223