State v. Gwen

2012 Ohio 5046, 982 N.E.2d 626, 134 Ohio St. 3d 284
CourtOhio Supreme Court
DecidedNovember 1, 2012
Docket2011-0632
StatusPublished
Cited by54 cases

This text of 2012 Ohio 5046 (State v. Gwen) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gwen, 2012 Ohio 5046, 982 N.E.2d 626, 134 Ohio St. 3d 284 (Ohio 2012).

Opinions

Lanzinger, J.

{¶ 1} We accepted this case to resolve a conflict between the Ninth and Sixth Appellate Districts regarding the proper method for proving prior convictions for purposes of elevating the degree of the offense of domestic violence. State v. Gwen, 129 Ohio St.3d 1407, 2011-Ohio-3244, 949 N.E.2d 1003. The question certified to us is “[wjhether, for purposes of enhancing the offense level in a domestic violence case, the State is required to prove the prior domestic violence convictions by providing a judgment of conviction executed in conformity with Crim.R. 32(C).” State v. Gwen, 130 Ohio St.3d 1407, 2011-Ohio-5477, 955 N.E.2d 1018. The certified question contains an ambiguity, for it may be read to ask either (1) whether the state must use only certified judgment entries to prove prior offenses or (2) whether, when certified entries are offered as proof of prior convictions, they must comply with Crim.R. 32(C). We answer both questions as follows. We hold that while R.C. 2945.75(B)(1) permits the state to prove a prior [285]*285conviction by submitting a judgment entry of the conviction, the statute does not restrict the manner of proof to that method alone. We hold further that when the state chooses to prove a prior conviction by using a judgment entry, that entry must comply with Crim.R. 32(C).

{¶ 2} We also affirm the judgment of the court of appeals, including the remand for resentencing on Gwen’s conviction of domestic violence as a felony of the fourth rather than the third degree. The appellate court was correct in holding that the state proved only one, not two, prior convictions, and therefore the offense may be elevated only to a fourth-degree felony. But as we will explain, we disapprove of the court of appeals’ statement that a journal entry of conviction need not comply with Crim.R. 32(C). Id. at ¶ 35-37.

I. Background

{¶ 3} Appellant, Jeffrey Gwen, was arrested on March 24, 2009, after his girlfriend called 9-1-1 alleging an incident of domestic violence. The state charged Gwen with one count of domestic violence, in violation of R.C. 2919.25(A), and one count of illegal possession of drug paraphernalia, in violation of R.C. 2925.14(C)(1). The domestic-violence charge was enhanced to a third-degree felony under the statute applicable to third-time offenders, R.C. 2919.25(D)(4). Gwen pled not guilty; a jury found him guilty on both counts. He was sentenced to one year of incarceration for domestic violence and 30 days for the drug offense, to be served concurrently.

{¶ 4} On appeal, Gwen challenged the two items that were admitted as evidence of prior domestic-violence convictions, arguing that they did not comply with Crim.R. 32(C) and State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. One item, State’s Exhibit 4, is a certified journal entry from the Summit County Court of Common Pleas, showing that Gwen pled guilty in 2002 to domestic violence as a minor misdemeanor in violation of R.C. 2919.25(A). This was erroneous, however, because domestic violence does not exist as a minor misdemeanor and under R.C. 2919.25(A) is a misdemeanor of the first degree. R.C. 2919.25(D)(2). Gwen was sentenced to six months, which was suspended, and placed on probation for one year.

{¶ 5} The second item, State’s Exhibit 3, consists of a series of documents relating to a charge of domestic violence prosecuted against Gwen in the Akron Municipal Court during 2000 to 2001. It includes a docket statement, a police incident report, a criminal complaint charging Gwen with domestic violence under R.C. 2919.25(A), a temporary protection order, and a journal entry. The certified journal entry is a printed form with spaces provided for the relevant data, such as plea entered, disposition, sentence, and the like. The spaces provided for recording whether Gwen had been found guilty or not guilty are blank. The entry does show that Gwen pled not guilty and that he was sentenced to 30 days, [286]*286with credit for three days served, fined $50, and ordered to pay costs on the domestic-violence charge. The 30-day sentence was apparently suspended on the condition that Gwen complete a “Time Out” program. On the left margin of the entry appears a handwritten note that says, “2/01 [illegible word] D.V — M4 Menacing.”

{¶ 6} The court of appeals rejected Gwen’s argument that State’s Exhibit 4 was fatally defective because it misidentified the offense as a minor misdemeanor, finding no authority that such an error renders the evidence of conviction inadmissible. Nevertheless, the court held that even if it was error to rely on this entry as proof of a prior conviction, that error was harmless because Gwen had testified that he had been convicted of domestic violence. State v. Gwen, 9th Dist. No. 25218, 2011-Ohio-1512, 2011 WL 1226763, ¶ 39. But on State’s Exhibit 3, the court found the Akron Municipal Court’s disposition of that case to be unclear, and there was no other evidence that Gwen had been convicted of or previously pled guilty to domestic violence in that case.

{¶ 7} The Ninth District therefore affirmed Gwen’s domestic-violence conviction, but as a fourth-degree rather than a third-degree felony, because the state had not presented evidence of at least two prior domestic-violence convictions. Id. at ¶ 28. The court also held that compliance with Crim.R. 32(C) was not a prerequisite to proving a prior offense for purposes of increasing a subsequent charge. Id. at ¶ 36.

{¶ 8} Gwen filed a motion to certify a conflict between districts, arguing that the Ninth District’s opinion conflicts with the Sixth District’s decision in State v. Finney, 6th Dist. No. F-06-009, 2006-Ohio-5770, 2006 WL 3114136, which held that the state was required to prove a prior conviction by providing a judgment of conviction that was executed in conformity with Crim.R. 32(C). We recognized the conflict as certified.

{¶ 9} We revise the question into two parts. The first part, which asks whether a judgment of conviction is the exclusive method of proving a prior conviction under R.C. 2945.75(B)(1), is answered “no.” The second part, which asks whether the judgment entry must comply with Crim.R. 32(C) when the state elects to use it to prove a prior conviction, is answered “yes.”

II. Analysis

A. Proving Prior Convictions of Domestic Violence — “Pleaded Guilty to” or “Convicted of’

{¶ 10} The offense of domestic violence is defined by R.C. 2919.25(A), (B), and (C). A first-time offense is either a misdemeanor of the fourth degree or a misdemeanor of the first degree, depending upon the section of the statute under which the defendant is charged. R.C. 2919.25(D)(2). A second offense is either a [287]*287felony of the fourth degree or a second-degree misdemeanor. R.C. 2919.25(D)(3). If the offender has “pleaded guilty to or been convicted of two or more offenses of domestic violence,” a subsequent domestic-violence offense is elevated to either a felony of the third degree or a first-degree misdemeanor. R.C. 2919.25(D)(4). Because the state contended that he had already been convicted twice of domestic violence, Gwen was charged with a third-degree felony.

{¶ 11} When the existence of a prior conviction affects the degree of the offense and not just the punishment available upon conviction, it is an essential element of the offense. See State v.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 Ohio 5046, 982 N.E.2d 626, 134 Ohio St. 3d 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gwen-ohio-2012.