[Cite as State v. Hogue, 2018-Ohio-1109.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-17-58
v.
JAMY HOGUE, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR 2016 0132
Judgment Affirmed
Date of Decision: March 26, 2018
APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee Case NO. 1-17-58
SHAW, J.
{¶1} Defendant-appellant, Jamy Hogue (“Hogue”), brings this appeal from
the November 16, 2017, judgment of the Allen County Common Pleas Court
denying his petition for post-conviction relief. On appeal, Hogue argues that the
trial court erred by denying his petition without a hearing, and by finding that res
judicata was applicable to his claim.
Facts and Procedural History
{¶2} On April 14, 2016, Hogue was indicted for operating a vehicle while
intoxicated (“OVI”) in violation of R.C. 4511.19(A)(1)(b)/(G)(1)(d), a felony of the
fourth degree due to Hogue allegedly having 5 prior offenses within 20 years.
Hogue was also indicted for one count of OVI in violation of R.C.
4511.19(A)(1)(a)/(G)(1)(d), a felony of the fourth degree due to Hogue allegedly
having 5 prior offenses with 20 years. Hogue originally pled not guilty to the
charges.
{¶3} On July 12, 2016, Hogue entered a negotiated guilty plea wherein he
agreed to plead guilty to OVI in violation of R.C. 4511.19(A)(1)(b)/(G)(1)(d) and
in exchange the State agreed to dismiss the other OVI allegation and recommend
that Hogue be sentenced to community control with 60 days of local incarceration.
Hogue’s guilty plea was accepted, he was found guilty of OVI as alleged, and he
was sentenced to the recommended sentence of the State.
-2- Case NO. 1-17-58
{¶4} Hogue did not appeal his conviction and sentence to this Court.
{¶5} On September 6, 2017, a motion to revoke Hogue’s community control
was filed based on Hogue purportedly being arrested for another OVI violation.
{¶6} On October 16, 2017, Hogue’s counsel filed a petition for post-
conviction relief arguing that he received ineffective assistance of counsel in this
case with regard to his negotiated guilty plea. Specifically, he contended that he
could not have been convicted of a felony violation of R.C. 4511.19 here because
at least two of the prior convictions that were used to enhance his OVI offense were
“void or voidable” even though Hogue had pled guilty to those offenses.
{¶7} To support his argument, Hogue attached two judgment entries to his
petition that were from prior OVI convictions, one from 2013 and one from 2014.
Hogue argued that the judgment entries were flawed and were either void or
voidable. With regard to the 2014 judgment entry convicting him of OVI, Hogue
argued that the entry found him guilty of violating both R.C.
“4511.19(A)(1)(a)&(A)(2)(a)&(b).” Hogue argued that the (A)(1)(a) offense and
the (A)(2) offense were two separate crimes rather than one that he purportedly pled
guilty to, and was sentenced upon. Hogue argued that as the judgment entry did not
resolve both of the counts by merging one or dismissing one, and as there was only
one sentence ordered, the 2014 sentencing entry was invalid. Hogue made the same
argument regarding a 2013 conviction.
-3- Case NO. 1-17-58
{¶8} On November 8, 2017, Hogue filed a motion for summary judgment on
his petition for post-conviction relief.
{¶9} On November 9, 2017, the State filed a response to Hogue’s motion
arguing that it was Hogue’s burden to demonstrate substantive grounds for post-
conviction relief and that he had failed to do so on the basis of the 2013 and 2014
judgment entries alone.
{¶10} On November 14, 2017, Hogue filed a reply in support of his motion
for summary judgment.
{¶11} On November 16, 2017, the trial court filed a judgment entry denying
Hogue’s motion for summary judgment and his petition for post-conviction relief.
The trial court reasoned that Hogue’s arguments were barred by res judicata as they
could have been raised on direct appeal.
{¶12} It is from this judgment that Hogue appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1 The Trial Court erred in ruling that res judicata applies when the evidence upon which a petition for post-conviction relief relies is solely in eDiscovery and therefore erred in denying Mr. Hogue’s petition for post-conviction relief.
Assignment of Error No. 2 The Trial Court erred in denying the petition without an evidentiary hearing.
-4- Case NO. 1-17-58
{¶13} Due to the nature of the discussion, we elect to address the assignments
of error together.
First and Second Assignments of Error
{¶14} In Hogue’s first assignment of error, he argues that the trial court erred
by finding that res judicata was applicable in this instance. In Hogue’s second
assignment of error, he argues that the trial court erred in denying his petition
without a hearing.
{¶15} In this case, Hogue seeks to collaterally attack prior OVI convictions
that were used to enhance the penalty of his OVI offense in this case. “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.” State v. Brooke,
113 Ohio St.3d 199, 2007-Ohio-1533, ¶ 8.
{¶16} While there is a limited right to collaterally attack a prior conviction
used as a penalty-enhancement, courts have held that the “ ‘only recognized
constitutional infirmity [to collaterally attack a prior, penalty-enhancing conviction]
is that [a defendant] was denied the fundamental right to be represented by counsel,
or the necessary corollary, an invalid waiver of the right to counsel.’ ” (Emphasis
added.) State v. Lowe, 7th Dist. Columbiana No. 08CO37, 2010-Ohio-2788, ¶ 25,
quoting State v. Culberson, 142 Ohio App.3d 656, 662-663, 2001-Ohio-3261. “The
-5- Case NO. 1-17-58
United States Supreme Court expressly refused to extend the right to collaterally
attack a prior penalty-enhancing conviction on grounds beyond the right to
counsel.” State v. Menkhaus, 12th Dist. Claremont No. CA2015-04-035, 2016-
Ohio-550, ¶ 11, citing Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732
(1994). The Supreme Court of the United States reasoned that collateral attacks on
prior, penalty-enhancing convictions should be limited to uncounseled prior
convictions or an invalid waiver of the right to counsel because otherwise
sentencing courts would be required to “rummage through frequently nonexistent
or difficult to obtain state-court transcripts or records that may date from another
era” and because of the interest of promoting finality of judgments. Custis at 496–
497, 114 S.Ct. 1732.
{¶17} Limiting collateral attacks to prior, penalty-enhancing convictions has
been repeatedly upheld by courts in Ohio. For example, in State v. Lusane, 11th
Dist. Portage No. 2014-P-0057, 2016-Ohio-267, the Eleventh District Court of
Appeals reaffirmed that where an appellant argued that one of his prior penalty-
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[Cite as State v. Hogue, 2018-Ohio-1109.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-17-58
v.
JAMY HOGUE, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR 2016 0132
Judgment Affirmed
Date of Decision: March 26, 2018
APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee Case NO. 1-17-58
SHAW, J.
{¶1} Defendant-appellant, Jamy Hogue (“Hogue”), brings this appeal from
the November 16, 2017, judgment of the Allen County Common Pleas Court
denying his petition for post-conviction relief. On appeal, Hogue argues that the
trial court erred by denying his petition without a hearing, and by finding that res
judicata was applicable to his claim.
Facts and Procedural History
{¶2} On April 14, 2016, Hogue was indicted for operating a vehicle while
intoxicated (“OVI”) in violation of R.C. 4511.19(A)(1)(b)/(G)(1)(d), a felony of the
fourth degree due to Hogue allegedly having 5 prior offenses within 20 years.
Hogue was also indicted for one count of OVI in violation of R.C.
4511.19(A)(1)(a)/(G)(1)(d), a felony of the fourth degree due to Hogue allegedly
having 5 prior offenses with 20 years. Hogue originally pled not guilty to the
charges.
{¶3} On July 12, 2016, Hogue entered a negotiated guilty plea wherein he
agreed to plead guilty to OVI in violation of R.C. 4511.19(A)(1)(b)/(G)(1)(d) and
in exchange the State agreed to dismiss the other OVI allegation and recommend
that Hogue be sentenced to community control with 60 days of local incarceration.
Hogue’s guilty plea was accepted, he was found guilty of OVI as alleged, and he
was sentenced to the recommended sentence of the State.
-2- Case NO. 1-17-58
{¶4} Hogue did not appeal his conviction and sentence to this Court.
{¶5} On September 6, 2017, a motion to revoke Hogue’s community control
was filed based on Hogue purportedly being arrested for another OVI violation.
{¶6} On October 16, 2017, Hogue’s counsel filed a petition for post-
conviction relief arguing that he received ineffective assistance of counsel in this
case with regard to his negotiated guilty plea. Specifically, he contended that he
could not have been convicted of a felony violation of R.C. 4511.19 here because
at least two of the prior convictions that were used to enhance his OVI offense were
“void or voidable” even though Hogue had pled guilty to those offenses.
{¶7} To support his argument, Hogue attached two judgment entries to his
petition that were from prior OVI convictions, one from 2013 and one from 2014.
Hogue argued that the judgment entries were flawed and were either void or
voidable. With regard to the 2014 judgment entry convicting him of OVI, Hogue
argued that the entry found him guilty of violating both R.C.
“4511.19(A)(1)(a)&(A)(2)(a)&(b).” Hogue argued that the (A)(1)(a) offense and
the (A)(2) offense were two separate crimes rather than one that he purportedly pled
guilty to, and was sentenced upon. Hogue argued that as the judgment entry did not
resolve both of the counts by merging one or dismissing one, and as there was only
one sentence ordered, the 2014 sentencing entry was invalid. Hogue made the same
argument regarding a 2013 conviction.
-3- Case NO. 1-17-58
{¶8} On November 8, 2017, Hogue filed a motion for summary judgment on
his petition for post-conviction relief.
{¶9} On November 9, 2017, the State filed a response to Hogue’s motion
arguing that it was Hogue’s burden to demonstrate substantive grounds for post-
conviction relief and that he had failed to do so on the basis of the 2013 and 2014
judgment entries alone.
{¶10} On November 14, 2017, Hogue filed a reply in support of his motion
for summary judgment.
{¶11} On November 16, 2017, the trial court filed a judgment entry denying
Hogue’s motion for summary judgment and his petition for post-conviction relief.
The trial court reasoned that Hogue’s arguments were barred by res judicata as they
could have been raised on direct appeal.
{¶12} It is from this judgment that Hogue appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1 The Trial Court erred in ruling that res judicata applies when the evidence upon which a petition for post-conviction relief relies is solely in eDiscovery and therefore erred in denying Mr. Hogue’s petition for post-conviction relief.
Assignment of Error No. 2 The Trial Court erred in denying the petition without an evidentiary hearing.
-4- Case NO. 1-17-58
{¶13} Due to the nature of the discussion, we elect to address the assignments
of error together.
First and Second Assignments of Error
{¶14} In Hogue’s first assignment of error, he argues that the trial court erred
by finding that res judicata was applicable in this instance. In Hogue’s second
assignment of error, he argues that the trial court erred in denying his petition
without a hearing.
{¶15} In this case, Hogue seeks to collaterally attack prior OVI convictions
that were used to enhance the penalty of his OVI offense in this case. “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.” State v. Brooke,
113 Ohio St.3d 199, 2007-Ohio-1533, ¶ 8.
{¶16} While there is a limited right to collaterally attack a prior conviction
used as a penalty-enhancement, courts have held that the “ ‘only recognized
constitutional infirmity [to collaterally attack a prior, penalty-enhancing conviction]
is that [a defendant] was denied the fundamental right to be represented by counsel,
or the necessary corollary, an invalid waiver of the right to counsel.’ ” (Emphasis
added.) State v. Lowe, 7th Dist. Columbiana No. 08CO37, 2010-Ohio-2788, ¶ 25,
quoting State v. Culberson, 142 Ohio App.3d 656, 662-663, 2001-Ohio-3261. “The
-5- Case NO. 1-17-58
United States Supreme Court expressly refused to extend the right to collaterally
attack a prior penalty-enhancing conviction on grounds beyond the right to
counsel.” State v. Menkhaus, 12th Dist. Claremont No. CA2015-04-035, 2016-
Ohio-550, ¶ 11, citing Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732
(1994). The Supreme Court of the United States reasoned that collateral attacks on
prior, penalty-enhancing convictions should be limited to uncounseled prior
convictions or an invalid waiver of the right to counsel because otherwise
sentencing courts would be required to “rummage through frequently nonexistent
or difficult to obtain state-court transcripts or records that may date from another
era” and because of the interest of promoting finality of judgments. Custis at 496–
497, 114 S.Ct. 1732.
{¶17} Limiting collateral attacks to prior, penalty-enhancing convictions has
been repeatedly upheld by courts in Ohio. For example, in State v. Lusane, 11th
Dist. Portage No. 2014-P-0057, 2016-Ohio-267, the Eleventh District Court of
Appeals reaffirmed that where an appellant argued that one of his prior penalty-
enhancing convictions was invalid due to the lack of a Crim.R. 11(C) plea hearing,
the only recognized challenge to a prior penalty-enhancing conviction was the denial
of the fundamental right to be represented by counsel. ¶¶ 13-14. Other Ohio
Appellate Courts have applied similar reasoning to Lusane, refusing to extend
collateral attacks to prior, penalty-enhancing convictions beyond what has been
-6- Case NO. 1-17-58
recognized. See State v. Menkhaus, 12th Dist. Claremont No. CA2015-04-035,
2016-Ohio-550, ¶ 12; State v. Drager, 2d Dist. Montgomery No. 26067, 2014-Ohio-
3056; State v. Jones, 5th Dist. Tuscarwaras No. 2001AP120110, 2002-Ohio-3484,
¶ 16; State v. Phillips, 12th Dist. Butler No. CA2009-09-242, 2010-Ohio-1941;
State v. Mikolajczyk, 8th Dist. Cuyahoga No. 93085, 2010-Ohio-75; State v.
Dowhan, 11th Dist. Lake No. 93085, 2009-Ohio-684.
{¶18} In this case, Hogue does not argue that his prior convictions, to which
he pled guilty, were uncounseled and he does not make a prima facie showing that
his earlier guilty pleas were uncounseled. Rather, he argues that he received
ineffective assistance of counsel in this case, and essentially in the prior cases, since
there may have been some potential merger or dismissal issues with regard to some
of his prior penalty-enhancing convictions. Hogue’s challenge in this case is not
one that has been recognized as a proper constitutional infirmity to collaterally
attack a prior penalty-enhancing conviction.
{¶19} The trial court did not rule specifically on this collateral-attack issue,
which is likely why Hogue did not address it in his brief; however, Hogue argued at
oral argument that his claims were actually not collateral attacks on the prior
convictions because the prior convictions were invalid and thus, effectively, did not
exist at all. This line of reasoning is specious, at best, because it depends entirely
“upon collaterally attacking the [prior] judgment of conviction.” U.S. v. Fowler,
-7- Case NO. 1-17-58
N.D. Ohio No. 5:10CR55 2010 WL 2756942 (July 12, 2010). Hogue’s argument
that the prior judgment entries do not contain valid sentences relies upon an attack
on that entry. Id. “This exercise is the very essence of a collateral attack[.]” Id.;
see also Harris v. U.S., N.D. Ohio Nos. 1:10CV1513, 1:CR294 2011 WL 1675422
(April 29, 2011), quoting Fowler (“ ‘absent an adjudication in a state court that a
particular conviction is void, [a court] must characterize any challenge as a collateral
challenge.’ ”).
{¶20} At oral argument and in his brief, Hogue cited this Court to State v.
Lupardus, 4th Dist. Washington No. 07CA46, 2008-Ohio-2660, which he claims
supports his position that he is not engaging in a collateral attack because the prior
conviction did not exist. Contrary to Hogue’s arguments, Lupardus was a direct
appeal to the Fourth District Court of Appeals on an OVI conviction wherein the
trial court’s entry did not specify which section of R.C. 4511.19 a plea was regarding
and the trial court’s entry did not indicate what happened to a second OVI. The
Fourth District found, in those circumstances, in a direct appeal where there were
potential issues outstanding regarding a judgment entry, the judgment was not final.
Lupardus did not involve a situation where a defendant was attempting to attack the
finality of an underlying judgment in a subsequent case.
{¶21} Here Hogue seeks to have this Court evaluate and then invalidate a
conviction from cases that are not even before us so that their evidentiary value is
-8- Case NO. 1-17-58
destroyed. The Supreme Court of the United States has limited challenges to prior
convictions that were based on “alleged constitutional violations. As such, there is
little doubt that the Supreme Court would decline to permit challenges for alleged
technical violations of a state statute.” Fowler at * 4.
{¶22} Although the trial court did not rule specifically on this issue of
Hogue’s argument being an improper collateral attack, for this reason alone Hogue’s
assignments of error are not well-taken.
{¶23} Completely notwithstanding the previous point, Hogue’s arguments
still fail on appeal. At best, the judgment entries that Hogue included with his
petition for post-conviction relief showed that it was possible that there were
potentially merger or dismissal issues related to two of his prior convictions.
However, we do not have the records from the prior cases to determine if there were
later merger proceedings or charge dismissals to establish that the prior proceedings
were erroneous in some manner. “ ‘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.’ ” Brooke, 2007-Ohio-1533, at ¶ 11, quoting State v. Brandon, 45 Ohio
St.3d 85, syllabus.
-9- Case NO. 1-17-58
{¶24} Here, Hogue contends that his trial counsel was ineffective for failing
to make an argument regarding the prior penalty-enhancing convictions, but he has
not made a prima facie showing that he can make such a challenge, let alone that it
would have been successful. Moreover, given the potential prison time Hogue was
facing, his trial counsel in this case appears to have negotiated a favorable deal
wherein Hogue would only serve 60 days of local incarceration and be placed on
community control. We cannot find that under these circumstances Hogue has
demonstrated that his counsel’s conduct fell below the range of reasonable
professional assistance.
{¶25} In his brief, Hogue takes issue with a number of statements in the trial
court’s entry and he cites a number of cases dealing generally with post-conviction
relief, including instances where proof of ineffective assistance of counsel is outside
the record. Notably, the cases cited by Hogue do not deal with circumstances such
as the case before us where Hogue is attempting to collaterally attack a prior,
penalty-enhancing conviction. As to Hogue’s other claims regarding certain errant
statements made by the trial court regarding e-discovery and the trial court’s
purportedly improper use of res judicata in this instance, we cannot find that even if
the trial court erred on either of these issues that reversible error was present in this
case based on the foregoing. Accordingly, Hogue’s first and second assignments of
error are thus overruled.
-10- Case NO. 1-17-58
Conclusion
{¶26} For the foregoing reasons Hogue’s assignments of error are overruled
and the judgment of the Allen County Common Pleas Court is affirmed.
ZIMMERMAN, J., concurs.
WILLAMOWSKI, P.J. concurs in Judgment Only.
/jlr
-11-