State v. McCalister

• Court: Ohio Court of Appeals
• Decided: May 28, 2026
• Docket: 115960
• Status: Published

Opinion

[Cite as State v. McCalister, 2026-Ohio-1979.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : No. 115960 v. :

JOHN MCCALISTER, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: May 28, 2026

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-25-704558-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione and MaryAnn Zaky, Assistant Prosecuting Attorneys, for appellant.

Cullen Sweeney, Cuyahoga County Public Defender, and Michael V. Wilhelm, Assistant Public Defender, for appellee.

EILEEN T. GALLAGHER, P.J.:

Plaintiff-appellant the State of Ohio (“the State”) appeals the dismissal

of a penalty enhancement attendant to a charge for operating a motor vehicle while under the influence of alcohol (“OVI”) brought against defendant-appellee John

McCalister (“McCalister”). The State claims the following error:

The trial court erred in granting appellee’s motion to dismiss enhancement where appellee failed to make a prima facie showing that the predicate OVI conviction was constitutionally infirm, and the State’s exhibits demonstrated written waivers and advisements.

McCalister concedes the error and acknowledges that he failed to make

the prima facie showing that the predicate OVI offense necessary for the penalty

enhancement was constitutionally infirm. After conducting an independent review

of the record and the applicable law, we agree the trial court erred in dismissing the

penalty enhancement. We, therefore, reverse the trial court’s judgment and remand

the case to the trial court for further proceedings.

I. Facts and Procedural History

In August 2025, McCalister was charged with two counts of OVI, in

violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(2)(a). Both counts included

furthermore clauses alleging that McCalister had three prior OVI convictions within

the last ten years, namely an OVI conviction in the Stow Municipal Court on May

28, 2024, an OVI conviction in the Garfield Heights Municipal Court on October 5,

2022, and an OVI conviction in the Akron Municipal Court on June 21, 2018. The

furthermore clauses elevated the offenses to fourth-degree felonies.

In October 2025, McCalister filed a motion to dismiss enhancement of

the OVI offenses, arguing that OVI conviction in the Stow Municipal Court could not

be used as a predicate offense to elevate the present OVI charge because his guilty plea to the OVI in the Stow Municipal Court was “uncounseled,” meaning he was not

represented by counsel. He also asserted that he was not properly advised of the

enhancement of subsequent OVI convictions when he pleaded guilty in that case. In

support of the motion, McCalister presented only the sentencing entry from the

Stow Municipal Court dated May 28, 2024, which stated that McCalister appeared

“without counsel.”

The State opposed the motion to dismiss, arguing the Stow conviction

was not constitutionally infirm. The State argued that although McCalister was not

represented by counsel in the Stow case, the record showed that he was advised of

his rights and penalties, including the fact that subsequent OVI convictions would

carry enhanced penalties. The State attached three exhibits to its brief in opposition:

two different acknowledgments and waivers of rights and the sentencing entry.

Regarding the advisement of enhanced penalties, the acknowledgment and waiver

of rights marked as State’s exhibit No. 1 states in paragraph nine:

Certain offenses, such as Operating a Vehicle Under the Influence (OVI), Driving Under Suspension (DUS), Domestic Violence, or ________________ will have enhanced penalties on a second or subsequent conviction.

The words “Operating a Vehicle Under the Influence (OVI)” are circled

and McCalister wrote his initials next to them. He also signed the waiver at the

bottom of the page. The form further states that “hav[ing] been informed of these

rights and understanding them,” McCalister “knowingly and voluntarily waive[d]

them” and entered a guilty plea. State’s exhibit No. 2 similarly states that McCalister understood his

right to retained or appointed counsel, that the judge “explained” the dangers of self-

representation, that the court reviewed the nature of the offense with him, and that

McCalister knowingly, intelligently, and voluntarily waived his right to counsel.

Finally, the sentencing entry marked as State’s exhibit No. 3 notes that

although McCalister appeared without counsel, he was advised of the nature of the

charge, the minimum and maximum penalties, and “all rights set forth in Criminal

Rules 11 and/or Traffic Rules 8 and 10.” The sentencing entry further states that

after “having executed a written waiver of rights form,” McCalister entered a guilty

plea, which the court found “was knowingly and voluntarily entered with a full

understanding of rights waived and potential penalties[.]”

After receiving McCalister’s motion and the State’s brief in opposition,

the trial court granted the motion to dismiss the enhancement without a hearing.

The State timely appealed.

II. Law and Analysis

R.C. 2945.67(A) authorizes the State to appeal, as a matter of right,

certain decisions, including an order granting a motion to dismiss. State v.

Musarra, 2025-Ohio-5058, ¶ 2. Therefore, the State’s appeal is properly before this

court as a matter of right.

We review a trial court’s judgment on a motion to dismiss de novo.

State v. Bauer, 2014-Ohio-2980, ¶ 5-6 (8th Dist.). In a de novo review, we afford no deference to the trial court’s decision. State v. Buehner, 2021-Ohio-4435, ¶ 43

(8th Dist.).

As previously stated, McCalister was charged with two counts of OVI

offenses in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(2). Both counts were

charged as fourth-degree felonies because of McCalister’s three prior OVI

convictions.

R.C. 4511.19(A)(1)(a) provides that “[n]o person shall operate any

vehicle . . . within this state, if, at the time of the operation . . . [t]he person is under

the influence of alcohol, a drug of abuse, or a combination of them.” Ordinarily, “an

offender who violates this provision is guilty of a first[-]degree misdemeanor.” State

v. Gerken, 2023-Ohio-2244, ¶ 22 (6th Dist.), citing R.C. 4511.19(G)(1)(a). However,

if the offender has previously been convicted of OVI on three or four prior occasions

within ten years of the offense, the offense of OVI becomes chargeable as a fourth-

degree felony. R.C. 4511.19(G)(1)(d).

“When the 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.

Brooke, 2007-Ohio-1533, ¶ 8. “‘R.C. 2945.75(B)(2) requires the state to make a

prima facie showing of the prior convictions.’” Gerken at ¶ 22, quoting State v.

Meyers, 2015-Ohio-5499, ¶ 10 (6th Dist.). However, when the State seeks to use a

prior conviction to enhance the degree of a subsequent offense, the defendant may collaterally challenge the prior conviction by making a prima facie showing that the

prior conviction is constitutionally infirm. See generally Brooke.

In the sole assignment of error, the State argues the trial court erred

in dismissing the penalty enhancement because McCalister failed to make the

required prima facie showing that the predicate OVI conviction was constitutionally

infirm.

As a general rule, “[a]n uncounseled misdemeanor conviction cannot

be used to enhance a sentence in a later conviction.” State v. Neely, 2007-Ohio-

6243, ¶ 13 (11th Dist.), citing State v. Brandon, 45 Ohio St.3d 85, 87 (1989). “An

uncounseled conviction is one where the defendant was not represented by counsel

nor made a knowing and intelligent waiver of counsel.” Id., citing State v. Carrion,

84 Ohio App.3d 27, 31 (9th Dist. 1992.).

When a defendant challenges the use of a prior conviction on the

ground that he or she has entered an uncounseled plea in the prior case, he or she

bears the initial burden of presenting evidence to establish a prima-facie showing of

constitutional infirmity. Brooke, 2007-Ohio-1533, at ¶ 11. “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 paragraph one of

the syllabus; see also Brandon at 88. The State may prove that absence of any

constitutional infirmity by proving a valid waiver of counsel. Brooke at ¶ 54.

In State v. Thompson, 2009-Ohio-314, the Ohio Supreme Court

clarified the term “uncounseled” as used in Brooke. The Court explained that the term “uncounseled” can refer to “a person who [wa]s not represented by an attorney

or a person who [wa]s not represented by an attorney and who did not validly waive

his or her right to counsel.” Thompson at ¶ 5. However, “a defendant cannot

establish a prima facie showing as to ‘uncounseled’ merely by establishing that he or

she had been convicted without representation.” Id. at ¶ 6. Furthermore, “‘[w]here

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.’” Id., quoting Brandon at syllabus. In other

words, we must “presume that the trial court in the prior convictions proceeded

constitutionally until a defendant introduces evidence to the contrary.” Id.

The only evidence McCalister presented to prove that his Stow

conviction was “uncounseled” was the sentencing entry stating that he appeared

“without counsel.” He did not provide any transcript, recording, testimony, or

affidavit establishing an invalid waiver of counsel. He, therefore, failed to present

threshold evidence supporting his uncounseled-conviction claim. McCalister,

himself, concedes that he failed to meet his initial burden under Brooke and that the

burden never shifted to the State. Therefore, the trial court erred in dismissing the

penalty enhancement that was allegedly based on McCalister’s Stow conviction.

Accordingly, the sole assignment of error is sustained.

The trial court’s judgment is reversed, and the case is remanded to the

trial court for further proceedings. It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and ANITA LASTER MAYS, J., CONCUR