June 27, 2006
You’re representing a client in a felony domestic violence case, which means that he had a prior misdemeanor for the same crime. You learn that he didn’t have a lawyer when he pled to the misdemeanor. Can the prior conviction still be used to enhance the felony charge?
As in most everything else in the law, it depends, but there’s a nice recent case out of the 5th District — State v. Mack – which tackles that issue. In Mack, the state introduced the journal entry from the municipal court, as well as a transcript of the plea hearing there. The transcript indicated that the court explained the defendant’s rights to him, then asked him to sign a form. The form was not in the record, though, and the appellate court held that the record failed ”to affirmatively demonstrate that appellant waived his right to counsel,” and thus ”the plea was uncounseled and the right to counsel was not waived.” The court dismissed the specification and remanded the case for resentencing on a misdemeanor.
It’s a good result for defense attorneys, and there are some good cases out of the 8th District, including this one, where the court held that the municipal court’s solitary inquiry — “is it your intention today to proceed without a lawyer?” — wasn’t sufficient to show that defendant “fully understood and relinquished that right.”
There are some pitfalls to beware of. The burden is on the defendant to show that the misdemeanor conviction was uncounseled, but that’s just a burden of production; once he meets that, which can be done simply by introducing an affidavit stating that he didn’t knowingly waive counsel, the burden of proof shifts to the state to prove that there was a knowing and voluntary waiver of the right. Also, even if the misdemeanor defendant didn’t validly waive counsel, there’s no constitutional violation if he wasn’t incarcerated, as the 8th District notes here.
Finally, keep in mind that strict compliance with the rules requiring waivers to be recorded isn’t necessary, as this 8th District decision indicates. The bottom line is that if there’s a signed waiver in the municipal court file, that’s probably going to be enough.
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| | Posted by Russ Bensing at 12:52 pm
June 30th, 2006 at 3:01 pm
You should also take a look at State v. Betsy Brooke, 165 Ohio App.3d 409 out of the 11th District. A court is not to presume that a waiver was done knowingly, voluntarily and intelligently in the absence of a record. The record should show that there was not just a written waiver; the defendant must be advised of the nature of the charges, the statutory offenses included within them, the range of possible punishments, possible defenses, possible mitigation, and all other facts esential to a broad understanding. THEN you have a valid waiver. Whether jail time was imposed does not seem to be an issue there.
July 1st, 2006 at 6:55 am
Brooke is a great case, but enjoy it while it lasts; the Supreme Court stayed the decision and granted appeal, and the case is so at odds with other existing case law, especially in this district, that I don’t see much chance of it being affirmed. As for jail time, it wasn’t an issue in Brooke because the prior charges were DWI’s, which have mandatory jail time. The US Supreme Court’s decision in Nichols v. U.S., 511 US 738 (1994) specifically holds that there’s no constitutional right to counsel where no jail sentence is imposed.