Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

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.

Search

Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case