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More on uncounseled misdemeanor convictions

The Ohio Supreme Court handed down two important criminal law decisions on Wednesday.  The first was relatively straight-forward:  in State v. Parker, the court held that when you're arrested on multiple charges arising out of the same incident, you're entitled to the triple-count provisions of the speedy trial statute on any time you spend in jail on any of the charges.  In this case, some of the charges were misdemeanors, and some were felonies; the defendant was sentenced to do jail time on the misdemeanors, and the court held that time applied, 3 for 1, to the felonies.  It's not going to arise often, but this was the first pro-defense speedy trial decision in probably two decades, so savor it.

The second case, involving uncounseled misdemeanor charges, is a bit more complicated and, as we say in the law biz, "requires more extensive treatment."  Actually, they probably say that in the plastic surgery biz, too...  Anyway, let's get to it.

The case was State v. Brooke, in which the defendant faced a felony DWI charge, based upon having three prior DWI convictions within the past six years.  The law is that if a prior conviction was "uncounseled" -- that the defendant was not represented, and did not make a valid waiver of her right to counsel -- the prior conviction can't be used.  If any of the priors was uncounseled, the offense is knocked down to a misdemeanor.

Brooke hadn't been represented by an attorney in the three prior cases, and the 11th District had held (decision here) that the state failed to show there was a valid waiver of counsel in any of them, because the record in each failed to demonstrate that there was a "knowing, intelligent, and voluntary waiver of counsel."  The state had produced signed waivers of counsel in each case, but the court held this wasn't sufficient:  there had to be something in the record beyond that.  There was no transcript of the hearing on the 2nd conviction, and the questioning by the court in the other two was too minimal to make a satisfactory showing of waiver.  Essentially, what the court held was that the record had to affirmatively demonstrate that the "defendant understood the nature of the charges, the possible defenses and the evidence the state would present."

I'd blogged about the case last year, and suggested that this was going to be too much for the Supreme Court to swallow.  I was two-thirds right:  it reversed the court of appeals on two of the priors, but affirmed it on the third.  Unfortunately, the court's explanation of how it drew distinctions in the three cases isn't very clear or convincing.

The first and third prior convictions were in Chardon Municipal Court; in both cases, there was a transcript, and an identical waiver form, signed by Brooke.  In the first case, the colloquy about the waiver of counsel consisted of the following: 

The Court: You don't want an attorney here today? You don't want to get an attorney?

Ms. Brooke: I don't see much point in it.

The Court: Okay. Now -

Ms. Brooke: I did it. I'm not going to lie about that.

The Court: Before I accept your plea of guilty in this kind of a charge, I have to have one of your rights waived in writing, and that's the right to an attorney.  So if you would sign that for me, please.

In the second case, this was the exchange:

The Court: * * * Okay, Betsy, you don't wish to have an attorney?

Ms. Brooke: No, sir.

The Court: Okay.

The court correctly noted that the second exchange lacked "a question asking whether she understands she has a right to counsel to begin with," but the statement in the first colloquy -- "I have to have one of your rights waived in writing, and that's the right to an attorney" -- seems to be a pretty poor substitute for what the court says is required: 

In all cases where the right to counsel is waived, the court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.

The court's treatment of the second conviction is also puzzling:  in that case, there was no transcript at all (the recording had been erased), and the only evidence of waiver was the written form signed by Brooke.  The court held that it could "presume" from the entry that "the court accurately explained to Brooke that she was waiving her right to counsel."

One other factor may have played a role here:  the court found it "important to recognize" that the first two convictions (in which it found the waiver valid) were for a "petty offense" -- i.e., one that involved a potential jail sentence of six months or less -- while the last (in which it found the waiver invalid) was a "serious offense," since a conviction for a third DWI, while still a misdemeanor, is punishable by up to a year in prison.  Again, though, the significance of this distinction isn't clear:  the only difference between the two is that Criminal Rule 44(C) specifies that in serious offenses a waiver of counsel must be in writing, but that had been done in all three prior cases.

So what's it all mean?  First, Brooke is helpful because it reaffirms prior case law that the burden is on the state to prove a valid waiver.  The defendant has the burden of production, though, but that can be satisifed by the mere filing of an affidavit from the defendant stating that she wasn't represented in the prior case (and was sentenced to jail; as I mentioned a while back, there's no problem is using an uncounseled conviction that didn't result in a jail sentence).  And Brooke is fairly clear that a silent record -- a simple notation on the file that the defendant waived counsel -- isn't going to cut it.  At a minimum, there has to be either a transcript of the hearing, or a signed waiver, and both in the case of a serious offense.

In fact, it's tempting to suggest that the major impact of Brooke will be to reject the 11th District's interpretation that, in all misdemeanor cases, there has to be a record of a colloquy between court and defendant which shows that the waiver was knowing, intelligent, and voluntary.  No other court had gone that far anyway, though.  In fact, the major impact of Brooke might be that it doesn't have much:  it leaves unaffected many defense-favorable decisions in this area, such as the ones I discussed here.  In other words, the best reaction to Brooke by the criminal defense bar might be, like so many other Supreme Court decisions, both state and federal, that it could easily have been worse.

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