[Cite as State v. Alvarado, 2018-Ohio-5157.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 27911
                                                     :
 v.                                                  :   Trial Court Case No. 2017-CR-1757
                                                     :
 NICOLE M. ALVARADO                                  :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                          Rendered on the 21st day of December, 2018.

                                                ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering,
Ohio 45429
      Attorney for Defendant-Appellant

                                               .............



DONOVAN, J.
                                                                                             -2-




        {¶ 1} This matter is before the Court on Nicole M. Alvarado’s February 26, 2018

Notice of Appeal. Alvarado appeals from the trial court’s February 20, 2018 Judgment

Entry of Conviction, following her no contest plea to operating a motor vehicle while under

the influence (“OVI”)(three priors within 10 years)(breath >0.17 or greater), a felony of the

fourth degree, in violation of R.C 4511.19(A)(1)(h)/4511.19(G)(1)(d).           Alvarado was

sentenced to a period of community control sanctions not to exceed five years, and her

driver’s license was suspended for three years. We hereby affirm the judgment of the

trial court.

        {¶ 2} Alvarado was indicted on July 17, 2017 for OVI; the indictment specifically

identified 3 prior OVI convictions within the previous 10 years. On October 3, 2017, she

filed a motion seeking to strike from the indictment the allegation that she was previously

convicted of OVI in case number 2008-TRC-1473 in the Vandalia Municipal Court.

Alvarado asserted that her prior conviction was without counsel or an effective waiver

thereof, and it was “therefore constitutionally infirm, and as a result, may not be used to

enhance a subsequent offense.” She argued that, without the prior conviction, “the

instant offense is a misdemeanor offense.”

        {¶ 3} A hearing was held on Alvarado’s motion on December 1, 2017. At the start

of the hearing, defense counsel indicated to the court that the parties stipulated to the

admission of “the entire record of this matter from the Vandalia Municipal Court.” State’s

Exhibit 1 is that record, and State’s Exhibit 2, the parties’ “Joint Stipulation,” provides that

Exhibit 1 is the entire record of the proceedings of Vandalia Municipal Court Case No.

2008-TRC-1473, that no audio or video recordings of any in-court proceedings exist, and
                                                                                            -3-


that no transcriptions of any in-court proceedings exist.

       {¶ 4} Attorney Christopher Thompson of the Montgomery County Public

Defender’s Office then testified that, in 2008, he worked in private practice and frequently

handled criminal and traffic cases in Vandalia Municipal Court. Thompson stated that

he was very familiar with the “workings” of that court and that he had appeared there as

defense counsel “up to 100 [times] maybe.” Thompson testified that it was his common

practice, after being retained, to “file a notice of appearance and for municipal court cases

that typically includes a time waiver and a request for a pretrial.” He testified that the

court “typically will not give you a pretrial if you don’t waive speedy trial.” Thompson stated

that he “[m]ost certainly” would have followed this practice in a “diversion case.”

       {¶ 5} Thompson testified that he knew Alvarado in early 2008, having met her

“through [her] ex-boyfriend * * * who I represented many, many times.” Thompson stated

that he had no recollection of representing Alvarado in an OVI diversion case in 2008 in

Vandalia Municipal Court, and that if his standard filings were not in the file “then I

presume that I did not represent her.” Thompson reviewed the stipulated exhibit and

testified that he had not filed any pleadings in the case. According to Thompson, if a

“notice of appearance is not in there then I didn’t represent her.” On cross-examination,

Thompson stated that he “can’t guarantee” that he has followed his standard practice in

every case.

       {¶ 6} At the conclusion of Thompson’s testimony, the State declined to call any

witnesses. Relying on the record of the Vandalia case, the prosecutor indicated to the

court that “the entries * * * that have been presented in Exhibit 1 show Chris Thompson’s

name being entered on there and also a document that’s part of the plea entry of her plea
                                                                                        -4-


in that case. There’s initials next to a line that says I am represented by counsel and I’m

satisfied with counsel with the Defendant’s own initials on it.” Further the prosecutor

indicated that “[a]nother paragraph below that where it could be marked saying I waived

counsel. That one is clearly blank. I’d therefore argue that she was represented by

counsel.”

       {¶ 7} Defense counsel responded that the Vandalia court’s entries were

“inconsistent and ambiguous,” and that Thompson testified confidently that he did not

represent Alvarado due to the absence of his standard filings. Defense counsel argued

that “there’s nothing that shows that Chris Thompson ever entered an appearance on this

case.” Defense counsel asked the court “to rely on Mr. Thompson’s credible testimony

that he did not represent her in this case.”

       {¶ 8} On December 4, 2017, the court issued a Decision and Entry overruling

Alvarado’s Motion to Strike the prior conviction element of her pending offense. The

court made the following factual findings:

              Defendant, Nicole Alvarado, was prosecuted for an alleged OVI or

       violation of section 4511.19(A)(1)(a) of the Ohio Revised Code * * * in

       approximately February of 2008. * * * [T]he matter was prosecuted in the

       Vandalia Municipal Court.

              Defendant appeared in the Vandalia Municipal Court on or about the

       19th day of February, 2008 and the docket sheet indicates that Defendant’s

       attorney was “C. Thompson”. Defendant initially entered a not guilty plea.

              The record of proceedings of the Vandalia Municipal Court in this

       case, case no. 08TRC1473, does not contain a written entry from attorney
                                                                                -5-


Christopher Thompson.      Christopher Thompson did not file a notice of

appearance, request for pretrial and time waiver as is his practice when

representing a Defendant in Municipal Court.

        Christopher Thompson does know the Defendant, he knows the

Defendant because he has represented her ex-boyfriend in several cases.

        Defendant entered the diversion program on or about February 19,

2008.    As part of her entry into the diversion program, the Defendant

signed a conditional plea. The conditional plea form is four pages long and

is signed by the Defendant and the municipal court judge. On page two of

the form Defendant indicates she is represented by a lawyer in the case

and is satisfied by the competence of her lawyer and the quality of the legal

assistance, advice and representation given to her by her lawyer. This

situation is verified by Defendant initialing the form at the place where it

indicates representation as opposed to non-representation.

        Defendant did not meet all the conditions of the Vandalia Municipal

Court diversion program. The court found, from the evidence, that the

Defendant failed to successfully complete the diversion program and

therefore terminated her from the program. Her plea of guilty was ordered

placed of record. She was sentenced on or about November 10, 2008.

The sentence involved a jail sentence of six months. The jail sentence was

suspended except for three days.         Defendant’s driver’s license was

suspended for six months.        The sentence was memorialized by a

sentencing entry filed November 10, 2008.
                                                                                         -6-


       {¶ 9} In its conclusions of law, the court found that Alvarado had failed to make a

prima facie showing that use of her prior conviction as a penalty enhancement was

unconstitutional, as the evidence established it was counseled. The court noted that it

was “not contested that the prior conviction resulted in a confinement.” The court again

noted that Alvarado entered a conditional plea on February 19, 2008 “so she could enter

the diversion program,” and she stated at that time that she was represented by a lawyer

and satisfied with his competence and representation. The court noted that, at the same

time, Alvarado “indicated she was aware she was giving up various constitutional and

statutory rights.” The court noted that Alvarado was arraigned on February 4, 2008, and

had a pretrial conference on February 19, 2008, at which time there was a pretrial offer

of referral to diversion. The court was “convinced from the circumstances that an attorney

counseled the Defendant at the time of her plea.” It was significant to the court “the fact

that there was a pretrial conference, apparently, as opposed to a trial date,” that “certain

benefits were provided to the Defendant,” and that “these facts are indicia of some

counseling.”

       {¶ 10} Alvarado entered her plea of no contest in this case on January 23, 2018,

and was found guilty. On appeal, she asserts the following assignment of error:

               THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

       OVERRULED APPELLANT’S MOTION TO STRIKE PRIOR CONVICTION

       ELEMENT.

       {¶ 11} Alvarado asserts that Thompson confidently asserted that he did not

represent her in the case that resulted in her prior OVI conviction, and that “[t]his

testimony provided the Trial Court with the prima facie showing that [Alvarado] was
                                                                                         -7-


required to make.” She argues that the file from her prior conviction “added further

weight” to her prima facie showing that she was uncounseled at her prior conviction. She

asserts that, although “the conditional plea form showed that [Alvarado] indicated that she

was represented by counsel, on the waiver of rights form, [she] failed to indicate whether

or not she had counsel and whether or not she wanted counsel.” According to Alvarado,

her “own failure to provide an unambiguous indication that she either had counsel already

or that she did not have counsel and did not want counsel ̶ along with Chris Thompson’s

confident and assertive testimony ̶ provided the prima facie showing that was required to

shift the burden of proof to the State.”

         {¶ 12} The State responds that the trial court did not err in overruling Alvarado’s

motion. The State asserts that Alvarado “was required to prove by a preponderance of

the evidence that her prior plea was constitutionally infirm.” The State notes Thompson’s

testimony that “one must request a pretrial or the court will set the case for trial

immediately because of speedy trial.” The State further notes that “Alvarado’s case was

scheduled for a pre-trial conference on February 19, 2008 wherein the prosecutor

recommended diversion.”        The State asserts that “according to the court’s journal

entries, Alvarado was represented by counsel at the time of her plea in her prior OVI

case.”     Finally, according to the State, considering “Thompson’s inability to recall

whether he represented Alvarado, coupled with the court’s journal entries, Alvarado failed

to show by a preponderance of the evidence, or even make a prima facie showing, that

her prior plea was uncounseled and, thus, constitutionally infirm.”

         {¶ 13} As this Court recently noted:

               The Supreme Court of Ohio has addressed the circumstances and
                                                                                     -8-


      manner in which a prior OVI conviction may be attacked for purposes of a

      penalty enhancement. In State v. Thompson, 121 Ohio St.3d 250, 2009-

      Ohio-314, 903 N.E.2d 618, the court stated:

                 “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.” With respect to

            “uncounseled” pleas, we presume that the trial court in the prior

            convictions   proceeded    constitutionally   until   a   defendant

            introduces evidence to the contrary. Thus, we conclude that for

            purposes of penalty enhancement in later convictions under R.C.

            4511.19, after the defendant presents a prima facie showing that

            the prior convictions were unconstitutional because the

            defendant had not been represented by counsel and had not

            validly waived the right to counsel and that the prior convictions

            had resulted in confinement, the burden shifts to the state to

            prove that the right to counsel was properly waived.

      Id. at ¶ 6, quoting State v. Brandon, 45 Ohio St.3d 85, 543 N.E.2d 501

      (1989), syllabus.

State v. Wood, 2d Dist. Clark No. 2016-CA-69, 2018-Ohio-875, ¶ 29.

      {¶ 14} Having reviewed the record, we conclude that the trial court accurately

represented the contents of the file from the Vandalia Municipal Court in Case No. 2008-
                                                                                        -9-


TRC-1473. The court’s “Docket/Journal Entry” reflects that Alvarado was charged on

February 2, 2008, with a violation of R.C. 4511.19(A)(1)(a), she was arraigned on

February 4, 2008, and at her February 19, 2008 pretrial she was offered a referral to

diversion, as well as a stay of an ALS suspension. The “Docket/Journal Entry” identifies

“C. Thompson” as “Attorney” and “CK” as “Prosecutor.”

       {¶ 15} As the trial court noted, Alvarado’s four-page “Diversion Program

Conditional Plea” form reflects an acknowledgement of the “constitutional and statutory

rights” she gave up by entering her plea. The form provides: “In pleading guilty to the

offense of which I am presently charged, I understand and certify: (initial one only),” and

Alvarado’s initials appear next to the following statement on the form: “That I am

represented by a lawyer in this case and I am satisfied with the competence of my lawyer

and the quality of the legal assistance, advice and representation given to me by my

lawyer.” The subsequent statement, which was not initialed, provides:

              That I am not represented by a lawyer, but understand that I have a

       right to hire a lawyer to represent me in this matter. If I do not have the

       money to hire a lawyer, the Court will appoint a lawyer to me or will appoint

       a Public Defender to represent me in this case.        Knowing this, I now

       voluntarily state that I do not want a lawyer to represent me and want to

       exercise my right to represent myself herein.

       {¶ 16} The “Waiver of Rights” section of Alvarado’s February 18, 2008 Diversion

Application contains the following sentence: “I have a lawyer at this time/ I do not want a

lawyer at this time.” Neither of the two sentences separated by the hash mark was

circled or underlined.
                                                                                           -10-


       {¶ 17} The November 10, 2008 “Sentencing Entry” in the file reflects that the State

requested a court order terminating Alvarado’s diversion program, and that the court did

terminate Alvarado from the Diversion Program, accepted her “plea of guilty previously

entered in this case,” and ordered “the plea placed of record as of 2-19-08.” The entry

reflects that Alvarado received a sentence of six months in jail with all but three days

suspended.

       {¶ 18} We agree with the trial court that Alvarado failed to make a prima facie

showing that her prior conviction was uncounseled and therefore constitutionally infirm.

While Thompson testified that he appeared in Vandalia Municipal Court up to 100 times,

and that his standard practice included routine filings absent from the municipal court file,

he further testified that he did not remember representing Alvarado, with whom he was

acquainted, and that he could not guarantee that he followed his standard practice in

every case. It is well-settled that a “court speaks through its journal entries.” State v.

Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47. The court’s

“Docket/Journal Entry” in the parties’ stipulated exhibit identifies “C. Thompson” as

“Attorney” for Alvarado. Presuming the proceedings in Vandalia Municipal Court were

conducted in accordance with the rules of law, Alvarado, by marking her initials on her

conditional plea form, certified the accuracy of the statement indicating that she was

represented by counsel and satisfied with counsel’s representation.           The statement

indicating an intent to “represent myself herein” was not initialed. We further agree with

the trial court that the fact that Alvarado participated in a pretrial conference, at which the

offer of diversion and a stay of an ALS suspension were extended and accepted, are

further “indicia of some counseling,” as evidenced by Thompson’s own testimony.
                                                                                       -11-


       {¶ 19} For the foregoing reasons, Alvarado’s sole assignment of error is overruled,

and the judgment of the trial court is affirmed.



                                      .............



FROELICH, J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Heather N. Jans
Jeffrey T. Gramza
Hon. Timothy N. O’Connell
