[Cite as State v. Bauer, 2014-Ohio-2980.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100438



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                            LOUIS BAUER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-07-495906

        BEFORE: Kilbane, J., Rocco, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                     July 3, 2014
ATTORNEY FOR APPELLANT

John T. Castele
The Rockefeller Building, Suite 13
614 West Superior Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
James M. Price
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, Louis Bauer, appeals from his no contest plea to

operating a motor vehicle under the influence of alcohol (“OMVI”), and challenges the

denial of his motion to dismiss a furthermore specification that alleged a prior conviction.

 Having reviewed the trial court record, transcripts, and relevant case law, we affirm.

       {¶2} On May 10, 2007, Louis Bauer was charged with two counts of OMVI, for

operating a motor vehicle under the influence of alcohol and for driving with a prohibited

breath-alcohol level.    Both counts also contained three furthermore specifications

alleging that the defendant had been convicted of driving under the influence of alcohol,

or an equivalent offense, on June 13, 2003 and June 16, 2003, in Rocky River Municipal

Court, and on January 14, 2003 in Avon Lake Municipal Court.              The furthermore

specifications therefore elevated the 2007 charges to fourth-degree felonies.             R.C.

4511.19(G)(1)(d). Defendant denied the charges and the matter was set for trial on

December 17, 2007. On that date, according to the trial court’s journal entry, “defendant

was present for part of the morning but left before trial commenced.” A capias was

issued for him, and on May 13, 2008, his bond was forfeited.

       {¶3} After almost six years, the defendant, a resident of Virginia, turned himself

in to the trial court on February 11, 2013. 1 On April 25,2013, he filed a motion to

dismiss the furthermore specification pertaining to the January 14, 2003 conviction from


       1Therecord suggests that the defendant pled guilty to the 2003 charges in
Rocky River Municipal Court in 2013.
Avon Lake Municipal Court, and complained that it was uncounseled and resulted in

confinement, so it could not be used to enhance the 2007 offense. In opposition, the

state asserted that according to a videotape of the event, which was not presented to the

trial court and has not been provided as part of the record on appeal, defendant waived his

right to counsel after learning that he was not eligible for appointed counsel. In addition,

defendant signed a waiver-of-rights form in which he waived his right to an attorney and

other rights, prior to his conviction in the Avon Lake Municipal Court matter. This

form identifies a defendant’s rights under Crim.R. 11 and additionally states:

       A conviction in this matter may be used at a future date to enhance the
       degree of a future conviction.

       ***

       The Court, pursuant to Crim.R. 11, entered into a meaningful discussion
       with me regarding my rights. I have heard and responded to the Court
       about my rights. I hereby knowingly, intelligently, and voluntarily waive
       my rights as explained to me[.]
       {¶4} On May 20, 2013, the trial court denied the motion to dismiss the

furthermore clause pertaining to the Avon Lake Municipal Court conviction, and

concluded that the defendant knowingly, intelligently, and voluntarily waived his right to

counsel. In relevant part, the court held that the defendant executed a written waiver of

counsel in the Avon Lake Municipal Court proceedings and the signed, journalized

waiver of counsel explicitly advised him that a “conviction in this matter may be used at a

future date to enhance the degree of a future conviction.”

       {¶5} On July 30, 2013, the defendant pled no contest on both charges, with the

furthermore clauses.    The court concluded that the offenses were allied offenses of
similar import, and the state elected to proceed to sentencing on the charge of driving

with a prohibited breath-alcohol level. On August 26, 2013, the trial court sentenced the

defendant to 120 days of imprisonment, one year of community control sanctions, and a

three-year license suspension. On September 25, 2013, the trial court granted a stay of

execution of sentence pending the outcome of the appeal. The defendant raises the

following assignment of error for our review:

      The trial court erred in denying the defendant’s motion to dismiss one of the
      furthermore clauses in the indictment which served to enhance the offenses
      of operating a motor vehicle while under the influence of alcohol and
      operating a motor vehicle with a prohibited [breath-] alcohol content from
      misdemeanors of the first degree to felonies of the fourth degree.

                                  Standard of Review

      {¶6} Preliminarily, we note that a trial court’s ruling on a motion to dismiss is

subject to a de novo standard of review. Cleveland v. Olivares, 197 Ohio App.3d 78,

2011-Ohio-5271, 966 N.E.2d 285, ¶ 8 (8th Dist.); State v. Lewis, 11th Dist. Lake No.

2009-L-138, 2010-Ohio-4288, ¶ 24. A de novo standard of review affords no deference

to the trial court’s decision, and the appellate court independently reviews the record.

Olivares.

                       Furthermore Clause Alleging Prior Offense

      {¶7} In general, an OMVI conviction is a first-degree misdemeanor.

R.C. 4511.19(A)(1)(a) (driving under the influence of alcohol); 4511.19(A)(1)(d)(driving

with a prohibited breath-alcohol concentration). However, R.C. 4511.19(G) provides for

enhanced penalties for repeat offenders, and R.C. 4511.19(G)(1)(d) escalates the offense
to a fourth-degree felony if the offender has previously been convicted of three such

offenses within six years, the “look back period.” In such matters, the prior offense is an

essential element of the subsequent offense and must be proved by the state. State v.

Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, State v. Allen, 29 Ohio

St.3d 53, 54, 506 N.E.2d 199 (1987).

       {¶8} In determining whether a prior conviction may properly enhance another

offense under R.C. 4511.19(G), however, the Brooke court recognized that a conviction

obtained against a defendant who is without counsel, or without a valid waiver of the

right to counsel, and resulted in confinement, is constitutionally infirm. Id. at ¶ 11. The

Brooke court stated:

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

       4511.19, when the defendant presents a prima facie showing that prior

       convictions were unconstitutional because they were uncounseled and

       resulted in confinement, the burden shifts to the state to prove that the right

       to counsel was properly waived.

Id.

       {¶9} 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.     State v. Thompson, 121 Ohio St.3d 250,

2009-Ohio-314, 903 N.E.2d 618, ¶ 6. The court explained the standard of review as
follows:

      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.

      {¶10} The Thompson court further explained that the defendant cannot establish

a prima facie showing that the prior plea was uncounseled merely by establishing that he

or she had been convicted without representation. The Thompson court held:

      For one thing, it is beyond dispute that a person has a constitutional right to

      represent himself or herself; therefore, it is not possible to establish a

      constitutional infirmity merely by showing that a person did not have

      counsel.   See Section 10, Article I, Ohio Constitution; State v. Gibson

      (1976), 45 Ohio St.2d 366, 74 Ohio Op. 2d 525, 345 N.E.2d 399, paragraph

      one of the syllabus. Furthermore, in State v. Brandon (1989), 45 Ohio

      St.3d 85, 543 N.E.2d 501, syllabus, we 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.”

      {¶11} In this matter, the defendant asserted that he did not have counsel in the

Avon Lake Municipal Court matter and served 90 days in jail. In opposition, the state

presented compelling evidence that the defendant signed a waiver-of-rights form in which

he waived his right to an attorney, and other rights, prior to his conviction in the Avon

Lake Municipal Court case. This form additionally states that a “conviction in this

matter may be used at a future date to enhance the degree of a future conviction,” and that

the trial court “entered into a meaningful discussion with me regarding my rights. I * * *

hereby knowingly, intelligently, and voluntarily waive my rights as explained to me[.]”

      {¶12} The record herein was accurately summarized by the trial court as follows:

      Exhibit C is a precis of the court’s docket, apparently from its web site. It
      lists the defendant as being represented by [an attorney]. However, the
      state’s exhibit 1 is a plea hearing form used by the court. On that form
      there is a line allowing the person completing the form to circle whether the
      defendant appeared “with/without” counsel, and nothing is circled.
      Another line on the form, for a defense attorney’s signature is blank.
      Exhibit 2 from the state is the court’s “explanation of rights” form.
      Additionally, on the body of the form, the defendant acknowledges by his
      signature that he “hereby knowingly, intelligently and voluntarily” waives
      his rights, including the right to counsel.

      Based on this evidence, the court assumes, despite the one electronic docket
      notation to the contrary, that the defendant did not have an attorney at the
      January 14, 2003 plea hearing.

      Upon signing the form[,] the defendant proceeded to plead guilty to driving
      under the influence, driving under suspension and reasonable control. It is
      difficult to decipher from the documents the precise sentence imposed.
However, it is clear that jail time was ordered (but possibly suspended) and
it seems that the defendant was placed on probation [since a handwritten
entry appears to mention “adult probation.”] For the purpose of the pending
motion the court will assume that actual incarceration was imposed.

* * * [H]ere, defendant does not question the state’s ability to produce a
certified copy, or other suitable evidence [pursuant to R.C. 2945.75(B)(1)],
of the Avon Lake Municipal Court conviction. Instead, he argues, in
essence, that evidence of the Avon Lake conviction cannot be used against
him because in that case he was unrepresented and did not validly waive his
right to counsel. * * *.

* * * But there is no constitutional infirmity, and thus no reason to
prohibit the prior conviction from increasing the level of offense in the
current case, if the defendant waived his right to counsel in the Avon Lake
case.

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. State v. Brandon, 45 Ohio St.3d 85, at syllabus (1989). The
defendant has not produced any such evidence. Bauer does argue that the
lack of a full record of the Avon Lake proceedings makes it impossible to
find that “an oral waiver in open court before a judge” took place there.
But since this court must presume the Avon Lake proceedings were lawful,
an inability to produce a trial court record cannot be considered as evidence
that the proceedings were contrary to law. At most there is the absence of
evidence, and it is Bauer who has the burden of producing evidence to make
a prima facie showing that his conviction was constitutionally infirm.

Bauer does offer evidence in the form of Exhibit B, the on-line docket
summary, to show “that the alleged waiver was never even docketed as a
waiver.” That is meaningless since there is no requirement in the Ohio
Rules of Criminal Procedure that a waiver of counsel be included in an
on-line summary of the court’s journal entries. The record here is bare of
any evidence contrary to the presumption that the Avon Lake Municipal
Court proceedings were by the book.

On the other hand, there is record evidence in the form of the signed,
journalized waiver of counsel — which included an explicit
acknowledgment that “a conviction in the matter may be used at a future
       date to enhance the degree of a future conviction” — that Bauer knowingly,
       intelligently and voluntarily waived his right to counsel before pleading
       guilty. A signature on a written waiver form is sufficient to demonstrate a
       knowing and intelligent waiver of the right to counsel. City of Parma v.
       Romain, 8th Dist. [Cuyahoga] No. 87133, 2006-Ohio-3952, ¶ 12.

       Bauer’s failure to show by evidence that he did not properly waive his right
       to counsel in Avon Lake justifies denying his motion. But a second ground
       to deny it is untimeliness. Criminal Rule 12(D) required Bauer to file his
       motion within 35 days of arraignment. He waited almost six years and has
       offered no reason to justify the late filing and avoid the automatic waiver of
       the issue under Criminal rule. 12(H).

       {¶13} On this record, it is clear beyond dispute that Bauer filed his motion almost

six years out of rule. It is also clear beyond dispute that Bauer signed a waiver of

counsel that contained an explicit acknowledgment that “a conviction in the matter may

be used at a future date to enhance the degree of a future conviction.” This document

further indicated that the trial court entered into a meaningful discussion of Bauer’s rights

under Crim.R. 11, that Bauer “heard and responded to the Court about my rights [and]

hereby knowingly, intelligently and voluntarily waive my rights as explained to me

pursuant to Crim.R. 11.” On this record, and in light of our duty to presume that the

Avon Lake Municipal Court proceedings were lawful, defendant’s inability to

demonstrate his claim of constitutional infirmity, there is no basis upon which to conclude

that defendant’s waiver of counsel was not knowingly and intelligently made. State v.

Caudill, 10th Dist. Franklin No. 10AP-90, 2010-Ohio-5965, ¶ 10; State v. Caskey, 11th

Dist. Lake No. 2010-L-014, 2010-Ohio-4697, ¶ 41; State v. Mariano, 11th Dist. Lake No.

2008-L-134, 2009-Ohio-5426, ¶ 18.

       {¶14} Without addressing the issue of untimeliness, the defendant insists that his
waiver of counsel was invalid in accordance with the decision in State v. Albert, 2d Dist.

Montgomery No. 23148, 2010-Ohio-110. We find Albert to be distinguishable from this

matter.   In that case, there was a verbatim transcript that demonstrated the court’s

colloquy was silent regarding the requirements for waiving counsel, so due to the

insufficient dialogue, the defendant’s written waiver was insufficient to establish a valid

waiver of the right to counsel. In this matter, however, no verbatim transcript has been

presented, and we are compelled to presume regularity in connection with the waiver.

For that reason, this matter is governed by the principles outlined in Brooke, wherein the

court held:

       There was no available transcript of Brooke’s second DUI plea hearing held
       in the Willoughby Municipal Court. A court bailiff testified by affidavit
       that no oral record or transcript of the hearing existed because any such
       record had been disposed of in accordance with the court’s “standard record
       retention policy.” The state, however, produced a written “waiver of
       counsel” signed by Brooke at her plea hearing in the Willoughby
       conviction[.]

       * * * [W]e can presume from this written and filed entry, which is part of
       the record of her case, that the court accurately explained to Brooke that she
       was waiving her right to counsel on July 1, 1998. The court speaks
       through its journal entries. Kaine v. Marion Prison Warden (2000), 88
       Ohio St.3d 454, 455, 2000-Ohio-381, 727 N.E.2d 907. Here the entry has
       recorded what occurred during the plea hearing of this misdemeanor.
       There is evidence that the court made a finding that the right to counsel was
       knowingly and voluntarily waived. We therefore determine that this
       uncounseled plea may be counted toward enhancing a later penalty.

Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024.

       {¶15} In accordance with the foregoing, the assignment of error is without merit.

       {¶16} Judgment is affirmed; case is remanded for execution of sentence.
      It is ordered that appellee recover from appellant 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. The defendant’s conviction having

been affirmed, any bail pending is terminated.

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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KENNETH A. ROCCO, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
