[Cite as State v. Kessler, 2013-Ohio-4858.]


STATE OF OHIO                      )                IN THE COURT OF APPEALS
                                   )ss:             NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                       C.A. No.       12CA010318

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
ELIZABETH D. KESSLER                                OBERLIN MUNICIPAL COURT
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   2012TRC02859

                                  DECISION AND JOURNAL ENTRY

Dated: November 4, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Elizabeth Kessler, appeals from her conviction in the

Oberlin Municipal Court. This Court affirms.

                                                I

        {¶2}     In June 2012, Kessler was charged with: (1) operating a motor vehicle under the

influence of alcohol (“OVI”), in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first

degree; (2) OVI with a breath alcohol content of more than .08, but less than .17, in violation of

R.C. 4511.19(A)(1)(d), a misdemeanor of the first degree; and (3) failure to control, in violation

of R.C. 4511.202, a minor misdemeanor. Kessler’s citation indicated that she had an OVI

conviction in 2007 in Oklahoma.

        {¶3}     Kessler filed a “motion to dismiss and/or motion to suppress” her prior OVI

conviction. She argued that the prior conviction did not meet the constitutional requirements to

be considered as an enhancement to her current OVI charge. The court held a change of plea
                                                   2


hearing the same day her motion was filed. After the court reviewed the possible penalties with

her, Kessler entered a plea of no contest to the OVI charge. The State dismissed the remaining

counts. The court found Kessler guilty of OVI and set a date for another hearing to determine if

the prior OVI offense should be considered in sentencing.

       {¶4}       After a hearing, the court concluded that her prior conviction was not

constitutionally infirm and used that conviction to calculate the mandatory jail time. The court

sentenced Kessler to 90 days in jail with 80 days suspended, fines, a one-year license suspension,

and three years of community control. Kessler now appeals and raises one assignment of error

for our review.

                                                   II

                                         Assignment of Error

       THE APPELLANT WAS PREJUDICED AT SENTENCING DUE TO THE
       INEFFECTIVE ASSISTANCE OF THE APPELLANT’S TRIAL COUNSEL
       WHO FAILED TO ESTABLISH A PRIMA FACIE CASE THAT HER PRIOR
       CONVICTION FOR OVI WAS BOTH UNCOUNSELED AND RESULTED IN
       CONFINEMENT AND THEREFOR (sic) CONSTITUTIONALLY INFIRM[.]

       {¶5}       In her sole assignment of error, Kessler argues that her counsel was ineffective for

failing to establish that her prior OVI conviction resulted in confinement. According to Kessler,

if her prior OVI conviction had resulted in confinement the court could not have used that

conviction to enhance her sentence.

       {¶6}       To prevail on a claim of ineffective assistance of counsel, a defendant must show

(1) that counsel’s performance was deficient to the extent that “counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but for counsel’s

deficient performance the result of the trial would have been different. Strickland v. Washington,

466 U.S. 668, 687 (1984). Accord State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three
                                                3


of the syllabus. In Ohio, the burden of proof lies with the defendant because a properly licensed

attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62.

       {¶7}    A defendant convicted of his or her first OVI is subject to a mandatory three days

in jail. R.C. 4511.19(G)(1)(a)(i). If the defendant has a prior OVI within the last six years, the

mandatory jail time is increased to ten days. R.C. 4511.19(G)(1)(b)(i). “Generally, a past

conviction cannot be attacked in a subsequent case.        However, there is a limited right to

collaterally attack a conviction when the [S]tate proposes to use the past conviction to enhance

the penalty of a later criminal offense.” State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, ¶

9. Because prior convictions are entitled to a presumption of validity, the defendant has the

burden to produce evidence of “constitutional infirmity.” State v. Brandon, 45 Ohio St.3d 85

(1989), syllabus.

       {¶8}    The defendant can meet this burden by showing that his or her prior conviction

resulted in confinement and was obtained in violation of his or her Sixth Amendment right to

counsel. Brooke at syllabus. If the defendant presents a prima facie showing that he or she “had

not been represented by counsel and had not validly waived the right to counsel and that the prior

conviction[ ] had resulted in confinement, the burden shifts to the [S]tate to prove that the right

to counsel was properly waived.” State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314,

syllabus.

       {¶9}    Kessler filed a motion to dismiss and/or suppress her prior conviction. In her

motion, she argued that her prior 2007 OVI conviction from Oklahoma is constitutionally infirm

because when she pleaded to it she was uncounseled and did not waive her right to counsel. The

trial court held a hearing, and Kessler presented the current Oklahoma OVI statute which

requires a mandatory ten days’ imprisonment for the first offense. Kessler admitted, however,
                                                4


that she did not serve any time in jail, but that she “did community service * * * [and] had

probation time.” Kessler argued at the hearing that because she was subject to a prison term, was

unrepresented by counsel, and did not waive her Sixth Amendment right to counsel, the court

could not use that prior conviction to enhance her current sentence. The trial court, citing State

v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, found that “since the prior conviction did not

result in confinement the prior offense in Oklahoma must be considered for purposes of the

mandatory sentencing law.”

       {¶10} On appeal, Kessler now argues that her prior conviction did “result in a

[recognized] form of confinement.” We note that, in the record before us, there is neither a

journal entry nor any written or recorded evidence concerning the precise details of Kessler’s

sentence from her prior Oklahoma OVI conviction. See e.g., State v. Noble, 9th Dist. Lorain No.

07CA009083, 2007-Ohio-7051. In support of her argument, she attached an affidavit to her

brief. However, this affidavit is not a proper appendix and will not be considered by this Court.

Loc.R. 7(B)(9). “[A] bedrock principle of appellate practice in Ohio is that an appeals court is

limited to the record of the proceedings at trial.” Morgan v. Eads, 104 Ohio St.3d 142, 2004-

Ohio-6110, ¶ 13. See also App.R. 9 & 12(A)(1)(b).

       {¶11} Based on the information in the record, Kessler cannot establish that her prior

conviction resulted in confinement, and therefore, she cannot establish that her trial counsel was

ineffective. Kessler’s assignment of error is overruled.

                                                III


       {¶12} Kessler’s assignment of error is overruled.         The judgment of the Oberlin

Municipal Court is affirmed.
                                                 5


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Oberlin Municipal

Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JUSTIN M. WEATHERLY, Attorney at Law, for Appellant.

MICHELLE NEDWICK, Prosecuting Attorney, for Appellee.
