[Cite as State v. Coleman, 2013-Ohio-4792.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99369


                                      STATE OF OHIO

                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     ALEX COLEMAN
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                  AFFIRMED IN PART, REVERSED IN PART,
                            AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-568419

        BEFORE: Stewart, A.J., Keough, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                   October 31, 2013
ATTORNEY FOR APPELLANT

John T. Castele
614 West Superior Avenue, Suite 1310
Cleveland, OH 44113



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Carl Sullivan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:

       {¶1} The state filed an information charging defendant-appellant Alex Coleman

with a single count of domestic violence. The information alleged that Coleman had

previously been convicted of a misdemeanor count of domestic violence in 2005, so the

prior conviction elevated the degree of the offense to a felony. Coleman conceded the

prior conviction, but claimed that it was uncounseled and that he did not validly waive his

right to an attorney. The court concluded otherwise and a jury found him guilty. The

court’s refusal to dismiss the information is the primary basis for appeal.

                                              I

       {¶2} The state charged Coleman with domestic violence under R.C. 2919.25(A).

Ordinarily, a violation of that division is a first-degree misdemeanor.           See R.C.

2919.25(D)(2). However, if the offender has previously been convicted of domestic

violence, a subsequent violation of R.C. 2919.25(A) is a fourth-degree felony. See R.C.

2919.25(D)(3).    Because the prior conviction elevates the degree of the offense, it

becomes an essential element of the crime and must be proven beyond a reasonable

doubt. See R.C. 2945.75(B); State v. Henderson, 58 Ohio St.2d 171, 173, 389 N.E.2d

494 (1979).

       {¶3} In State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024,

the Ohio Supreme Court held:

       Generally, a past conviction cannot be attacked in a subsequent case.
       However, there is a limited right to collaterally attack a conviction when the
       state proposes to use the past conviction to enhance the penalty of a later
       criminal offense. A conviction obtained against a defendant who is
        without counsel, or its corollary, an uncounseled conviction obtained
        without a valid waiver of the right to counsel, has been recognized as
        constitutionally infirm.

Id. at ¶ 9.

        {¶4} An “uncounseled” conviction is one where the defendant was not represented

by counsel and did not validly waive his right to counsel. State v. Bonds, 8th Dist.

Cuyahoga No. 83866, 2004-Ohio-3483, ¶ 10. Because we presume that trial proceedings

are conducted according to law, State v. Brandon, 45 Ohio St.3d 85, 88, 543 N.E.2d 501

(1989), the defendant bears the initial burden of making 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[.]” State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314,

903 N.E.2d 618, syllabus. “A prima facie case is one in which the evidence is sufficient

to support but not to compel a certain conclusion and does no more than furnish evidence

to be considered and weighed but not necessarily to be accepted by the trier of the facts.”

Cleveland v. Keah, 157 Ohio St. 331, 105 N.E.2d 402 (1952), paragraph two of the

syllabus.     If the defendant makes a prima facie showing that his guilty plea was

uncounseled, “the burden shifts to the state to prove that the right to counsel was properly

waived.” Thompson, supra.

        {¶5} Coleman conceded the 2005 misdemeanor domestic violence conviction, but

claimed that it was uncounseled. To prove that it was uncounseled, he relied on a

negative:     that Crim.R. 22 and 44(C) collectively require misdemeanor waivers of
counsel to occur “in open court” and be “recorded,” but that there was no record in the

2005 case that he waived the right to counsel in open court. The clerk of the municipal

court in which Coleman was found guilty confirmed the absence of any verbatim record

of Coleman waiving the right to counsel. She testified that Coleman’s waiver of counsel

would have been tape recorded, but those recordings were destroyed because the court

only kept recordings for five years. The absence of the recording was enough to make a

prima facie showing that Coleman did not waive his right to counsel in open court.

      {¶6} With Coleman having made a prima facie showing that he did not waive the

right to counsel in open court, the burden shifted to the state to prove that Coleman

properly waived the right to counsel. The state offered into evidence a form styled

“ENTRY OF PLEA AND ACKNOWLEDGMENT OF RIGHTS,” signed by Coleman

and filed with the clerk of the municipal court. The form states that “[t]he undersigned

hereby acknowledges having received a copy of the complaint(s), and further knowingly,

intelligently, and voluntarily enters the following plea[.]” There are three, separate

headings of “GUILTY,” “NO CONTEST,” and “NOT GUILTY.” The form signed by

Coleman had the words “NO CONTEST” circled.

      {¶7} This form also states that Coleman verified that he had been “advised in

open court” of various rights. Among the acknowledged rights were “[m]y right to be

represented by a lawyer” and “[m]y right to have a lawyer appointed for me if I am unable

to afford a lawyer[.]” The acknowledgment that Coleman had been advised of these

rights in open court was enough to satisfy Crim.R. 44(D).
       {¶8} Coleman next claims that the form did not constitute a knowing and voluntary

waiver of the right to counsel. He argues that it was nothing more than a notification that

the right to counsel existed without being a waiver of that right.

       {¶9} By its own terms, the form signed by Coleman purports to be an

acknowledgment of the rights a defendant possesses, including the “right to be

represented by a lawyer.” It is a basic premise of the law that waivers of constitutional

rights are not presumed; in fact, we engage in every reasonable presumption against the

waiver of rights. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d

923, ¶ 31. The word “waive” or any derivation thereof does not appear on the form at

all. Given the very serious ramifications of the waiver of trial rights, we are not inclined

to find that the form signed by Coleman constituted a knowing, intelligent, and voluntary

waiver of the right to counsel.

       {¶10} It is true that the form stated that Coleman “knowingly, intelligently, and

voluntarily” entered his no contest plea, but that is nothing more than a legal conclusion

to be made by the court, not an acknowledgement to be made by the defendant. What is

more, there is nothing on the form to indicate that the municipal court judge made any

finding regarding the supposed waiver. The municipal court judge did not sign the

acknowlegment of rights form nor is there any other contemporaneous indication that the

court found a valid waiver of the right to counsel. The clerk of the municipal court

testified that the court typically advised misdemeanants of their rights at arraignment and

then at the time of the plea, but she conceded that she was not present for Coleman’s
municipal court case. Lacking first-hand knowledge of Coleman’s case, the clerk of the

court could not competently testify that Coleman validly waived the right to counsel.

       {¶11} We therefore find that the court erred by concluding that the

acknowledgment of rights form constituted a sufficient record that Coleman did, in open

court, waive the right to counsel in his 2005 conviction for domestic violence. It follows

that the 2005 conviction for domestic violence could not be used to enhance the present

conviction for domestic violence to a felony. We sustain this assignment of error and

remand with instructions for the court to enter a judgment of conviction on the domestic

violence count as a first-degree misdemeanor.

                                               II

       {¶12} Coleman also argues that the court erred by refusing to instruct the jury on

his alibi defense.

       {¶13} As a general proposition, the court should give the jury an instruction on

alibi when the defendant has filed a notice of alibi and offers evidence to that effect.

State v. Mitchell, 60 Ohio App.3d 106, 108, 574 N.E.2d 573 (8th Dist.1989). Coleman

filed a timely notice of alibi and presented the testimony of his fiancée who testified in

some detail that she was with him celebrating her brother’s birthday at the time the

domestic violence occurred. With a timely raised and presented alibi defense offered at

trial, the court erred by refusing to give the jury an alibi instruction.

       {¶14} However, the failure to give an alibi instruction is not necessarily reversible

error, but must be reviewed for plain error. In this context, plain error exists when “the
instruction would have altered the outcome of the case or if its omission caused a

manifest miscarriage of justice.”    State v. Greene, 8th Dist. Cuyahoga. No. 91104,

2009-Ohio-850, ¶ 106.

       {¶15} It is difficult to prove the existence of plain error in the court’s failure to

give a jury instruction on the alibi. An alibi defense constitutes a complete denial of the

charged offense, so it stands on its own against whatever evidence the state produces.

Because “[a] jury instruction on an alibi defense is nothing more than a reminder that the

defendant presented evidence of an alibi,” a guilty finding means that the jury necessarily

would have rejected the defense. State v. Reddy, 10th Dist. Franklin No. 09AP-868,

2010-Ohio-3892, ¶ 23. But regardless of whether a jury verdict for the state constitutes

an implicit rejection of an offered alibi, the court cannot disregard its obligation to

instruct the jury on a properly presented defense. Indeed, it has long been the law that if

requested special instructions to the jury are correct and timely presented, they must be

included in the general charge. Cincinnati v. Epperson, 20 Ohio St.2d 59, 253 N.E.2d

785 (1969), paragraph one of the syllabus. Until such time as an express alibi charge is

abrogated, the court should not assume that a general verdict will necessarily subsume an

alibi defense.

       {¶16} The state’s evidence consisted primarily of testimony by the victim, her

daughter, and niece. The victim testified that Coleman was the father of three of her

children and had lived with her for three years before vacating the premises about one

month before the act of domestic violence occurred. Coleman appeared at her apartment
and discovered a male watching television in the victim’s bedroom. Enraged, he began

punching her in the face. Photographs documented the victim’s injuries. The victim’s

daughter and niece witnessed these events and, having both testified that they knew

Coleman, positively identified him as the assailant.

       {¶17} At bottom, the alibi defense was a matter of credibility for the jury to decide.

 By finding Coleman guilty, the jury necessarily rejected the alibi in favor of the

eyewitness testimony. As even Coleman concedes, the state’s witnesses “gave fairly

consistent statements as to what happened” on the night of the crime. Appellant’s brief

at 18. What is more, they all knew Coleman very well given his prior relationship with

the victim, so there was no real possibility that they misidentified him as the assailant.

Finally, the state had photographs documenting injuries suffered by the victim that were

consistent with the testimony describing the attack. In short, the state provided a very

compelling case for Coleman’s guilt.

       {¶18} As previously noted, Coleman countered the state’s evidence by having his

fiancée testify that he was with her at the time the victim was attacked. Given her

relationship with Coleman, the jury could easily have concluded that her testimony was

biased and was entitled to little weight when compared to the very strong case presented

by the state. We see no basis for concluding that the jury’s verdict would have been

otherwise had it been expressly instructed on the alibi defense.

       {¶19} This cause is affirmed in part, reversed in part, and remanded to the trial

court for further proceedings consistent with this opinion.
      It is ordered that appellant and appellee share the costs of this appeal.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.               A   certified

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

Appellate Procedure.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., CONCURS;

KATHLEEN ANN KEOUGH, J., CONCURS WITH
SEPARATE OPINION



KATHLEEN ANN KEOUGH, J., CONCURRING:

      {¶20} I concur but write separately to reiterate that it is error for a trial court to

refuse to give an alibi instruction when the defense has been timely raised and evidence

regarding the alibi has been presented at trial. A defendant’s notice and evidence of alibi

are meaningless if the court can simply disregard the evidence and refuse to properly

instruct the jury. When the notice is timely raised and evidence is presented at trial, the

trial court is not permitted to invade the province of the jury by refusing to instruct

because it has concluded the alibi witness is not credible, which is essentially what

happened here. Although the alibi witness in this case may have been less than credible,
defendant’s alibi defense was timely raised and supported by testimony and, therefore, the

instruction should have been given. The trial court’s failure to give the alibi instruction

may not rise to the level of plain error in this case but it was error nonetheless.
