[Cite as State v. Hogue, 2018-Ohio-1109.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-17-58

        v.

JAMY HOGUE,                                              OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR 2016 0132

                                     Judgment Affirmed

                            Date of Decision: March 26, 2018




APPEARANCES:

        Kenneth J. Rexford for Appellant

        Jana E. Emerick for Appellee
Case NO. 1-17-58


SHAW, J.

       {¶1} Defendant-appellant, Jamy Hogue (“Hogue”), brings this appeal from

the November 16, 2017, judgment of the Allen County Common Pleas Court

denying his petition for post-conviction relief. On appeal, Hogue argues that the

trial court erred by denying his petition without a hearing, and by finding that res

judicata was applicable to his claim.

                           Facts and Procedural History

       {¶2} On April 14, 2016, Hogue was indicted for operating a vehicle while

intoxicated (“OVI”) in violation of R.C. 4511.19(A)(1)(b)/(G)(1)(d), a felony of the

fourth degree due to Hogue allegedly having 5 prior offenses within 20 years.

Hogue was also indicted for one count of OVI in violation of R.C.

4511.19(A)(1)(a)/(G)(1)(d), a felony of the fourth degree due to Hogue allegedly

having 5 prior offenses with 20 years. Hogue originally pled not guilty to the

charges.

       {¶3} On July 12, 2016, Hogue entered a negotiated guilty plea wherein he

agreed to plead guilty to OVI in violation of R.C. 4511.19(A)(1)(b)/(G)(1)(d) and

in exchange the State agreed to dismiss the other OVI allegation and recommend

that Hogue be sentenced to community control with 60 days of local incarceration.

Hogue’s guilty plea was accepted, he was found guilty of OVI as alleged, and he

was sentenced to the recommended sentence of the State.


                                        -2-
Case NO. 1-17-58


         {¶4} Hogue did not appeal his conviction and sentence to this Court.

         {¶5} On September 6, 2017, a motion to revoke Hogue’s community control

was filed based on Hogue purportedly being arrested for another OVI violation.

         {¶6} On October 16, 2017, Hogue’s counsel filed a petition for post-

conviction relief arguing that he received ineffective assistance of counsel in this

case with regard to his negotiated guilty plea. Specifically, he contended that he

could not have been convicted of a felony violation of R.C. 4511.19 here because

at least two of the prior convictions that were used to enhance his OVI offense were

“void or voidable” even though Hogue had pled guilty to those offenses.

         {¶7} To support his argument, Hogue attached two judgment entries to his

petition that were from prior OVI convictions, one from 2013 and one from 2014.

Hogue argued that the judgment entries were flawed and were either void or

voidable. With regard to the 2014 judgment entry convicting him of OVI, Hogue

argued     that   the   entry   found   him    guilty   of   violating   both   R.C.

“4511.19(A)(1)(a)&(A)(2)(a)&(b).” Hogue argued that the (A)(1)(a) offense and

the (A)(2) offense were two separate crimes rather than one that he purportedly pled

guilty to, and was sentenced upon. Hogue argued that as the judgment entry did not

resolve both of the counts by merging one or dismissing one, and as there was only

one sentence ordered, the 2014 sentencing entry was invalid. Hogue made the same

argument regarding a 2013 conviction.


                                         -3-
Case NO. 1-17-58


       {¶8} On November 8, 2017, Hogue filed a motion for summary judgment on

his petition for post-conviction relief.

       {¶9} On November 9, 2017, the State filed a response to Hogue’s motion

arguing that it was Hogue’s burden to demonstrate substantive grounds for post-

conviction relief and that he had failed to do so on the basis of the 2013 and 2014

judgment entries alone.

       {¶10} On November 14, 2017, Hogue filed a reply in support of his motion

for summary judgment.

       {¶11} On November 16, 2017, the trial court filed a judgment entry denying

Hogue’s motion for summary judgment and his petition for post-conviction relief.

The trial court reasoned that Hogue’s arguments were barred by res judicata as they

could have been raised on direct appeal.

       {¶12} It is from this judgment that Hogue appeals, asserting the following

assignments of error for our review.

                           Assignment of Error No. 1
       The Trial Court erred in ruling that res judicata applies when the
       evidence upon which a petition for post-conviction relief relies is
       solely in eDiscovery and therefore erred in denying Mr. Hogue’s
       petition for post-conviction relief.

                          Assignment of Error No. 2
       The Trial Court erred in denying the petition without an
       evidentiary hearing.




                                           -4-
Case NO. 1-17-58


       {¶13} Due to the nature of the discussion, we elect to address the assignments

of error together.

                       First and Second Assignments of Error

       {¶14} In Hogue’s first assignment of error, he argues that the trial court erred

by finding that res judicata was applicable in this instance. In Hogue’s second

assignment of error, he argues that the trial court erred in denying his petition

without a hearing.

       {¶15} In this case, Hogue seeks to collaterally attack prior OVI convictions

that were used to enhance the penalty of his OVI offense in this case. “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.” State v. Brooke,

113 Ohio St.3d 199, 2007-Ohio-1533, ¶ 8.

       {¶16} While there is a limited right to collaterally attack a prior conviction

used as a penalty-enhancement, courts have held that the “ ‘only recognized

constitutional infirmity [to collaterally attack a prior, penalty-enhancing conviction]

is that [a defendant] was denied the fundamental right to be represented by counsel,

or the necessary corollary, an invalid waiver of the right to counsel.’ ” (Emphasis

added.) State v. Lowe, 7th Dist. Columbiana No. 08CO37, 2010-Ohio-2788, ¶ 25,

quoting State v. Culberson, 142 Ohio App.3d 656, 662-663, 2001-Ohio-3261. “The


                                         -5-
Case NO. 1-17-58


United States Supreme Court expressly refused to extend the right to collaterally

attack a prior penalty-enhancing conviction on grounds beyond the right to

counsel.” State v. Menkhaus, 12th Dist. Claremont No. CA2015-04-035, 2016-

Ohio-550, ¶ 11, citing Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732

(1994). The Supreme Court of the United States reasoned that collateral attacks on

prior, penalty-enhancing convictions should be limited to uncounseled prior

convictions or an invalid waiver of the right to counsel because otherwise

sentencing courts would be required to “rummage through frequently nonexistent

or difficult to obtain state-court transcripts or records that may date from another

era” and because of the interest of promoting finality of judgments. Custis at 496–

497, 114 S.Ct. 1732.

       {¶17} Limiting collateral attacks to prior, penalty-enhancing convictions has

been repeatedly upheld by courts in Ohio. For example, in State v. Lusane, 11th

Dist. Portage No. 2014-P-0057, 2016-Ohio-267, the Eleventh District Court of

Appeals reaffirmed that where an appellant argued that one of his prior penalty-

enhancing convictions was invalid due to the lack of a Crim.R. 11(C) plea hearing,

the only recognized challenge to a prior penalty-enhancing conviction was the denial

of the fundamental right to be represented by counsel. ¶¶ 13-14. Other Ohio

Appellate Courts have applied similar reasoning to Lusane, refusing to extend

collateral attacks to prior, penalty-enhancing convictions beyond what has been


                                        -6-
Case NO. 1-17-58


recognized. See State v. Menkhaus, 12th Dist. Claremont No. CA2015-04-035,

2016-Ohio-550, ¶ 12; State v. Drager, 2d Dist. Montgomery No. 26067, 2014-Ohio-

3056; State v. Jones, 5th Dist. Tuscarwaras No. 2001AP120110, 2002-Ohio-3484,

¶ 16; State v. Phillips, 12th Dist. Butler No. CA2009-09-242, 2010-Ohio-1941;

State v. Mikolajczyk, 8th Dist. Cuyahoga No. 93085, 2010-Ohio-75; State v.

Dowhan, 11th Dist. Lake No. 93085, 2009-Ohio-684.

       {¶18} In this case, Hogue does not argue that his prior convictions, to which

he pled guilty, were uncounseled and he does not make a prima facie showing that

his earlier guilty pleas were uncounseled. Rather, he argues that he received

ineffective assistance of counsel in this case, and essentially in the prior cases, since

there may have been some potential merger or dismissal issues with regard to some

of his prior penalty-enhancing convictions. Hogue’s challenge in this case is not

one that has been recognized as a proper constitutional infirmity to collaterally

attack a prior penalty-enhancing conviction.

       {¶19} The trial court did not rule specifically on this collateral-attack issue,

which is likely why Hogue did not address it in his brief; however, Hogue argued at

oral argument that his claims were actually not collateral attacks on the prior

convictions because the prior convictions were invalid and thus, effectively, did not

exist at all. This line of reasoning is specious, at best, because it depends entirely

“upon collaterally attacking the [prior] judgment of conviction.” U.S. v. Fowler,


                                          -7-
Case NO. 1-17-58


N.D. Ohio No. 5:10CR55 2010 WL 2756942 (July 12, 2010). Hogue’s argument

that the prior judgment entries do not contain valid sentences relies upon an attack

on that entry. Id. “This exercise is the very essence of a collateral attack[.]” Id.;

see also Harris v. U.S., N.D. Ohio Nos. 1:10CV1513, 1:CR294 2011 WL 1675422

(April 29, 2011), quoting Fowler (“ ‘absent an adjudication in a state court that a

particular conviction is void, [a court] must characterize any challenge as a collateral

challenge.’ ”).

       {¶20} At oral argument and in his brief, Hogue cited this Court to State v.

Lupardus, 4th Dist. Washington No. 07CA46, 2008-Ohio-2660, which he claims

supports his position that he is not engaging in a collateral attack because the prior

conviction did not exist. Contrary to Hogue’s arguments, Lupardus was a direct

appeal to the Fourth District Court of Appeals on an OVI conviction wherein the

trial court’s entry did not specify which section of R.C. 4511.19 a plea was regarding

and the trial court’s entry did not indicate what happened to a second OVI. The

Fourth District found, in those circumstances, in a direct appeal where there were

potential issues outstanding regarding a judgment entry, the judgment was not final.

Lupardus did not involve a situation where a defendant was attempting to attack the

finality of an underlying judgment in a subsequent case.

       {¶21} Here Hogue seeks to have this Court evaluate and then invalidate a

conviction from cases that are not even before us so that their evidentiary value is


                                          -8-
Case NO. 1-17-58


destroyed. The Supreme Court of the United States has limited challenges to prior

convictions that were based on “alleged constitutional violations. As such, there is

little doubt that the Supreme Court would decline to permit challenges for alleged

technical violations of a state statute.” Fowler at * 4.

       {¶22} Although the trial court did not rule specifically on this issue of

Hogue’s argument being an improper collateral attack, for this reason alone Hogue’s

assignments of error are not well-taken.

       {¶23} Completely notwithstanding the previous point, Hogue’s arguments

still fail on appeal. At best, the judgment entries that Hogue included with his

petition for post-conviction relief showed that it was possible that there were

potentially merger or dismissal issues related to two of his prior convictions.

However, we do not have the records from the prior cases to determine if there were

later merger proceedings or charge dismissals to establish that the prior proceedings

were erroneous in some manner. “ ‘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.’ ” Brooke, 2007-Ohio-1533, at ¶ 11, quoting State v. Brandon, 45 Ohio

St.3d 85, syllabus.




                                           -9-
Case NO. 1-17-58


       {¶24} Here, Hogue contends that his trial counsel was ineffective for failing

to make an argument regarding the prior penalty-enhancing convictions, but he has

not made a prima facie showing that he can make such a challenge, let alone that it

would have been successful. Moreover, given the potential prison time Hogue was

facing, his trial counsel in this case appears to have negotiated a favorable deal

wherein Hogue would only serve 60 days of local incarceration and be placed on

community control. We cannot find that under these circumstances Hogue has

demonstrated that his counsel’s conduct fell below the range of reasonable

professional assistance.

       {¶25} In his brief, Hogue takes issue with a number of statements in the trial

court’s entry and he cites a number of cases dealing generally with post-conviction

relief, including instances where proof of ineffective assistance of counsel is outside

the record. Notably, the cases cited by Hogue do not deal with circumstances such

as the case before us where Hogue is attempting to collaterally attack a prior,

penalty-enhancing conviction. As to Hogue’s other claims regarding certain errant

statements made by the trial court regarding e-discovery and the trial court’s

purportedly improper use of res judicata in this instance, we cannot find that even if

the trial court erred on either of these issues that reversible error was present in this

case based on the foregoing. Accordingly, Hogue’s first and second assignments of

error are thus overruled.


                                          -10-
Case NO. 1-17-58


                                   Conclusion

       {¶26} For the foregoing reasons Hogue’s assignments of error are overruled

and the judgment of the Allen County Common Pleas Court is affirmed.

                                                             Judgment Affirmed

ZIMMERMAN, J., concurs.

WILLAMOWSKI, P.J. concurs in Judgment Only.

/jlr




                                      -11-
