         [Cite as State v. Waheed, 2016-Ohio-2951.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NO. C-150254
                                                      TRIAL NO. 15CRB-5961
        Plaintiff-Appellee,                       :

  vs.                                             :      O P I N I O N.

MUHAMMAD WAHEED,                                  :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 13, 2016


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS



F ISCHER , Presiding Judge.

       {¶1}    Defendant-appellant Muhammad Waheed appeals his conviction for

one count of domestic violence, as a first-degree misdemeanor, following a bench

trial. The trial court sentenced Waheed to 180 days in jail, suspended 40 days,

credited 10 days, and imposed two years of community control. It also ordered

Waheed to pay a $200 fine and court costs. Waheed now appeals, raising two

assignments of error.

       {¶2}    In his first assignment of error, Waheed argues that his conviction for

domestic violence was based on insufficient evidence because the state failed to

prove his identity in two prior convictions that had been used to elevate the

domestic-violence offense to a first-degree misdemeanor. In his second assignment

of error, he argues that his trial counsel was ineffective for failing to collaterally

attack his prior convictions as having been uncounseled. Because the record reveals

that Waheed’s trial counsel stipulated to his two prior convictions, we find neither

assignment of error to be meritorious.        Therefore, we affirm the trial court’s

judgment.

                             Waheed’s Prior Convictions

       {¶3}    In his first assignment of error, Waheed argues that the state

presented insufficient evidence to convict him of domestic violence as a first-degree

misdemeanor. Waheed argues that the state failed to present evidence to establish

that he had two prior convictions for domestic violence. He does not challenge the

sufficiency of the evidence with respect to the other elements of the domestic-

violence offense.

       {¶4}    R.C. 2919.25(C) provides, “No person, by threat of force, shall knowingly

cause a family or household member to believe that the offender will cause imminent



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physical harm to the family or household member.” R.C. 2919.25(D)(4) provides that “if

the offender previously has pleaded guilty to or has been convicted of two or more

offenses of domestic violence * * * a violation of division (C) of this section is a

misdemeanor of the first degree.”

       {¶5}     The Ohio Supreme Court has held that “when the existence of a prior

conviction affects the degree of the offense and not just the punishment available upon

conviction, it is an essential element of the offense.” See State v. Gwen, 134 Ohio St.3d

284, 2012-Ohio-5046, 982 N.E.2d 626, ¶ 11, citing State v. Allen, 29 Ohio St.3d 53, 54,

506 N.E.2d 199 (1987). Thus, in order to convict Waheed of domestic violence as a first-

degree misdemeanor, the state had to prove beyond a reasonable doubt that Waheed

had “pleaded guilty to or been convicted of two or more offenses of domestic violence.”

See R.C. 2919.25(D)(4); Gwen at ¶ 11, citing State v. Henderson, 58 Ohio St.2d 171, 173,

389 N.E.2d 494 (1979).

       {¶6}     R.C. 2945.75(B)(1) provides that “[w]henever in any case it is necessary

to prove a prior conviction, a certified copy of the entry of judgment in such prior

conviction together with evidence sufficient to identify the defendant named in the entry

as the offender in the case at bar, is sufficient to prove such prior conviction.” In Gwen,

however, the Ohio Supreme Court stated that “the method set forth in R.C.

2945.75(B)(1) is not the exclusive method for proving a prior conviction.” Gwen at

paragraph one of the syllabus. The Gwen court noted that “an offender may, and often

does, stipulate to a prior conviction to avoid the evidence being admitted to the jury.” Id.

at ¶ 14. “A stipulation in law is nothing more than agreement as to the veracity of a fact

in issue.” State v. Tate, 138 Ohio St.3d 139, 143, 2014-Ohio-44, 4 N.E.3d 1016, ¶ 19,

citing Black’s Law Dictionary 1550 (9th Ed.2009).




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       {¶7}     Waheed contends that the state failed to prove that he had two prior

convictions for domestic violence. He argues that while the state introduced into

evidence two domestic-violence convictions for Arnold Glenn, the state presented

insufficient evidence to connect him to those two convictions. The state asserts, on the

other hand, that Waheed’s counsel stipulated to the state’s use of the prior convictions to

elevate the degree of Waheed’s offense, and it therefore, did not need to prove Waheed’s

identity as Arnold Glenn.

       {¶8}     The record reflects that Waheed’s prior convictions were discussed at a

pretrial proceeding. Defense counsel acknowledged that the state would need to prove

Waheed had prior convictions “to make it a misdemeanor of the first degree.” Defense

counsel acknowledged that he had seen the paperwork, but stated that he had “to do

some independent verifications as to an issue of waiver of counsel.”

       {¶9}     On the day of Waheed’s bench trial, the assistant prosecuting attorney

offered state’s exhibits 1 and 2 into evidence, which were certified copies of Waheed’s

prior convictions. A discussion then ensued between defense counsel, the assistant

prosecuting attorney, and the trial court judge regarding the admission into evidence of

Waheed’s prior convictions.

       ASSISTANT PROSECUTING ATTORNEY: * * * Your honor, before we

       get started, I have State’s exhibit 1 and 2. They are certified copies of

       Waheed’s prior convictions of domestic violence. I believe that as part of

       the statute one of the elements I have to prove to show that this threat

       here today is a misdemeanor of the first degree is his two prior

       convictions of domestic violence. So I’d just be offering State’s exhibits 1

       and 2 into evidence.

       THE COURT: Anything from the defense on that?



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DEFENSE COUNSEL:           Judge, for the record, I would object.          I

understand if it’s a felony domestic violence that it is an element that the

state has to prove upping it to a felony. However, in this case, it simply

changes the level of a misdemeanor rather than making it a felony. I

know in an OVI case if someone has multiple priors, the State would not

be allowed to introduce the evidence of priors but rather have it as a

matter of handling it at sentencing should it result in a conviction. I

would suggest to the court that this should be handled the same way. In

the event of conviction, then that’s a sentencing factor. But I wouldn’t say

that it’s not an element that the State has to prove. And for that reason, I

would say that it’s otherwise inadmissible evidence. If the court is willing

to admit it for that, I would ask that it be considered for that limited

purpose only, only to show the elements exist and not for any indication

of conduct.

THE COURT: The elements of the charge, and what is the allegation

here?

ASSISTANT PROSECUTING ATTORNEY: Your Honor, it’s a domestic

violence threat.

THE COURT: All right, the elements of the charge that the defendant –

no individual may cause another – a family or household member to

believe they would cause serious physical harm to them or threaten to

cause serious physical harm, that element?

ASSISTANT PROSECUTING ATTORNEY: Yes, cause imminent physical

harm to the family or household member.              Your Honor, under

2919.25(D), it says if the defendant has previously entered a plea of guilty



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or been convicted of two or more violations of domestic violence, a

violation of division (c), which is the threat, of this section, is a

misdemeanor of the first degree.         As you normally know, it is a

misdemeanor of the fourth degree. But here, we have a misdemeanor of

the first degree. So I feel – the State believes that part of – one of the

elements I have to prove is the two prior convictions to prove my

misdemeanor of the first degree.

THE COURT: But to defense counsel’s point, isn’t that an issue of

sentencing as opposed to an element of the offense? I mean the elements

are that the person threatened and that they believed that they were in

imminent fear of physical safety. For sentencing purposes, I mean that’s

– how does the prior conviction play into the elements itself if we’re

talking about the nature of the offense with regard to the degree?

ASSISTANT PROSECUTING ATTORNEY: I understand what you are

saying. I just – normally, it’s a misdemeanor of the first [sic] degree and

here it’s a misdemeanor of the first degree. How do we know that? We

know that because or why is that? It’s because of these prior convictions.

And your Honor has to make a finding on the misdemeanor of the first

degree. And I believe these [convictions] need to be in evidence for you to

do so.

THE COURT:       All right, if this were a jury, I would probably rule

differently. However, I will accept the State’s position that this is an

element of the offense in order to elevate it to a first degree misdemeanor.

Although, I do agree with the defense it should be taken for the limited

purpose of elevating the offense and not for consideration of consistent



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       behavior otherwise. So they’ll be admitted. I’ll note the defense objection

       for the reasons argued.

       {¶10}   Based upon the foregoing exchange in the record, we agree with the state

that Waheed’s counsel’s statements were tantamount to a stipulation as to the

authenticity and admissibility of the two prior convictions for use to elevate the offense

from a fourth-degree misdemeanor to a first-degree misdemeanor. See State v. Post, 32

Ohio St.3d 380, 393, 513 N.E.2d 754 (1987).          As a result, we overrule the first

assignment of error.

                    Waheed’s Trial Counsel Was Not Ineffective

           {¶11} In his second assignment of error, Waheed contends he was denied

the effective assistance of counsel guaranteed by the Sixth Amendment because his

trial counsel failed to challenge the validity of his uncounseled prior convictions,

which the state used to enhance the domestic-violence charge.

           {¶12} To demonstrate ineffective assistance of counsel, Waheed “must

show that his counsel’s representation fell below an objective standard of

reasonableness” and that he was “prejudiced by his counsel’s deficient performance.”

Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).

           {¶13} The Ohio Supreme Court has held that a defendant has a limited

right to attack a prior conviction when the state proposes to use that conviction as an

element of a subsequent criminal offense. See State v. Brooke, 113 Ohio St.3d 119,

2007-Ohio-1533, 863 N.E.2d 1024, ¶ 10. “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,” is constitutionally defective under the Sixth

Amendment. Id. at ¶ 9, citing State v. Brandon, 45 Ohio St.3d 85, 86, 543 N.E.2d



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                     OHIO FIRST DISTRICT COURT OF APPEALS



501 (1989), and Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 1281 L.Ed.2d

745 (1994). The defendant, however, bears the burden of proving a constitutional

defect in a prior conviction by a preponderance of the evidence.               See R.C.

2945.75(B)(3). If the defendant cannot discharge the burden, then the court must

presume the constitutional regularity of the prior proceeding. State v. Thompson,

121 Ohio St.3d 250, 2009-Ohio-314, 903 N.E.2d 618, ¶ 6.

           {¶14} In State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988),

paragraph one of the syllabus, the Ohio Supreme Court held that a stipulation of the

fact of a prior conviction constitutes a stipulation as to the conviction’s

constitutionality unless the defendant raises the constitutionality challenge at the

trial where the conviction is used to enhance a penalty. Compare State v. Williams,

197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 9 (1st Dist.) (where the

defendant stipulated to the existence of two prior convictions but challenged their

constitutionality during the bench trial).

           {¶15} The record in this case reflects that there was some discussion

about Waheed’s prior convictions during a pretrial hearing. Waheed’s trial counsel

stated during the hearing that “the only potential issue at this point would be what

level of offense Waheed had committed.” Waheed’s trial counsel told the court that

“the state will need to prove priors to make it a misdemeanor of the first degree.”

Counsel further stated that “he had seen the paperwork,” but he had “some

independent verifications as to an issue of waiver of counsel.” Waheed’s trial counsel

then stipulated to his prior convictions at the start of the bench trial. Because

Waheed’s trial counsel did not challenge the validity of the prior convictions during

the bench trial, his stipulation constitutes a stipulation as to the constitutionality of

the prior convictions.



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           {¶16} Waheed now argues on appeal that his trial counsel was ineffective

for failing to attack the constitutionality of the prior convictions. Waheed asserts

that the record demonstrates his prior convictions were uncounseled because the

journal entries submitted by the state contain the handwritten name “Deardorff” as

defense counsel, the judge wrote “W.C.” on the journal entries, which allegedly

means “without counsel,” and a signed waiver-of-counsel form was journalized,

which failed to inform Waheed of the nature of the charges, the penalty, possible

defenses, and any other necessary facts to ensure “a broad understanding of the

whole matter.” Waheed contends the written waiver was insufficient to show a

knowing, voluntary, and intelligent waiver of counsel.

           {¶17} Waheed cannot show that counsel’s performance was deficient.

Typically, a trial counsel’s decision not to object to evidence is one of trial strategy,

for which trial counsel will not be second-guessed. See State v. Conway, 109 Ohio

St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103; State v. Adams, 103 Ohio St.3d

508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 31. There is nothing in the record to show

that counsel’s failure to object was not a matter of trial strategy, particularly in light

of counsel’s statements at the pretrial hearing that he needed to check into the

waiver-of-counsel issue with respect to Waheed’s prior convictions and his

subsequent decision not to challenge the constitutionality of Waheed’s prior

convictions at the bench trial.

           {¶18} Waheed, furthermore, cannot show on the state of this record that

the outcome of the proceedings would have been different had his counsel chosen to

challenge the constitutionality of the prior convictions. The judgment entries do not

indicate whether counsel was appointed or retained, and Waheed speculates that

“W.C.” refers to waiver of counsel. Waheed’s signed waiver of counsel, moreover,



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was never made a part of the record before the trial court. As a reviewing court, we

cannot add matter to the record that was not a part of the trial court proceedings,

and decide the matter on the basis of the new material. See State v. Hamilton, 1st

Dist. Hamilton No. C-140290, 2015-Ohio-334, ¶ 15.               Thus, Waheed cannot

demonstrate that he did not validly waive the right to counsel.

           {¶19} Because Waheed has not demonstrated that trial counsel’s decision

not to object to the constitutionality of his prior convictions was not a matter of trial

strategy, and he cannot demonstrate that the outcome of the trial would have been

different had trial counsel made such a challenge, we overrule his second assignment

of error and affirm the judgment of the trial court.


                                                                    Judgment affirmed.

HENDON and CUNNINGHAM, JJ., concur.


Please note:
       The court has recorded its own entry this date.




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