[Cite as State v. Drager, 2014-Ohio-3056.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO                                        :
                                                      :
          Plaintiff-Appellee                          :    Appellate Case No.     26067
                                                      :
 v.                                                   :    Trial Court Case No.
                                                      :    2012-TRC-16110
 LLOYD L. DRAGER, JR.                                 :
                                                      :
          Defendant-Appellant                         :    (Criminal Appeal from
                                                      :    (Municipal Court)

                                             ...........

                                             OPINION

                                Rendered on the 11th day of July, 2014.

                                             ...........

MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Assistant City of Dayton Prosecutor, 335
West Third Street, Suite 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

CHARLES M. RITTGERS, Atty. Reg. No. 0086567, NICHOLAS D. GRAMAN, Atty. Reg. No.
0082359, 12 East Warren Street, Lebanon, Ohio 45036
      Attorneys for Defendant-Appellant

                                             .............




WELBAUM, J.
                                                                                                    2




       {¶ 1}    Defendant-appellant, Lloyd L. Drager, Jr., appeals from his sentence imposed by

the Dayton Municipal Court after he pled guilty to one count of operating a motor vehicle under

the influence of alcohol. For the reasons outlined below, the judgment of the trial court will be

affirmed.



                               Facts and Course of Proceedings

       {¶ 2}    On December 6, 2012, Drager was arrested and charged with operating a motor

vehicle under the influence of alcohol (“OVI”), in violation of R.C. 4511.19(A)(1)(a) and R.C.

4511.19(A)(2). Drager was also charged with a marked lanes violation under R.C. 4511.33.

On April 22, 2013, Drager pled guilty to the OVI charge under R.C. 4511.19(A)(1)(a), and the

remaining charges were dismissed pursuant to a plea agreement.

       {¶ 3}    Prior to the OVI offense in this case, Drager had two OVI convictions in

Vandalia Municipal Court. On June 5, 2012, the trial court held a hearing to determine whether

Drager’s prior convictions may be used to enhance his sentence as provided in R.C.

4511.19(G)(1)(c). Before the hearing, Drager and the State stipulated to the following facts:

               On December 31, 2011, the defendant, Lloyd Drager, was arrested and

       charged with one count of operating a vehicle under the influence of alcohol,

       (“OVI”), under R.C. 4511.19(A)(1)(a) in Vandalia Municipal Court (“VMC”)

       case number 12-TRC-00001. On January 11, 2012, Drager signed a form in that

       case entitled “Diversion Program Conditional Plea.” A copy of that form is

       attached to this fact statement as “Joint Exhibit A.” The conditional plea form
                                                                                       3


was signed by Judge Cynthia Heck and filed with the VMC clerk on January 11,

2012. That same day, Drager received and signed a copy of the VMC “Diversion

Agreement,” a copy of which is attached as “Joint Exhibit B.” Upon executing

the Diversion Program Conditional Plea, Drager was accepted into the VMC OVI

diversion program. Under the terms of VMC’s diversion program, Drager agreed

to, among other things, “not be arrested for any alcohol related offenses during the

one year Diversion period.”     If Drager successfully completed diversion, the

prosecutor would file a motion asking the court not to accept Drager’s conditional

guilty plea and dismiss his case. The court’s journal entry from 12-TRC-00001 is

attached as “Join Exhibit C.”

       On May 17, 2012, Drager was again arrested for OVI. He was charged

with OVI under R.C. 4511.19(A)(1)(a) in VMC case number 12-TRC-04274.

Drager was also charged with a seatbelt and marked lanes violation, both minor

misdemeanors. On June 7, 2012[,] Drager entered a plea of guilty to the OVI

charge in 12-TRC-04274. The court found Drager guilty, sentenced him to a

$375 fine, suspended his license, placed him on probation for one year, and

sentenced him to the three[-]day WIP program in lieu of jail. In exchange for his

plea of guilty to OVI, the companion minor misdemeanors were dismissed. A

journal entry memorializing the plea, finding of guilty, and sentence were filed

with the VMC clerk on that same day. (Attached as “Joint Exhibit D”). Neither

plea, in case 12-TRC-00001 nor in case 12-TRC-04274, was made in open court.

No audio recordings of any of the proceedings in either of those cases exist.
                                                                                                4


               Also filed on June 7, 2012[,] was a sentencing entry finding that Drager

       had failed to successfully complete the VMC diversion program in

       12-TRC-00001.      The entry (attached as “Joint Exhibit E”) stated the court

       “accepts the Defendant’s plea of guilty previously entered in this case and orders

       the plea placed of record as of 1-11-12.” The entry also sentenced Drager to a

       fine of $1000 and a jail term of six months, with the court suspending all but three

       days of that sentence.

               A certified copy of Drager’s Bureau of Motor Vehicles (“BMV”)

       transcript is attached as “Joint Exhibit F.” Drager was represented by defense

       counsel, Dennis Gump, at the time he entered his pleas of guilty in each case,

       12TRC0001 and 12TRC04274. (See notices of appearance attached as “Joint

       Exhibit G” and “Joint Exhibit H”).

Stipulated Fact Statement (May 31, 2013), Dayton Municipal Court Case No. 12-TRC-016110,

Docket No. 28a, p. 1-2.

       {¶ 4}    During the June 5, 2012 hearing, Drager presented testimony from his former

attorney, Dennis Gump. Gump’s testimony was consistent with the stipulated facts, as Gump

testified that he represented Drager in both OVI cases in Vandalia Municipal Court and that

neither of Drager’s pleas were made by personally appearing before a judge in open court.

Gump testified that in his expert opinion, this practice violated Traf.R. 10 and Crim.R. 11.

Accordingly, it was Drager’s position that his guilty pleas in those cases were deficient and the

resulting convictions could not be used to enhance his sentence in the present case. Drager,

however, never filed a direct appeal from either conviction.
[Cite as State v. Drager, 2014-Ohio-3056.]
        {¶ 5}     Following the hearing, the trial court issued a written decision holding that

Drager’s two Vandalia Municipal Court convictions were valid for sentencing enhancing

purposes. Thereafter, on January 13, 2013, the trial court sentenced Drager according to R.C.

4511.19(G)(1)(c) and (G)(3), imposing 15 days in jail, followed by 55 days of electronic home

detention, a fine of $850, a two-year driver’s license suspension, alcohol treatment, and forfeiture

of the vehicle Drager was operating at the time of the offense.

        {¶ 6}     Drager now appeals from the trial court’s sentence, raising one assignment of

error for review.



                                             Assignment of Error

        {¶ 7}     Drager’s sole assignment of error is as follows:

        THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING THAT

        APPELLANT HAD TWO PRIOR OVI CONVICTIONS WITHIN THE PAST 6

        YEARS.

        {¶ 8}     Under his sole assignment of error, Drager contends that his two prior OVI

convictions in Vandalia Municipal Court cannot be used to enhance his sentence for the OVI

offense in the present case. Drager does not contest the existence of the prior convictions, but

instead claims that the convictions are invalid due to the Vandalia Municipal Court failing to

comply with the plea requirements in Traf.R. 10 and Crim.R. 11. Due to the alleged invalidity

of these convictions, Drager claims that he should have been sentenced as a first-time offender

instead of under R.C. 4511.19(G)(1)(c), which applies to offenders who have been previously

convicted of two OVI offenses within six years of their current OVI offense.

        {¶ 9}     Drager did not directly appeal from his prior OVI convictions in Vandalia
                                                                                               6


Municipal Court and is now attempting to collaterally attack the validity of those convictions.

The Supreme Court of Ohio has stated the following regarding collateral attacks on prior

convictions:

               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. State v. Brandon

       (1989), 45 Ohio St.3d 85, 86, 543 N.E.2d 501; Nichols v. United States (1994),

       511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745.

State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 9.

       {¶ 10} The Supreme Court in Brooke also stated that:

               “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, 543 N.E.2d 501, syllabus. Once a prima facie showing is made

       that a prior conviction was uncounseled, the burden shifts to the state to prove that

       there was no constitutional infirmity. Id. at 88, 543 N.E.2d 501. 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
                                                                                                  7


       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.

Brooke at ¶ 11.

       {¶ 11} The United States Supreme Court has expressly refused to extend the right to

collaterally attack prior penalty-enhancing convictions on grounds beyond the right to counsel.

Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). Various

courts of appeals in Ohio have also recognized that the only constitutional infirmity a criminal

defendant may allege to collaterally challenge a prior penalty-enhancing conviction is the denial

of the fundamental right to be represented by counsel. See State v. Phillips, 12th Dist. Butler

No. CA2009-09-242, 2010-Ohio-1941, ¶ 7; State v. Mikolajczyk, 8th Dist. Cuyahoga No. 93085,

2010-Ohio-75, ¶ 28; State v. Nadock, 11th Dist. Lake No. 2009-L-042, 2010-Ohio-1161, ¶ 21;

State v. Armbruster, 3d Dist. Marion No. 9-03-15, 2004-Ohio-289, ¶ 7; State v. Lamar, 10th Dist.

Franklin No. 00AP-1204, 2001 WL 722084, *3 (June 28, 2001); State v. Culberson, 142 Ohio

App.3d 656, 662-663, 756 N.E.2d 734 (7th Dist.2001).

       {¶ 12} Therefore, a defendant represented by counsel cannot collaterally attack his prior

convictions on grounds that his guilty pleas were invalid. See, e.g., State v. Jones, 5th Dist.

Tuscarawas No. 2001 AP 12 0110, 2002-Ohio-3484, ¶ 16 (“[b]ecause Appellant did not attack

the previous conviction through a direct appeal, and the agreed judgment entry clearly indicates

Appellant had the benefit of counsel for said conviction, * * * the trial court’s non-compliance

with Crim. R. 11 * * * does not preclude the use of [the prior] conviction for enhancement

purposes”); Lamar at *3 (finding that “even if the record supported defendant’s assertion that the

guilty plea was not knowingly, voluntarily and intelligently made, such failure does not constitute
                                                                                                 8


sufficient evidence to establish a prima facie showing of constitutional infirmity”).

       {¶ 13} In this case, Drager attempts to collaterally attack his two prior OVI convictions

by alleging that his guilty pleas in those cases were invalid for violating Traf.R. 10 and Crim.R.

11. However, Drager does not allege that he was without counsel during those convictions. In

fact, the stipulation between Drager and the State specifically states that Drager was represented

by counsel at the time he entered his guilty pleas. Moreover, Drager’s former counsel testified at

the June 5, 2012 hearing and confirmed that he represented Drager during his past OVI cases.

Because Drager was not denied the fundamental right to be represented by counsel, he is not

permitted to collaterally attack the validity of his prior penalty-enhancing convictions.

Accordingly, the trial court did not err in finding that Drager had two prior OVI convictions

within six years of his current conviction and sentencing him under R.C. 4511.19(G)(1)(c).

       {¶ 14} Drager’s sole assignment of error is overruled.



                                            Conclusion

       {¶ 15} Having overruled Drager’s sole assignment of error, the judgment of the trial

court is affirmed.

                                          .............


FAIN and DONOVAN, JJ., concur.




Copies mailed to:
                                                                                                 9



Matthew Kortjohn
Charles M. Rittgers
Nicholas D. Graman
Hon. John S. Pickrel




Case Name:    State of Ohio v. Lloyd L. Drager, Jr.
Case No:              Montgomery App. No. 26067
Panel:                Fain, Donovan, Welbaum
Author:               Jeffrey M. Welbaum
Summary:              The trial court did not err in finding that Appellant had two prior OVI
                      convictions within six years of his current OVI offense and enhancing his
                      sentence pursuant to R.C. 4511.19(G)(1)(c). Because Appellant was
                      represented by counsel during his prior convictions, he is now prohibited
                      from collaterally attacking the validity of those convictions in the present
                      case. Affirmed.
