[Cite as State v. Troyer, 2016-Ohio-3090.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. W. Scott Gwin, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
MICHAEL A. TROYER                            :       Case No. 15CA018
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case Nos. 15CR006 &
                                                     15CR061



JUDGMENT:                                            Affirmed/Reversed in Part &
                                                     Remanded




DATE OF JUDGMENT:                                    May 19, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

SEAN M. WARNER                                       LUKE T. BREWER
164 East Jackson Street                              88 South Monroe Street
Millersburg, OH 44654                                Millersburg, OH 44654
Holmes County, Case No. 15CA018                                                         2

Farmer, P.J.

       {¶1}    On January 12, 2015, the Holmes County Grand Jury indicted appellant,

Michael Troyer, on one count of domestic violence in violation of R.C. 2919.25 (Case No.

15-CR-006). Said charge arose from an incident that occurred on or about January 1,

2015. Although the charge was a first degree misdemeanor, it was enhanced to a felony

in the fourth degree due to the fact that appellant had been convicted of a previous crime

of violence against a family or household member, Case No. 2011-CRB-301, on August

17, 2011.

       {¶2}    On May 18 and 21, 2015, appellant filed motions to strike the prior

conviction, claiming it could not be used to enhance the charge and sentence in the 2015

case because the prior conviction was uncounseled. By judgment entry filed June 25,

2015, the trial court denied the motions.

       {¶3}    On July 20, 2015, appellant was again indicted on the same count of

domestic violence in violation of R.C. 2919.25 (Case No. 15-CR-061). However, the

charge was enhanced to a felony in the third degree due to the fact that appellant had

been convicted of previous crimes of violence against a family or household member,

Case No. 2011-CRB-301, on August 17, 2011, and Case No. 12-CRB-378, on September

4, 2012.

       {¶4}    On July 22, 2015, the two indictments were joined.

       {¶5}    On July 27, 2015, appellant filed a motion to strike the prior convictions,

claiming they could not be used to enhance the charge and sentence in the 2015 case

because the prior convictions were uncounseled. By judgment entry filed August 17,

2015, the trial court denied the motion.
Holmes County, Case No. 15CA018                                                         3


      {¶6}   A jury trial commenced on August 25, 2015. The jury found appellant guilty

as charged, along with the enhancements. By judgment entry filed September 22, 2015,

the trial court sentenced appellant on a felony in the third degree, ordering him to serve

twenty-four months in prison, six months mandatory.

      {¶7}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶8}   "THE TRIAL COURT ERRED WHEN IT ALLOWED DEFENDANT-

APPELLANT'S       PREVIOUS       UNCOUNSELED          CONVICTION        TO    ENHANCE

DEFENDANT-APPELLANT'S CHARGES AND SENTENCE."

                                            II

      {¶9}   "IF THIS COURT FINDS THAT THE ISSUE OF STRIKING THE

UNCOUNSELED CONVICTIONS WAS NOT PROPERLY PRESERVED AT TRIAL,

THEN DEFENDANT-APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE FOR

FAILING TO PROPERLY PRESERVE THE ISSUE FOR APPEAL."

                                            III

      {¶10} "THE TRIAL COURT ERRED BY RULING THAT DEFENDANT-

APPELLANT'S SENTENCE CONTAINED A MANDATORY SIX MONTHS PRISON

SENTENCE."

                                             I

      {¶11} Appellant claims the trial court erred in finding his two previous uncounseled

pleas were sufficient to enhance his 2015 domestic violence charge to a felony in the

third degree, as his waivers of counsel therein were invalid. We agree in part.
Holmes County, Case No. 15CA018                                                         4

      {¶12} In State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, syllabus, the

Supreme Court of Ohio held the following:



             1. 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 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.

             2. Waiver of counsel must be made on the record in open court, and

      in cases involving serious offenses where the penalty includes confinement

      for more than six months, the waiver must also be in writing and filed with

      the court. (Crim.R.44(C), applied.)



      {¶13} The Supreme Court of Ohio later clarified its Brooke decision in State v.

Thompson, 121 Ohio St.3d 250, 2009-Ohio-314, ¶ 6, as follows:



             Even though nothing in the body of Brooke can be construed as

      suggesting that "a prima facie showing that prior convictions were

      unconstitutional" can be established merely by stating that the defendant

      had not been represented in the prior convictions and that the convictions

      had resulted in confinement, that is the interpretation that Thompson has

      taken. This case highlights the "limitations in the English language with

      respect to being both specific and manageably brief." United States Civ.
Holmes County, Case No. 15CA018                                                         5

     Serv. Comm. v. Natl. Assn. of Letter Carriers AFL–CIO (1973), 413 U.S.

     548, 578–579, 93 S.Ct. 2880, 37 L.Ed.2d 796.            Our use of the word

     "uncounseled" in Brooke encompassed the combined definition, not the first

     alone. Thus, a defendant cannot establish a prima facie showing as to

     "uncounseled" merely by establishing that he or she had been convicted

     without representation. For one thing, it is beyond dispute that a person

     has a constitutional right to represent himself or herself; therefore, it is not

     possible to establish a constitutional infirmity merely by showing that a

     person did not have counsel. See Section 10, Article I, Ohio Constitution;

     State v. Gibson (1976), 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399,

     paragraph one of the syllabus. Furthermore, in State v. Brandon (1989), 45

     Ohio St.3d 85, 543 N.E.2d 501, syllabus, we stated, "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."           With respect to

     "uncounseled" pleas, we presume that the trial court in the prior convictions

     proceeded constitutionally until a defendant introduces evidence to the

     contrary. Thus, we conclude that for purposes of penalty enhancement in

     later convictions under R.C. 4511.19, after the defendant presents 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
Holmes County, Case No. 15CA018                                                        6


      confinement, the burden shifts to the state to prove that the right to counsel

      was properly waived.



      {¶14} In Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct.316 (1948), the

Supreme Court of Ohio explained the following:



             We have said: 'The constitutional right of an accused to be

      represented by counsel invokes, of itself, the protection of a trial court, in

      which the accused—whose life or liberty is at stake—is without counsel.

      This protecting duty imposes the serious and weighty responsibility upon

      the trial judge of determining whether there is an intelligent and competent

      waiver by the accused.'***To discharge this duty properly in light of the

      strong presumption against waiver of the constitutional right to counsel,***a

      judge must investigate as long and as thoroughly as the circumstances of

      the case before him demand. The fact that an accused may tell him that

      he is informed of his right to counsel and desires to waive this right does

      not automatically end the judge's responsibility. To be valid such waiver

      must be made with an apprehension of the nature of the charges, the

      statutory offenses included within them, the range of allowable

      punishments thereunder, possible defenses to the charges and

      circumstances in mitigation thereof, and all other facts essential to a broad

      understanding of the whole matter. A judge can make certain that an

      accused's professed waiver of counsel is understandingly and wisely made
Holmes County, Case No. 15CA018                                                           7


       only from a penetrating and comprehensive examination of all the

       circumstances under which such a plea is tendered. (Footnotes omitted.)



       {¶15} Appellant challenges the plea colloquy in his two previous uncounseled

misdemeanor convictions.

       {¶16} On June 29, 2011, appellant was arraigned on one count of domestic

violence, a misdemeanor in the first degree (Case No. 11-CRB-301). The transcript of

the arraignment and entry of plea establish appellant was informed of his right to an

attorney and/or a court appointed attorney. June 29, 2011 T. at 3. Appellant was

informed of the possibility of future enhancement should he "be charged with Domestic

Violence years from now." Id. at 7. Appellant requested court appointed counsel and the

trial court gave him the opportunity to fill out the financial forms. Id. After a recess,

appellant decided to plead no contest and waived his right to counsel. Id. at 10. In its

June 25, 2015 judgment entry denying appellant's motion to strike, the trial court cited the

following language from appellant's waiver of counsel form (Exhibit A): " 'Having been

informed in open court by Judge Irving of the effect of a plea of guilty, no contest and not

guilty and my right to be represented by a retained or appointed attorney, I knowingly and

voluntarily waive my right to be represented by an attorney and enter a plea of no contest.'

"

       {¶17} We find the 2011 process, plea colloquy, and waiver of counsel to be

sufficient to establish a knowingly and voluntarily waiver of counsel for purposes of

enhancement of the 2015 domestic violence charge.
Holmes County, Case No. 15CA018                                                            8


       {¶18} On September 4, 2012, appellant was arraigned on one count of assault, a

misdemeanor in the first degree (Case No. 12-CRB-378). As in the 2011 case, the

transcript of the arraignment and entry of plea establish appellant was informed of his

right to an attorney and/or a court appointed attorney. September 4, 2012 T. at 2.

Immediately thereafter, the trial court called appellant's case and again explained his right

to an attorney. Id. at 3. Appellant indicated he did not want to speak with an attorney,

signed a waiver of counsel, and pled no contest. Id. at 3-4. During the recitation of the

facts, it was clear that the victim of the assault was a family member. Id. at 4. However,

appellant was not charged with domestic violence and was not informed of the possibility

of enhancement in the event of future charges for domestic violence.

       {¶19} We find the plea colloquy was insufficient to establish the constitutionality

of appellant's uncounseled plea for purposes of enhancement of the 2015 domestic

violence charge.

       {¶20} Upon review, we find the trial court erred in permitting the September 4,

2012 assault conviction to enhance appellant's 2015 domestic violence charge.

       {¶21} Assignment of Error I is granted in part as to the September 4, 2012 assault

conviction. The matter is remanded to the trial court for resentencing on the domestic

violence conviction as a felony in the fourth degree under R.C. 2929.14(A)(4).



                                             II

       {¶22} Appellant claims his trial counsel was ineffective for not preserving the issue

of his previous uncounseled pleas for appeal. We disagree.
Holmes County, Case No. 15CA018                                                           9

       {¶23} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of the

       trial would have been different.



       {¶24} After the first indictment, defense counsel filed two motions to strike the

2011 prior conviction, one on May 18, 2015, and a second on May 21, 2015. By judgment

entry filed June 25, 2015, the trial court denied the motions.

       {¶25} Thereafter, the second indictment on the same charge was filed containing

the 2011 and 2012 prior convictions. During arraignment, defense counsel raised the

issue of the previous uncounseled pleas. July 22, 2015 T. at 2-3. On July 27, 2015,

defense counsel filed a motion to strike the prior convictions. By judgment entry filed

August 17, 2015, the trial court denied the motion.         During the sentencing hearing,
Holmes County, Case No. 15CA018                                                     10


defense counsel referenced the issue of the previous uncounseled pleas. September 22,

2015 T. at 2.

      {¶26} Upon review, we find the record adequately preserved the enhancement

issue for appeal. We find do not find any deficiency by defense counsel.

      {¶27} Assignment of Error II is denied.

                                           III

      {¶28} Appellant claims the trial court erred in determining there was a mandatory

six months sentence.     Based upon our decision and remand for resentencing in

Assignment of Error I, we find this assignment to be moot.
Holmes County, Case No. 15CA018                                                        11


      {¶29} The judgment of the Court of Common Pleas of Holmes County, Ohio is

hereby affirmed in part and reversed in part, and the matter is remanded to said court for

further proceedings consistent with this opinion.

By Farmer, P.J.

Gwin, J. and

Wise, J. concur.




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