[Cite as State v. Bigelow, 2016-Ohio-1073.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellant                   :      Hon. W. Scott Gwin, J.
                                              :      Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
JEFFREY G. BIGELOW                            :      Case No. 15CA49
                                              :
        Defendant-Appellee                    :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2014-CR-0415




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 14, 2016




APPEARANCES:

For Plaintiff-Appellant                              For Defendant-Appellee

LILLIAN R. SHUN                                      WILLIAM T. CRAMER
38 South Park Street                                 470 Olde Westerville Road
Mansfield, OH 44902                                  Suite 200
                                                     Westerville, OH 43082
Richland County, Case No. 15CA49                                                          2

Farmer, P.J.

       {¶1}    On August 12, 2014, the Richland County Grand Jury indicted appellee,

Jeffrey Bigelow, on two counts of operating a motor vehicle while intoxicated (OMVI) in

violation of R.C. 4511.19.     Each count contained a specification pursuant to R.C.

2941.1413 that appellee had been convicted of or pleaded guilty to five or more equivalent

offenses within the past twenty years.

       {¶2}    On April 9, 2015, appellee filed a motion to dismiss the indictment or in the

alternative, strike prior uncounseled convictions against him. Appellee conceded that he

had five prior OMVI convictions within twenty years, but challenged his second OMVI

conviction in 2005 in the Shelby Municipal Court. A hearing was held on May 12, 2015.

By order filed May 22, 2015, the trial court found the Shelby case involved an invalid

waiver of the right to counsel, granted the motion, and dismissed the indictment as a

felony, "but without prejudice to further prosecution of the offense at some other level of

offense."

       {¶3}    Appellant, the state of Ohio, filed an appeal and this matter is now before

this court for consideration. Assignment of error is as follows:

                                              I

       {¶4}    "THE JUDGMENT ENTRY REFLECTING THE APPELLANT'S PRIOR DUI

PLEA CONSTITUTED A VALID WAIVER FOR ENHANCEMENT PENALTIES,

BECAUSE THE APPELLANT FAILED TO SATISFY HIS BURDEN OF PROOF

ESTABLISHING A VIOLATION OF HIS CONSTITUTIONAL RIGHTS."
Richland County, Case No. 15CA49                                                           3


                                              I

       {¶5}   Appellant claims the trial court erred in finding the Shelby OMVI conviction

involved an invalid waiver of the right to counsel and therefore erred in granting appellee's

motion to dismiss the indictment as a felony. We disagree.

       {¶6}   R.C. 4511.19(G)(1)(d) states the following:



              Except as otherwise provided in division (G)(1)(e) of this section, an

       offender who, within six years of the offense, previously has been convicted

       of or pleaded guilty to three or four violations of division (A) or (B) of this

       section or other equivalent offenses or an offender who, within twenty years

       of the offense, previously has been convicted of or pleaded guilty to five or

       more violations of that nature is guilty of a felony of the fourth degree.



       {¶7}   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
Richland County, Case No. 15CA49                                                           4


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

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



       {¶8}   In its order filed May 22, 2015, the trial court relied on Brooke in dismissing

the indictment as a felony, finding the following:



              The evidence at the May 12, 2015 hearing showed that Mr. Bigelow

       was summoned to Shelby Municipal Court for trial of a misdemeanor OMVI

       charge on April 14, 2015. He came late to trial or failed to enter the

       courtroom. The judge called defendant's case just after 11:30 a.m., and

       authorized a bench warrant when defendant did not appear. Less than

       twenty minutes later the judge went back on the record to say that the

       defendant had come to the courthouse and was talking to the prosecutor.

       At some point after that announcement, the judge talked to defendant in the

       municipal court clerk's office where the written waiver of counsel and

       judgment entry were presented to the judge for signature.            After he

       answered the judge that he understood the documents, the judge signed

       the judgment entry sentencing defendant to ten days in jail.

              ***

              In the present case, the waiver was in writing and the defendant told

       the judge he understood it. But that's not good enough according to Brooke.

       The waiver also had to be made on the record in open court.
Richland County, Case No. 15CA49                                                         5

      {¶9}   In response to Brooke, appellant argues State v. Thompson, 121 Ohio St.3d

250, 2009-Ohio-314, ¶ 6, is controlling as it modified Brooke:



             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.

      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
Richland County, Case No. 15CA49                                                           6


       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

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

       was properly waived.



       {¶10} Unlike the defendant in Thompson, appellee presented evidence including

the pertinent records from his second OMVI conviction in the Shelby Municipal Court. T.

at 12-13; Defendant's Exhibit B, C, D, and E.         Appellee testified he was originally

represented by counsel in the Shelby case, but because of a lack of funds, proceeded

without counsel.    T. at 14.   Appellee explained he signed a no contest plea form

(Defendant's Exhibit C) and a waiver of the right to counsel form (Defendant's Exhibit D)

in the prosecutor's office. T. at 17-20, 22-23. After signing the forms, appellee never

went into court, but stood in the hallway by the glass window to the Clerk of Court's Office.

T. at 19. The judge was on the opposite side of the glass and "he asked me to raise my

right hand, that I agreed to all the terms that was written" on the plea form. T. at 19-20.
Richland County, Case No. 15CA49                                                         7


Appellee never entered the courtroom and the judge never engaged in a colloquy with

him regarding his plea and his waiver of the right to counsel. T. at 20-21, 33. As a result

of his no contest plea, appellee served ten days in jail. T. at 21. An audio tape of the

proceedings in court that day indicates appellee "was present in the hall" and the case

was "being handled by the prosecutor." T. at 30; Defendant's Exhibit E. The tape

concludes with appellee never entering the courtroom and being addressed by the trial

court in open court. Id.

       {¶11} The exhibits substantiate appellee's position that although he signed a

waiver of counsel, he never appeared in open court that day nor was the plea and waiver

placed on the record. We find the trial court was correct in its assessment of the waiver

being constitutionally defective.

       {¶12} Upon review, we find the trial court did not err in granting the motion to

dismiss the indictment as a felony.

       {¶13} The sole assignment of error is denied.
Richland County, Case No. 15CA49                                               8


      {¶14} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Delaney, J. concur.



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