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When a Signed Waiver of Counsel May Not Be Sufficient to Enhance an OVI to a Felony

Date:May 21, 2012 Posted By: Law, LLC

With felony OVI arrests on the rise, practitioners need to look in depth at each client’s prior OVI convictions to determine if the client was counseled on each previous conviction. If not, was there a valid waiver of counsel?

Don’t be fooled just because your client signed a waiver of counsel form in a previous OVI conviction! A signed waiver of counsel form may not be sufficient to show a valid waiver of counsel if the trial court: (1) did not engage the Defendant in a colloquy—on the record and in open court, and (2) did not time stamp and journalize the written waiver.

Although generally a past conviction cannot be attacked in a subsequent case, defendants have a limited right to collaterally attack a prior OVI conviction when the state proposes to use the past conviction to enhance the penalty of a later criminal offense.[1] Once the defendant presents a prima facie showing that prior conviction(s) 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]

What Counsel Should Do First:

Counsel should request a “certified” copy of the court file (including copies of all papers and journal entries) from each prior OVI conviction that will be used to enhance the current OVI to a felony.

Second, request a transcript of each plea hearing where the defendant pled guilty without counsel. The transcript will be used to show if there was a colloquy with the defendant prior to waiver of counsel—which is required. And, if there was a colloquy—the transcript will be used to determine if the colloquy was sufficient.

Was there a colloquy, and was it sufficient?

Prior to a valid waiver of counsel, the court “must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.”[3] At the very least, then, any 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.”[4] Additionally, “[t]he record must show, or there must be an allegation and evidence which shows, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”[5]

Written Waivers of Counsel

If there is a written waiver of counsel by defendant, verify if the waiver was journalized and time stamped by the trial court on the date of the plea. If the waiver was not time stamped, nor journalized, it is not part of the record—thus insufficient to prove a valid waiver of counsel.[6] Additionally, check to see if the defendant checked the “guilty” or “no-contest” box—sometimes that goes unchecked. Written waivers are not required in petty offense cases. But, if the court did not record the colloquy, or if there is not a record of the court’s colloquy—the state may not be able to prove a valid waiver of counsel without a written waiver.

How to shift the burden to the state

Under State v. Thompson[7] a defendant must show: (1) she did not have counsel to represent her; (2) she did not validly waive the right to counsel; and (3) the conviction resulted in confinement. A defendant may meet that burden by filing a motion prior to trial, along with an affidavit stating he or she was unrepresented by counsel and did not validly waive their right to counsel. A defendant can also present testimony, or other evidence to support his or her argument.[8] But, a defendant need only provide an affidavit or testimony supporting his allegation.[9]

Representative Case:

In State v. Mundrick,[10] a felony OVI was dismissed due to a prior uncounseled conviction when: (1) the recording of the colloquy was not preserved; (2) there was no evidence in the court’s journal entries of the colloquy; and (3) the written waiver of counsel signed by defendant was not time-stamped and journalized.

Counsel filed Defendant’s motion to dismiss accompanied by: (1) an affidavit from the Defendant—stating that the court did not engage defendant in a colloquy to determine if he understood he had the right to an attorney and that one would be appointed if he wished prior to waiver of counsel; (2) a certified letter from the trial court stating that the recording of the plea colloquy was destroyed; and (3) the trial court journal entries—which showed Defendant was convicted and sentenced to a period of confinement, but did not show that Defendant’s right to counsel was explained to him.

Although the state introduced a signed waiver of counsel form from the Defendant, the court held that was insufficient. Although Defendant’s signature was on the waiver of counsel form—that did not demonstrate that during Defendant’s first plea to an OVI without counsel, that the trial court engaged Defendant in a colloquy on the record and in open court, when the waiver was not time stamped and journalized.

In Defendant’s first OVI plea, the trial court merely wrote “atty waived” on the journal entries—and without more, that did not demonstrate the colloquy that was necessary to prove a knowing, voluntary, and intelligent waiver of the right to counsel.

When defending a felony OVI—don’t accept a signed waiver of counsel or a certified journal entry of conviction as definitive proof that the Defendant made a knowing, voluntary, and intelligent waiver of his right to counsel. With adequate investigation, you may find that an uncounseled conviction will not be supported by a sufficient record in the trial court—thus sparing your client a felony. After a client is convicted of one felony OVI—each OVI conviction for the rest of the client’s life is a felony.

[1] State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533.

[2] Id.

[3] State v. Gibson (1976), 45 Ohio St.2d 366.

[4] Brooke at 24.

[5] Id. at 25, quoting State v. Wellman (1974), 37 Ohio St. 2d 162, at paragraph two of the syllabus, citing Carnley v. Cochran (1962), 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70.

[6] See State v. Chiominto, 2008-Ohio-3393, 44.

[7] State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314

[8] State v. Neely, 11th Dist. No. 2007-L-054, 2007-Ohio-6243.

[9] See State v. Putich, Cuyahoga App. No. 89005, 2008 Ohio 681; State v. Jackman, 2008-Ohio-1944.

[10] State v. Mundrick, Butler Co. Common Pleas, CR-2009-01-0080.

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