State v. Brandon
| Decision Date | 23 August 1989 |
| Docket Number | No. 88-1294,88-1294 |
| Citation | 45 Ohio St.3d 85,543 N.E.2d 501 |
| Parties | The STATE of Ohio, Appellant, v. BRANDON, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
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.
On June 12, 1987, Keith D. Brandon, appellee, was indicted by the Summit County Grand Jury and was charged with one count of robbery, in violation of R.C. 2911.02 , and one count of kidnapping, in violation of R.C. 2905.01(A)(2). 1 The indictment stemmed from an incident which occurred on March 19, 1987, between appellee, his companion Lavaile D. Thomas, and Richard Williams.
On that date, Williams was walking down the street when a car, driven by appellee, pulled up alongside. Thomas allegedly exited the car, approached Williams, struck him in the face, and dragged Williams into appellee's car. Once Williams was inside the car, Thomas allegedly took all the money Williams had in his wallet, totalling $35, and forced Williams out of the car. Williams then notified the police of the incident. Subsequently, Williams identified photographs of appellee and Thomas as being those of Williams' assailants.
At trial, appellee testified on his own behalf. During cross-examination, appellee admitted that he had previously been convicted of petty theft. Regarding this prior conviction, appellee testified that
In addition, appellee admitted that he had a second prior conviction for petty theft:
At the close of trial, appellee's counsel asked that the jury be given an instruction on the lesser included offense of theft. The court granted this request. The court also decided to submit to the jury a special interrogatory asking the jury whether they found beyond a reasonable doubt that appellee had been previously convicted of a theft offense. Appellee's attorney objected to the interrogatory, arguing that appellee's prior theft offenses could not be used for enhancement because the prior offenses were not mentioned in the indictment and because it was uncertain whether appellee had the benefit of counsel for his prior convictions. Counsel's exact words were that The special interrogatory was submitted to the jury.
After deliberations, the jury returned a verdict of not guilty to the kidnapping charge and not guilty to the robbery charge. Appellee was found guilty of the lesser included offense of theft. The jury also found beyond a reasonable doubt that appellee had been convicted of a prior theft offense. The court concluded that the jury had found appellee guilty of a felony crime of grand theft and sentenced him to one and one-half years in prison.
On appeal, the court of appeals, citing State v. Maynard (1987), 38 Ohio App.3d 50, 526 N.E.2d 316, noted that appellee had presented some evidence that his prior theft convictions had been uncounseled. Therefore, according to the court of appeals, the state had the duty to prove that the prior convictions were counseled before those convictions could be used for sentence enhancement purposes. Because the state had not done so, appellee's conviction was modified by the court of appeals with appellee being found guilty of petty theft.
This cause is before this court on a motion for leave to appeal.
Lynn C. Slaby, Pros. Atty., and Marc R. Wolff, Akron, for appellant.
Annette L. Powers, Akron, and Richard Kasay, Cuyahoga Falls, for appellee.
The issue before this court is whether appellee's testimony before the trial court constituted evidence indicating that his prior convictions had been uncounseled. We do not believe that appellee's statements constituted such evidence and, therefore, reverse the judgment of the court of appeals.
As noted supra, the jury found appellee not guilty of robbery but guilty of the lesser offense of theft. The jury also, by special interrogatory, found that appellee had a prior conviction for theft. R.C. 2913.02(B) provides in pertinent part that " * * * if the offender previously has been convicted of a theft offense, a violation of this section is theft, a felony of the fourth degree. * * * " Therefore, based on this statute, the trial court was justified in imposing a sentence of one and one-half years.
The crucial question becomes whether appellee was represented by counsel for his prior theft convictions. It is unquestioned that an indigent defendant may not be sentenced to a term of imprisonment unless the state has afforded said defendant the right to assistance of counsel. See Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383; Argersinger v. Hamlin (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
This is not to say that counsel is required in all instances. Indeed, in Scott, supra, the court essentially held that uncounseled misdemeanor convictions are constitutionally valid if the offender is not actually incarcerated. However, even though this type of uncounseled conviction may be constitutionally valid, the Supreme Court has specifically stated that such a conviction may not be used to enhance a sentence in any subsequent conviction. In Baldasar v. Illinois (1980), 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169, the court held at 226, 100 S.Ct. at 1587, that " * * * petitioner's prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction."
Clearly, if it is established that appellee's prior convictions were uncounseled, then it would have been inappropriate for the trial court to use these convictions for the purpose of enhancement of sentence. The question then becomes whether appellee raised the issue of lack of counsel in an appropriate manner.
In State v. Adams (1988), 37 Ohio St.3d 295, 525 N.E.2d 1361, paragraph two of the syllabus, this court held: "When a defendant raises a constitutional question concerning a prior...
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State v. Johnson, Case No. 2011-CA-237
...a sentence of incarceration. State v. Brooke, 113 Ohio St.3d 99, 2007-Ohio-1533, 863 N.E.2d 1024, at ¶9, citing State v. Brandon, 45 Ohio St.3d 85, 86, 543 N.E.2d 501 (1989); Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). "An uncounseled conviction cannotbe ......
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State v. Grigsby
...1158, 59 L.Ed. 2d 383(1979). Accord, Nichols v. United States, 511 U.S. 738, 743 114 S.Ct. 1921, 1926(1994); State v. Brandon, 45 Ohio St.3d 85, 86, 543 N.E.2d 501, 503(1989). ("This is not to say that counsel is required in all instances. Indeed, in Scott, supra, the court essentially held......
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Wood v. Buchanan
...the burden shifts to the state to prove that the right to counsel was properly waived.Id. at ¶ 6, quoting State v. Brandon, 45 Ohio St.3d 85, 543 N.E.2d 501(1989), syllabus.[*P30] Moreover, the supreme court expressly rejected the suggestion that a prima facie showing that prior convictions......
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