State v. Cash, 87-1153

Decision Date21 December 1988
Docket NumberNo. 87-1153,87-1153
Citation532 N.E.2d 111,40 Ohio St.3d 116
PartiesThe STATE of Ohio, Appellant, v. CASH, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

A prior conviction in which pronouncement of sentence is still pending may be used for impeachment purposes pursuant to Evid.R. 609(A).

In May 1986, the Butler County Grand Jury returned a four-count indictment against defendant-appellee, Anthony R. Cash. The counts included assault, in violation of R.C. 2903.13(A), resisting arrest, in violation of R.C. 2921.33(A), attempted aggravated burglary, in violation of R.C. 2923.02(A), and possession of criminal tools, in violation of R.C. 2923.24(A).

Appellee originally pled not guilty to all charges. On August 12, 1986, the day the case went to trial, appellee withdrew his plea of not guilty as to assault and resisting arrest and entered a plea of guilty to those two charges. The case proceeded to trial on the remaining charges of attempted aggravated burglary and possession of criminal tools.

At trial, appellee testified and on cross-examination was asked if he had ever been convicted of a felony. At first, appellee denied any such prior conviction. Upon further questioning, appellee admitted that he had been convicted on a charge of "bad checks." 1 When the prosecutor repeated the question "Was it a conviction?", appellee's counsel objected and asked for a bench conference. During the bench conference, the following colloquy took place:

"Mr. Erven [Counsel for defendant]: It's not a conviction.

"By the Court: Huh?

"Mr. Erven: It's not a conviction. The case is pending.

"By the Court: It is like hell, he plead [sic ] guilty.

"Mr. Erven: It's not.

"By the Court: Don't tell me that, there is a conviction on.

"Mr. Erven: It's an Entry of Finding, that's not a conviction.

"By the Court: Well, that's a conviction entry.

"Mr. Erven: I've said I object.

"By the Court: Overruled."

At the conclusion of the bench conference, the prosecutor again asked appellee if he had any felony convictions. Appellee then responded, "Yes, sir." Subsequently, appellee was found guilty of attempted aggravated burglary and possession of criminal tools.

On appeal, the court of appeals reversed appellee's convictions on the charges of attempted aggravated burglary and possession of criminal tools. The court held that the trial judge had committed prejudicial error when he permitted the cross-examination of appellee concerning a prior guilty plea to an unrelated charge on which appellee had not yet been sentenced. In finding that a "conviction" requires more than just a plea or finding of guilt, the court of appeals cited State v. Henderson (1979), 58 Ohio St.2d 171, 12 O.O.3d 177, 389 N.E.2d 494. Since appellee had not yet been sentenced on the forgery charge, the court of appeals found that appellee had no prior conviction which could be used, pursuant to Evid.R. 609(A), for impeachment purposes.

The court of appeals found its judgment to be in conflict with the judgment of the Court of Appeals for Cuyahoga County in State v. LeBron (Aug. 12, 1982), No. 44184, unreported , and certified the record of the case to this court for review and final determination.

John F. Holcomb, Pros. Atty., Daniel G. Eichel, Hamilton, and Gerald R. Leshner, Fairfield, for appellant.

Baden, Jones, Scheper & Crehan Co., L.P.A., and Thomas P. Erven, Hamilton, for appellee.

DOUGLAS, Justice.

The issue before this court is whether a prior conviction may be used for impeachment purposes, pursuant to Evid.R. 609(A), even though sentence has not been pronounced on that conviction. We hold that such a conviction may be used for impeachment purposes.

Evid.R. 609(A) states:

"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement, regardless of the punishment whether based upon state or federal statute or ordinance."

Further, Crim.R. 32(B) provides:

"Judgment. A judgment of conviction shall set forth the plea, the verdict or findings and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk."

Appellee contends that pursuant to Crim.R. 32(B), a "conviction" is not complete until sentence is pronounced. Appellee further contends that for impeachment purposes there is a distinct difference between a plea of guilty and a verdict of guilt. Finally, appellee relies on State v. Henderson, supra, 2 for the proposition that a judgment of conviction is not complete, pursuant to Crim.R. 32(B), until sentence is entered. Accordingly, appellee argues, his forgery charge was not a prior conviction and thus could not be used pursuant to Evid.R. 609(A), for impeachment purposes.

We do not find appellee's contentions persuasive. A close reading of Henderson reveals that the case had nothing to do with witness impeachment. Henderson was only concerned with whether a prior conviction could be used for penalty enhancement, thereby permitting a more severe punishment for a second offense of theft irrespective of the value of the property stolen. Henderson does not relate to the issue of whether a guilty plea without sentencing can be used as a prior conviction for impeachment purposes under Evid.R. 609(A).

Further, we find that at least for impeachment purposes, there is no significant difference between a guilty plea entered by a defendant and a guilty verdict rendered by a jury. In Kercheval v. United...

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16 cases
  • State v. Fears
    • United States
    • United States State Supreme Court of Ohio
    • September 8, 1999
    ...mother had not yet been sentenced, the prosecutor was entitled to impeach her with her guilty plea to burglary. State v. Cash (1988), 40 Ohio St.3d 116, 532 N.E.2d 111, syllabus. Furthermore, defense counsel did not object to the questions regarding her conviction or her competency, so the ......
  • State v. Workman
    • United States
    • United States Court of Appeals (Ohio)
    • October 13, 2015
    ......Cash , 40 Ohio St.3d 116, 118, 532 N.E.2d 111 (1988) (determining that prior plea of guilty constituted a conviction for impeachment purposes under ......
  • State v. Whitfield, 2008-1669.
    • United States
    • United States State Supreme Court of Ohio
    • January 5, 2010
    ...this court might be read to suggest that a conviction does not necessarily require a sentence. For example, in State v. Cash (1988), 40 Ohio St.3d 116, 118, 532 N.E.2d 111, we held that a prior plea of guilty, without a sentence, was a "conviction" for purposes of Evid.R. 609(A) and could b......
  • State v. Carter
    • United States
    • United States State Supreme Court of Ohio
    • July 22, 1992
    ...5 A.L.R.2d 1080, 1104. Nonetheless, a prior conviction in which sentence was pending can be used for impeachment. State v. Cash (1988), 40 Ohio St.3d 116, 532 N.E.2d 111. We find waiver inapplicable even though counsel failed to raise this point at trial. Carter's not guilty plea preserved ......
  • Request a trial to view additional results
1 books & journal articles
  • The whole truth: restoring reality to children's narrative in long-term incest cases.
    • United States
    • Journal of Criminal Law and Criminology Vol. 87 No. 4, June 1997
    • June 22, 1997
    ...abuse as a separate and discrete act, without connection. See People v. Keindl, 502 N.E.2d 577, 581-82 (N.Y. 1986); People v. Beauchamp, 532 N.E.2d 111, 114 (N.Y. App. Div. (259) The overwhelming majority of jurisdictions will allow testimony based on the Accommodation Syndrome when it is u......

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