State v. Elling
| Decision Date | 03 November 1983 |
| Citation | 463 N.E.2d 668,11 Ohio Misc.2d 13 |
| Parties | , 11 O.B.R. 108 The STATE of Ohio v. ELLING. * |
| Court | Ohio Court of Common Pleas |
Stephen E. Keister, Pros. Atty., for plaintiff.
Phil W. Campbell, Van Wert, for defendant.
This matter came on for trial on October 21, 1983, whereupon the plaintiff presented evidence and the defendant made a motion for acquittal for the reason that the state failed to prove that the defendant was previously convicted of a theft offense which the defendant contends is an essential element of the crime.
Defendant, Mark L. Elling, was indicted for violation of R.C. 2913.02(A)(1), a theft offense, which was denominated a felony of the fourth degree by virtue of the fact that defendant had "been previously convicted of a theft offense, in Lima, Ohio Municipal Court case number 16926, February 1, 1981." The state, pursuant to R.C. 2945.75(B), tendered into evidence a certified copy of the entry of conviction from the Lima Municipal Court case which was for petty theft under the identical code section of which he stands charged in violation of herein. Together with this certified copy, the state presented testimony "sufficient to identify the Defendant named in the entry as the offender in the case at bar." There was no evidence presented, however, indicating whether the defendant was either represented by counsel or knowingly and intelligently waived counsel in the previous trial in the Lima Municipal Court.
The defendant thus presents two questions for the court's determination: (1) Whether mere compliance with R.C. 2945.75(B) is sufficient, without the state's affirmative proof that the previous conviction was either counseled or that the defendant knowingly and intelligently waived counsel, to sustain a conviction of grand theft under R.C. 2913.02(A)(1), and (2) whether proof of such a conviction is an essential element of the crime needed to be proved by the state, the failure of which will result in an acquittal on the present charge.
The record of the previous conviction is silent as to the presence of any counsel or a knowing and intelligent waiver of counsel. It is elementary that the court may not presume such a waiver from a silent record, and obviously neither may the court presume such conviction was counseled. Therefore, we have no alternative but to assume that the previous conviction herein was uncounseled.
The line of cases construing the Sixth Amendment, including the accused's right to assistance of counsel for his defense (Gideon v. Wainwright [1963], 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 ; Argersinger v. Hamlin [1972], 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed. 530), has raised the question as to what effect an uncounseled conviction has on subsequent proceedings, such as in the present case where the previous conviction is used collaterally to increase the degree of the present offense charged.
In the case cited by defendant, Burgett v. Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, the Supreme Court held the defendant's previous uncounseled felony conviction was void for the reason that it was presumably in violation of his Sixth Amendment rights, and could not therefore be used collaterally in a subsequent proceeding to enhance the penalty as a repeat offender. This result is logical since the previous conviction was void.
However, in Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383, the same court held that Argersinger did not require the appointment of counsel in misdemeanor cases and that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not jailed. The logical extension of this case is that if the previous conviction is valid, then it should be allowed to be used collaterally in the subsequent proceedings regardless of...
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