State v. Williams

• Decision Date: 09 December 2011
• Docket Number: No. C–110097.,C–110097.
• Citation: 2011 -Ohio- 6267,197 Ohio App.3d 505,968 N.E.2d 27
• Parties: The STATE of Ohio, Appellee, v. WILLIAMS, Appellant.
• Court: Ohio Court of Appeals

197 Ohio App.3d 505

968 N.E.2d 27

2011 -Ohio- 6267

The STATE of Ohio, Appellee,

v.WILLIAMS, Appellant.

No. C–110097.

Court of Appeals of Ohio, First District, Hamilton County.

Decided Dec. 9, 2011.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for appellee.

Christine Y. Jones, Cincinnati, for appellant.

CUNNINGHAM, Judge.

[Ohio App.3d 507]{¶ 1} Following a bench trial, defendant-appellant, Damonta L. Williams, appeals from the conviction and sentence imposed for having a weapon under disability. A police officer searching a vehicle in which Williams had been a passengerfound a loaded handgun on the floor of the rear seat that Williams had occupied. In four assignments of error, Williams argues that the state employed constitutionally defective prior convictions to demonstrate that he was under a disability and challenges the weight and sufficiency of the evidence adduced to [Ohio App.3d 508]establish that he had constructively possessed the handgun. He also asserts, in a single assignment of error, that the sentence imposed was excessive. We find none of the assignments to be meritorious and thus affirm the trial court's judgment.

I. A Gun on the Car Floor

{¶ 2} On the evening of September 19, 2010, Ashleigh Schnetzer, the owner of a navy blue, four-door Monte Carlo automobile, picked up her friend, Stephanie Stinespring, and her three-year-old daughter. Stinespring buckled her daughter into a child seat located on the rear passenger's-side seat. While in Finneytown, Schnetzer asked Williams to accompany the three to meet Stinespring's boyfriend in Cleves. Williams sat in the rear driver's-side seat.

{¶ 3} Officer Matt Pies of the Cleves police department observed Schnetzer's Monte Carlo stop near a gas station. Several persons were standing near the vehicle. While the individuals continued to talk, Schnetzer parked her vehicle in the gas-station parking lot. Suspecting that a drug sale was occurring, Officer Pies approached. When he reached the vehicle, the adult occupants had already gotten out. Officer Pies asked Schnetzer for permission to search the vehicle, and she gave her consent. The officer quickly discovered a loaded 9–mm Hi Point semiautomatic pistol on the floor of the rear driver's-side seat that Williams had just vacated. The handgun was found to have been stolen several months before from a Kentucky home.

{¶ 4} Williams was arrested and charged in a three-count indictment with receiving stolen property, carrying a concealed weapon, and having a weapon under a disability. Among other prior convictions, Williams had been twice convicted of misdemeanor marijuana possession. Under R.C. 2923.13(A)(3), the state employed these prior drug convictions to demonstrate that Williams had been under a disability preventing his legal possession of a firearm.

{¶ 5} At the conclusion of the bench trial, the trial court found Williams guilty of all three offenses. The court afforded Williams the protections of the multiple-count statute and imposed a single conviction for having a weapon under disability. The trial court ordered a five-year sentence of imprisonment with credit for time already served. This appeal followed.

II. Uncounseled Prior Convictions

{¶ 6} Williams raises an initial challenge to the sufficiency of the evidence adduced to support his conviction for having a weapon under disability. He argues that under the rule of State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, his conviction must be reversed because the state attempted to prove the disability element of the offense by recourse to two prior misdemeanor [Ohio App.3d 509]drug convictions that had been obtained without the assistance of counsel. We disagree.

{¶ 7} R.C. 2923.13(A)(3) provides that no person shall knowingly acquire, have, carry, or use a firearm while under disability. When, as here, the existence of a prior conviction elevates the degree of the crime in question, it “transforms the crime itself by increasing its degree” and is an essential element of the offense that must be proved by the state. Brooke at ¶ 8; see also State v. Allen (1987), 29 Ohio St.3d 53, 54, 506 N.E.2d 199 (an element elevates the degree of the offense; an enhancement provision increases only the penalty). Because Williams's prior drug convictions were an element of the weapon-under-disability offense, the state bore the burden of proving the existence of one of those convictions beyond a reasonable doubt. Brooke at ¶ 8.

{¶ 8} The state argues that it discharged that burden. At all times pertinent to Williams's prosecution, a conviction for misdemeanor drug possession was sufficient to create a disability preventing the legal possession of a firearm. See State v. Robinson, 187 Ohio App.3d 253, 2010-Ohio-543, 931 N.E.2d 1110, ¶ 20. We note that, effective September 30, 2011, R.C. 2923.13(A)(3) now requires that a prior drug conviction be a felony offense to qualify as a disability.

{¶ 9} At the beginning of this trial, the parties stipulated that Williams had been twice convicted of misdemeanor drug-possession offenses. See former Cincinnati Municipal Code 910–23. Williams's two prior convictions were memorialized in State's Exhibit 5: certified copies of the “judge's sheets,” one for each conviction. See R.C. 2945.75(B)(1). While Williams stipulated to the existence of the prior convictions, he argued before the trial court, as he argues here, that they were constitutionally defective and thus could not have been used to prove a firearm disability. The trial court, at Williams's urging, and relying upon the judge's sheets, took judicial notice that the prior convictions were uncounseled. Nonetheless, the trial court proceeded with the trial and ultimately found that the state had successfully demonstrated the disability element by means of the stipulated misdemeanor drug convictions.

{¶ 10} A defendant may not ordinarily attack past convictions in a subsequent criminal prosecution. See, e.g., State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. But there is a limited right to attack a prior conviction when the state proposes to use that conviction as an element of a subsequent criminal offense. See Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, at ¶ 9; see also State v. Culberson (2001), 142 Ohio App.3d 656, 660–661, 756 N.E.2d 734. It is the defendant's burden to prove a constitutional defect in a prior conviction by a preponderance of the evidence. See R.C. 2945.75(B)(3). If the defendant cannot discharge this burden, we [Ohio App.3d 510]presume the constitutional regularity of the prior proceeding. See State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314, 903 N.E.2d 618, ¶ 6.

{¶ 11} In Brooke, the Ohio Supreme Court acknowledged that “[a] conviction obtained against a defendant who is without counsel, or its corollary, an uncounseled conviction obtained without a valid waiver of the right to counsel,” is constitutionally defective under the Sixth Amendment. Brooke at ¶ 9, citing State v. Brandon (1989), 45 Ohio St.3d 85, 86, 543 N.E.2d 501, and Nichols v. United States (1994), 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745. But so long as no imprisonment is imposed in a criminal conviction, the constitutional right to counsel does not obtain. See Scott v. Illinois (1979), 440 U.S. 367, 373–374, 99 S.Ct. 1158, 59 L.Ed.2d 383; see also Nichols v. United States, 511 U.S. at 746–747, 114 S.Ct. 1921, 128 L.Ed.2d 745. Thus, a prior conviction is constitutionally defective when it results in a sentence of incarceration for a defendant who was unrepresented and did not validly waive his right to an attorney. See Thompson, syllabus.

{¶ 12} Here, Williams has failed to carry his burden to prove a constitutional defect by a preponderance of the evidence. Williams was able to establish, by means of the trial court's judicial notice, only that the prior convictions were obtained without the assistance of counsel. Williams made no showing that he had not validly waived his right to counsel in the prior proceedings.

{¶ 13} Even assuming for purposes of argument that the trial court's judicial notice had subsumed that waiver, we must presume the constitutional regularity of the prior proceedings. Neither of the stipulated judge's sheets reflects the imposition of a sentence of incarceration. The judge's sheet, in the case numbered 08CRB–2944, reflects that the trial court had accepted Williams's guilty plea and had found him guilty. The sentence imposed was a fine of $50 plus costs. In the case numbered 06CRB–12904, also resolved by guilty plea, the only punishment reflected was that the costs of $85 had been remitted. Because the prior convictions did not result in sentences of incarceration for Williams, they were not constitutionally defective. The fifth assignment of error is overruled.

III. More Than Mere Proximity to the Gun

{¶ 14} In three interrelated assignments of error, Williams challenges the weight and sufficiency of the evidence adduced to support his conviction for having a weapon under disability. See R.C. 2923.13(A)(3). “To ‘have’ a firearm within the meaning of the weapons-under-a-disability statute, the offender must actually or constructively possess it.” State v. English, 1st Dist. No. C–080827, 2010-Ohio-1759, 2010 WL 1631619, ¶ 31; see also State v. Hankerson (1982), 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus.

[Ohio App.3d 511] {¶ 15} In State v. Thomas, 1st Dist. No. C–020282, 2003-Ohio-1185, 2003 WL 1093938, we summarized that “[c]onstructive possession exists when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession. The person must be ‘conscious of the presence of the object.’ ” Id. at ¶ 9, quoting State v. Hankerson (1982), 70 Ohio St.2d 87, 91, 434 N.E.2d 1362. Both dominion and control and whether a...