State v. Brooke11/18/2005
{ } Appellant, Betsy Brooke ("Brooke"), appeals from the decision of the Lake County Court of Common Pleas, denying her motion to dismiss or for alternative relief.
{ } On January 11, 2004, Brooke was indicted on one count of driving under the influence of alcohol or drugs, in violation of R.C. 4511.19(A)(1), and driving with a prohibited concentration of alcohol in bodily substances, in violation of R.C. 4511.19(A)(2). Both counts were charged as fourth degree felonies as appellant had previously been convicted of three or more driving under the influence offenses as defined by R.C. 4511.19. The indictment specified that appellant was convicted of driving under the influence in Chardon Municipal Court on December 17, 1997; in Willoughby Municipal Court on July 1, 1998; and again in Chardon Municipal Court on April 12, 2001.
{ } On March 5, 2004, Brooke filed a "Motion to Dismiss or for Alternative Relief," alleging that her prior convictions for driving under the influence were uncounseled and, therefore, could not be used to enhance the charges to fourth degree felonies.
{ } In support of her motion, Brooke filed a sworn affidavit stating that as to each of her three prior driving under the influence convictions, she was unrepresented by counsel, pled guilty, and received a penalty of confinement. Brooke filed copies of the transcripts from the plea hearings from her two prior Chardon convictions. Further, Brooke filed a sworn affidavit from a Willoughby Municipal Court bailiff confirming that no court record was available for the prior conviction plea hearing held on July 1, 1998.
{ } The state filed a response, attaching copies of written waivers of counsel executed by Brooke in all three prior convictions.
{ } On April 6, 2004, the court denied appellant's motion to dismiss or for alternative relief. The court concluded that "[Brooke] voluntarily rejected her right to counsel in all three convictions." Brooke then entered a plea of "no contest" to count two of driving with prohibited blood alcohol content. Brooke was found guilty, and the remaining count was nolled. On May 25, 2004, the court held a sentencing hearing and Brooke was sentenced to three years community control, with specific sanctions and conditions, including sixty days in the Lake County Jail.
{ } Brooke filed a timely notice of appeal from the judgment entry denying her motion to dismiss or for alternative relief raising one assignment of error for our review:
{ } "The trial court erred to the prejudice of appellant in denying her motion to dismiss or for alternative relief."
{ } At the outset, we note that as a rule, a past conviction cannot be attacked in a subsequent case. However, with regard to a collateral attack on a conviction which has been used to enhance the degree of a subsequent criminal offense, one constitutional infirmity has been recognized by the United States Supreme Court and Ohio Courts. "That infirmity consists of a conviction obtained without the assistance of counsel, or its corollary, an invalid waiver of the right to counsel." State v. Culberson, 142 Ohio App. 3d 656, 660, 2001-Ohio-3261, citing State v. Brandon (1989), 45 Ohio St.3d 85, 86; Baldasar v. Illinois (1980), 446 U.S. 222, 226; Nichols v. United States (1994), 511 U.S. 738; Custis v. United States (1994), 511 U.S. 485, 496. Thus, in this case, our review is limited to issues of the waiver of the right to counsel in the prior convictions, solely within the context of the current "enhanced" offense. This court distinguishes between a waiver of counsel by a defendant whose current offense is being enhanced due to a prior conviction, and a claim
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