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State v. Endsley10/19/2005
frequently nonexistent or difficult-to-obtain state court files from another era and from far-flung jurisdictions, and (2) there is an interest in promoting finality of judgments." Id. at 662, citing Custis, 511 U.S. at 496-497. We also noted that to allow a defendant to challenge his prior convictions in a collateral proceeding would in some respects be an attempt to circumvent the post-conviction relief limitations period. Id. Thus, we reversed the trial court's judgment suppressing the defendant's prior convictions.
{ } In this case, appellant did not allege that he was not represented by counsel in his prior case or that he entered an invalid waiver of the right to counsel.
Thus, according to Culberson, appellant cannot collaterally challenge his suspension resulting from his previous D.U.I. conviction. Accordingly, appellant's fifth assignment of error is without merit.
{ } Appellant's sixth assignment of error states:
{ } "DEFENDANT/APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL."
{ } To prove an allegation of ineffective assistance of counsel, the appellant must satisfy a two-prong test. First, appellant must establish that counsel's performance has fallen below an objective standard of reasonable representation. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. Second, appellant must demonstrate that he was prejudiced by counsel's performance. Id. To show that he has been prejudiced by counsel's deficient performance, appellant must prove that, but for counsel's errors, the result of the trial would have been different. Bradley, 42 Ohio St.3d at paragraph three of the syllabus.
{ } Appellant bears the burden of proof on the issue of counsel's effectiveness. State v. Calhoun (1999), 86 Ohio St.3d 279, 289, 714 N.E.2d 905. In Ohio, a licensed attorney is presumed competent. Id.
{ } Appellant argues that his trial counsel was ineffective for several reasons. All but one of his alleged instances of ineffectiveness focus solely on counsel's conduct at the suppression hearing. Since we have determined that the trial court should have granted appellant's motion to suppress, these arguments are now moot. However, we will address appellant's remaining allegation of ineffective assistance of counsel.
{ } Appellant contends that his counsel should have raised the constitutional infirmities with his 2001 conviction, in addition to the lack of a meaningful dialogue, and challenged the defects in the indictment. We have already discussed both of these alleged errors. Since appellant could not collaterally challenge his suspension resulting from his previous D.U.I. conviction and since the indictment was not defective, we cannot conclude that his counsel was ineffective for failing to raise these issues. Accordingly, appellant's sixth assignment of error is without merit.
{ } Appellant's seventh and eighth assignments of error respectively state:
{ } "THE TRIAL COURT ERRED IN IMPOSING A NON-MINIMUM PRISON SENTENCE."
{ } "DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE CUMULATIVE EFFECT OF THE SEVEN ASSIGNMENTS OF ERROR AS SET FORTH HEREIN."
{ } Given our resolution of appellant's third assignment of error, these assignments of error are moot.
{ } For the reasons stated above, appellant's conviction is hereby reversed and his no contest plea is vacated. This matter is remanded for further proceedings pursuant to law and consistent with this opinion.
Vukovich, J., concurs
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