2016 Ohio 550
Ohio Ct. App.2016Background
- Tammy M. Menkhaus was indicted for OVI in 2014 as a fourth-degree felony based on an R.C. 2941.1413 specification asserting five or more prior OVI convictions within 20 years, including a 2001 Boone County, Kentucky conviction obtained after a trial in absentia.
- Menkhaus moved to suppress/dismiss, arguing the 2001 conviction (a bench trial held after she failed to appear) was constitutionally infirm and therefore could not be used to enhance her 2014 charge.
- The State opposed the motion, arguing collateral attack was barred because Menkhaus was represented by counsel in 2001 and had a prior opportunity to challenge the 2001 conviction in a 2008 Boone County case (in which she pled guilty and the 2001 conviction was used for enhancement).
- The trial court denied the motion on two grounds: (1) Ohio law permits collateral attack for penalty-enhancing prior convictions only when the prior conviction was uncounseled (or involved an invalid waiver of counsel), and Menkhaus had counsel in 2001; and (2) res judicata barred her challenge because she could have (but did not) raise the issue in the 2008 proceeding.
- Menkhaus pleaded no contest to the felony OVI and the specification and received consecutive prison terms totaling four years; she appealed only challenging the trial-in-absentia prior conviction’s use for enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior conviction obtained by trial in absentia may be collaterally attacked when used to enhance a later offense | State: Collateral attack is barred; only uncounseled priors or invalid waivers permit collateral attack; Menkhaus had counsel in 2001 and waived challenge in 2008 | Menkhaus: Prior conviction obtained in absentia is constitutionally infirm and should not be used to enhance a later offense | The court held collateral attack is limited to uncounseled priors or invalid waiver of counsel; because Menkhaus was represented in 2001 and failed to challenge the 2001 conviction in 2008, the prior conviction could be used for enhancement (motion denied). |
Key Cases Cited
- Custis v. United States, 511 U.S. 485 (United States Supreme Court) (limits collateral attacks on prior convictions used for enhancement to uncounseled priors or invalid counsel waivers)
- State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (res judicata bars collateral attack on convictions that were or could have been raised at trial or on direct appeal)
- Brooke v. State, 113 Ohio St.3d 199 (Ohio 2007) (discussing limits on collateral attack of prior convictions used for enhancement)
- Culberson v. State, 142 Ohio App.3d 656 (Ohio App.) (recognizing right to collaterally attack prior convictions only for lack of counsel)
- Kentucky v. Lamberson, 304 S.W.3d 72 (Ky. 2010) (holding challenges to validity of priors used for enhancement must be raised before enhancement is applied)