2011 Ohio 4402
Ohio Ct. App.2011Background
- Varholick, pro se, sought to reopen a 2010 appellate judgment under App.R.26(B) and Murnahan, arguing his appellate counsel should have raised four issues about the OVI conviction.
- A August 2009 grand jury indicted Varholick on two counts of driving under the influence; Count 1 included an “Furthermore” clause listing his five prior drunk-driving convictions; Count 2 included a prior felony DUI conviction clause.
- B September 2, 2009, Varholick pled guilty to Count 2 and Count 1 was nolled; defense counsel acknowledged the charge was a third-degree felony due to the prior felony DUI conviction.
- C October 1, 2009, Varholick addressed the court at sentencing; the judge limited allocution, acknowledged Varholick’s alcoholism, and sentenced Varholick to four years consecutive to a 30-month probation term.
- D The appellate court denied reopening, applying Strickland/Bradley standards and rejecting each of Varholick’s arguments as unpersuasive.
- E The court held that the allocation rights were properly exercised and that the indictment, proof of prior conviction, and the prior-vehicle-charging-instrument issues were either non-jurisdictional or adequately supported by the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indictment properly pleaded the prior felony DUI to elevate to a third-degree felony | Varholick contends the indictment failed to state the specific prior felony DUI facts. | State cites Patterson as supporting sufficiency with general prior conviction allegations. | Indictment sufficient; no jurisdictional defect. |
| Whether the state proved the prior felony DUI conviction | State did not provide a certified copy of the prior judgment. | Pleading guilty/stipulation suffices; no copy required. | Proof sufficient given the plea/stipulation and trial court knowledge. |
| Whether the Rocky River Municipal Court charging instrument could not support a third-degree offense | Error due to lack of prior conviction specifics in that instrument. | Rocky River charging document lists five prior convictions; issue is form over substance. | Argument ill-founded; substance supports offense. |
| Whether the trial court improperly curtailed allocution under Crim.R. 32(A) | Right to allocution violated; remand needed. | Court complied with Crim.R. 32(A); allocution may be limited. | Allocution properly conducted; no remand required. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes standards for ineffective assistance of counsel)
- Jones v. Barnes, 463 U.S. 745 (1983) (ultimates appellate strategy and focus on weaker arguments)
- State v. Bradley, 42 Ohio St.3d 136 (1989) (reaffirmed Strickland standards in Ohio)
- State v. Allen, 77 Ohio St.3d 172 (1996) (reiterates appellate counsel strategic discretion)
- State v. Patterson, 2009-Ohio-6953 (2009) (sufficiency of indictment alleging prior felony conviction)
- State v. Large, 2007-Ohio-4685 (2007) (stipulation to prior conviction can substitute for proof)
- State v. Foster, 2009-Ohio-6648 (2009) (allocution considerations in sentencing)
- State v. Budreaux, 1993-Ohio-63698 (1993) (restrictive view of allocution)