Columbus v. D'AndreaColumbus v. D'Andrea
Rendered on November 29, 2011
Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, City Prosecutor, and Melanie R. Tobias, for appellee.
Dennis W. McNamara, for appellant.
APPEAL from the Franklin County Municipal Court
KLATT, J.
{¶1} Defendant-appellant, Michael P. D‘Andrea, appeals from a judgment of conviction and sentence entered by the Franklin County Municipal Court. For the following reasons, we affirm that judgment.
Factual and Procedural Background
{¶2} In the early morning hours of December 1, 2010, police officers stopped appellant driving his car on a freeway in Franklin County, Ohio. As a result of the stop, the officers cited appellant with, among other things, operating a vehicle while impaired in
{¶3} Before sentencing, the trial court held a hearing to determine whether or not appellant had a prior OVI conviction. Pursuant to
{¶4} The city presented two documents to prove that appellant had a prior OVI conviction. The first is a faxed copy of what purports to be the back and front of a Multi-Count Uniform Traffic Ticket issued to appellant on April 7, 1999. The document was certified as a true and correct copy of a “Journal Entry.” The front of the ticket charged appellant with one count of OVI in violation of
{¶5} The back of the ticket is difficult to read, but it appears to indicate that appellant entered a not guilty plea on April 14, 1999 and then a no contest plea on June 1, 1999, although it does not state the offense. The back of the ticket also indicates sentencing as a result of the plea and contains an illegible signature in a space designated for a “Judge/Referee/Magistrate” to sign. The top of the back of the ticket
{¶6} The second document the city presented is a “Waiver of Rights” form signed by appellant and dated June 1, 1999. The form indicates that appellant entered a no contest plea on June 1, 1999 in case number 99-TRC-5726 to one charge of “OMVUAC” in violation of
{¶7} Appellant argued that the back of the ticket was the only document that could prove his prior conviction, and because that document lacked the requisite elements of a valid judgment entry of conviction, there was no evidence that appellant had a prior OVI conviction. The trial court disagreed and concluded that the documents were sufficient to prove that appellant had a prior OVI conviction. The trial court sentenced appellant accordingly.
{¶8} Appellant appeals and assigns the following error:
THE TRIAL COURT ERRED WHEN IT DETERMINED THAT APPELLANT HAD A PRIOR CONVICTION FOR PURPOSES OF SENTENCING.
Appellant‘s Assignment of Error- Proof of Prior OVI Conviction
{¶9} Appellant disputes the trial court‘s factual determination that he had a previous OVI conviction. We will accept factual findings of the trial court, however, if they are supported by some competent and credible evidence. State v. Searls (1997), 118 Ohio App.3d 739, 741.
{¶10}
{¶11} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, the Supreme Court of Ohio clarified the requirements of
{¶12} Additionally, in a case construing similar statutory language that placed a conviction on equal footing with a guilty plea by requiring proof of either, the Supreme Court of Ohio concluded that the term “conviction” refers only to a determination of guilt and does not include sentencing upon that determination. State ex rel. Watkins v. Fiorenzo, 71 Ohio St.3d 259, 260, 1994-Ohio-104 (statute which disqualified public official “who is convicted of or pleads guilty to, theft in office” only requires proof of determination of guilt). See also State v. Polen, 3d Dist. No. 6-08-14, 2009-Ohio-3313, ¶13-18 (statute permitting a motion to be filed “subsequent to the conviction of the offender or entry of a guilty plea” only requires judicial finding of guilt and not a final judgment of conviction in conformance with
{¶13} More specifically, the Ninth District Court of Appeals has held that a prior determination of guilt, and not a judgment of conviction, is all that is required to prove a prior conviction under
{¶14} Therefore, in order to prove a prior conviction for purposes of
{¶16} Appellant disputes whether a judge ever made a finding of guilt after the no contest plea because the meaning of the “NC/G” notation on the ticket is unclear and because the signature on the back of the ticket where a “Judge/Referee/Magistrate” would sign is illegible and does not indicate whether a judge actually signed the entry.4 We disagree. The trial court interpreted the “NC/G” notation to mean that appellant entered a no contest plea (as reflected on the Waiver of Rights form) and was then found guilty by the court. We agree with the trial court‘s interpretation and appellant offers no other plausible interpretation. We also note that former
{¶17} Appellant‘s concerns about other portions of the traffic ticket are easily allayed. For example, appellant argues that the back of the ticket was not necessarily the back of the ticket issued to appellant because appellant‘s name is not on the back of the ticket and neither is the case number.6 We disagree. All of the information on the back of the ticket, including appellant‘s original court date, the date of his amended charge and guilty plea, and the fact that a criminal charge was also filed, is consistent with the front of the ticket and the Waiver of Rights form. The ticket is also consistent with the appearance of Ohio‘s form “Multi-Count Uniform Traffic Ticket.” The clerk of courts also certified the document as a true and accurate “Journal Entry.” This is competent and credible evidence that the two sides of the document are one ticket. Appellant also takes issue with the name “Patrick J. D‘Andrea” on the back of the traffic ticket. However, a comparison of the traffic ticket with Ohio‘s “Multi-Count Uniform Traffic Ticket” form in the Ohio Traffic Rules indicates that this name is written in a space available for the name and phone number of the offender‘s attorney. Also, the other case number on the back of the ticket is the related criminal case for which appellant was released on his own personal recognizance.
{¶18} The trial court‘s determination that appellant had been previously convicted, i.e., found guilty, of a previous OVI offense is supported by competent and credible evidence. Accordingly, the trial court did not err in sentencing appellant accordingly.
Judgment affirmed.
SADLER and TYACK, JJ., concur.
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