2004 Ohio 3483 | Ohio Ct. App. | 2004
{¶ 2} In November 2002, Bonds was charged with one count of driving under the influence ("DUI") in violation of R.C.
{¶ 3} Bonds moved to dismiss the felony indictment because her September 9 conviction was without counsel. Although it was stipulated that she did not have an attorney represent her for that conviction, the State contended that she voluntarily, knowingly, and intelligently waived her right to counsel. At the motion hearing, the State introduced several exhibits supporting its contention, including the acknowledgment of rights and waiver of counsel form she signed at the September 9 hearing and the audiotape from that hearing. Bonds introduced a partial uncertified transcript of the September 9 hearing, which her counsel personally prepared.
{¶ 4} After listening to the audiotape and reviewing all other exhibits, the trial court denied Bonds' motion to dismiss the felony indictment. Bonds pled no contest and was convicted of felony DUI.
{¶ 5} In her sole assignment of error, Bonds argues that the trial court erred in enhancing her DUI conviction from a misdemeanor to a felony based on a prior uncounseled plea for which she was incarcerated.
{¶ 6} If a defendant has three prior DUI convictions within six years of the current offense, R.C.
{¶ 7} A defendant whose current offense is being enhanced due to a prior conviction may attack that prior conviction within the proceedings of the current offense only if the attack concerns a violation of the right to counsel. State v. O'Neill (2000),
{¶ 8} In the instant case, the September 9 conviction transformed the charge against Bonds from a misdemeanor to a felony. Bonds maintains that her Sixth Amendment right to counsel was violated at the September 9 hearing because she was not represented by counsel. The State concedes that Bonds did not have an attorney at her plea hearing; however, it maintains that she knowingly waived her right to counsel. Thus, the State argues that it is proper to use Bonds' September 9 conviction to enhance her current sentence.
{¶ 9} Because the September 9 misdemeanor conviction resulted in a term of imprisonment, the main issue is whether Bonds knowingly waived her right to counsel. Absent a valid waiver, no person may be imprisoned for any offense whether a misdemeanor or a felony unless represented by trial counsel. O'Neill, supra, citing, Argersinger v. Hamlin (1972),
{¶ 10} Although Bonds was not represented by an attorney at the September 9 hearing, she may not have been "uncounseled." An uncounseled conviction is one where the defendant was not represented by counsel and failed to make a knowing and intelligent waiver of counsel. State v.Vales (Feb. 24, 2000), Cuyahoga App. No. 75653, citing State v. Carrion
(1992),
{¶ 11} The Ohio Supreme Court held in State v. Brandon (1989),
{¶ 12} "Where questions arise concerning a prior conviction, areviewing court must presume all underlying proceedings were conducted inaccordance with the rules of law and a defendant must introduce evidenceto the contrary in order to establish a prima facie showing ofconstitutional infirmity."
{¶ 13} Here, because Bonds asserted she was uncounseled at the September 9 hearing, the burden shifted to the State to prove that she was afforded the right to counsel. The State introduced various exhibits into evidence, including the acknowledgment of rights and waiver of counsel form which Bonds signed at the September 9 hearing and the audiotape from that hearing.
{¶ 14} When considering any argument raised on appeal, a reviewing court is limited to considering only those matters found in the record.Volodkevich v. Volodkevich (1989),
{¶ 15} The record before this court does not contain the audiotape of the September 9 hearing. Even though the parties stipulated to the uncertified partial transcript prepared by defense counsel, the trial court also listened to the complete audiotape in open court and had the opportunity to compare it to the uncertified transcript. The trial court determined the validity of Bonds' waiver by reviewing the signed waiver, listening to the audiotape, and reviewing the stipulated partial transcript. The trial court made no finding in the record to indicate that the stipulated transcript was an accurate representation of the entire contents of the audiotape. The uncertified transcript is incomplete and makes numerous presumptions as to what was actually said. Additionally, the prosecuting attorney, although stipulating to the purported transcript, objected that the transcript did not include all the statements Bonds made, which he heard on the audiotape.
{¶ 16} This court cannot simply rely on an incomplete uncertified transcript prepared by Bonds' counsel when the record reflects that the trial court listened to the audiotape of the hearing. Therefore, in lieu of the actual audiotape or an App.R. 9(C) statement, we must presume regularity and find that Bonds voluntarily, intelligently, and knowingly waived her right to counsel at the September 9 hearing in Painesville Municipal Court. See, e.g., Knapp v. Edwards Laboratories (1980),
{¶ 17} Accordingly, Bonds' sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McMonagle, J. and Calabrese, Jr., J. concur.
