The issue before this court is whether appellee’s testimony before the trial court constituted evidence indicаting that his prior convictions had been uncounseled. We do not believe that appellee’s statements constituted such evidence and, therefore, reverse the judgment of the court of appeals.
As noted supra, the jury found ap-pellee not guilty of robbery but guilty of the lesser offense of theft. The jury also, by special interrogatory, found that appеllee had a prior conviction for theft. R.C. 2913.02(B) provides in pertinent part that “* * * if the offender previously has been сonvicted of a theft offense, a violation of this section is theft, a felony of the fourth degree. * * *” Therefore, bаsed on this statute, the trial court was justified in imposing a sentence of one and one-half years.
The crucial questiоn becomes whether appellee was represented by counsel for his prior theft convictions. It is unquestioned that an indigent defendant may not be sentenced to a term of imprisonment unless the state has afforded said defendant the right to assistance of counsel. See Scott v. Illinois (1979),
This is not to say that counsel is required in all instances. Indeed, in Scott, supra, the court essentially held that uncounseled misdemeanor convictions are constitutionally valid if the offender is not actually incаrcerated.
Clearly, if it is estаblished that ap-pellee’s prior convictions were uncoun-seled, then it would have been inappropriate for the trial court to use these convictions for the purpose of enhancement of sentence. Thе question then becomes whether appellee raised the issue of lack of counsel in an appropriate manner.
In State v. Adams (1988),
The record indicates that appel-lee’s counsel did object to the interrogatory cоncerning appellee’s prior convictions, arguing that “[t]here has been no evidence that he [appellee] was represented by counsel * * *.” We do not agree, however, with appellee or the court of appeals that the record contains any evidence that appellee was not represented by counsel.
Indeed, the most reasоnable presumption is just the opposite. Appellee testified that he was found guilty of petty theft and sentencеd to six months in jail. As discussed supra, a criminal defendant may not be sentenced to a period of incarceration unless thе defendant is represented by counsel or the defendant knowingly waives his right to counsel. Nothing in the record before us indicates any objections were made or appeals taken from appellee’s prior convictiоns. Therefore, we must presume them to be proper. Omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium. (All things are presumed to have been rightly and duly performed until it is proved to the contrary.) See State v. Edwards (1952),
The court of appeals, citing State v. Maynard, supra, held that appellee presented some evidence that his prior convictions were uncounseled. We disagree. Appellee’s testimony merely indicated that he had two prior petty theft convictions. No mention is made of whether these сonvictions were counseled or not. We presume that ap-pellee’s prior convictions were counseled because this presumption validates the judgment of the trial court.
The presumption we entertain is not irrebuttable. Appellee simply failed
In summation, where questions arise concerning a prior conviction, a reviewing court must presume all underlying prоceedings were conducted in accordance with the rules of law and a defendant must introduce evidence to the contrary in order to establish a prima-facie showing of constitutional infirmity.
Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for reinstatement of sentence.
Judgment reversed and cause remanded.
Notes
“* * * we are not to presume a state of facts which would invalidate the journal entries, when a different state of facts may be reasonably presumed which would make them regular and valid.” Fisher & Lanning, supra, at 199,