State v. GerkenState v. Gerken
Decided: June 30, 2023
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Karin L. Coble, for appellant.
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DUHART, P.J.
{¶ 1} Appellant, Barbara A. Gerken, appeals from her conviction and sentence in the Fulton County Court of Common Pleas following her no contest plea to the offense of operating a vehicle while intoxicated (OVI). For the reasons that follow, the trial court‘s judgment is affirmed in part, and reversed in part.
{¶ 2} On May 18, 2021, Gerken was indicted on two counts of OVI, both felonies of the fourth degree. Each count contained a specification that Gerken, within twenty years of the offense, had previously been convicted of the following five prior OVI violations:
- In violation of
Ohio Revised Code Section 4511.19(A)(1)(a) on July 25, 2016, in Napoleon Municipal Court, in Case No. 16TRC0907. - In violation of
Ohio Revised Code Section 4511.19(A)(1)(a) on October 17, 2013, in the Napoleon Municipal Court, in Case No. 13TRC1660. - In violation of
Ohio Revised Code Section 4511.19(A)(1)(a) on January 10, 2011, in the Napoleon Municipal Court, in Case No. 10TRC1138. - In violation of
Ohio Revised Code Section 4511.19(A)(1)(a) on October 8, 2009, in the Napoleon Municipal Court, in Case No. TRC092458. - In violation of
Ohio Revised Code Section 4511.19(A)(1) , on November 29, 2004, in the Napoleon Municipal Court, in Case No. TRC0402889.
{¶ 3} At Gerken‘s arraignment hearing, held on June 10, 2021, defense counsel argued that there were several irregularities associated with the BMV 2255 form that was tendered by the state in this case, including the fact that no less than three different versions of the form had been submitted by police. Among defense counsel‘s complaints was that, on at least one version of the form, the arresting officer had failed to mark that
This is a felony OVI and in making inquiry of [the prosecutor] today whether he intended to forfeit the vehicle, he said that the trooper didn‘t seem interested in that but he doesn‘t really have an answer as he sits here today about whether they do intend to forfeit it. * * * I just – I don‘t think that it is proper for a trooper to swear to his statement and have three difference [sic] existing documents especially when we are dealing with a felony OVI, where there is substantial ramifications including the loss of [Gerken‘s] property which all of this is problematic. * * *
{¶ 4} In response to this argument, the court stated:
You said the loss of her property – a decision that the Court makes in the event that she‘s convicted of this offense – not the troopers [sic] determination as to whether or not the property is going to be forfeited. Isn‘t that correct?
Defense counsel agreed.
{¶ 5} On November 16, 2021, Gerken filed a motion to suppress and/or in limine seeking to remove specifications A, B, and E of the indictment or, in the alternative, to prohibit the state from introducing evidence of the associated prior convictions. She argued that the three challenged prior convictions could not be used to enhance the current charges against her because: (1) they were the result of pleas that were either uncounseled or unknowing and involuntary; and/or (2) the judgment entries of those convictions were void as non-compliant with
{¶ 6} At a hearing on the motion, held on November 30, 2021, evidence was presented as to each of the challenged prior convictions.
{¶ 7} Shawn Walker, a Napoleon Municipal Court employee, testified that the recordings of the proceedings from specification E could not be found. He also testified that there was no written waiver of the right to counsel in the file.
{¶ 8} Gerken testified that she did not remember any facts about entering her guilty plea in that case, including whether or not she had waived her right to counsel.
{¶ 9} The judgment entry in the case, a time-stamped journal entry signed by the judge, reflects that Gerken waived her right to counsel, entered a plea of no contest, was found guilty, and was sentenced to, inter alia, 30 days in jail, with 27 days suspended.
Specification B., case No. 13TRC1660, an OVI from 2013
{¶ 10} A recording of Gerken‘s arraignment in the 2013 case reveals that Gerken was advised of the OVI charge against her and of her constitutional rights. When asked if she had heard the court‘s explanation of the effect of the available pleas, Gerken answered affirmatively. She entered a plea of not guilty, and requested appointed counsel.
{¶ 11} On October 17, 2023, Gerken, with counsel present, entered a plea of guilty. The court conducted a colloquy during which it warned Gerken about subsequent offenses. Finding that Gerken‘s plea was knowing and voluntary, the trial court accepted the plea and found her guilty.
{¶ 12} The judgment entry in this case is a time-stamped form journal entry that was signed by the judge. Although the form has boxes for pleas of “not guilty,” “no
Specification A., case No. 16TRC0907, an OVI from 2016
{¶ 13} At the July 25, 2016 hearing during which Gerken changed her plea from not guilty to guilty to the offense of OVI, the trial court mistakenly advised Gerken that she had three prior OVI convictions, when, in reality, she had four. Although Gerken could have been charged with and punished for a felony, she was charged and sentenced as if she had only three priors – that is, she was charged with and sentenced for an unclassified misdemeanor.
{¶ 14} Prior to accepting her plea, the trial court advised Gerken that a conviction in the case might result in enhanced penalties, including felony charges, for any subsequent offenses.
{¶ 15} The judgment entry, a time-stamped form that was signed by the judge, indicates that Gerken appeared with counsel, entered a guilty plea of guilty, and was found guilty. The judgment entry also includes Gerken‘s sentence.
Trial court decision on motion to suppress and/or in limine
{¶ 16} On January 26, 2022, the trial court issued a judgment entry denying Gerken‘s motion to suppress and/or in limine on the grounds that Gerken: (1) had failed to make a showing that any of her prior convictions were constitutionally infirm; and (2)
No contest plea
{¶ 17} On April 20, 2022, Gerken pleaded no contest to count one of the indictment in the current case. The trial court, prior to accepting the plea, warned Gerken that a conviction would require her to forfeit her vehicle, and Gerken indicated that she understood. The trial court found her guilty and referred the matter for a presentence investigation and report.
Sentencing hearing
{¶ 18} At Gerken‘s sentencing hearing, held on May 26, 2022, the trial court imposed a sentence of one year in prison, together with a fine of $1,350. In addition, Gerken was ordered to complete alcohol and drug treatment, and her driver‘s license was ordered suspended for a period of five years.
{¶ 19} After the trial court announced the sentence, the state advised the court that Gerken‘s 2007 Dodge Dakota, which was clubbed at Gerken‘s residence, was subject to forfeiture. Gerken‘s counsel did not ask to be heard on the condition of forfeiture. Instead, she simply asked the court to stay the forfeiture pending appeal. The trial court answered:
The forfeiture can‘t occur until the appeal is sustained by the Court of Appeals. So, the vehicle will remain impounded at the defendant‘s residence.
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Now if the appeal is sustained then obviously that vehicle will be forfeited and that will be part of my Order.
Judgment entry
{¶ 20} The trial court‘s May 31, 2022 judgment entry reiterated the sentence imposed at the sentencing hearing. With regard to forfeiture, the judgment entry provided that “Defendant‘s 2007 Dodge Dakota * * * shall be forfeited to the State.”
Assignments of Error
{¶ 21} Gerken asserts the following assignments of error on appeal:
- The trial court erred in accepting appellant‘s no contest plea and finding her guilty because evidence shows she was not convicted of five prior offenses as the indictment alleges, within 20 years as required by
R.C. 4511.19(G)(1)(d) . - The trial court improperly ordered the vehicle forfeited in violation of
R.C. 4503.234 .
Analysis
First assignment of error
{¶ 22}
{¶ 23} Gerken, in her first assignment of error, makes several arguments in support of her claim that certain of her past convictions cannot be used to enhance the penalty in her current case.
Constitutional issues
{¶ 24} Gerken initially alleges that the convictions listed in specification E (“2004 conviction“), B (“2013 conviction“), and A (“2016 conviction“) cannot be used to enhance the penalty of her current offense, because they are constitutionally infirm.
{¶ 25} “Generally, a past conviction cannot be attacked in a subsequent case; however, there is a limited right to collaterally attack a conviction when the state proposes to use the past conviction to enhance the penalty of a later criminal offense.” State v. Phillips, 12th Dist. Butler No. CA2009-09-242, 2010-Ohio-1941, ¶ 6, citing Brooke at ¶ 9. To date, a conviction obtained without the assistance of counsel or with an
{¶ 26} Both the United States Supreme Court and various courts of appeals in Ohio have expressly refused to extend the right to collaterally attack a prior penalty-enhancing conviction on grounds other than the right to counsel. See Custis at 496 (reasoning that the failure to appoint counsel was a “unique constitutional defect,” and that other defects, such as denial of effective assistance of counsel or lack of a knowing and intelligent plea, do not rise to the same level.); State v. Mikolajczyk, 8th Dist. Cuyahoga No. 93085, 2010-Ohio-75 (rejecting a defendant‘s argument that his prior conviction was subject to collateral attack on the basis that the entry of conviction and sentencing failed to indicate he was advised of his constitutional rights); Culberson at ¶ 662-663 (declining to extend the right to collaterally attack prior convictions on the basis
{¶ 27} “‘Where questions arise concerning a prior conviction, a reviewing court must presume all underlying proceedings 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.‘” Brooke at ¶ 11, quoting State v. Brandon, 45 Ohio St.3d 85, 543 N.E.2d 501 (1989), syllabus. “With respect to ‘uncounseled’ pleas, we presume that the trial court in the prior convictions proceeded constitutionally until a defendant introduces evidence to the contrary.” State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314, 903 N.E.2d 618, ¶ 6.
{¶ 28} For purposes of penalty enhancement in later convictions under
2004 Conviction
{¶ 30} Gerken argues that her 2004 conviction is invalid because it was uncounseled. Thus, we must determine whether Gerken presented a prima facie showing of a violation of her right to counsel. In accordance with Brooke, we start with the presumption that the court in the 2004 conviction proceeded constitutionally. The record indicates that the 2004 OVI conviction was for a petty offense. Therefore, a waiver of Gerken‘s right to counsel had to be in open court and recorded, but it did not have to be in writing. Although the recording from that conviction was lost, the judgment entry in that case contained an express notation that counsel had been waived.
{¶ 31} To make a prima facie showing of constitutional infirmity in this case, Gerken had to present some evidence that showed she was not, in fact, afforded her right to counsel. As discussed above, although Gerken testified at the hearing, she could not recall any facts germane to the issue of whether her conviction in the 2004 case was
{¶ 32} Gerken additionally claims that her 2004 conviction was invalid because the lost -- and therefore silent -- record was: (1) devoid of an explanation of circumstances; and (2) was devoid of evidence that the trial court “complied with
2013 Conviction
{¶ 33} To the extent Gerken claims: (1) that her 2013 conviction is invalid because the court in that case “did not reiterate that a guilty plea was a complete admission of guilt;” and (2) that her 2016 conviction was invalid because she was not properly advised as to her prior offenses and that she “could have been” charged with a felony, we likewise find that because these arguments do not allege a violation of Gerken‘s right to counsel, they are properly dismissed.
Crim.R. 32(C)
{¶ 34} Regarding specification B, Gerken alleges that the 2013 conviction cannot be used to enhance the penalty of her current offense, because it does not comply with
{¶ 35}
Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction.
{¶ 36} When, pursuant to
{¶ 37}
A judgment of conviction shall set forth the fact of conviction and the sentence. * * * The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered by the journal clerk.
{¶ 38} The Staff Note to the 2013 amendment to
Rule 32(C) sets forth the four essential elements required for a judgment of conviction as defined by the Supreme Court of Ohio. See State v. Lester, 2011-Ohio-5204. The previous rule arguably required the judgment to specify the manner conviction, e.g., plea, verdict, or findings upon which the conviction is based. The amendment to the rule allows, but does not require, the judgment to specify the specific manner of conviction. When a judgment of conviction reflects the four substantive provisions, as set forth by the Supreme Court of Ohio, it is a final order subject to appeal.
{¶ 39} “Thus, under the current version of
{¶ 40} For all of the foregoing reasons, Gerken‘s first assignment of error is found not well-taken.
Second assignment of error
{¶ 41} Appellant argues in her second assignment of error that the trial court improperly ordered her vehicle forfeited in violation of
{¶ 42}
{¶ 44}
If a court orders the criminal forfeiture of a vehicle pursuant to * * *
R.C. 4511.19 * * *, the order shall be issued and enforced in accordance with this division * * *. * * * A forfeiture order may be issued only after the offender has been provided with an opportunity to be heard. The prosecuting attorney shall give the offender written notice of the possibility of forfeiture by sending a copy of the relevant uniform traffic ticket or other written notice to the offender not less than seven days prior to the date of issuance of the forfeiture order. A vehicle is subject to an order of criminal forfeiture pursuant to this division upon the conviction of the offender or plea of guilty by the offender to a violation of division (A) of section4511.19 of the Revised Code * * *.
{¶ 45} “Failure to strictly comply with the notice requirements of a forfeiture statute renders forfeiture inappropriate.” Copeland, citing Dept. of Liquor Control v. Sons of Italy Lodge 0917, 65 Ohio St.3d 532, 605 N.E.2d 368 (1992). (Additional citation
{¶ 46} In this case, the record is silent as to whether Gerken received proper notice under the statute. The record is clear, however, that Gerken had actual knowledge that her car was subject to forfeiture, having been advised by the trial court at her change of plea hearing and at sentencing.
{¶ 47} In City of Mayfield Heights v. Berlin, 8th Dist. Cuyahoga No. 81071, 2002-Ohio-4040, the appellate court, in dealing with a challenge to the adequacy of the written notice contained in a BMV Form 2255 that the defendant had received at the time of her arrest, resolved the issue by noting that the defendant had received “actual notice” of forfeiture from the trial court at her plea hearing. Id. at ¶ 5. Because the defendant did not ask the trial court to continue the matter, nor did she make any attempt to withdraw her no contest plea once she became aware of the possibility of forfeiture, she was found to have waived her “right to complain” about the subsequently scheduled forfeiture hearing. Id. The court found that even if there was non-compliance with
{¶ 48} Under the circumstances of the instant case, where there is no evidence showing a lack of proper notice, a showing of actual notice is sufficient to establish compliance with the notice requirement of
{¶ 50} In State v. Cremeans, 5th Dist. Perry No. 16-CA-00006, 2017-Ohio-4400, the court concluded that the defendant had an opportunity to be heard when, at sentencing, the trial court granted defense counsel‘s request to be heard on the condition of forfeiture.
{¶ 51} In State v. Washington, 9th Dist. Lorain No. 10CA009778, 2011-Ohio-2711, however, the court, interpreting the language of the forfeiture provision set forth at
{¶ 52} Gerken‘s counsel, although well aware of the possibility of forfeiture, never sought to address the matter, either at sentencing or in a separate hearing. At the same time, the prosecutor never requested, and the trial court never set or even discussed, any kind of forfeiture hearing to determine the appropriateness of forfeiture in this case.
{¶ 53} In resolving this dilemma, we are mindful that a criminal statute, including one that involves a penalty, is to be strictly construed against the state and liberally construed in favor of the accused. See Knapp at ¶ 14, citing State v. Hill, 70 Ohio St.3d 25, 31, 635 N.E.2d 1248 (1994). Therefore, under the circumstances of this case, where the trial court did not meaningfully address the issue of forfeiture at the sentencing
Conclusion
{¶ 54} The judgment of the Fulton County Court of Common Pleas is affirmed in part and reversed in part, consistent with this opinion. This matter is remanded for a forfeiture hearing to determine the disposition of Gerken‘s 2007 Dodge Dakota. The costs of this appeal are to be divided equally between appellant and appellee pursuant to
Judgment affirmed, in part, and reversed, in part, and remanded.
Christine E. Mayle, J.
____________________________ JUDGE
Myron C. Duhart, P.J.
____________________________ JUDGE
Charles E. Sulek, J.
CONCUR.
____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.