THE STATE OF OHIO, APPELLEE, v. GWEN, APPELLANT.
No. 2011-0632
Supreme Court of Ohio
Submitted May 8, 2012—Decided November 1, 2012.
[Cite as State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046.]
LANZINGER, J.
{¶ 1} We accepted this case to resolve a conflict between the Ninth and Sixth Appellate Districts regarding the proper method for proving prior convictions for purposes of elevating the degree of the offense of domestic violence. State v. Gwen, 129 Ohio St.3d 1407, 2011-Ohio-3244, 949 N.E.2d 1003. The question certified to us is “[w]hether, for purposes of enhancing the offense level in a domestic violence case, the State is required to prove the prior domestic violence convictions by providing a judgment of conviction executed in conformity with Crim.R. 32(C).” State v. Gwen, 130 Ohio St.3d 1407, 2011-Ohio-5477, 955 N.E.2d 1018. The certified question contains an ambiguity, for it may be read to ask either (1) whether the state must use only certified judgment entries to prove prior offenses or (2) whether, when certified entries are offered as proof of prior convictions, they must comply with
{¶ 2} We also affirm the judgment of the court of appeals, including the remand for resentencing on Gwen‘s conviction of domestic violence as a felony of the fourth rather than the third degree. The appellate court was correct in holding that the state proved only one, not two, prior convictions, and therefore the offense may be elevated only to a fourth-degree felony. But as we will explain, we disapprove of the court of appeals’ statement that a journal entry of conviction need not comply with
I. Background
{¶ 3} Appellant, Jeffrey Gwen, was arrested on March 24, 2009, after his girlfriend called 9-1-1 alleging an incident of domestic violence. The state charged Gwen with one count of domestic violence, in violation of
{¶ 4} On appeal, Gwen challenged the two items that were admitted as evidence of prior domestic-violence convictions, arguing that they did not comply with
{¶ 5} The second item, State‘s Exhibit 3, consists of a series of documents relating to a charge of domestic violence prosecuted against Gwen in the Akron Municipal Court during 2000 to 2001. It includes a docket statement, a police incident report, a criminal complaint charging Gwen with domestic violence under
{¶ 6} The court of appeals rejected Gwen‘s argument that State‘s Exhibit 4 was fatally defective because it misidentified the offense as a minor misdemeanor, finding no authority that such an error renders the evidence of conviction inadmissible. Nevertheless, the court held that even if it was error to rely on this entry as proof of a prior conviction, that error was harmless because Gwen had testified that he had been convicted of domestic violence. State v. Gwen, 9th Dist. No. 25218, 2011-Ohio-1512, 2011 WL 1226763, ¶ 39. But on State‘s Exhibit 3, the court found the Akron Municipal Court‘s disposition of that case to be unclear, and there was no other evidence that Gwen had been convicted of or previously pled guilty to domestic violence in that case.
{¶ 7} The Ninth District therefore affirmed Gwen‘s domestic-violence conviction, but as a fourth-degree rather than a third-degree felony, because the state had not presented evidence of at least two prior domestic-violence convictions. Id. at ¶ 28. The court also held that compliance with
{¶ 8} Gwen filed a motion to certify a conflict between districts, arguing that the Ninth District‘s opinion conflicts with the Sixth District‘s decision in State v. Finney, 6th Dist. No. F-06-009, 2006-Ohio-5770, 2006 WL 3114136, which held that the state was required to prove a prior conviction by providing a judgment of conviction that was executed in conformity with
{¶ 9} We revise the question into two parts. The first part, which asks whether a judgment of conviction is the exclusive method of proving a prior conviction under
II. Analysis
A. Proving Prior Convictions of Domestic Violence—“Pleaded Guilty to” or “Convicted of”
{¶ 10} The offense of domestic violence is defined by
{¶ 11} When the existence of a prior conviction affects the degree of the offense and not just the punishment available upon conviction, it is an essential element of the offense. See State v. Allen, 29 Ohio St.3d 53, 54, 506 N.E.2d 199 (1987) (an element elevates the degree of the offense; an enhancement provision increases only the penalty). Thus, the state was required to prove that Gwen had “pleaded guilty to or been convicted of two or more offenses of domestic violence.” By using the phrase “pleaded guilty to” as an alternative to “convicted of” in
{¶ 12} In Gwen‘s case, the state‘s offer of State‘s Exhibit 3 as proof of a prior conviction is the only point requiring analysis. State‘s Exhibit 4 referred to “minor misdemeanor” domestic violence, which is a nonexistent offense, making the use of the exhibit improper. But Gwen admitted that he had been convicted, so Gwen‘s admission served as proof of the prior offense to which Exhibit 4 referred. Any reliance on the document was therefore harmless error.
B. Proof under R.C. 2945.75(B)
{¶ 13} The General Assembly has enacted a statute specifically addressing proof of a prior conviction.
(1) 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.
(2) Whenever in any case it is necessary to prove a prior conviction of an offense for which the registrar of motor vehicles maintains a record, a certified copy of the record that shows the name, date of birth, and social security number of the accused is prima-facie evidence of the identity of the accused and prima-facie evidence of all prior convictions shown on the record. The accused may offer evidence to rebut the prima-facie evidence of the accused‘s identity and the evidence of prior convictions. Proof of a
prior conviction of an offense for which the registrar maintains a record may also be proved as provided in division (B)(1) of this section. (3) If the defendant claims a constitutional defect in any prior conviction, the defendant has the burden of proving the defect by a preponderance of the evidence.
(Emphasis added.)
{¶ 14}
{¶ 15} The question is whether certified entries, when offered as proof, must comply with
C. The Conflict Between the Ninth and Sixth Districts
{¶ 16} The Ninth District relied on an earlier decision of its own to say that the state is not required to offer judgment entries that comply with
{¶ 17} On appeal, McCumbers contended that three of the entries offered to prove prior convictions were defective under
{¶ 18} In the case certified as being in conflict with Gwen‘s, the Sixth District considered whether the state had provided sufficient evidence of five prior DUI offenses to raise later charges to felonies of the fourth degree under
D. Resolution—Proving a Prior Conviction to Raise the Level of an Offense
{¶ 19} The state would rewrite the statute to say that if court records show that a defendant has either entered a guilty plea or been found guilty of a domestic-violence offense in two prior instances, he or she is subject to being charged with an increased level of domestic violence. But as noted above,
{¶ 20} We do not agree with the Ninth District‘s acceptance of the argument that the word “convicted” refers only to a determination of guilt and not a judgment of conviction. In State v. Henderson, 58 Ohio St.2d at 178, this court held that a sentence must have been imposed before an offender may be regarded as having a prior conviction. “[C]onviction’ includes both the guilt determination and the penalty imposition.” (Emphasis deleted.) State v. Poindexter, 36 Ohio St.3d 1, 5, 520 N.E.2d 568 (1988). A judgment of conviction does not exist without a sentence. State v. Robinson, 187 Ohio App.3d 253, 2010-Ohio-543, 931 N.E.2d 1110, ¶ 27 (1st Dist.). And we have determined that a judgment entry of conviction must follow
{¶ 21} Gwen objects to the admission of State‘s Exhibits 3 and 4, arguing that the entries do not meet the requirements of
III. Conclusion
{¶ 22} We answer the certified question, as modified, in the following way. First, the method set forth in
{¶ 23} Secondly, we hold that when, pursuant to
{¶ 24} For the reasons stated, while we disapprove of part of the reasoning contained in the court of appeals’ opinion, we affirm its judgment. See State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-Ohio-861, 784 N.E.2d 99, ¶ 18 (this court will not reverse a correct judgment merely because the reasoning is flawed).
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, CUPP, and MCGEE BROWN, JJ., concur.
LUNDBERG STRATTON and O‘DONNELL, JJ., concur in part and dissent in part.
O‘DONNELL, J., concurring in part and dissenting in part.
{¶ 25} In this appeal, we confront two issues: one, whether
Enhancement of a Subsequent Offense of Domestic Violence
{¶ 26} Domestic violence is a third-degree felony if the offender “previously has pleaded guilty to or been convicted of two or more offenses of domestic violence.”
{¶ 27} Regarding such proof,
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.
(Emphasis added.)
{¶ 28} Following this framework, the first issue is whether
{¶ 29}
{¶ 30} Therefore, I agree with the determination that
{¶ 31} The second issue we confront is whether an entry of judgment offered by the state as proof of a prior conviction must comply with the finality requirements of
{¶ 32} The terms “pleaded guilty” and “convicted” are at the core of this controversy and provide the starting point for analysis, which requires that we read these terms in context and construe them according to the ordinary rules of grammar and common usage.
{¶ 33} Further,
{¶ 34} Interpreting
{¶ 35} The rationale of State ex rel. Watkins v. Fiorenzo is applicable and supports interpreting
{¶ 36} A careful reading of State v. Henderson, 58 Ohio St.2d 171, 389 N.E.2d 494 (1979), discloses that it likewise lends support for this construction. There, the defendant pled guilty to receiving stolen property in violation of
{¶ 37} The syllabus paragraphs of Henderson appear to support a contrary result, but the differences in statutory language and purposes between that case and this make Henderson irrelevant. Unlike former
{¶ 38} Notably, the author of the majority dissented in State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, and advanced arguments similar to those expressed in this dissent. Id. at ¶ 31-34 (Lanzinger, J., dissenting).
{¶ 39} In my view, the language of
{¶ 40} Accordingly, an entry of judgment offered by the state pursuant to
{¶ 41} The purpose and legislative history of
{¶ 42} Further, in 2002 the 124th General Assembly in Am.Sub.H.B. No. 327 amended
Under preexisting law retained by the act, generally, a violation of the third prohibition is a misdemeanor of the fourth degree, and a violation of either of the first two prohibitions is a misdemeanor of the first degree. But under former law, if the offender previously had been convicted of domestic violence, * * * a violation of the third prohibition was a misdemeanor of the third degree, and a violation of either of the first two prohibitions was a felony of the fifth degree. (R.C. 2919.25.)
* * *
The act expands the circumstances in which former law enhanced the penalty for the offense of domestic violence. Under the act, the penalty also is enhanced when the offender previously pleaded guilty to any of the offenses described above in “Formerly.” Under former law, the statutory language provided for enhancement of the penalty only when the offender
previously had been convicted of any of those offenses. The act also expands the list of offenses that is relevant in determining the enhancement. Under the act, the penalty also is enhanced when the offender previously has been convicted of or pleaded guilty to a violation of a law of the United States or another state, or a municipal ordinance of a municipal corporation in another state that is substantially similar to the violations described above in “Formerly.” (R.C. 2919.25(D).)
(Emphasis and boldface sic.)
{¶ 43} The above demonstrates that the legislature added “pleaded guilty” to expand the circumstances for enhancement, and in doing so, placed guilty pleas and convictions on an equal footing. Requiring an entry of judgment offered as proof of a prior conviction to comply with
Conclusion
{¶ 44} The language of
{¶ 45} I respectfully dissent from the holding of the majority requiring an entry of judgment offered as proof of a prior conviction for purposes of enhancing a subsequent domestic-violence offense to comply with
{¶ 46} For these reasons, I would resolve the conflict by holding that a certified copy of an entry of judgment offered by the state pursuant to
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, for appellee.