Lead Opinion
{¶ 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,
{¶ 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 Crim.R. 32(C). Id. at ¶ 35-37.
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 R.C. 2919.25(A), and one count of illegal possession of drug paraphernalia, in violation of R.C. 2925.14(C)(1). The domestic-violence charge was enhanced to a third-degree felony under the statute applicable to third-time offenders, R.C. 2919.25(D)(4). Gwen pled not guilty; a jury found him guilty on both counts. He was sentenced to one year of incarceration for domestic violence and 30 days for the drug offense, to be served concurrently.
{¶ 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 Crim.R. 32(C) and State v. Baker,
{¶ 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 R.C. 2919.25(A), a temporary protection order, and a journal entry. The certified journal entry is a printed form with spaces provided for the relevant data, such as plea entered, disposition, sentence, and the like. The spaces provided for recording whether Gwen had been found guilty or not guilty are blank. The entry does show that Gwen pled not guilty and that he was sentenced to 30 days,
{¶ 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,
{¶ 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 Crim.R. 32(C) was not a prerequisite to proving a prior offense for purposes of increasing a subsequent charge. Id. at ¶ 36.
{¶ 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,
{¶ 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 R.C. 2945.75(B)(1), is answered “no.” The second part, which asks whether the judgment entry must comply with Crim.R. 32(C) when the state elects to use it to prove a prior conviction, is answered “yes.”
II. Analysis
A. Proving Prior Convictions of Domestic Violence — “Pleaded Guilty to” or “Convicted of’
{¶ 10} The offense of domestic violence is defined by R.C. 2919.25(A), (B), and (C). A first-time offense is either a misdemeanor of the fourth degree or a misdemeanor of the first degree, depending upon the section of the statute under which the defendant is charged. R.C. 2919.25(D)(2). A second offense is either a
{¶ 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,
{¶ 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. 29^5.75(B)
{¶ 13} The General Assembly has enacted a statute specifically addressing proof of a prior conviction. R.C. 2945.75(B) provides:
(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
(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} R.C. 2945.75(B)(1) sets forth one way to provide “sufficient” proof of a prior conviction, but does not provide the only method to prove it. For example, an offender may, and often does, stipulate to a prior conviction to avoid the evidence being presented before a jury.
{¶ 15} The question is whether certified entries, when offered as proof, must comply with Crim.R. 32(C) before they may prove a prior conviction.
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 Crim.R. 32(C). State v. McCumbers, 9th Dist. No. 25169,
{¶ 17} On appeal, McCumbers contended that three of the entries offered to prove prior convictions were defective under Crim.R. 32(C). R.C. 2941.1413(A). The Ninth District held that the statutory reference to pleas of guilty or convictions meant that the General Assembly intended “the word ‘convicted’ to refer only to a determination of guilt and not a judgment of conviction.” Id. at ¶ 13. In other words, the state would not have to offer a judgment entry of conviction to prove a prior offense. Thus, compliance with CrimuR. 32(C) was not required.
{¶ 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 R.C. 4511.19(G)(1)(d). State v. Finney, 6th Dist. No. F-06-009,
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, R.C. 2919.25(D)(4) requires the state to prove beyond a reasonable doubt that a defendant “previously has pleaded guilty to or been convicted of two or more offenses of domestic violence” before being subject to a penalty for a third-degree felony. When the state chooses to prove a prior offense not through a guilty plea, but via a conviction, and the defendant does not stipulate to the fact of the conviction, the judgment entry of conviction offered must contain the four elements described in Crim.R. 32(C) and in State v. Lester,
{¶ 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,
III. Conclusion
{¶ 22} We answer the certified question, as modified, in the following way. First, the method set forth in R.C. 2945.75(B)(1) is not the exclusive method for proving a prior conviction. We agree with those appellate courts that have held that other methods may exist to prove the element beyond a reasonable doubt. See, e.g., State v. Frambach,
{¶ 23} Secondly, we hold that when, pursuant to R.C. 2945.75(B)(1), the state chooses to offer judgment entries to prove the element of prior domestic-violence convictions in order to increase the offense level of a later domestic-violence charge under R.C. 2919.25(D)(4), the judgments must comply with Crim.R. 32(C). In that event, the judgment entry must set forth (1) the fact of a conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk. State v. Lester,
{¶ 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,
Judgment affirmed.
Concurrence Opinion
concurring in part and dissenting in part.
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.” R.C. 2919.25(D)(4). A prior conviction is an essential element of a crime when it enhances the level of the subsequent offense, State v. Allen,
{¶ 27} Regarding such proof, R.C. 2945.75(B)(1) provides:
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 R.C. 2945.75(B)(1) provides the exclusive method by which the state must prove a prior conviction for purposes of enhancing a subsequent domestic-violence offense, and its resolution requires interpretation of the statute. The goal of statutory construction is to ascertain and give effect to the intent of the legislature. State v. Hairston,
{¶ 29} R.C. 2945.75(B)(1) provides that a certified copy of an entry of judgment and identification of the defendant named in the entry constitute sufficient
{¶ 30} Therefore, I agree with the determination that R.C. 2945.75(B)(1) provides one method by which the state may prove a prior conviction, but it is not the only method by which the state must do so, and, thus, I concur in this holding of the majority.
{¶ 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 Crim.R. 32(C). Resolution requires that we construe R.C. 2919.25(D), which provides for enhancement of a subsequent domestic-violence offense if the offender “previously has pleaded guilty to or been convicted of two or more offenses of domestic violence.”
{¶ 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. R.C. 1.42. The language here is plain and its meaning is unambiguous; these terms connote past action, identifying the means by which an offender possesses a prior conviction for domestic violence, and read together in context denote a determination of guilt.
{¶ 33} Further, R.C. 2919.25(D) does not mention or contain any reference to Crim.R. 32(C), and it contains no language suggesting that an entry of judgment offered by the state to prove a prior conviction must include the technical requirements for finality, which have developed in the context of appealable orders for the purpose of providing a date certain from which the time for appeal begins to run, and which share neither context nor purpose with offense enhancement. Thus, in my view, reading R.C. 2919.25(D) as requiring compliance with Crim.R. 32(C) adds an element that does not exist in the statute. As such, that reading violates the rule of construction that we give legal effect to the words of a statute, as well as the principle that an unambiguous statute may not be modified by adding or deleting words. State v. Teamer,
{¶ 34} Interpreting R.C. 2919.25(D) in this manner is inconsistent with our decision in State ex rel. Watkins v. Fiorenzo,
{¶ 35} The rationale of State ex rel. Watkins v. Fiorenzo is applicable and supports interpreting R.C. 2919.25(D) in the same manner. Here, too, the General Assembly placed “pleaded guilty to” and “convicted of’ on equal footing because either can serve as the basis for enhancing a subsequent domestic-violence offense. The context in which those terms are used in both cases is also similar, further buttressing that determination.
{¶ 36} A careful reading of State v. Henderson,
{¶ 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 R.C. 2913.02(B) in Henderson, R.C. 2919.25(D) does not limit enhancement to past convictions. It includes guilty pleas, which expresses a legislative intent to lessen the state’s burden of proof. Instead, the majority increases the state’s burden by requiring compliance with Crim.R. 32(C).
{¶ 38} Notably, the author of the majority dissented in State v. Whitfield, and advanced arguments similar to those expressed in this dissent.
{¶ 40} Accordingly, an entry of judgment offered by the state pursuant to R.C. 2945.75(B)(1) to prove a prior conviction for purposes of enhancing a subsequent domestic-violence conviction need not comply with Crim.R. 32(C); enhancement in R.C. 2919.25(D) is premised on a determination of guilt and not on a judgment containing all the requisites of finality, which developed in an unrelated context and for a different purpose.
{¶ 41} The purpose and legislative history of R.C. 2919.25 remove any doubt as to legislative intent. First, the General Assembly’s concern with the special nature and seriousness of domestic violence is reflected in its decision to allow the state more leeway in proving prior offenses. A plea of guilty is sufficient. The legislature could have limited enhancement to cases in which there is a judgment entry of conviction, but it did not do so.
{¶ 42} Further, in 2002 the 124th General Assembly in Am.Sub.H.B. No. 327 amended R.C. 2919.25(D), adding the phrase “pleaded guilty to” and placed it next to “convicted of,” joined by the disjunctive “or.” 149 Ohio Laws, Part IV, 7548. The Act Summary of the Final Bill Analysis sets forth the intent of the legislature:
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*295 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 Crim.R. 32(C) narrows the circumstances for enhancement by disqualifying entries that, coupled with evidence of identification, would otherwise constitute sufficient evidence of a prior conviction.
Conclusion
{¶ 44} The language of R.C. 2945.75(B)(1) is plain and its meaning unambiguous: when the state needs to prove a prior conviction to enhance a subsequent domestic violence offense, R.C. 2945.75(B)(1) identifies evidence that constitutes sufficient proof without restricting the state to this method of proof exclusively.
{¶ 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 Crim.R. 32(C), as such a construction imposes a new requirement not in the statute and contravenes expressed legislative intent.
{¶ 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 R.C. 2945.75(B)(1) to prove a prior conviction for purposes of enhancing a subsequent domestic-violence offense need not comply with Crim.R. 32(C). I would reverse that portion of the judgment of the court of appeals and remand for proceedings consistent with this opinion.