499 N.E.2d 1268 | Ohio Ct. App. | 1985
On appeal from his conviction for aggravated robbery, defendant contests the finding and sentence imposed by the trial court regarding the specification contained in the indictment, which alleged that he had previously been convicted of attempted aggravated robbery in 1976. Defendant raises the following assignments of error in support of his appeal1:
"* * *
"3. The trial court erred by using a previous conviction to enhance the defendant's sentence in the absence of evidence establishing the constitutional validity of the previous conviction.
"* * *"
The jury found defendant guilty of aggravated robbery, in violation of R.C.
By his third assignment of error, defendant maintains that the trial court's decision on the prior conviction specification was erroneous, as the state failed to establish the constitutional validity of his prior conviction. Because the penalty enhancement specification charged defendant with previously having been convicted of, or having pleaded guilty to, a felony, it became the state's burden to prove that specification beyond a reasonable doubt. See State v. Gordon (1971),
Of the opinions relied upon by defendant, in Baldasar v.Illinois (1980),
However, these cases involving uncounseled convictions are not analogous to the circumstances before us. Simply because the record of the prior conviction is silent concerning an explanation of the charge by the trial judge, or a representation by defense counsel that the nature of the offense has been explained to the accused, does not mean one must presume that the plea was involuntary, where, as here, the accused was represented by counsel and there is no evidence from the accused that the plea was involuntary. Instead, under these circumstances, the United States Supreme Court has held that it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. See Henderson v.Morgan (1976),
In this case, the state established that this defendant pleaded guilty to the prior charge while represented by *127 counsel. Defense counsel objected to the use of that evidence to show the prior conviction for the reason that "there is no record that this guilty plea was knowingly and voluntarily given by Mr. Hairston in compliance to conform [sic] with Criminal Rule 11C," citing the Burgett and Baldasar opinions. No contention was made that the plea was involuntary, and no attempt was made to prove it was involuntary. Under these circumstances, without the benefit of any evidence to the contrary, it was appropriate for the trial court to presume the voluntariness of the plea, and the trial court's factual determination therefore is fairly supported by the record.
Accordingly, the third assignment of error is overruled.
For the reasons set forth above, the assignments of error are overruled, and the judgment of the Court of Common Pleas of Franklin County is affirmed.
Judgment affirmed.
MOYER and STERN, JJ., concur.
STERN, J., retired, of the Supreme Court of Ohio, was assigned to active duty pursuant to Section