{¶ 2} On February 1, 2006, Macalla was indicted on two counts of OVI: count one, operating a vehicle while under the influence of alcohol or drugs, a violation of R.C.
{¶ 3} Both offenses are ordinarily misdemeanors, however, the two counts were charged as fourth-degree felonies since the indictment specified that Macalla had seven prior OVI convictions within the past twenty years.1 The indictment specified that Macalla had previously been convicted of OVI in the Elyria Municipal Court on March 26, 1987 and February 9, 1988; in the Berea Municipal Court on April 9, 1987 and October 16, 1995; and in the Rocky River Municipal Court on October 24, 1988, November 29, 1989, and October 6, 1999.2 Macalla entered a plea of not guilty to both counts. The case proceeded to a jury trial.
{¶ 4} The day of the trial, Macalla orally moved to dismiss, claiming his speedy trial rights had been violated. After arguments, the trial court denied the motion.
{¶ 5} Since Macalla is only challenging the issue of the enhancement elements and not the underlying OVI conviction, this court will not get into the facts which led to his original arrest. Briefly, Macalla was arrested for OVI in November *4 2004 after he crashed into someone's mailbox, left the scene of the accident, failed field sobriety tests, and registered a .225 breath alcohol content. Pertinent to this appeal, Officer John Downs of the North Olmsted Police Department testified to Macalla's identity, including his social security number and date of birth.
{¶ 6} In addition to Officer Downs, the state presented three witnesses from each municipality's clerk of courts, where Macalla had allegedly been previously convicted of OVI.
{¶ 7} Matthew Krosse, chief deputy clerk for Elyria Clerk of Courts, testified that he was in charge of maintaining records and ensuring their accuracy. He identified State's Exhibit 6, which he explained was from a page of the clerk's docket book. On it, he described Case No. 87TR14167, which had the name "Matthew E. Macalla" listed as the defendant.3 He stated that the document showed that this "Matthew E. Macalla" entered a plea of no contest to OVI, was found guilty, and sentenced on February 9, 1988.
{¶ 8} Krosse explained that Elyria Municipal Court allows people to enter into payment plans to pay fines. He then identified State's Exhibit 7, which he described *5 as a copy of a "case history ledger" of a payment plan for Case No. 87TR14167. He said that this ledger showed "Matthew E. Macalla's" social security number, but he explained that on this copy of the ledger, the first number of the social security number was missing. Krosse explained that he brought the original case history ledger to court, which he identified as State's Exhibit 9. From the original, he read the entire social security number into the record.4
{¶ 9} Krosse then identified State's Exhibit 8, another certified copy from the Elyria Clerk of Courts' docket book. He read from it, and explained it listed Case No. 86TR11220, which had a disposition of "found guilty" and a sentence was imposed.5
{¶ 10} On cross-examination, Krosse stated that there was nothing on Exhibit 6 which indicated that "Matthew E. Macalla" was represented by counsel at that time. Krosse also said that he did not bring a written waiver of counsel with him to court, and agreed that he did not even know if one existed. Krosse explained that the case file for Case No. 87TR14167 had been destroyed, and there was no transcript from the proceedings. *6
{¶ 11} Krosse further explained on cross-examination that he did not bring the case history ledger for Case No. 86TR11220 because it had "probably" been destroyed. He agreed that there was no other identifying information, besides the name "Matthew E. Macalla," on State's Exhibit 8 for Case No. 86TR11220, such as social security number or date of birth. He agreed that he did not have any other identifying information and he was not working in the clerk's office from 1986 through 1988.
{¶ 12} Deborah Comery, deputy clerk for the Rocky River Municipal Court, identified State's Exhibit 1 as a journal entry prepared and executed on October 6, 1999. She explained that it was a journal entry for Case No. 99TRC16111A, finding defendant "Matthew E. Macalla" guilty of OVI on October 6,1999, with his date of birth and social security number listed. On it, she explained that it indicated defendant waived his right to counsel.
{¶ 13} Comery also identified State's Exhibit 3, a general information page from the court's current computer system, as well as three pages from the court's docket. She said it showed Case No. 89TRC12151, which was an OVI filed on November 29, 1989. She explained that the the information page identified "Matthew E. Macalla" as the defendant, listed his birth date and social security number, and showed that he pled guilty. In addition, she said that on page three, it listed Macalla's attorney and the attorney's phone number. *7
{¶ 14} Comery then identified State's Exhibit 4, which she said was another general information page, listing Case No. 88TRC9421A, an OVI filed on October 24, 1988, naming "Matthew E. Macalla" as the defendant, his social security number and date of birth, and showing that he was found guilty. She said that it also listed his attorney and the attorney's phone number.
{¶ 15} The state then presented Colleen Coyne, a deputy clerk for Berea Municipal Court. She identified State's Exhibit 2 as "a case on a Matthew Macalla." She explained that the document listed Case No. 95TRC03629, an OVI conviction from a guilty plea, with "Matthew Macalla's" social security number and date of birth. She stated that the defendant was represented by an attorney, whose name was listed on the document.
{¶ 16} Coyne also identified State's Exhibit 5, which included a number of copies of pages from the court's file on Case No. 86TRC5408. She explained that it showed that Mathew E. Macalla was convicted for OVI after he pled no contest on April 9, 1987. She stated that in the exhibit was also a copy of the original citation, identifying Case No. 86TRC5408 and listing Mathew E. Macalla's birth date and social security number. She further said that the documents listed the defendant's attorney's name.
{¶ 17} The state rested. Macalla moved for a Crim.R. 29 acquittal, which the trial court denied. Macalla then rested his case and renewed his Crim.R. 29 motion, which the trial court again denied. *8
{¶ 18} The jury found Macalla guilty of both counts of OVI, fourth-degree felonies, and guilty of all specifications of prior OVI convictions.
{¶ 19} The trial court sentenced Macalla to five years in prison on each count, but found them to be allied offenses of similar import and merged them for purposes of sentencing. Thus, Macalla received an aggregate prison term of five years. The trial court also suspended Macalla's driver's license for life, ordered that he be referred to a community reentry program upon his release, and imposed three years of mandatory postrelease control.
{¶ 20} Macalla timely appealed, raising four assignments of error for our review:
{¶ 21} "[1.] The trial court erred in admitting appellant's uncounselled prior convictions into evidence.
{¶ 22} "[2.] The trial court erred in denying appellant's Criminal Rule 29 motion the state failed to present sufficient evidence that the date of conviction in Berea Municipal Court Case No. 95TRC03629, occurred within twenty years prior to the occurrence of the underlying offense as set forth in the specification of prior convictions.
{¶ 23} "[3.] The state failed to present sufficient evidence identifying appellant as the person convicted in the prior impaired driving convictions set forth in specifications one through seven. *9
{¶ 24} "[4.] Appellant was deprived of his right to a speedy trial in violation of
A. Uncounseled Conviction/Waiver of Right to Counsel
{¶ 25} In his first assignment of error, Macalla argues that "at least three of the convictions used against [him] were uncounselled [sic] pleas." Specifically, he maintains that the trial court erred when it admitted the two prior OVI convictions from Elyria Municipal Court, Case Nos. 86TR11220 and 87TR14167, and one from Rocky River Municipal Court, Case No. 99TRC16111, because the state did not prove that he was either represented by counsel or validly waived his right to counsel. {¶ 26} The admission of evidence rests within the trial court's discretion. State v. Sloan, 8th Dist. No. 79832, citing Rigby v. LakeCty. (1991),
{¶ 27} In State v. Brooke,
{¶ 28} "When existence of a prior conviction does not simply enhance the penalty but transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime and must be proved by the state. State v. Allen (1987),
{¶ 29} When the state proposes to use a past conviction to enhance the penalty of a later criminal offense, a defendant can challenge that past conviction if the conviction was constitutionally infirm. Id. at _9. "A conviction obtained against a defendant who is without counsel, or its corollary, an uncounseled conviction obtained without a valid waiver of the right to counsel, has been recognized as constitutionally infirm." Id., citing State v. Brandon (1989),
{¶ 30} In State v. Adams (1988),
{¶ 31} The Supreme Court stated more recently in Brooke: `"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.'Brandon at the syllabus. Once a prima facie showing is made that a prior conviction was uncounseled, the burden shifts to the state to prove that there was no constitutional infirmity. Id. at 88. For purposes of penalty enhancement in later convictions under R.C.
{¶ 32} At the outset, we note that Macalla objected to the admission of the three prior convictions he now claims were constitutionally infirm. The record reveals, however, that Macalla did not submit any evidence to establish a prima facie case showing the prior convictions were constitutionally infirm. He did not submit an affidavit prior to trial stating that his prior convictions were uncounseled or that he did not validly waive counsel, nor did he testify to such at trial. Absent a prima facie case for constitutional infirmity, "a reviewing court must presume all underlying proceedings were conducted in accordance with the rules of law." Brandon, supra, at the syllabus. *12
{¶ 33} The Supreme Court further explained in Brandon, "The presumption we entertain is not irrebuttable. [Brandon] simply failed in his burden of presenting sufficient evidence to establish a prima-facie showing that his prior convictions were uncounseled. Adams, supra. Indeed, [Brandon's] burden in this regard was hardly difficult. Had [Brandon's] counsel simply asked [him] during testimony whether his prior convictions were counseled, a negative response would have established a prima-facie showing of constitutional infirmity. This one question and answer would have then placed on the state the burden of proving that [Brandon's] prior convictions were counseled. Because [Brandon] failed to meet his burden, we presume his prior convictions were counseled and that, therefore, the convictions could be used to enhance his penalty in the case before us to felony theft." Id. at 87-88.
{¶ 34} In addition, defendants may also easily meet this burden by filing a motion prior to trial, along with an affidavit stating they were unrepresented by counsel and did not validly waive their right to counsel, or other evidence showing the same. See Brooke at _31.
{¶ 35} Since Macalla did not establish a prima facie case, the burden never shifted to the state to prove otherwise. Therefore, this court must presume the prior convictions were constitutionally firm.
{¶ 36} Thus, Macalla's first assignment of error is without merit.
B. Proving Date of Prior Offense *13
{¶ 37} In his second assignment of error, Macalla argues that the trial court erred when it did not grant his Crim.R. 29 motion because the state did not present sufficient evidence to prove that the prior offense in the Berea Municipal Court, Case No. 95 TRC 03629, actually occurred within tweny years prior to the current offense. Specifically, Macalla claims that the Berea Municipal Court clerk never stated the date of the conviction and also that "[t]he record reflects no evidence of the date of the conviction in Berea Case No. 95TRC03629." We disagree. {¶ 38} Crim.R. 29(A) governs motions for acquittal and provides for a judgment of acquittal "if the evidence is insufficient to sustain a conviction[.]" The test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), 8th Dist. No. 65356,
{¶ 39} An appellate court's function in reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991),
{¶ 40} We agree with Macalla that the Berea Municipal Court clerk did not testify as to the date of this conviction. Nevertheless, the record is not devoid of any evidence establishing the date. The Berea Municpal clerk testified to and authenticated State's Exhibit 2, which was admitted without objection. This document unequivocally shows that Macalla was charged with OVI on October 16, 1995, that he entered a guilty plea on December 11, 1995, and that he was sentenced on January 31, 1996. The jury had this evidence before it and was fully capable of concluding that the date of the prior conviction was within the twenty-year look-back period.
{¶ 41} As such, Macalla's second assignment of error is without merit.
C. Proof of Identification
{¶ 42} In this third assignment of error, Macalla argues that the state failed to present sufficient evidence to establish beyond a reasonable doubt that he was the "person who was convicted in any of these cases."{¶ 43} The standard of review is the same as it was in the previous assignment of error.
{¶ 44} R.C.
{¶ 45} In State v. Simpson (1969),
{¶ 46} `"Having previously been convicted' is now a necessary element of the new offense and must be proved beyond a reasonable doubt by the state. This includes the question of identity. It would not be sufficient for the state to prove that `John Smith' was previously convicted in Cuyahoga County. It must now prove that the `John Smith' previously convicted in Cuyahoga County was one and the same person as the John Smith' now on trial.'"
{¶ 47} In the case sub judice, Officer Downs testified to Macalla's social security number and date of birth. The LEADS report was also admitted into evidence, which contained Macalla's social security number and date of birth.
{¶ 48} After reviewing the record, we conclude that in five of the seven prior convictions, there is no question that the state presented sufficient evidence to prove beyond a reasonable doubt that the Mathew E. Macalla previously convicted of OVI was the same as the Macalla charged in the present case. *16
{¶ 49} As for the three prior Rocky River convictions, the state presented the Rocky River Municipal Court clerk, who authenticated and testified to certified copies of the judgment entries convicting Macalla. In each one, it listed his name, as well as his date of birth and social security number.
{¶ 50} In addition, for the two previous Berea convictions, the state presented the clerk who authenticated certified copies of dockets and case information sheets, which left no question that Macalla was the same one as convicted previously in 1987 and 1995. The documents included his name, social security number, and date of birth.
{¶ 51} When presented with similar evidence, the Sixth District Court of Appeals found that "since the social security number is a unique identifier, this, along with the common birth dates, is evidence by which a jury could conclude that the identity of the person to whom these documents refer is the same." State v. Greene (Dec. 14, 2001), 6th Dist. No. S-01-015,
{¶ 52} The two Elyria convictions, however, raise more questions. The chief deputy clerk for Elyria Municipal Court identified State's Exhibits 6 through 9. The *17 clerk explained that Exhibit 6 was from the court's docket book, which showed that in Case No. 87TR14167, a "Matthew E. Macalla" entered a plea of no contest to OVI, was found guilty, and sentenced on February 9, 1988. We note that this document alone did not have any other identifying information, such as a birth date or social security number.
{¶ 53} However, the Elyria clerk then identified State's Exhibit 7, a document which he called "a case history ledger." He explained that Elyria Municipal Court allows defendants to enter into a payment plan to pay fines, which is then recorded on the case history ledger. He explained that Exhibit 7 was a certified copy of a case history ledger for Case No. 87TR14167, listing the name "Matthew E. Macalla" and listing a social security number, but explained that the first number of the social security number got cut off when it was copied. The remaining digits of the number matched Macalla's.
{¶ 54} The clerk then identified State's Exhibit 9, which was the original (and thus, not ultimately admitted) case history ledger identified in State's Exhibit 7, and which the clerk explained had the full social security number listed for "Matthew E. Macalla."
{¶ 55} It is this court's view that the state presented sufficient evidence on Macalla's identity in this case to support the jury's verdict as a matter of law. The clerk testified to two documents which, when linked together by the same name and *18 case number, show that in Case No. 87TR14167, it was Macalla who was the one convicted of OVI on February 9, 1988.
{¶ 56} Finally, in the second Elyria case, Case No. 86TR11220, the clerk testified that the docket page showed that a "Matthew E. Macalla" was convicted of OVI on March 26, 1987. However, there is no other identifying information listed on the docket form. The clerk explained that the case ledger history for this case had "probably" been destroyed. There was no other identifying information presented. Thus, we conclude that the evidence presented by the state on this prior conviction was not sufficient to identify Macalla as the one previously convicted. Names alone are not sufficient.
{¶ 57} Nevertheless, since there was sufficient evidence presented on the other six prior convictions to identify Macalla as the defendant in those cases, we conclude that it would not change the outcome. The twenty-year look-back statute only requires five previous convictions within twenty years in order to enhance a defendant's OVI conviction to a fourth degree felony. In this case, there were six prior convictions, where the evidence was sufficient, which supported enhancing Macalla's current OVI convictions to fourth degree felonies. Thus, although Macalla is correct with respect to the conviction in Elyria Case No. 86TR11220, we conclude that he was not prejudiced by it and as such, any error was harmless.
{¶ 58} Accordingly, Macalla's third assignment of error is overruled.
{¶ 60} The right to a speedy trial is guaranteed to all state criminal defendants by the
{¶ 61} R.C.
{¶ 62} R.C.
{¶ 63} The Ohio Supreme Court has construed these statutes narrowly and has held they are mandatory and must be strictly complied with by the state. See State v. Davis (1976),
{¶ 64} Macalla contends that because he was arrested on March 17, 2006 and remained in jail during the entire proceedings, by August 9, 2006, he had been *20 denied his right to a speedy trial. Macalla's argument, however, fails to account for the periods when time was tolled, as allowed by law.
{¶ 65} In particular, R.C.
{¶ 66} Macalla was arrested on March 17, 2006 and arraigned on March 21, 2006. According to the record, however, he was also arrested and arraigned on another case that same day and held in jail in lieu of bond on both cases.6 Thus, the triple-count provision did not apply during this time. State v. MacDonald (1976),
{¶ 67} On March 28, 2006, Macalla filed a motion for discovery. The state responded to the request on May 2, 2006, and filed its own request for discovery from Macalla on the same date. Macalla responded on June 5, 2006. *21
{¶ 68} In State v. Mitchell, 8th Dist. No. 88977,
{¶ 69} Thus, Macalla's speedy trial time was tolled from March 28, 2006, until June 5, 2006. At that point, only ten days of time had been counted against his speedy trial time (March 18 through March 28). The triple-count provision would apply to the remaining calculation.
{¶ 70} During the period up to June 5, 2006, Macalla filed several continuances, which would have also tolled the speedy trial time, but since it was tolled for discovery, it is not necessary to go into each one. But one in particular affects the remaining calculation. On May 31, 2006, the trial court continued another pretrial at the request of Macalla and set the date of trial for June 6, 2006. Thus, the time was tolled until June 6, 2006.
{¶ 71} The docket is silent as to what occurred on June 6, 2006. However, on June 15, 2006, the docket indicates that the trial was continued to June 19, 2006 due to defense counsel being ill. Thus, as of June 19, 2006, ten more days should be counted against the state (June 6 through June 15, with time tolled from June 15 *22 until June 19). Applying the triple count provision, it would be thirty more days, for a total count of forty days.
{¶ 72} Again the record is silent as to what occurred on June 19, 2006. However, on June 26, 2006, the record indicates that the trial was continued until July 6, 2006 at the request of the court due to the trial judge being in another trial. Thus, seven more days counted toward the speedy trial time (for the time the docket was silent, June 19 through 26), or twenty-one days, for a total of sixty-one days.
{¶ 73} On July 11, 2006, the next docket entry, the record indicates that the trial was continued again to July 19, 2006, due to the trial judge being in another trial and due to defense counsel being unavailable until July 19, 2006. Thus, five more days counted against the state (from July 6 through July 11, when the record was silent), or fifteen more days added, and therefore, as of July 19, a total of seventy-six days were charged towards Macalla's speedy trial time.
{¶ 74} The record is then silent from July 19, 2006 until August 21, 2006. On August 21, the trial court issued a nunc pro tunc entry stating that on July 19, 2006, the trial was continued because defense counsel was not available for trial and the trial court was currently engaged in another trial. The trial court also stated that the trial was continued to September 6, 2006. Macalla did not object or contend otherwise to the trial court's nunc pro tunc entry.
{¶ 75} In State v. King (1994),
{¶ 76} In State ex rel. Cruzado v. Zaleski,
{¶ 77} "[A] trial court can correct clerical errors in judgments. [State v. Garretson (2000),
{¶ 78} After reviewing the record, we conclude that the trial court's nunc pro tunc entry, since it was journalized before the expiration of Macalla's speedy trial *24 time, properly reflected what the trial court actually decided on July 19, 2006. Moreover, Macalla did not object or argue that this was not what in fact occurred on July 19, 2006. As such, the time was tolled from July 19, 2006 until the date of the scheduled trial, well within Macalla's speedy trial time.
{¶ 79} We note that even if we were to construe the time from July 19, 2006 to the date of the rescheduled trial against the state, it still would have been within
{¶ 80} Macalla's speedy trial time. As of July 19, 2006, only seventy-six days had been charged against the state. From July 19 until September 6, another fifty days had passed, or one-hundred and fifty applying the triple-count provision, bringing the total time to two hundred and twenty-six days. This still would have been well within the statutory time. Thus, Macalla's speedy trial rights were not violated.
{¶ 81} Macalla's fourth assignment of error is overruled.
{¶ 82} Accordingly, Macalla's four assignments of error are without merit. The judgment of the Cuyahoga County Court of Common Pleas if affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. *25
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY JANE BOYLE, JUDGE
CHRISTINE T. McMONAGLE, P.J., and PATRICIA A. BLACKMON, J., CONCUR