State v. NobleState v. Noble
This сause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{¶ 1} Plaintiff-Appellant, the State of Ohio, appeals from the decision of the Lorain County Court of Common Pleas granting Defendant-Appellee Wesley Noble‘s motion in limine. This Court affirms.
I.
{¶ 2} Noble was involved in a one-car accident on or about December 3, 2005. When police arrived at the scene, Noble аppeared to be intoxicated. Noble refused to submit to a breathalyzer test, but he failed several field sobriety tests.
Noble‘s arrest as a result of this encounter constituted his sixth arrest for driving
{¶ 3} On March 22, 2006, a grand jury indicted Noble for driving under the influence in violation of
{¶ 4} On May 25, 2006, Noble filed a motion to strike all of his prior convictions and the specification from the indictment. Noble argued that the State could not use his past convictions to enhance his new charges because his previous convictions were constitutionally infirm. After a hearing, however, Noble agreed to contest only the validity of the November 1992 conviction, Elyria Municipal Court No. 92-TRC-11932. The court then held another hearing to receive evidence solely as to that conviction. At the hearing, the State presented the court with a certified copy of the docket entry in the 1992 case and a videotape of the arraignment, plea, and sentence in that case. Although the videotape evidenced that Noble had signed some type of written waiver when entering his plea, the State was unable to produce the written waiver for the trial court.
{¶ 5} On December 28, 2006, the trial court granted Noble‘s motion. The court found that Noble‘s 1992 conviction was constitutionally infirm because the judge in that case failed to fully apprise Noble of his right to appointed counsel despite some indication that Noble was indigent at the time that he entered his plea. The State has timely appealed the trial court‘s ruling, raising one assignment of error.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE‘S MOTION TO STRIKE/LIMINIE (sic).”
{¶ 6} The State argues that the trial court errеd in finding that Noble had set forth a prima facie case of constitutional infirmity as to his November 1992 conviction. This Court disagrees.
{¶ 7} Although a ruling on a motion in limine is generally interlocutory in nature, we allow the State to immediately aрpeal from such rulings in certain instances. State v. Redfearn, 9th Dist. No. 06CA009040, 2007-Ohio-4108, at ¶ 4.
The Ohio Supreme Court has explained that:
“[a]ny motion, however labeled, which, if granted, restricts the state in the presentation of certain evidence and, thereby, renders the state‘s proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed, is, in effect, a motion to suppress. The granting of such a motion is a final order and may be appealed[.]” State v. Davidson (1985), 17 Ohio St.3d 132, syllabus;
Crim.R. 12(K) .
{¶ 8} In making its ruling on a motion to suppress, the trial court makes both legal and factual findings. State v. Jones (Mar. 13, 2002), 9th Dist. No. 20810. It follows that this Court‘s review of a denial of a motion to suppress involves both questions of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 332. As such, this Court will accept the factual findings of the trial court if they are supported by some competent and credible evidence. State v. Searls (1997), 118 Ohio App.3d 739, 741. However, the application of the law to those facts will be reviewed de novo. Id.
{¶ 9} The State may use an offender‘s previous DUI convictions to increase the current charges against him and to enhance his sentence upon his conviction. See
{¶ 10} A criminal dеfendant has a limited right to collaterally attack a prior conviction when the State intends to use the conviction to enhance a later criminal offense. Id. at ¶ 9. A prior uncounseled conviction cannot be used to enhance the penalty for a later conviction if the earlier conviction resulted in a sentence of confinement. Nichols v. United States (1994), 511 U.S. 738, 749. Under the penalty enhancement provisions of
{¶ 11} According to the record it appears that the trial court held up to two hearings on Noble‘s motion in limine. However, it is not clear whether аny hearing that the court held was an evidentiary hearing or whether testimony was entered during the hearing(s). An appellant bears the burden of ensuring that the record necessary to determine the appeal is filed with the apрellate court.
{¶ 12} The State argues that the trial court erred in granting Noble‘s motion in limine, but the State failed to file a transcript of any hearing(s) that the trial court held on Noble‘s motion. Without a transcript, we have no wаy to determine what testimony or other evidence emerged at the hearing(s). The trial court‘s journal entry only indicates that it considered the State‘s videotape exhibit of Noble‘s arraignment, plea, and sentencing in his 1992 conviction, and the copy of the certified docket entry in that case. The entry makes no reference to the evidence that Noble presented in support of his prima facie burden. See Brooke, supra (requiring defendant to sеt forth evidence that prior conviction was uncounseled and resulted in confinement). Since it was the State‘s burden to demonstrate any error on appeal, however, we must presume regularity in the proceedings bеlow and find that Noble satisfied his prima facie burden. See Knapp, 61 Ohio St.3d at 199.
{¶ 13} Moreover, even if the hearing (or hearings) below was not evidentiary in nature the videotape and certified copy of the docket entered into the record support the conclusion that Noble‘s prior conviction was uncounseled and resulted in confinement. The videotape shows that Noble did not have an
{¶ 14}
“Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waivеs assignment of counsel.”
{¶ 15} The certified copy of the docket entry in Noble‘s 1992 offense indicates that his conviction was a misdemeanor of the first degree. At the time of Noble‘s conviction, the Revised Code provided, in relevant part:
“(B) Terms of imprisonment for misdemeanor shall be imposed as follows:
“(1) For a misdemeanor of the first degree, nоt more than six months[.]”
R.C. 2929.21 .
Because Noble‘s penalty did not include confinement for more than six months, his 1992 conviction constituted a petty offense. See
III.
{¶ 16} The State‘s sole assignment of error is overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute thе journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to appellant.
WHITMORE, P. J. DICKINSON, J. CONCUR