Defendant Challenging Prior DUI Convictions as ‘Uncounseled’ Must Show Waivers of Counsel Were Invalid
2007-2389. State v. Thompson, Slip Opinion No. 2009-Ohio-314.
Fairfield App. No. 2007-CA-00006, 2007-Ohio-6098. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Moyer, C.J., and Pfeifer, O'Connor, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton and O'Donnell, JJ., concur in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-314.pdf 
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(Feb. 4, 2009) In a 7-0 decision announced today, the Supreme Court of Ohio held that in cases where a defendant faces enhanced penalties for a current DUI charge based on prior convictions, and the defendant challenges the validity of one or more of his prior convictions on the constitutional ground that it was “uncounseled” and resulted in confinement: 1) The defendant must make a prima facie (sufficient on its face) showing that in the challenged case(s) he was not represented by counsel, did not validly waive his right to counsel, and received a sentence of confinement. 2) If the defendant makes a prima facie showing of the required facts, the burden of proof then shifts to the state to prove that the defendant validly waived his right to counsel.
In an opinion written by Justice Paul E. Pfeifer, the Court reversed a ruling by the 5th District Court of Appeals and reinstated the conviction of Billy Thompson II of Fairfield County on a fourth-degree felony count of repeat-offender DUI.
Thompson was stopped by a State Highway Patrol trooper and a test of his blood revealed an alcohol level of 0.134 percent. Because Thompson had three prior DUI convictions within the preceding six years, he was indicted on a felony count of fourth-offense DUI. Prior to trial, and again at trial, Thompson entered motions to strike his prior convictions underlying his felony indictment based on alleged failures by the trial court to obtain a valid waiver of his right to legal counsel before trying him without an attorney and sentencing him to a term of confinement.
In opposing the motions to strike, the Fairfield County prosecutor’s office produced judgment entries recording Thompson’s three prior DUI convictions, and acknowledgement-and-waiver-of-rights forms from those court cases. The trial court denied Thompson’s motions to strike his prior convictions, and ruled that his prior convictions could be applied to enhance his latest DUI offense to a felony. He was convicted on a felony count of fourth-offense DUI and sentenced to two years in prison, with all but the first 60 days of that term stayed on conditions.
Thompson appealed. The 5th District Court of Appeals reversed his felony conviction and sentence and remanded the case to the trial court for resentencing. In its decision, the court of appeals held that the documentation of Thompson’s prior DUI convictions produced by the prosecutor did not show that the trial judges in those cases had engaged in a required dialogue with Thompson to ensure that he knew and understood his right to an attorney and was waiving that right voluntarily. The state sought and was granted Supreme Court review of the case.
Writing for the Court in today’s decision, Justice Pfeifer said the 5th District misapplied the Supreme Court’s 2007 ruling in State v. Brooke by requiring the state to produce evidence supporting the validity of Thompson’s plea waivers in his prior cases without first requiring Thompson to make a prima facie showing that his waivers were not valid.
Justice Pfeifer wrote: “Thompson moved to exclude the prior convictions because the state had not established that he had been represented or had validly waived representation in his prior convictions. But neither R.C. 2946.75 nor Brooke requires the state to prove that Thompson had been represented or that he had validly waived representation. According to Brooke, the state does not have the burden of proving that Thompson had been represented or that he had validly waived representation unless Thompson makes a prima facie showing that he had been ‘uncounseled’ in his prior convictions — that is, that he had not been represented and that he had not validly waived representation. Thompson made no such showing. Unlike in Brooke, the defendant here did not submit evidence, whether testimony, affidavits, or transcripts, to bolster his argument that his waiver of counsel was constitutionally infirm. A bald allegation of constitutional infirmity is insufficient to establish a prima facie showing with respect to an ‘uncounseled’ plea. Because Thompson has not introduced evidence to the contrary and established a prima face showing, we presume that the trial courts in the prior convictions proceeded constitutionally. Accordingly, there is no need to examine the waiver-of-rights forms that the state claims Thompson signed prior to his three earlier convictions.”
He concluded: “Thompson has not established a prima facie showing that he was ‘uncounseled’ prior to his earlier guilty pleas; therefore, the burden of establishing that Thompson had either been represented or had validly waived representation did not shift to the state. We reverse the judgment of the court of appeals and remand the case to the trial court to reinstate the original sentence.”
Justice Pfeifer’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp. Justices Evelyn Lundberg Stratton and Terrence O’Donnell concurred in judgment only.
Contacts
Julia B. Dillon, 614.837.2699, for the state and Fairfield County prosecutor’s office.
Andrew T. Sanderson, 740.345.0417, for Billy Thompson II.