In Ohio, there are three forms of pleading in traffic or criminal cases, guilty, not guilty and not guilty by reason of insanity.  For purposes of this blog entry, I will not be discussing the third.  But, the reader should be aware of the issues involved in entering a plea of guilty or no contest.

A plea of “guilty” is a complete admission of guilt, Crim.R. 11(B)(1).  A plea of no contest  indicates that, while you are not admitting guilt, you do not dispute the charge.  In most instances, a no contest plea prevents any conviction being used in a civil action.  This is most prevalent in traffic accident cases where the defendant is charged with causing the accident.  By pleading no contest, the defendant can adjudicate the traffic case and prevent their plea from being used in a subsequent civil law suit for damages.

In the case of an OVI your plea takes on a much important role.  The nature of your plea determines your rights on appeal.  An example of this issue was illustrated in the recent case of State v. Ramsey, 2012 Ohio 134.  In the case, the defendant was arrested for OVI.  He filed several pre-trial motions which were all denied.  Subsequently, he entered a plea guilty to a lesser and charge and then appealed the lower court’s denial of his motions.

The appellate court refused to rule on his appeal reasoning the “A plea of guilty is a complete admission of guilt...A defendant who enters a plea of guilty waives the right to appeal all nonjurisdictional issues arising at prior stages of the proceedings, although the defendant may contest the constitutionality of the plea itself. Ross v. Common Pleas Court of Auglaize Cty. (1972), 30 Ohio St.2d 323, 285 N.E.2d 25. "Thus, by entering a guilty plea, a defendant waives the right to raise on appeal the propriety of a trial court's suppression ruling." State v. McQueeney, 148 Ohio App.3d 606, 774 N.E.2d 1228, 2002 Ohio 3731, ¶13.

Therefore, once a defendant pleads guilty they waives all appealable issues other than the plea itself.  Therefore, be forewarned, if your intent is to appeal the findings of the lower court, an entry of no contest will preserve that right as it is not a complete admission of guilt but merely an admission to the facts.

Since the establishment of the Ohio Juvenile Court System, we have been taught that “convictions” as a juvenile are sealed and not opened resulting from a conviction as an adult.  The reason is that judgments under the juvenile system “adjudicate” juveniles as a delinquent or unruly child depending upon the seriousness of the offense and are not considered “convictions.”  Thus juvenile adjudications are considered civil, not criminal, in nature.  

This changed in 1996 when the Ohio legislature passed R.C. 2901.08, permitting the use of juvenile offenses for purposes of enhancement of subsequent charges.  Although juvenile proceedings are considered “civil’ in nature, an offender’s juvenile adjudication for OVI-type cases can be used against him under the law, State v. Hanning, 89 Ohio St.3d 86, 89, 728 N.E.2d 1059.

A recent Delaware County Court of Appeals case argued the constitutionality of the statute.   In the case, State v. Adkins, 129 Ohio St.3d 287, 2011 Ohio 3141, the defendant argued 1) the application of the statute was an unconstitutionally retroactive and 2) the statute impermissibly permits a civil dispositionas a basis for criminal enhancement as an adult.

The court denied the defendant’s first argument saying that the law is not retrospective.  It applies only to offenses after the effective date of the statute.  The current offense is the case that triggered the look back rule, not the juvenile adjudication.  Therefore, the statute is not respective in nature.

Further, the court opined that the statute is not unconstitutionally retroactive.  Using the reasoning in Miller v. Hixson, 64 Ohio St. 39, 59 N.E. 749, the court stated, “The retroactivity clause [of the Ohio Constitution] nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective].’  The court continued its reasoning, [The defendant’s] contention that an additional burden - an enhancement on a future charge - is placed upon the juvenile adjudication is unavailing. [The defendant] is not being punished for a previous juvenile adjudication; he is being punished for a current offense.”

Therefore, when looking back for enhancement purposes, whether 6 or 20 years, a court may include any prior juvenile adjudications.

Over the last few months the following incidents have occurred between attorneys and the courts:

 
1.  An attorney enters a room where the prosecutor is located for the purpose of entering into pre-trial discussions with the prosecutor.  To their surprise, the judge is seated behind the prosecutor with the file in the judge’s possession, conducting the pre-trial.  At the same time the judge demands the defendant’s license plates stating “anyone accused of DUI in my jurisdiction must drive with yellow plates until the case is finished.”

 
2.  The defendant files a Motion for Extension of Time to File Pre-Trial Motions well within the time limits set forth by the criminal rules.  The defendant’s motion is denied by the judge with the statement that, “Defendant had plenty of time to file his motions.”

 
3.  After performing his due diligence and filing the appropriate motions with the court, the prosecutor offers the defendant a reduced charge of reckless driving.  The prosecutor and counsel for the defendant enter the judges chamber for the purpose of obtaining the judges approval.  When they enter the judges chamber they see the judge reading the police report.  The judge denies the request saying he read the report and the defendant didn’t deserve the reduction.

 
4.  The defendant files a Motion for Limited Driving Privileges pending the adjudication of the case.  The attorney for the defendant receives a call from the court stating limited driving privileges will be granted only if the defendant enters into an alcohol intervention program AND puts yellow plates on his car.

 
I address this questions to professionals reading this blog.  Are the judges in these incidents violating the defendant right to due process?  They are the trier of fact (prior to a trial by jury).  Should they be perusing the file and police report prior to any hearing related to pre-trial motions?  Should they be sanctioning the defendant prior to any adjudication of the case?Most importantly, has Ohio’s draconian DUI laws and the public pressure being applied by special interest groups affecting the proper administration of justice?

 
Have you encountered incidents such as these?  Have you argued regarding these or similar types of due process violations?  Please email me and I will pass these experiences and arguments on to others who might be suffering under the same issues.  My email address is afromet@roadrunner.com.  I look forward to hearing from you.

Many of my readers contact me, post-conviction, to complain about their attorney’s performance while representing them.  Of course, this outrage comes from the fact that the outcome was not of their liking – mostly convictions.  A number asked whether the fact they had a “bad” lawyer can be used to appeal their conviction.

 
In past blogs, I’ve discussed what, in my opinion, is the appropriate due diligence required of any attorney practicing DUI defense in Ohio (See “What Should You Expect from Your Attorney?, June 19, 2009).  But, if one appeals based upon ineffective assistance of counsel, what burden must be overcome to be successful?

 
The decision cited by most courts relating to this issue is Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.  The decision was adopted by the Ohio Supreme Court in State v. Bradley, 42 Ohio St. 3d 136 and, most recently used in the Ohio Second Appellate District in State v. Sparks, 2011 Ohio 3868.  In that case, the Appellant argued ineffective assistance of counsel based upon the attorney’s stipulation to prior DUI convictions.

 
The court properly quoted the two-pronged test, using the Stickland court, as follows: “To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different…Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel,” State v. Mitchell, Montgomery App. No. 21957, 2008 Ohio 493.

 
Using the criteria, the court reasoned, “By stipulating to a prior conviction, the prosecutor was relieved of his obligation to prove a prior, but this was not the focus of the defense and was not controverted. The stipulation may well have been a matter of trial strategy. We cannot conclude that defense counsel’s stipulation to one of Spark’s previous convictions fell below an objective standard of reasonableness, or that the outcome of the trial would have been otherwise had defense counsel not so stipulated. There is no showing on this record that the prosecutor was unable to establish a prior conviction absent the stipulation.”

 
In other words, the court found there was ample evidence of Spark’s prior convictions.  Therefore, even had his attorney NOT stipulated to the prior convictions, there was sufficient evidence before the court regarding his prior convictions and, as such, the attorney’s failure, if any, was not so erroneous as to cause a different outcome.
So, if one wishes to argue his attorney was ineffective, they must show:

 
1.  That the attorney’s actions fell below the standard that is reasonable, AND

2.  That, the actions of the attorney were so serious as to create a reasonable probability that the outcome of the trial would have been different.

 
So, the basis of an appeal for ineffective assistance counsel can not be based upon a reflection of an attorney’s strategy during trial as the higher court will not use hindsight to determine the appropriateness of the attorney’s strategy.  While strategy might not have been successful, if reasonable, the court will not remand based upon that fact.

Recently, the Tenth Appellate District Court saw fit to address several issues that are the subject of controversy in Ohio.  Interestingly, the court discussed these issues in spite of the fact that the defendant failed to file appropriate pre-trial motions or raise the issues during trial.

 
The case, State v. Curtis, 2011 Ohio 3298, involved issues of proper blood draw procedures, compliance with the mandates of The Ohio Administrative Code and the controversy surrounding, O.R.C.2945.75(B), the right to introduced certified copies of judgment entries in lieu of live testimony from the convicting court.

 
During its discussion of these issues, the court noted that the defendant failed to bring them to the attention of the lower court by way of pre-trial motions or raise the issues during trial and, as a result, severally restricted the defendant’s arguments relating to those issues and shifted the burden to the defendant rather than the state.

 
In the defendant’s first assignment of error the defendant asked the court to reverse his conviction for OVI as his conviction was based upon unreliable blood evidence.  The facts of the case are compelling as the blood sample was not refrigerated as required, an uncertified laboratory performed the test, the “chain of custody” was questioned, and the blood was drawn more than three hours after the incident.

 
The court began its analysis by stating that the defendant’s failure to objection to the introduction of the test by a pre-trial motion, waived the state’s requirement to lay a foundation for its admissibility.  Having said, that, the court, nonetheless, opined regarding the admissibility of the evidence notwithstanding the defendant’s failure to address the issue in the lower court.

 
The court stated, “…the three-hour time limit set forth in R.C. 4511.19(D)(1)(b) and referenced by appellant, we point out that this requirement is set forth in the statutory provision that addresses offenses involving “per se” violations…In  Newark v. Lucas (1988), 40 Ohio St.3d 100, the court found where the test results are not dispositive to a determination of guilt or innocence, such as in a situation involving an alleged “impaired” violation, the fact that the blood was withdrawn outside the statutory time frame does not diminish the probative value of the results in a prosecution for an “impaired” violation.”

 
In summary, the court found that the three hour rule only applies to prosecutions founded on a chemical test and does not apply to prosecutions based upon impaired driving only.

 
The defendant went on to argue the test’s admissibility due to the fact that chain of custody requirements were not met.  The court stated, “…when an accused challenges the admissibility of a chemical test based upon a failure to comply with an Ohio Department of Health regulation, the state need only demonstrate substantial compliance…Moreover, once the state has demonstrated substantial compliance, the burden shifts back to the accused to show that he was prejudiced by less than strict compliance. State v. Plummer (1986), 22 Ohio St.3d 292, 295.”  After citing evidence presented at trial, the court was satisfied that the state had substantially complied.

 
Finally, the defendant argued his procedural and substantive due process rights were abridged when the court permitted certified copies of his prior convictions to be admitted without requiring oral testimony by representatives of the lower courts.  Again, the court reiterated that the defendant failed to address this constitutional issue at trail, but nonetheless addressed this issue.  The defendant argued that O.R.C. 2945.75(B)(2), which permits the introduction of certified court records in lieu of actual testimony, is unconstitutional as it “shifts the burden of proof and relieves the prosecution of its burden of proving all of the elements of appellant’s prior convictions beyond a reasonable doubt.”

 
The court said, “In conducting a substantive due process analysis, we must determine whether appellant has invoked a “fundamental” liberty interest, which would then trigger “strict scrutiny” review….under strict scrutiny review, a law will be invalidated unless the state demonstrates that the law is narrowly tailored to serve a compelling state interest. In the instant case, appellant has failed to identify the “fundamental” interest he asserts has been violated by R.C. 2945.75(B)(2). Thus, we analyze this under a “rational basis” review.”

 
“Under rational basis review, the statute will be upheld if it is reasonably related to a legitimate governmental interest. Id. at ¶25, citing Am. Assoc. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 1999 Ohio 248.”  The court went on, “Appellant has not presented an argument as to how this subsection of the statute would fail under a rational basis review and we fail to see how R.C. 2945.75(B)(2) implicates appellant’s constitutional rights. Like R.C. 2945.75(B)(1), which appellant has not challenged, R.C. 2945.75(B)(2) permits the State to make a prima facie showing as to appellant’s prior convictions. However, it does not relieve the State of its burden of proof nor shift the burden of proof to the accused….it allows the accused the opportunity to rebut the record…”

The court denied the defendant’s argument.

 
So, what do we learn from such a case?  First, is the importance of setting forth, by way of pre-trial motions and during trial, any potential issue on appeal.  Second, properly set forth, on the record, the basis for your argument, stating with specificity, the factual grounds for your argument.  A failure to do either of these severally handicaps the defendant’s appellate arguements.