As many who follow this blog are aware, the sentence for an OVI can not be enhance unless the prior conviction was “counseled.” Therefore, if one is convicted of a subsequent OVI, the court can not sentence a defendant to the enhanced penalties unless the defendant was properly enlightened as to their rights when they pled in the prior OVI. The courts use criminal rule 44(B) as the criteria. This rule requires the court to fully outline the defendant’s constitutional rights prior to taking their plea. If the prior court properly outlines the defendant’s rights, as set forth in Rule 44(B), the defendant is said to be properly “counseled” even if the defendant pleads without being represented by an attorney. A recent Second Appellate District Court (Montgomery County) case has enhanced a court’s duties as it relates to the explanation of these rights. In the case of State v. Gross, 2011 Ohio 6490, the court stated that merely telling the defendant has a right to counsel is insufficient. The court began its synopsis of the case by stating, “Courts are to indulge every reasonable presumption against the waiver of a fundamental constitutional right, including the right to counsel. The waiver must affirmatively appear in the record, and the State bears the burden of overcoming presumptions against a valid waiver.” The court went on, “For a waiver of the right to counsel to pass constitutional muster, it must be knowing, intelligent and voluntary...At the core of Crim. R. 44(B) is the offender's inability to obtain counsel. The trial court in a criminal case must inquire fully into the circumstances surrounding an accused's inability to obtain counsel...In order to ensure that a waiver of counsel is made knowingly, intelligently and voluntarily, the trial court must make sufficient inquiry to determine whether a defendant fully understands and intelligently relinquishes that right.” The court further explained, “To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive that right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” The court concluded, “A sketchy or minimal inquiry touching upon only some of the factors enumerated ...will not adequately establish an effective waiver of counsel.” In the prior case, the court used a written outline to explain the defendant’s constitutional rights. In its outline, the court merely explained to the defendant that he had a right to counsel and asked if he wished to waive that right. The defendant answered affirmatively. The lower court stated this was insufficient and refused to enhance the defendant’s sentence for the subsequent OVI for which he was charged. The state appealed. The Second Appellate Court agreed with the lower court using the reasoning set forth above. As the court stated, “...The fact that an accused may tell him that he is informed of his right to counsel and desires to waive that right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.”
Archive for the ‘Constitutional Issues – Right to Counsel/Miranda’ Category
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.
Once in a while courts use shortcuts to expedite their dockets. This is particularly true on the municipal level where dockets are particularly large. In some instances, the defendant’s counsel, the prosecutor and the court will conference and decide on a plea and sentence and the court will subsequently issue a judgment entry memorializing the agreement.
A danger in doing so was illustrated in a recent Delaware County case. The case, State v. Robar, 2010 Ohio 5319, involved an agreed plea wherein the defendant pled to a single count of DUI and the remaining counts were dismissed. Subsequently, the trial court issued a sentencing entry including a jail term of ninety days, a $ 1,000.00 fine, plus the addition of a class four license suspension for five years. The license suspension was not mentioned during the sentencing hearing.
The defendant appealed stating “The trial court violated appellant’s rights under the Fifth Amendment, Section 10, Article I of the Ohio Constitution, and Criminal Rule 43, when it failed to impose a license suspension during the sentencing hearing, but included a license suspension in the subsequent written sentencing entry.”
In its opinion, the court cited Ohio Criminal Rule 43 that states, in part:
“…the defendant must be physically present at every stage of the criminal proceeding and trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules…”
Because the defendant was not present when the court imposed the license suspension, the court reversed and remanded the case back to the lower court.
All practitioners and courts should be aware of this important nuance and make sure that the written entry reflect everything outlined in the plea and/or sentencing hearing.
Once in a while courts use shortcuts to expedite their dockets. This is particularly true on the municipal level where dockets are particularly large. In some instances, the defendant’s counsel, the prosecutor and the court will conference and decide on a plea and sentence and the court will subsequently issue a judgment entry memorializing the agreement.
A danger in doing so was illustrated in a recent Delaware County case. The case, State v. Robar, 2010 Ohio 5319, involved an agreed plea wherein the defendant pled to a single count of DUI and the remaining counts were dismissed. Subsequently, the trial court issued a sentencing entry including a jail term of ninety days, a $ 1,000.00 fine, plus the addition of a class four license suspension for five years. The license suspension was not mentioned during the sentencing hearing.
The defendant appealed stating “The trial court violated appellant’s rights under the Fifth Amendment, Section 10, Article I of the Ohio Constitution, and Criminal Rule 43, when it failed to impose a license suspension during the sentencing hearing, but included a license suspension in the subsequent written sentencing entry.”
In its opinion, the court cited Ohio Criminal Rule 43 that states, in part:
“…the defendant must be physically present at every stage of the criminal proceeding and trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules…”
Because the defendant was not present when the court imposed the license suspension, the court reversed and remanded the case back to the lower court.
All practitioners and courts should be aware of this important nuance and make sure that the written entry reflect everything outlined in the plea and/or sentencing hearing.
A recent US Supreme Court case dealt a serious blow to your right against self-incrimination. Historically, “Miranda” rights included the rule that once the police were aware the accused was represented by counsel, they could not interrogate the accused without having the accused’s attorney present. This rule applied to any interrogation whether during initial or subsequent interviews of the accused.
The case, Maryland v. Shatzer, 2010 U.S. LEXIS 1899, established new, more lenient rules for police when interrogating an accused for a second time after the accused has invoked their “Miranda” right to counsel. The court ruled that confessions are admissible when there is a “break in custody” between the first and second interrogation.
The opinion, written by Justice Scalia, stated that the right against self-incrimination should not act as an “eternal” bar against further interrogation. To produce a clear definition of “break in custody,” Justice Scalia said that a 14-day separation between interrogations is sufficient before the police may question the accused again without fear of any resulting confession being inadmissible.
Therefore, if you are stopped and interrogated relating to a possible OVI investigation and invoke your right to counsel, the police may interrogate you 14 days later in an attempt to extract incriminating statements without fear of these statements will be suppressed even though they know you are represented by counsel.
So, although the US Constitution specifically guarantees you the right against self-incrimination, this “guarantee” only has a 14-day limited warranty.
Most practitioners might assume once an individual is placed in a police car, they are in custody and subject to Miranda warnings before any statement made be the person is admissible. A recent Hamilton County case might force an attorney to rethink this assumption.
Miranda warnings must be provided when a defendant is subject to a “custodial interrogation.” A custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,” Miranda v. Arizona (1966), 384 U.S. 436, 467-468, 86 S.Ct. 1602, 16 L. Ed. 2d 694.
Generally, “motorists temporarily detained pursuant to ordinary traffic stops are not in custody for purposes of Miranda,” State v. Leonard, 1st Dist. No. C-060595, 2007 Ohio 3312, P 19, citing Berkemer v. McCarty (1984), 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317. But “if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda,” Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L. Ed. 2d 317.
The case that redefines this assumption is State v. Rice, 2009 Ohio 6332. In that case, the defendant was placed, uncuffed, in a police car and admitted have four 16 oz. beers prior to being stopped. He was not Mirandized prior to this statement. The defendant sought to suppress this statement along with field sobriety tests given prior to the Miranda warnings.
The courts reasoning was as follows:
“In this case, Rice was not in custody. Trooper Shimko had valid reasons for removing Rice from his vehicle and placing him in the cruiser. Two other passengers were in the vehicle that was stopped, and Shimko needed to determine whether the odor of alcohol had come from Rice. The interests of safety further justified placing Rice in the cruiser, since Rice had been stopped near high-speed traffic on the side of an interstate highway. Although Rice had been placed in the back seat of the cruiser, this did not transform a routine stop into a custodial interrogation. Trooper Shimko did not subject Rice to a lengthy interrogation, and Rice was not handcuffed while he was in the cruiser. Further, the interaction between Rice and Shimko was neither combative nor intimidating. Because Rice had not been subject to a custodial interrogation, Miranda warnings were not required, and his statements made in the cruiser should not have been suppressed.”
The obvious conclusion that must be drawn from this case (at least for those practicing DUI defense in Hamilton County) is that even though an individual is placed in a police car does not necessarily infer that they are in custody. Apparently, the fact that the individual was placed in a police car where the back doors automatically lock, and his movements restricted, had little influence on the court’s decision.