Enhancement and the Right to Counsel

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.”

This entry was posted on Tuesday, December 20th, 2011 at 9:38 am and is filed under Constitutional Issues - Right to Counsel/Miranda, Issues on Appeal, Sentencing. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.