[Cite as State v. Lewis,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 10CA24 : v. : : DECISION AND DONALD R. LEWIS, JR., : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 2-25-11

APPEARANCES:

David Reid Dillon, South Point, Ohio, for Appellant.

J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Brigham M. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.

Kline, J.:

{¶1} Donald R. Lewis, Jr., (hereinafter “Lewis”) appeals the judgment of the

Lawrence County Court of Common Pleas, which found him guilty of Driving While

Under the Influence of Alcohol or Drugs with a penalty enhancement. On appeal, Lewis

raises three arguments as to why the trial court erred in admitting evidence related to

his prior DUI convictions. First, Lewis argues that the state failed to lay a proper

foundation for the prior-conviction-related evidence. Because the state’s evidence

consists of self-authenticating documents, we disagree. Second, Lewis argues that the

state failed to introduce certified judgment entries of conviction. Because a certified

judgment entry of conviction is not the only method for establishing a prior conviction,

we disagree. And finally, Lewis claims that he did not validly waive counsel during a Lawrence App. No. 10CA24 2

DUI case in Kentucky. For that reason, Lewis argues that evidence from the Kentucky

conviction was inadmissible. Because Lewis did not make a prima facie showing that

the Kentucky conviction was unconstitutional, we disagree. Accordingly, we find that

the trial court did not abuse its discretion in admitting the prior-conviction-related

evidence, and we affirm the judgment of the trial court.

I.

{¶2} A Lawrence County Grand Jury indicted Lewis for Driving While Under the

Influence of Alcohol or Drugs, a violation of R.C. 4511.19(A)(1). The indictment further

alleged that Lewis had “three (3) prior convictions of Driving Under the Influence of

Alcohol or Drugs in the last six (6) years[.]” As a result, Lewis was charged with a

fourth-degree felony under R.C. 4511.19(G)(1)(d).

{¶3} The state alleged the following prior DUI convictions: (1) a conviction in

Lawrence County, Ohio, on May 10, 2007; (2) a conviction in Lawrence County, Ohio,

on May 25, 2006; and (3) a conviction in Boyd County, Kentucky, on November 16,

2005. To prove the two Ohio convictions, the state introduced “TRAFFIC CASE

INFORMATION HARDCOP[IES]” from case numbers TRC0700009A and

TRC0601364A. And to prove the Kentucky conviction, the state introduced several

documents from case number 05-T-04970.

{¶4} Lewis filed a motion to dismiss, claiming that he did not validly waive the right

to counsel in the Kentucky case. To support this claim, Lewis filed an affidavit wherein

he “state[d] that his prior OVI/DUI conviction in Boyd Count[y] Circuit Court (Kentucky)

on or about November 16, 2005, was uncounseled and the Defendant did not validly

waive counsel at said hearing., [sic] RESULTING IN CONFINEMENT.” As a result, Lawrence App. No. 10CA24 3

Lewis argued that the Kentucky conviction could not “be used for purposes of penalty

enhancement in later convictions under [R.C.] 4511.19.” Motion to Dismiss. The trial

court withheld ruling on Lewis’s motion to dismiss and let the case proceed to a jury

trial.

{¶5} At the end of the state’s case in chief, Lewis objected to the state’s prior-

conviction-related evidence. The trial court, however, overruled Lewis’s objections and

admitted all of the prior-conviction-related evidence, including evidence from the

Kentucky case.

{¶6} Eventually, the jury found Lewis guilty of Driving While Under the Influence of

Alcohol or Drugs with a fourth-degree felony penalty enhancement, and the trial court

sentenced Lewis accordingly. (The jury also found Lewis guilty of Intimidation under

R.C. 2921.03, but Lewis’s appeal relates only to Driving While Under the Influence of

Alcohol or Drugs.)

{¶7} Lewis appeals and asserts the following three assignments of error: I. “THE

TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN

ADMITTING EVIDENCE OF HIS PRIOR CONVICTIONS IN VIOLATION OF

STATUTORY REQUIREMENTS AND WITHOUT PROPER FOUNDATION.” II. “THE

TRIAL COURT ERRED IN ADMITTING PURPORTED EVIDENCE OF DEFENDANT’S

PRIOR CONVICTIONS THAT WERE NOT CERTIFIED COPIES OF JUDGMENTS.”

And, III. “THE TRIAL COURT ERRED IN ADMITTING THE BOYD COUNTY,

KENTUCKY CONVICTION WHEN THE CONVICTION WAS UNCOUNSELED AND

WITHOUT A VALID WAIVER OF COUNSEL.”

II. Lawrence App. No. 10CA24 4

{¶8} Under all of his assignments of error, Lewis argues that the trial court erred in

admitting evidence related to his prior convictions. Therefore, we will (1) address

Lewis’s three assignments of error together and (2) begin with a brief overview of

Lewis’s argument on appeal.

{¶9} Lewis was found guilty of Driving While Under the Influence of Alcohol or

Drugs under R.C. 4511.19(A)(1). In addition, the jury found that Lewis “was previously

convicted of three (3) [Driving-While-Under-the-Influence-of-Alcohol-or-Drugs offenses]

within the last six (6) years before this offense occurred on or about February 22, 2010.”

Jury Verdict Form. As a result, Lewis was convicted of a fourth-degree felony. See

R.C. 4511.19(G)(1)(d). On appeal, Lewis argues that he would not have been

convicted of a fourth-degree felony if the trial court had properly excluded the evidence

of his prior convictions.

A.

{¶10} Each of Lewis’s assignments of error relate to the trial court’s admission of

evidence. Therefore, we will apply the same standard of review to all three of Lewis’s

assignments of error. That is, “‘[t]he admission or exclusion of relevant evidence rests

within the sound discretion of the trial court[,]’ and we may not reverse unless there has

been an abuse of that discretion.” State v. Boyd, Athens App. No. 09CA14, 2010-Ohio-

1605, at ¶27, quoting State v. Sage (1987),

, at paragraph two of the

syllabus. An abuse of discretion connotes more than a mere error of judgment; it

implies that the court’s attitude is arbitrary, unreasonable, or unconscionable. State v.

Adams (1980),

. “In applying the abuse of discretion standard, Lawrence App. No. 10CA24 5

we are not free to substitute our judgment for that of the trial court.” State v. Burkhart,

Washington App. No. 08CA22,

(citations omitted).

B.

{¶11} In his first assignment of error, Lewis contends that the trial court admitted

evidence of his prior convictions even though the state failed to lay a proper foundation

for admission. Here, Lewis relies on R.C. 2945.75(B)(1), which provides: “Whenever in

any case it is necessary to prove a prior conviction, a certified copy of the entry of

judgment in such prior conviction together with evidence sufficient to identify the

defendant named in the entry as the offender in the case at bar, is sufficient to prove

such prior conviction.” In the proceedings below, the state did not produce certified

copies of the entries of judgment. And based on his interpretation of R.C.

2945.75(B)(1), Lewis argues that “some extrinsic evidence [was therefore] needed to

create a foundation for admission of” the state’s prior-conviction-related evidence. Brief

of Defendant-Appellant Donald R. Lewis, Jr. at 5.

{¶12} The state, however, argues that its prior-conviction-related evidence is self-

authenticating under Evid.R. 902(4), which provides: “Extrinsic evidence of authenticity

as a condition precedent to admissibility is not required with respect to * * * [a] copy of

an official record or report or entry therein, or of a document authorized by law to be

recorded or filed and actually recorded or filed in a public office, including data

compilations in any form, certified as correct by the custodian or other person

authorized to make the certification, by certificate complying with paragraph (1), (2), or

(3) of this rule or complying with any law of a jurisdiction, state or federal, or rule

prescribed by the Supreme Court of Ohio.” Evid.R. 902(4). Additionally, paragraph one Lawrence App. No. 10CA24 6

of Evid.R. 902 relates to documents that “bear[] a seal purporting to be that of the

United States, or of any State, district, Commonwealth, territory, or insular possession

thereof, * * * or of a political subdivision, department, officer, or agency thereof, and a

signature purporting to be an attestation or execution.”

{¶13} Here, we agree with the state’s argument that the prior-conviction-related

evidence complies with Evid.R. 902(4). To prove the prior Ohio convictions, the state

introduced two “TRAFFIC CASE INFORMATION HARDCOPY” documents. These

documents contain the entire histories for Lewis’s two Ohio convictions, including (1)

Lewis’s personal information, (2) the dates of each violation, and (3) the dates of each

conviction. Most importantly, both documents contain a raised seal and the following

certification: “I HEREBY CERTIFY THAT THE ABOVE AND FOREGOING IS TRULY

TAKEN AND COPIED FROM THE ORIGINAL NOW ON FILE IN MY OFFICE.” Finally,

a deputy clerk of the Lawrence County Municipal Court attested to the certification in

each document.

{¶14} The Kentucky documents also comply with Evid.R. 902(4). For the Kentucky

conviction, the state produced several documents from case number 05-T-04970. The

very first document contains a raised seal and the following certification: “I, Linda Kay

Baker, Clerk of the Boyd Circuit/District Courts, do hereby certify the following as a true

and correct copy(s) of the Case 05t4970DUI as recorded in my office[.]” And again, a

deputy clerk attested to this certification.

{¶15} Accordingly, we find that the state’s prior-conviction-related evidence consists

of self-authenticating documents. And as a result, the prior-conviction-related evidence

was admissible. Lawrence App. No. 10CA24 7

C.

{¶16} In his second assignment of error, Lewis once again relies on R.C.

2945.75(B)(1). But here, Lewis construes R.C. 2945.75(B)(1) to mean that the

admissibility of prior-conviction-related evidence “is dependent on [the evidence] being

a certified copy of the court’s judgment.” Brief of Defendant-Appellant Donald R. Lewis,

Jr. at 6. And because the state did not produce certified judgment entries of conviction,

Lewis argues that the prior-conviction-related documents “were not admissible and the

court erred in admitting them.” Brief of Defendant-Appellant Donald R. Lewis, Jr. at 6.

Essentially, Lewis argues that R.C. 2945.75(B)(1) limits the type of evidence that may

be admitted to prove a prior conviction.

{¶17} Although Lewis has framed his second assignment of error as an evidentiary

issue, Lewis’s argument requires us to interpret R.C. 2945.75(B)(1). “When interpreting

statutes and their application, an appellate court conducts a de novo review, without

deference to the trial court’s determination.” State v. Sufronko (1995),

. And here, we disagree with Lewis’s interpretation of R.C. 2945.75(B)(1). In

other words, we find that R.C. 2945.75(B)(1) does not bar the admission of the state’s

prior-conviction-related evidence. “Ohio courts have held * * * that a certified copy of

the prior judgment entry of conviction and sentencing is not the only method of

establishing a prior ‘conviction.’” State v. Hill, Fulton App. Nos. F-06-013 & F-06-014,

, citing State v. Pisarkiewicz, Medina App. No. C.A. 2996-M,

(“‘R.C. 2945.75 sanctions merely one means of proving a prior

conviction but not the only [means].’”), quoting State v. Frambach (1992),

(alteration sic); State v. Jarvis, Portage App. No. 98-P-0081 (holding Lawrence App. No. 10CA24 8

that “that a certified copy of a judgment entry of a prior conviction offered pursuant to

R.C. 2945.75 is not the exclusive method of proving a prior conviction”); State v.

Chaney (1998),

(“R.C. 2945.75 sets forth one way, but not

the exclusive way, of proving prior convictions.”). We agree with this non-limiting

interpretation of R.C. 2945.75(B)(1).

{¶18} Finally, although Lewis did not cite this case under his second assignment of

error, we must mention the Supreme Court of Ohio’s opinion in State v. Thompson,

,

. Like the present case, Thompson involved a penalty

enhancement under R.C. 4511.19(G)(1)(d). And in Thompson, the court stated the

following: “In this case, the state sought to enhance the violation, pursuant to R.C.

4511.19(G)(1)(d). To do so, the state had to prove the prior conviction with ‘a certified

copy of the entry of judgment in such prior conviction together with evidence sufficient to

identify the defendant named in the entry as the offender in the case at bar.’ R.C.

2945.75(B)(1).” Thompson at ¶7 (emphasis added). Standing alone, this language

seems to support Lewis’s interpretation of R.C. 2945.75(B)(1). We, however, find this

language to be non-binding dicta.

{¶19} Courts have defined dicta as “statements made by a court in an opinion that

are not necessary for the resolution of the issues.” Gissiner v. Cincinnati, Hamilton App.

No. C-070536,

(citations omitted). And “where a case is

decided on one issue, and dicta pertaining to a separate and distinct issue might be

found in the rationale of the case, the [Supreme Court of Ohio] has not decided the

matter on the basis of the issue mentioned in dicta.” Snellman v. Levine, Cuyahoga Lawrence App. No. 10CA24 9

App. No. 95148,

, at ¶10, citing Westhoven v. Snyder (1973),

.

{¶20} Here, the Supreme Court of Ohio did not decide Thompson based on an

interpretation of R.C. 2945.75(B)(1). Rather, the holding in Thompson relates to the

evidentiary requirements for “prior convictions [that] were unconstitutional because the

defendant had not been represented by counsel[.]” Thompson at syllabus. Therefore,

we are not bound by the dicta in Thompson, and we hold that certified copies of prior

judgment entries are not the only method for establishing prior convictions.

{¶21} Accordingly, we find that R.C. 2945.75(B)(1) does not prohibit the admission

of the state’s prior-conviction-related evidence.

D.

{¶22} In his third assignment of error, Lewis claims that he did not validly waive

counsel in the Kentucky DUI case. For that reason, Lewis contends that the trial court

should have excluded the evidence related to the Kentucky conviction.

{¶23} Although Lewis has framed his third assignment of error as an evidentiary

issue, Lewis’s argument requires us to resolve constitutional issues. “To the extent that

purported errors raise constitutional issues, we review them de novo.” State v. Craig,

Gallia App. No. 01CA8,

, at ¶33, citing State v. Johnston (1988),

.

{¶24} “Under the Sixth Amendment to the United States Constitution, a defendant

has a right to counsel in prosecutions where a sentence of imprisonment could be

imposed. Argersinger v. Hamlin (1972),

[.] A conviction is unconstitutional

when it results in a sentence of incarceration on a defendant who was unrepresented Lawrence App. No. 10CA24 10

and did not validly waive his right to an attorney. [Thompson at ¶5-6]. The

unconstitutional conviction cannot be used to enhance the penalty for a subsequent

conviction. State v. Brooke,

,

, at ¶12.” State v.

Caudill, Franklin App. No. 10AP-90,

, at ¶8.

{¶25} “With respect to ‘uncounseled’ pleas, we presume that the trial court in the

prior convictions proceeded constitutionally until a defendant introduces evidence to the

contrary.” Thompson at ¶6. For that reason, “the state does not have the burden of

proving that [a defendant] had been represented or that he had validly waived

representation unless [the defendant] makes a prima facie showing that he had been

‘uncounseled’ in his prior convictions[.]” Id. at ¶7. “[A]fter the defendant presents a

prima facie showing that the prior convictions were unconstitutional because the

defendant had not been represented by counsel and had not validly waived the right to

counsel and that the prior convictions had resulted in confinement, the burden shifts to

the state to prove that the right to counsel was properly waived.” Id. at syllabus.

Significantly, “[a] bald allegation of constitutional infirmity is insufficient to establish a

prima facie showing with respect to an ‘uncounseled’ plea.” Id. at ¶7.

{¶26} In his motion to dismiss, Lewis argued that the “conviction in Boyd County,

Kentucky, which is alleged to be one of the prior three convictions, was unconstitutional

as the Defendant was not represented by counsel, had not validly waived the right to

counsel and said conviction resulted in confinement.” To make a prima facie showing,

Lewis submitted an affidavit wherein he testified that “his prior OVI/DUI conviction in

Boyd Count[y] Circuit Court (Kentucky) on or about November 16, 2005, was Lawrence App. No. 10CA24 11

uncounseled and the Defendant did not validly waive counsel at said hearing.” Lewis

submitted no other evidence in support of his argument.

{¶27} Here, we find that Lewis failed to present a prima facie showing that the

Kentucky conviction was unconstitutional. We recognize that a defendant may make a

prima facie showing through affidavit testimony. See Thompson at ¶¶3, 7; State v.

Biazzo, Cuyahoga App. No. 93792,

, at ¶16. Nevertheless, we find that

Lewis’s affidavit represents a mere “bald allegation of constitutional infirmity[.]”

Thompson at ¶7. Lewis’s affidavit contains no specifics as to what happened during the

Kentucky case. Instead, Lewis merely offered his own conclusory legal opinion – that

he “did not validly waive counsel[.]” Whether Lewis “validly” waived counsel is a legal

question, and a lay witness “cannot proffer a legal conclusion.” Associated Estates

Realty Corp. v. Samsa, Cuyahoga App. No. 84297,

. See,

also, Woods v. Capital Univ., Franklin App. No. 09AP-166,

, at ¶71

(“Questions of law are outside of the realm of firsthand knowledge, and thus, a lay

witness may not offer legal conclusions.”). Therefore, because Lewis did not present

any evidence beyond his own legal conclusion, we find that Lewis failed to make a

prima facie showing that the Kentucky conviction was unconstitutional.

E.

{¶28} Because we disagree with the arguments under Lewis’s three assignments of

error, we find that the trial court did not abuse its discretion in admitting the state’s prior-

conviction-related evidence. Accordingly, we overrule all of Lewis’s assignments of

error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Lawrence App. No. 10CA24 12

Harsha, P.J., concurring in part and dissenting in part:

{¶29} I concur in judgment and opinion on the first and second assignments of error

but dissent concerning the third. The majority conclude that Lewis failed to make a

prima facie showing of constitutional infirmity concerning the prior Kentucky conviction.

They characterize Lewis’ attack as mere “bald allegation.” However, Lewis did more

than allege or simply argue that his prior Kentucky conviction was uncounselled, that he

did not validly waive that right to counsel, and it resulted in confinement. He introduced

evidence of those facts, i.e., his affidavit.

{¶30} In State v. Brooke,

,

, cited by both the

majority and

the Supreme Court of Ohio advised “Brooke provided

an affidavit that she was unrepresented by counsel and sentenced to confinement,

which is sufficient to raise the issue of whether her waiver was valid.” Brooke, at ¶12.

And in State v. Brandon (1989),

,

, the Supreme Court

of Ohio noted:

Indeed, appellee’s burden in this regard was hardly difficult. Had appellee’s counsel simply asked appellee during testimony whether his prior convictions were counseled a negative response would have established a prima facie showing of constitutional infirmity. This one question and answer would have then placed on the State the burden of proving appellee’s prior convictions were counseled.

{¶31 Thus, when read together, Thompson, Brooke, and Brandon indicate

that mere allegations or unsupported arguments do not create the necessary

prima facie showing; but the introduction of evidence through testimony or an

affidavit that need only contend the defendant was uncounselled, did not validly

waive counsel, and the conviction resulted in confinement satisfies the

defendant’s burden. Lewis’ affidavit asserts all three elements of the prima facie Lawrence App. No. 10CA24 13

case. To the extent that the majority finds the affidavit insufficient because it

“contains no specifics as to what happened,” that burden rests with the State

according to Brooke and Brandon.

{¶32} Therefore, I cannot agree with the majority that Lewis failed to make a

prima facie showing of constitutional infirmity. And because the State failed to

produce evidence to rebut Lewis’ claim, I conclude the trial court erred in

admitting the evidence of the Kentucky conviction. Lawrence App. No. 10CA24 14

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment and Opinion. Harsha, P.J.: Concurs in Part and Dissents in Part with Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.