Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 15 CR 325
Plaintiff-Appellant: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellee: Atty. Atty. Edward A. Czopur DeGenova
& Yarwood, Ltd.
JUDGES: Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol
The state appeals a May 17, 2017 Mahoning County Common Pleas
Court decision to grant Appellee Brian S. Fairchild's
motion to exclude evidence of a prior conviction. Appellant
was charged with operating a motor vehicle under the
influence, and the state sought to enhance his charges due to
an earlier conviction. The state argues that Appellee failed
to present a prima facie case demonstrating that he
was unrepresented in the prior matter and that he did not
validly waive counsel. Assuming arguendo that
Appellee did present a prima facie case, the state
argues that it successfully rebutted Appellee's claims
and established that Appellee was appointed counsel to
represent him in the prior conviction. For the reasons that
follow, the state's argument has merit and the judgment
of the trial court is reversed. The matter is remanded for
and Procedural History
On May 7, 2015, Appellee was indicted on four counts of OVI,
a felony of the fourth degree in violation of R.C.
4511.19(A)(1)(a), (G)(1)(d) and on OVI, a felony of the
fourth degree in violation of R.C. 4511.19(A)(1)(h),
(G)(1)(d). The degree of the charges was enhanced because
Appellee had been convicted of OVI in 1996.
On November 20, 2015, Appellee filed a motion to exclude his
prior conviction. In his motion, he claimed that he was
unrepresented in the prior case and did not validly waive
counsel. The trial court held an evidentiary hearing and
granted Appellee's motion. On appeal, we reversed the
trial court's decision. See State v. Fairchild,
7th Dist. No. 16 MA 0047, 2016-Ohio-8218.
("Fairchild I".) We held that a defendant
seeking to exclude a prior conviction holds the initial
burden of demonstrating that he was unrepresented and did not
validly waive his right to counsel. Id. at ¶
12. Only when the defendant successfully meets this burden
does the burden shift to the state to prove either that the
defendant was represented or had validly waived counsel.
On remand, Appellee filed a second motion to exclude his
prior conviction based on the same argument. The trial court
held a second evidentiary hearing where Appellee testified
that he was not represented in the prior case and did not
validly waive counsel. Appellee also presented the testimony
of Attorney Anthony Meranto. Attorney Meranto represented
Appellee prior to his appeal in Fairchild I and was
the prosecutor in the OVI matter Appellant seeks to exclude.
Attorney Meranto testified that he had no recollection of the
prior case, but that in general he had never heard the trial
court judge who presided over Appellee's first conviction
ever inform a defendant of their right to counsel. The court
granted Appellee's motion to exclude his prior
conviction. This timely appeal followed.
THE TRIAL COURT SHOULD HAVE DENIED DEFENDANT'S MOTION TO
EXCLUDE, BECAUSE THE BURDEN NEVER SHIFTED TO THE STATE TO
PROVE DEFENDANT'S PRIOR OVI CONVICTION WAS
CONSTITUTIONALLY SOUND AFTER DEFENDANT FAILED TO PRESENT A
PRIMA FACIE SHOWING THAT HE WAS UNCOUNSELED AND DID NOT
VALIDLY WAIVE HIS RIGHT TO COUNSEL.
Pursuant to R.C. 4511.19(G)(1)(d):
[A]n offender who, within ten years of the offense,
previously has been convicted of or pleaded guilty to three
or four violations of division (A) or (B) of this section or
other equivalent offenses or an offender who, within twenty
years of the offense, previously has been convicted of or
pleaded guilty to five ...