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State v. Kautz

Court of Appeals of Ohio, Twelfth District, Warren

January 16, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
DANNY DAVID KAUTZ, Defendant-Appellant.

         CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 16CR32008

          David P. Fornshell, Warren County Prosecuting Attorney, Kirsten Brandt, 520 Justice Drive, Lebanon, Ohio 45036 plaintiff-appellee

          Gray and Duning, John C. Kaspar, 130 East Mulberry Street, Lebanon, Ohio 45036, for defendant-appellant

          OPINION

          S. POWELL, J.

         {¶ 1} Defendant-appellant, Danny David Kautz, appeals from his conviction in the Warren County Court of Common Pleas for one count of operating a vehicle while under the influence of alcohol, his sixth such conviction within the past 20 years. For the reasons outlined below, we affirm.

         {¶ 2} On June 13, 2016, the Warren County Grand Jury returned an indictment charging Kautz with two counts of operating a vehicle while under the influence of alcohol ("OVI") in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(h). Pursuant to R.C. 2941.1413(A), each charge also included a specification alleging Kautz had previously been convicted of five or more equivalent offenses within the past 20 years.

         {¶ 3} The charges arose after Kautz was involved in a single car accident at 8:30 a.m. the morning of May 24, 2016 near the Mason Early Childhood Center located on Hickory Woods Drive in Mason, Ohio. Following the accident, an eyewitness called the police and watched as Kautz got out and urinated on the front of his vehicle. Once police arrived at the scene, Kautz, who exhibited a strong odor of alcoholic beverage on his person, was observed by police to be showing signs of intoxication, signs that were confirmed by Kautz's performance - or lack thereof - of the standardized field sobriety tests. The police also discovered an open, nearly empty 24 oz. beer can located in the vehicle's center console cup holder. Two breath samples later revealed Kautz's breath-alcohol content to be .197 and .198 of one gram by weight of alcohol per 210 liters of breath, a concentration well above the higher-tiered level of alcohol for breath as proscribed by R.C. 4511.19(A)(1)(h).

         {¶ 4} On June 15, 2016, Kautz pled not guilty to both charges and was released on his own recognizance. Several months later, on October 14, 2016, Kautz filed a motion to dismiss the specifications attached to each of the two pending OVI charges against him. In support of this motion, Kautz alleged that one of his prior OVI convictions, specifically his November 22, 2000 conviction in the Butler County Area II Court, should not be considered by the trial court because it was "uncounseled." The trial court summarily denied Kautz's motion on November 15, 2016. Kautz then requested the trial court reconsider its decision which the trial court denied on January 9, 2017. In so holding, the trial court found Kautz's November 22, 2000 conviction was not "uncounseled" because Kautz made a "knowing, intelligent & voluntary waiver of his right to counsel" as evidenced by his signature on a written waiver of counsel form.

         {¶ 5} On March 16, 2017, following a one-day bench trial, the trial court returned a verdict finding Kautz guilty as charged. The trial court then ordered a presentence investigation report. After the presentence investigation was completed, and upon merging the charges for purposes of sentencing, the state elected to proceed on sentencing Kautz for violating R.C. 4511.19(A)(1)(h) with the attendant R.C. 2941.1413(A) specification. Following the state's election, the trial court sentenced Kautz to serve a total aggregate term of three years in prison, ordered Kautz to pay a $1, 500 fine, and suspended Kautz's driver's license for a period of ten years. The trial court also notified Kautz that he would be subject to an optional period of up to three years of postrelease control following his release from prison.

         {¶ 6} Kautz now appeals from his conviction, raising two assignments of error for review.

         {¶ 7} Assignment of Error No. 1:

         {¶ 8} THE TRIAL COURT ERRED BY ADMITTING A CERTIFIED COPY OF JUDGMENT ENTRY OVER THE OBJECTION OF DEFENDANT KAUTZ THAT FAILED TO SATISFY MANDATORY BASIC PROCEDURAL FORMALITIES REQUIRED TO ENSURE DUE PROCESS.

         {¶ 9} In his first assignment of error, Kautz argues the trial court erred by admitting a certified copy of a judgment entry issued by the Butler County Area II Court as evidence he had been convicted of five prior OVI offenses within the past 20 years. In support of this claim, Kautz argues the certified copy submitted to the trial court was inadmissible as it did not meet the minimum mandatory requirements for admissibility as set forth by this court in State v. Ginocchio,38 Ohio App.3d 105 (12th Dist.1987). Specifically, as this court stated in ...


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