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State v. Ruggiero

Court of Appeals of Ohio, Ninth District, Summit

June 26, 2019

STATE OF OHIO Appellee
v.
JOHN P. RUGGIERO Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2017-07-2505

          PAUL M. GRANT, ATTORNEY AT LAW, FOR APPELLANT.

          SHERRI BEVAN WALSH, PROSECUTING ATTORNEY, AND HEAVEN DIMARTINO, ASSISTANT PROSECUTING ATTORNEY, FOR APPELLEE.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN JUDGE.

         {¶1} Appellant, John Ruggiero, appeals an order of the Summit County Court of Common Pleas that denied his motion to dismiss. This Court affirms.

         I.

         {¶2} In 2017, Mr. Ruggiero was charged with domestic violence in the Akron Municipal Court ("the municipal court case"). He entered into a plea agreement and, as a result, pleaded no contest to assault in violation of Akron Municipal Code 135.03. The municipal court imposed a fine, sentenced him to 180 days in jail with all but four days suspended, placed him on probation, and ordered him to have no contact with the victim. Approximately two months later, Mr. Ruggiero was charged with domestic violence again. The indictment alleged that he violated R.C. 2919.25(A) by causing or attempting to cause physical harm to a family or household member.[1] The indictment also alleged that because Mr. Ruggiero had previously been convicted of an offense that served to enhance the domestic violence charge, it constituted a fourth-degree felony.

         {¶3} Mr. Ruggiero moved to dismiss the indictment, arguing that it was not customary in Summit County for an assault conviction to provide grounds for an enhanced domestic violence charge. He also argued that although he was represented by counsel in the municipal court case, counsel had not informed him that a conviction for assault could lead to enhancement of a domestic violence charge in the future. The trial court denied the motion to dismiss.

         {¶4} Mr. Ruggiero pleaded no contest to the fourth-degree-felony domestic violence charge, and the trial court sentenced him to two years of community control. Mr. Ruggiero filed this appeal.

         II.

ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DENIED APPELLANT'S MOTION TO DISMISS IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 4TH, 6TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10, 14, AND 16 OF THE OHIO CONSTITUTION.

         {¶5} Mr. Ruggiero's assignment of error argues that the trial court erred by denying his motion to dismiss the indictment. This Court disagrees.

         {¶6} "[A] criminal defendant may not be sentenced to a period of incarceration unless the defendant is represented by counsel or the defendant knowingly waives his right to counsel." State v. Brandon,45 Ohio St.3d 85, 87 (1989). For this reason, criminal defendants may collaterally attack a conviction that results from an uncounseled plea when that conviction is used to enhance the penalty of a later criminal offense. State v. Brooke,113 Ohio St.3d 199, 2007-Ohio-1533, ¶ 9. A trial court considering a collateral challenge must presume that the underlying proceedings comported with the law, but the defendant may rebut this presumption by establishing a prima facie showing that the prior conviction was uncounseled. Id. at ¶ 11, citing Brandon at syllabus. "[W]hen the defendant presents a prima facie showing that prior convictions were unconstitutional because they were uncounseled and resulted in confinement, the burden shifts to the state to prove that the right to counsel was properly waived." Brooke at ΒΆ 11. In order to shift the burden to the State, ...


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