FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR-2017-07-2505
M. GRANT, ATTORNEY AT LAW, FOR APPELLANT.
BEVAN WALSH, PROSECUTING ATTORNEY, AND HEAVEN DIMARTINO,
ASSISTANT PROSECUTING ATTORNEY, FOR APPELLEE.
DECISION AND JOURNAL ENTRY
S. CALLAHAN JUDGE.
Appellant, John Ruggiero, appeals an order of the Summit
County Court of Common Pleas that denied his motion to
dismiss. This Court affirms.
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. 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.
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.
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
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.
Mr. Ruggiero's assignment of error argues that the trial
court erred by denying his motion to dismiss the indictment.
This Court disagrees.
"[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 ¶ 11. In order to shift the burden to
the State, ...