State v. Vacchelli

In State v. Vacchelli, 11th Dist. No. 2007-A-0078, 2008 Ohio 1780, at P13-14, this court discussed whether the appellant's uncounseled, prior domestic violence conviction could be used to enhance his current conviction to a fourth-degree felony. The Court stated: "Thus, '(a)n uncounseled misdemeanor conviction cannot be used to enhance a sentence in a later conviction. State v. Brandon (1989), 45 Ohio St.3d 85, 87, 543 N.E.2d 501. An uncounseled conviction is one where the defendant was not represented by counsel nor made a knowing and intelligent waiver of counsel.' State v. Neely, 11th Dist. No. 2007-L-054, 2007 Ohio 6243, P13, citing State v. Carrion (1992), 84 Ohio App.3d 27, 31, 616 N.E.2d 261. "When a defendant contests the use of a prior conviction on the ground that he or she has entered an uncounseled plea in the prior case, the burden is on the defendant to introduce evidence to make a prima-facie showing of constitutional infirmity. Id. at P14. Thus, '(w)here questions arise concerning a prior conviction, a reviewing court must presume all underlying proceedings were conducted in accordance with the rules of law and a defendant must introduce evidence to the contrary in order to establish a prima-facie showing of constitutional infirmity.' Brooke, at P11. Once the prima-facie case is made, then the burden shifts to the state to prove that the right to counsel was properly waived. Id. To do so, the state must show there was a knowing, voluntary, and intelligent waiver of the right to counsel under the Sixth Amendment. Id. at P25."