Proof of Priors: Judgment Entries, 2945.75(B) & State v. Gwen


Yesterday the Ohio Supreme Court released its decision in State v. Gwen. Although it is a DV case enhanced to an F3 due to 2 prior DV alleged convictions the case clearly applies to DUI / OVI cases. Here's the skinny.

PLEADED GUILTY OR BEEN CONVICTED OF: If the State needs to prove a prior or priors, defense counsel must look at the language of the statute first to see if the priors have to be shown as "pleaded guilty to or been convicted of". This language permits the State to introduce either proof of a guilty plea or, in the alternative, evidence of a conviction. There is a difference.

ELEMENT OR ENHANCER: Next, defense counsel must examine if the prior(s) is an element of the offense or a sentencing enhancer. If priors escalate the degree of offense then they are "elements" of the offense and must be proven beyond a reasonable doubt. If the degree of the offense stays the same but the punishment is increased, then priors are sentencing enhancers and the Gwen decision may not apply.

PROSECUTOR'S OPTIONS: defense counsel will need to find out what method of proof the prosecutor seeks to introduce – evidence of a guilty plea or evidence of a conviction. If the prosecutor decides to go with the "guilty plea" route, then that evidence must establish, beyond a reasonable doubt, that the defendant did, in fact, plead guilty. State v. Henderson 58 Ohio St.2d (1979) addresses this. Henderson holds that convicted means a guilty plea and imposition of sentence, not just evidence of a guilty plea. A judgment of conviction does not exist without a sentence.

PROOF OF PRIOR CONVICTION ROUTE: if the prosecutor is going the route of "prior conviction" proof, the analysis for admissibility starts at R.C. 2945.75(B).

R.C. 2945.75(B): the prosecutor must have a certified copy of the judgment entry and evidence sufficient to prove identification of the defendant. The certified entry must meet Crim.R. 32(C) based upon the Gwen decision. A finding of guilt is not enough.

CRIM.R. 32(C): the exhibit, prior to being admitted, must be an entry that says it is a "final appealable judgment", it must contain the "fact of conviction", "the sentence", "the judge's signature" and "the time stamp".

BMV RECORDS: A certified copy of BMV records that shows the name, date of birth and social security number of the accused is prima-facie evidence of the identity of the accused and prima-facie evidence of all the prior convictions shown on the record. However, the defendant may offer evidence to rebut the prima-facie evidence of the identity and conviction(s).

CONSTITUTIONAL CHALLENGES BY THE DEFENDANT: the Gwen decision did not address this part of R.C. 2945.75(B).