State v. Coleman , 2013 Ohio 4792 ( 2013 )

[Cite as State v. Coleman, 2013-Ohio-4792.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99369
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALEX COLEMAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-568419
BEFORE: Stewart, A.J., Keough, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: October 31, 2013
ATTORNEY FOR APPELLANT
John T. Castele
614 West Superior Avenue, Suite 1310
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Carl Sullivan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} The state filed an information charging defendant-appellant Alex Coleman
with a single count of domestic violence. The information alleged that Coleman had
previously been convicted of a misdemeanor count of domestic violence in 2005, so the
prior conviction elevated the degree of the offense to a felony. Coleman conceded the
prior conviction, but claimed that it was uncounseled and that he did not validly waive his
right to an attorney. The court concluded otherwise and a jury found him guilty. The
court’s refusal to dismiss the information is the primary basis for appeal.
I
{¶2} The state charged Coleman with domestic violence under R.C. 2919.25(A).
Ordinarily, a violation of that division is a first-degree misdemeanor. See R.C.
2919.25(D)(2). However, if the offender has previously been convicted of domestic
violence, a subsequent violation of R.C. 2919.25(A) is a fourth-degree felony. See R.C.
2919.25(D)(3). Because the prior conviction elevates the degree of the offense, it
becomes an essential element of the crime and must be proven beyond a reasonable
doubt. See R.C. 2945.75(B); State v. Henderson, 58 Ohio St.2d 171, 173, 389 N.E.2d
494 (1979).
{¶3} In State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024,
the Ohio Supreme Court held:
Generally, a past conviction cannot be attacked in a subsequent case.
However, there is a limited right to collaterally attack a conviction when the
state proposes to use the past conviction to enhance the penalty of a later
criminal offense. A conviction obtained against a defendant who is
without counsel, or its corollary, an uncounseled conviction obtained
without a valid waiver of the right to counsel, has been recognized as
constitutionally infirm.
Id. at ¶ 9.
{¶4} An “uncounseled” conviction is one where the defendant was not represented
by counsel and did not validly waive his right to counsel. State v. Bonds, 8th Dist.
Cuyahoga No. 83866, 2004-Ohio-3483, ¶ 10. Because we presume that trial proceedings
are conducted according to law, State v. Brandon, 45 Ohio St.3d 85, 88, 543 N.E.2d 501(1989), the defendant bears the initial burden of making a “prima facie showing that the
prior convictions were unconstitutional because the defendant had not been represented
by counsel and had not validly waived the right to counsel and that the prior convictions
had resulted in confinement[.]” State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314,
903 N.E.2d 618, syllabus. “A prima facie case is one in which the evidence is sufficient
to support but not to compel a certain conclusion and does no more than furnish evidence
to be considered and weighed but not necessarily to be accepted by the trier of the facts.”
Cleveland v. Keah, 157 Ohio St. 331, 105 N.E.2d 402 (1952), paragraph two of the
syllabus. If the defendant makes a prima facie showing that his guilty plea was
uncounseled, “the burden shifts to the state to prove that the right to counsel was properly
waived.” Thompson, supra.
{¶5} Coleman conceded the 2005 misdemeanor domestic violence conviction, but
claimed that it was uncounseled. To prove that it was uncounseled, he relied on a
negative: that Crim.R. 22 and 44(C) collectively require misdemeanor waivers of
counsel to occur “in open court” and be “recorded,” but that there was no record in the
2005 case that he waived the right to counsel in open court. The clerk of the municipal
court in which Coleman was found guilty confirmed the absence of any verbatim record
of Coleman waiving the right to counsel. She testified that Coleman’s waiver of counsel
would have been tape recorded, but those recordings were destroyed because the court
only kept recordings for five years. The absence of the recording was enough to make a
prima facie showing that Coleman did not waive his right to counsel in open court.
{¶6} With Coleman having made a prima facie showing that he did not waive the
right to counsel in open court, the burden shifted to the state to prove that Coleman
properly waived the right to counsel. The state offered into evidence a form styled
“ENTRY OF PLEA AND ACKNOWLEDGMENT OF RIGHTS,” signed by Coleman
and filed with the clerk of the municipal court. The form states that “[t]he undersigned
hereby acknowledges having received a copy of the complaint(s), and further knowingly,
intelligently, and voluntarily enters the following plea[.]” There are three, separate
headings of “GUILTY,” “NO CONTEST,” and “NOT GUILTY.” The form signed by
Coleman had the words “NO CONTEST” circled.
{¶7} This form also states that Coleman verified that he had been “advised in
open court” of various rights. Among the acknowledged rights were “[m]y right to be
represented by a lawyer” and “[m]y right to have a lawyer appointed for me if I am unable
to afford a lawyer[.]” The acknowledgment that Coleman had been advised of these
rights in open court was enough to satisfy Crim.R. 44(D).
{¶8} Coleman next claims that the form did not constitute a knowing and voluntary
waiver of the right to counsel. He argues that it was nothing more than a notification that
the right to counsel existed without being a waiver of that right.
{¶9} By its own terms, the form signed by Coleman purports to be an
acknowledgment of the rights a defendant possesses, including the “right to be
represented by a lawyer.” It is a basic premise of the law that waivers of constitutional
rights are not presumed; in fact, we engage in every reasonable presumption against the
waiver of rights. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 31. The word “waive” or any derivation thereof does not appear on the form at
all. Given the very serious ramifications of the waiver of trial rights, we are not inclined
to find that the form signed by Coleman constituted a knowing, intelligent, and voluntary
waiver of the right to counsel.
{¶10} It is true that the form stated that Coleman “knowingly, intelligently, and
voluntarily” entered his no contest plea, but that is nothing more than a legal conclusion
to be made by the court, not an acknowledgement to be made by the defendant. What is
more, there is nothing on the form to indicate that the municipal court judge made any
finding regarding the supposed waiver. The municipal court judge did not sign the
acknowlegment of rights form nor is there any other contemporaneous indication that the
court found a valid waiver of the right to counsel. The clerk of the municipal court
testified that the court typically advised misdemeanants of their rights at arraignment and
then at the time of the plea, but she conceded that she was not present for Coleman’s
municipal court case. Lacking first-hand knowledge of Coleman’s case, the clerk of the
court could not competently testify that Coleman validly waived the right to counsel.
{¶11} We therefore find that the court erred by concluding that the
acknowledgment of rights form constituted a sufficient record that Coleman did, in open
court, waive the right to counsel in his 2005 conviction for domestic violence. It follows
that the 2005 conviction for domestic violence could not be used to enhance the present
conviction for domestic violence to a felony. We sustain this assignment of error and
remand with instructions for the court to enter a judgment of conviction on the domestic
violence count as a first-degree misdemeanor.
II
{¶12} Coleman also argues that the court erred by refusing to instruct the jury on
his alibi defense.
{¶13} As a general proposition, the court should give the jury an instruction on
alibi when the defendant has filed a notice of alibi and offers evidence to that effect.
State v. Mitchell, 60 Ohio App.3d 106, 108, 574 N.E.2d 573 (8th Dist.1989). Coleman
filed a timely notice of alibi and presented the testimony of his fiancée who testified in
some detail that she was with him celebrating her brother’s birthday at the time the
domestic violence occurred. With a timely raised and presented alibi defense offered at
trial, the court erred by refusing to give the jury an alibi instruction.
{¶14} However, the failure to give an alibi instruction is not necessarily reversible
error, but must be reviewed for plain error. In this context, plain error exists when “the
instruction would have altered the outcome of the case or if its omission caused a
manifest miscarriage of justice.” State v. Greene, 8th Dist. Cuyahoga. No. 91104,
2009-Ohio-850, ¶ 106.
{¶15} It is difficult to prove the existence of plain error in the court’s failure to
give a jury instruction on the alibi. An alibi defense constitutes a complete denial of the
charged offense, so it stands on its own against whatever evidence the state produces.
Because “[a] jury instruction on an alibi defense is nothing more than a reminder that the
defendant presented evidence of an alibi,” a guilty finding means that the jury necessarily
would have rejected the defense. State v. Reddy, 10th Dist. Franklin No. 09AP-868,
2010-Ohio-3892, ¶ 23. But regardless of whether a jury verdict for the state constitutes
an implicit rejection of an offered alibi, the court cannot disregard its obligation to
instruct the jury on a properly presented defense. Indeed, it has long been the law that if
requested special instructions to the jury are correct and timely presented, they must be
included in the general charge. Cincinnati v. Epperson, 20 Ohio St.2d 59, 253 N.E.2d
785 (1969), paragraph one of the syllabus. Until such time as an express alibi charge is
abrogated, the court should not assume that a general verdict will necessarily subsume an
alibi defense.
{¶16} The state’s evidence consisted primarily of testimony by the victim, her
daughter, and niece. The victim testified that Coleman was the father of three of her
children and had lived with her for three years before vacating the premises about one
month before the act of domestic violence occurred. Coleman appeared at her apartment
and discovered a male watching television in the victim’s bedroom. Enraged, he began
punching her in the face. Photographs documented the victim’s injuries. The victim’s
daughter and niece witnessed these events and, having both testified that they knew
Coleman, positively identified him as the assailant.
{¶17} At bottom, the alibi defense was a matter of credibility for the jury to decide.
By finding Coleman guilty, the jury necessarily rejected the alibi in favor of the
eyewitness testimony. As even Coleman concedes, the state’s witnesses “gave fairly
consistent statements as to what happened” on the night of the crime. Appellant’s brief
at 18. What is more, they all knew Coleman very well given his prior relationship with
the victim, so there was no real possibility that they misidentified him as the assailant.
Finally, the state had photographs documenting injuries suffered by the victim that were
consistent with the testimony describing the attack. In short, the state provided a very
compelling case for Coleman’s guilt.
{¶18} As previously noted, Coleman countered the state’s evidence by having his
fiancée testify that he was with her at the time the victim was attacked. Given her
relationship with Coleman, the jury could easily have concluded that her testimony was
biased and was entitled to little weight when compared to the very strong case presented
by the state. We see no basis for concluding that the jury’s verdict would have been
otherwise had it been expressly instructed on the alibi defense.
{¶19} This cause is affirmed in part, reversed in part, and remanded to the trial
court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs of this appeal.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS WITH
SEPARATE OPINION
KATHLEEN ANN KEOUGH, J., CONCURRING:
{¶20} I concur but write separately to reiterate that it is error for a trial court to
refuse to give an alibi instruction when the defense has been timely raised and evidence
regarding the alibi has been presented at trial. A defendant’s notice and evidence of alibi
are meaningless if the court can simply disregard the evidence and refuse to properly
instruct the jury. When the notice is timely raised and evidence is presented at trial, the
trial court is not permitted to invade the province of the jury by refusing to instruct
because it has concluded the alibi witness is not credible, which is essentially what
happened here. Although the alibi witness in this case may have been less than credible,
defendant’s alibi defense was timely raised and supported by testimony and, therefore, the
instruction should have been given. The trial court’s failure to give the alibi instruction
may not rise to the level of plain error in this case but it was error nonetheless.