DocketNumber: No. 2008-L-064.
Citation Numbers: 2009 Ohio 684
Judges: DIANE V. GRENDELL, J.
Filed Date: 2/13/2009
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On December 10, 2006, Dowhan was driving his vehicle in Eastlake, Ohio. An officer observed him veer off the road and onto a bike path. He was then pulled over and the officer detected a strong smell of alcohol. The officer witnessed Dowhan slurring his speech and noticed that Dowhan's eyes were red and watery. After performing field sobriety tests, the officer determined Dowhan was under the influence of alcohol and placed him under arrest.
{¶ 3} An indictment was filed, charging Dowhan with Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a Combination of Them, carrying with it a specification that Dowhan had previously been convicted of or pleaded guilty to five or more violations of R.C.
{¶ 4} Dowhan filed a Motion in Limine, which sought to exclude two of his prior convictions, a July 18, 1998 conviction from Mentor Municipal Court and a July 17, 1995 conviction from Willoughby Municipal court. Dowhan claimed that in both cases he "was never actually convicted of any crime under the law." The court subsequently denied his motion and the matter proceeded to a jury trial. At trial, the jury found Dowhan guilty. He made a Motion for Acquittal pursuant to Crim. R. 29, which was denied. He was later sentenced to serve a prison term of 30 months, with 12 months suspended, and an additional 12 months for the specification, for a total of 30 months in prison.
{¶ 5} Dowhan timely appeals and raises the following assignments of error:
{¶ 6} "[1.] The trial court erred to the prejudice of the defendant-appellant when it permitted the presentation of evidence regarding alleged prior OVI convictions in violation of the defendant-appellant's state and federal constitutional rights to due process and a fair trial. *Page 3
{¶ 7} "[2.] The trial court violated the defendant-appellant's constitutional rights to fair trial and due process as guaranteed by the
{¶ 8} "[3.] The trial court erred to the prejudice of the defendant-appellant when it denied his motion for acquittal made pursuant to Crim. R. 29."
{¶ 9} Dowhan maintains that his prior 1998 OVI conviction from the Mentor Municipal Court was invalid as well, because the court failed to impose a sentence that was mandated by statute. Further, instead of a minimum of ten days imprisonment, Dowhan was sent to the Freedom House treatment program for 60 days with work release. He claims the treatment program was an "illegal sentence" because he was not sentenced to the mandatory jail time as prescribed by statute1 . Dowhan further asserts that this 1998 prior conviction failed to comply with the requirements of Crim. R. 43(A) because he did not appear before a judge; he claims that "his case was processed in his absence and logged in the Court's records as a plea to a DUI."
{¶ 10} The State argues that Dowhan is making an impermissible collateral attack on the 1998 conviction and consequently, Dowhan's claims should fail. We agree. A collateral attack is defined as "an attempt to defeat the operation of a judgment, in a proceeding where some new right derived from or through the judgment is involved."Ohio Pyro, Inc. v. Ohio Dept. of Commerce,
{¶ 11} In the United States Supreme Court's decision in Custis v.United States (1994),
{¶ 12} In State v. Culberson,
{¶ 13} In this case, Dowhan did not allege that he was not represented by counsel in his prior case or that he entered an invalid waiver of the right to counsel. Thus, he cannot collaterally challenge his previous DUI conviction.
{¶ 14} Dowhan claims that the 1995 judgment entry of the Willoughby Municipal Court failed to identify what offense Dowhan pleaded guilty to and what offense he was *Page 5 convicted of, and therefore it failed to comply with Crim. R. 32(C). Crim. R. 32(C) provides that "[a] judgment of conviction shall set forth the plea, the verdict or findings, and the sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk." Dowhan maintains that because of the deficiencies, the judgment entry is not proof of a prior conviction and was improperly admitted into evidence.
{¶ 15} Upon review of the judgment entry in question, the elements set forth in Crim. R. 32(C) are met. The judgment entry sets forth the plea; an original plea of "not guilty" was written, which was later withdrawn and changed to "no contest". Moreover, the judgment entry shows a finding of guilty as well as the sentence of 180 days in jail, with 150 days suspended, a fine of $1000, with $350 suspended, and a license suspension. The judgment entry was also signed by the judge and it was filed and time stamped by the clerk of court. The Ohio Supreme Court has held that "[a] judgment of conviction is a final appealable order under R.C.
{¶ 16} In State v. Constable, 4th Dist. No. 08CA1,
{¶ 17} The 1995 judgment entry in the instant case complied with Crim. R. 32, constituted a final appealable order and, therefore, a valid conviction judgment entry, and thus, was properly admitted into evidence. Even if the judgment entry had not complied with Crim. R. 32, for the reasons addressed above, the argument is an impermissible collateral attack, consequently rendering his claim meritless.
{¶ 18} Dowhan's first assignment of error is without merit.
{¶ 19} In his second assignment of error, Dowhan maintains that the trial court abused its discretion by prohibiting his counsel from arguing about the sufficiency of the prior judgment entries from the Willoughby and Mentor Municipal courts before the jury; more specifically, when his counsel was barred from asking a question about a prior conviction to a witness and the barring of an argument about the sufficiency of the judgment entries in his closing argument.
{¶ 20} The admission or exclusion of evidence is a matter entrusted to the sound discretion of the trial court and will not be overturned absent a showing that the court abused its discretion. State v.Hand,
{¶ 21} Dowhan asserts that the court abused its discretion "due to its judicial bias, which made the trial court's decisions unreasonable and arbitrary." He further claims that the judge's "evidentiary rulings and his predetermined decision to exclude *Page 7 any discussion of whether the journal entries were sufficient evidence of prior DUI convictions" supports his claim of judicial bias.
{¶ 22} A trial judge is "presumed not to be biased or prejudiced, and the party alleging bias or prejudice must set forth evidence to overcome the presumption of integrity." State v. Pesec, 11th Dist. No. 2006-P-0084,
{¶ 23} At trial, Dowhan's counsel was attempting to attack the sufficiency of the judgment entries. The validity of the judgment entries was a question of law that was decided at a motion hearing prior to the trial. R.C.
{¶ 24} Dowhan's second assignment of error is without merit.
{¶ 25} In his third assignment of error, Dowhan argues that his Crim. R. 29 motion should have been granted because the state failed to prove beyond a reasonable doubt that Dowhan had five prior DUI convictions. *Page 8
{¶ 26} The Ohio Rules of Criminal Procedure provide that a defendant may move the trial court for a judgment of acquittal "if the evidence is insufficient to sustain a conviction." Crim. R. 29(A). `"[S]ufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury," i.e. "whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins,
{¶ 27} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks (1991),
{¶ 28} Weight of the evidence, in contrast to its sufficiency, involves "the inclination of the greater amount of credible evidence."Thompkins,
{¶ 29} Generally, the weight to be given to the evidence and the credibility of the witnesses is primarily for the trier of fact to determine. State v. Thomas (1982),
{¶ 30} Dowhan claims that since the judgment entries from the Willoughby Municipal Court and the Mentor Municipal Court were deficient, then there was not sufficient evidence to support the state's argument that he had five previous OVI convictions. We addressed this argument in the first assignment of error and concluded the judgment entries were not deficient; however, even if these judgment entries were erroneously admitted into evidence, we review the sufficiency of evidence as admitted at trial, including evidence that was erroneously admitted. See State v. Jeffries, 11th Dist. No. 2005-L-057,
{¶ 31} The state presented evidence of Dowhan's prior convictions with certified copies of judgment entries from his prior OVI cases. R.C.
{¶ 32} Dowhan's third assignment of error is without merit.
{¶ 33} For the foregoing reasons, the Judgment Entry of the Lake County Court of Common Pleas, finding Dowhan guilty of Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a Combination of Them, in violation of R.C.
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY O'TOOLE, J., concurs in judgment only.