State v. Kautz

[Cite as State v. Kautz, 2018-Ohio-141.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
CASE NO. CA2017-05-076
Plaintiff-Appellee, :
OPINION
: 1/16/2018
- vs -
:
DANNY DAVID KAUTZ, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 16CR32008
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten Brandt, 520 Justice Drive,
Lebanon, Ohio 45036 plaintiff-appellee
Gray and Duning, John C. Kaspar, 130 East Mulberry Street, Lebanon, Ohio 45036, for
defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Danny David Kautz, appeals from his conviction in the
Warren County Court of Common Pleas for one count of operating a vehicle while under
the influence of alcohol, his sixth such conviction within the past 20 years. For the reasons
outlined below, we affirm.
{¶ 2} On June 13, 2016, the Warren County Grand Jury returned an indictment
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charging Kautz with two counts of operating a vehicle while under the influence of alcohol
("OVI") in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(h). Pursuant to R.C.
2941.1413(A), each charge also included a specification alleging Kautz had previously been
convicted of five or more equivalent offenses within the past 20 years.
{¶ 3} The charges arose after Kautz was involved in a single car accident at 8:30
a.m. the morning of May 24, 2016 near the Mason Early Childhood Center located on
Hickory Woods Drive in Mason, Ohio. Following the accident, an eyewitness called the
police and watched as Kautz got out and urinated on the front of his vehicle. Once police
arrived at the scene, Kautz, who exhibited a strong odor of alcoholic beverage on his
person, was observed by police to be showing signs of intoxication, signs that were
confirmed by Kautz's performance – or lack thereof – of the standardized field sobriety tests.
The police also discovered an open, nearly empty 24 oz. beer can located in the vehicle's
center console cup holder. Two breath samples later revealed Kautz's breath-alcohol
content to be .197 and .198 of one gram by weight of alcohol per 210 liters of breath, a
concentration well above the higher-tiered level of alcohol for breath as proscribed by R.C.
4511.19(A)(1)(h).
{¶ 4} On June 15, 2016, Kautz pled not guilty to both charges and was released on
his own recognizance. Several months later, on October 14, 2016, Kautz filed a motion to
dismiss the specifications attached to each of the two pending OVI charges against him. In
support of this motion, Kautz alleged that one of his prior OVI convictions, specifically his
November 22, 2000 conviction in the Butler County Area II Court, should not be considered
by the trial court because it was "uncounseled." The trial court summarily denied Kautz's
motion on November 15, 2016. Kautz then requested the trial court reconsider its decision
which the trial court denied on January 9, 2017. In so holding, the trial court found Kautz's
November 22, 2000 conviction was not "uncounseled" because Kautz made a "knowing,
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intelligent & voluntary waiver of his right to counsel" as evidenced by his signature on a
written waiver of counsel form.
{¶ 5} On March 16, 2017, following a one-day bench trial, the trial court returned a
verdict finding Kautz guilty as charged. The trial court then ordered a presentence
investigation report. After the presentence investigation was completed, and upon merging
the charges for purposes of sentencing, the state elected to proceed on sentencing Kautz
for violating R.C. 4511.19(A)(1)(h) with the attendant R.C. 2941.1413(A) specification.
Following the state's election, the trial court sentenced Kautz to serve a total aggregate
term of three years in prison, ordered Kautz to pay a $1,500 fine, and suspended Kautz's
driver's license for a period of ten years. The trial court also notified Kautz that he would
be subject to an optional period of up to three years of postrelease control following his
release from prison.
{¶ 6} Kautz now appeals from his conviction, raising two assignments of error for
review.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED BY ADMITTING A CERTIFIED COPY OF
JUDGMENT ENTRY OVER THE OBJECTION OF DEFENDANT KAUTZ THAT FAILED
TO SATISFY MANDATORY BASIC PROCEDURAL FORMALITIES REQUIRED TO
ENSURE DUE PROCESS.
{¶ 9} In his first assignment of error, Kautz argues the trial court erred by admitting
a certified copy of a judgment entry issued by the Butler County Area II Court as evidence
he had been convicted of five prior OVI offenses within the past 20 years. In support of this
claim, Kautz argues the certified copy submitted to the trial court was inadmissible as it did
not meet the minimum mandatory requirements for admissibility as set forth by this court in
State v. Ginocchio, 38 Ohio App.3d 105 (12th Dist.1987). Specifically, as this court stated
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in Ginocchio, whether it be a municipal, county, or common pleas court, a formal final journal
entry or order must be prepared that contains the following:
1. the case caption and number;
2. a designation as a decision or judgment entry or both;
3. a clear pronouncement of the court's judgment, including the
plea, the verdict or findings, sentence, and the court's rationale
if the entry is combined with a decision or opinion;
4. the judge's signature; and
5. a time stamp indicating the filing of the judgment with the
clerk for journalization.
Id. at 106.
{¶ 10} Based on our decision in Ginocchio, Kautz claims the disputed entry was
inadmissible and should not have been considered by the trial court. However, contrary to
Kautz's claim otherwise, and setting aside the fact that Kautz likely waived this argument
by stipulating to the authenticity of the disputed entry, as well as the fact that other prima-
facie evidence was submitted to the trial court to establish this conviction, a simple review
of the record reveals the entry at issue meets all the minimum mandatory requirements to
be admissible under Ginocchio.1 For instance, although Kautz may disagree, the fact that
the entry is designated as a "Journal Entry" rather than as a "decision" or "judgment entry"
is of little consequence considering the entry at issue contains a clear pronouncement of
the trial court's verdict and sentence. The same is true regarding Kautz's claim that the
entry was defective because the trial court judge used a signature stamp to sign the entry
instead of his own hand. The local rules from both this court and the Butler County Area II
1. As it relates to waiver, we note that Kautz's trial counsel specifically stated as part of the trial transcript that
the disputed entry "would be authentic, but counsel wishes to reserve – or reserve the right to object to the
admission based on the waiver of counsel." Kautz, therefore, likely waived any challenge to the admissibility
of the entry at issue under Ginocchio. Such a finding, however, is unnecessary under the facts and
circumstances of this case.
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Court authorize the use of signature stamps to reflect a judge's present intention to
authenticate the signature and the document. See 12th Dist.Loc.App.R. 24 and Loc.R. X
of the Butler County Area I, II, and III Courts. Under such circumstances, we see no reason
why an entry signed with signature stamp would not carry the same weight as an entry
signed with a pen.
{¶ 11} Moreover, while Kautz claims the entry is faulty because it does not contain
the necessary time stamp indicating it was ever filed with the Butler County Area II Court,
the entry does contain a deputy clerk's stamp certifying it as a verified copy of the original
entry properly filed with that court. Kautz has provided no evidence to refute the deputy
clerk's certification, nor does this court find any reason to question its validity. Therefore,
because we can find no error with the trial court's decision to admit the disputed entry,
Kautz's first assignment of error lacks merit and is overruled.
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE TRIAL COURT ERRED IN FINDING MR. KAUTZ GUILTY OF THE
SPECIFICATIONS, AS THE NOVEMBER 22, 2000, CONVICTION WAS INADMISSIBLE
AS BEING UNCOUNSELED, DEFICIENT AS TO MANDATORY BASIC PROCEDURAL
FORMALITIES, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 14} In his second assignment of error, Kautz argues the trial court erred by finding
he had been convicted of five prior OVI offenses within the past 20 years because his
November 22, 2000 conviction in the Butler County Area II Court was "uncounseled" and
"should not be considered for purposes of the specification." In support of this claim,
although acknowledging that he signed a written waiver of counsel indicating he voluntarily
waived his right to counsel, Kautz claims such waiver was not entered either knowingly or
intelligently. However, other than his bare assertion to the contrary, Kautz did not submit
any evidence, whether testimony, affidavits, or transcripts, to support his claim that his
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written waiver of counsel was constitutionally infirm, thereby rendering his waiver valid.
{¶ 15} In addressing a similar issue to the case at bar, the Ohio Supreme Court
specifically stated that "[a] bald allegation of constitutional infirmity is insufficient to establish
a prima facie showing with respect to an 'uncounseled' plea." State v. Thompson, 121 Ohio
St.3d 250, 2009-Ohio-314, ¶ 7. That is certainly the case here. Therefore, because Kautz
failed to introduce any evidence to support his claim that his written waiver of counsel
entered into prior to the Butler County Area II Court finding him guilty of OVI on January 22,
2000 was constitutionally infirm, we find no error in the trial court's decision finding Kautz
had been convicted of five prior OVI offenses within the past 20 years. As a result, because
the state provided sufficient evidence to prove Kautz had been convicted of five prior OVI
offenses within the past 20 years, the trial court properly determined the attendant
specification attached to both charged OVI offenses brought pursuant to R.C. 2941.1413(A)
was satisfied. Accordingly, finding no merit to Kautz's claim raised herein, Kautz's second
assignment of error is overruled.
{¶ 16} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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