Summary
determining that prior plea of guilty constituted a conviction for impeachment purposes under Evid.R. 609
Summary of this case from State v. WorkmanOpinion
No. 87-1153
Submitted November 14, 1988 —
Decided December 21, 1988.
Criminal law — Witnesses — Evid. R. 609(A) — Prior conviction in which pronouncement of sentence still pending may be used for impeachment purposes.
O.Jur 3d Criminal Law § 1308. O.Jur 3d Evidence § 924.
A prior conviction in which pronouncement of sentence is still pending may be used for impeachment purposes pursuant to Evid. R. 609(A).
CERTIFIED by the Court of Appeals for Butler County, No. CA86-09-128.
In May 1986, the Butler County Grand Jury returned a four-count indictment against defendant-appellee, Anthony R. Cash. The counts included assault, in violation of R.C. 2903.13 (A), resisting arrest, in violation of R.C. 2921.33(A), attempted aggravated burglary, in violation of R.C. 2923.02(A), and possession of criminal tools, in violation of R.C. 2923.24(A).
Appellee originally pled not guilty to all charges. On August 12, 1986, the day the case went to trial, appellee withdrew his plea of not guilty as to assault and resisting arrest and entered a plea of guilty to those two charges. The case proceeded to trial on the remaining charges of attempted aggravated burglary and possession of criminal tools.
At trial, appellee testified and on cross-examination was asked if he had ever been convicted of a felony. At first, appellee denied any such prior conviction. Upon further questioning, appellee admitted that he had been convicted on a charge of "bad checks." When the prosecutor repeated the question "Was it a conviction?", appellee's counsel objected and asked for a bench conference. During the bench conference, the following colloquy took place:
The crime described by appellee as "bad checks" was in fact the offense of forgery, a fourth-degree felony. Appellee had previously entered a plea of guilty to the forgery charge.
"Mr. Erven [Counsel for defendant]: It's not a conviction.
"By the Court: Huh?
"Mr. Erven: It's not a conviction. The case is pending.
"By the Court: It is like hell, he plead [ sic] guilty.
"Mr. Erven: It's not.
"By the Court: Don't tell me that, there is a conviction on.
"Mr. Erven: It's an Entry of Finding, that's not a conviction.
"By the Court: Well, that's a conviction entry.
"Mr. Erven: I've said I object.
"By the Court: Overruled."
At the conclusion of the bench conference, the prosecutor again asked appellee if he had any felony convictions. Appellee then responded, "Yes, sir." Subsequently, appellee was found guilty of attempted aggravated burglary and possession of criminal tools.
On appeal, the court of appeals reversed appellee's convictions on the charges of attempted aggravated burglary and possession of criminal tools. The court held that the trial judge had committed prejudicial error when he permitted the cross-examination of appellee concerning a prior guilty plea to an unrelated charge on which appellee had not yet been sentenced. In finding that a "conviction" requires more than just a plea or finding of guilt, the court of appeals cited State v. Henderson (1979), 58 Ohio St.2d 171, 12 O.O. 3d 177, 389 N.E.2d 494. Since appellee had not yet been sentenced on the forgery charge, the court of appeals found that appellee had no prior conviction which could be used, pursuant to Evid. R. 609(A), for impeachment purposes.
The court of appeals found its judgment to be in conflict with the judgment of the Court of Appeals for Cuyahoga County in State v. LeBron (Aug. 12, 1982), No. 44184, unreported, and certified the record of the case to this court for review and final determination.
John F. Holcomb, prosecuting attorney, Daniel G. Eichel and Gerald R. Leshner, for appellant.
Baden, Jones, Scheper Crehan Co., L.P.A., and Thomas P. Erven, for appellee.
The issue before this court is whether a prior conviction may be used for impeachment purposes, pursuant to Evid. R. 609(A), even though sentence has not been pronounced on that conviction. We hold that such a conviction may be used for impeachment purposes.
Evid. R. 609(A) states:
"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement, regardless of the punishment whether based upon state or federal statute or ordinance."
Further, Crim. R. 32(B) provides:
"Judgment. A judgment of conviction shall set forth the plea, the verdict or findings and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk."
Appellee contends that pursuant to Crim. R. 32(B), a "conviction" is not complete until sentence is pronounced. Appellee further contends that for impeachment purposes there is a distinct difference between a plea of guilty and a verdict of guilt. Finally, appellee relies on State v. Henderson, supra, for the proposition that a judgment of conviction is not complete, pursuant to Crim. R. 32(B), until sentence is entered. Accordingly, appellee argues, his forgery charge was not a prior conviction and thus could not be used pursuant to Evid. R. 609(A), for impeachment purposes.
The syllabus to State v. Henderson, supra, states:
"1. Where an accused has entered a plea of guilty to a theft offense but has not been sentenced by the court on that charge, such offender has not been previously convicted of a theft offense within the meaning of R.C. 2913.02(B).
"2. To constitute a prior conviction for a theft offense, there must be a judgment of conviction, as defined in Crim. R. 32(B), for the prior offense."
We do not find appellee's contentions persuasive. A close reading of Henderson reveals that the case had nothing to do with witness impeachment. Henderson was only concerned with whether a prior conviction could be used for penalty enhancement, thereby permitting a more severe punishment for a second offense of theft irrespective of the value of the property stolen. Henderson does not relate to the issue of whether a guilty plea without sentencing can be used as a prior conviction for impeachment purposes under Evid. R. 609(A).
Further, we find that at least for impeachment purposes, there is no significant difference between a guilty plea entered by a defendant and a guilty verdict rendered by a jury. In Kercheval v. United States (1927), 274 U.S. 220, 223, the United States Supreme Court stated that: "* * * A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. * * *" See, also, State v. Bowen (1977), 52 Ohio St.2d 27, 28, 6 O.O. 3d 112, 112-113, 368 N.E.2d 843, 844. Therefore, it follows that a witness has previously been convicted, for purposes of Evid. R. 609(A), where the witness has admitted guilt but is awaiting sentencing.
Our conclusion finds support, as well, in other jurisdictions. See, generally, Annotation (1984), 28 A.L.R. 4th 647; State v. Reyes (1965), 99 Ariz. 257, 408 P.2d 400, 14 A.L.R. 3d 1262; Forcier v. Hopkins (1953), 329 Mass. 668, 110 N.E.2d 126; see, also, United States v. Turner (C.A. 10, 1974), 497 F.2d 406.
Accordingly, the guilty plea by appellee to the forgery charge constituted a conviction and could be used for impeachment. Thus, we hold that a prior conviction in which pronouncement of sentence is still pending may be used for impeachment purposes pursuant to Evid. R. 609(A).
The judgment of the court of appeals is reversed and the judgment of the trial court is reinstated.
Judgment reversed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.