holding that absent any indication that a trial court did not, a silent record raises a presumption that the trial court considered the factors in R.C. 2929.12, and the defendant's failure to address the issue in the trial court leads to a presumption that the trial court considered those factorsSummary of this case from State v. Reed
Submitted June 1, 1988 —
Decided July 6, 1988.
Criminal law — Evidence — Stipulation to prior conviction stipulates constitutionality of conviction, when — Constitutionality of prior conviction raised, how — Decision to order presentence report is within court's sound discretion — Presumption that court followed sentencing factors of R.C. 2929.12.
O.Jur 3d Criminal Law §§ 135, 413.
1. A stipulation to the fact of a prior conviction constitutes a stipulation as to the conviction's constitutionality, unless the defendant raises the constitutionality challenge at the trial where the conviction is used to enhance a penalty.
2. When a defendant raises a constitutional question concerning a prior conviction, he must lodge an objection as to the use of this conviction and he must present sufficient evidence to establish a prima facie showing of a constitutional infirmity.
O.Jur 3d Criminal Law § 416.
3. A silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12.
O.Jur 3d Criminal Law § 1366.
4. The decision to order a presentence report lies within the sound discretion of the trial court. Absent a request for a presentence report in accordance with Crim. R. 32.2, no grounds for appeal will lie based on a failure to order the report, except under the most exigent of circumstances.
CERTIFIED by the Court of Appeals for Stark County, No. CA-7075.
Appellant, Carl F. Adams, was indicted by the Stark County Grand Jury on one count of grand theft and four counts of passing bad checks. In each of the counts for passing bad checks, the indictment alleged that appellant previously had been convicted of "* * * two theft offenses, to wit: Petty Theft, in Canton Municipal Court, on or about the 19th day of March, 1985; Petty Theft, in Canton Municipal Court, on or about the 2nd day of August, 1982 * * *."
Prior to trial, counsel for the state and for the defendant stipulated that the defendant had the two prior theft offenses as alleged in the indictment. Given the validity of the prior convictions, the bad-check indictments would be enhanced from fourth-degree to third-degree felonies pursuant to R.C. 2913.11(C).
Appellant entered a plea of not guilty to all charges and the trial court granted appellant's motion to sever the grand-theft count from the bad-check counts. At trial, the jury found appellant guilty on all counts. Thereafter, the trial court sentenced appellant to two years' definite imprisonment on each count in the Ohio State Reformatory in Mansfield. All counts were to run concurrently except count three, which was to be served consecutively with count two.
Upon appeal, appellant alleged that the state had failed to prove that the prior theft convictions were counseled, or in the alternative, that there was a failure of proof that defendant had knowingly and intelligently waived counsel prior to his previous convictions in the Canton Municipal Court. Appellant also argued that the trial court erred when it failed to order a presentence report in accordance with Crim. R. 32.2 and failed to consider the sentencing factors contained in R.C. 2929.12. Appellant sought reversal and a remand for resentencing.
In affirming defendant's conviction and sentence, the court of appeals held that "[a] stipulation to the fact of prior convictions is a stipulation to the constitutional validity of such convictions." The court of appeals noted that even if the prior convictions were, in fact, constitutionally invalid, appellant had the right to attack the prior conviction of petty theft by way of an appeal or post-conviction relief. The court of appeals found that the constitutional validity of prior convictions will be presumed when such convictions are stipulated by the defendant.
With respect to the other assignments of error, the court of appeals found that appellant did not request a presentence investigation and he did not object to the absence of such report at any time before, during, or after sentencing. Citing State v. Davis (1983), 13 Ohio App.3d 265, 13 OBR 329, 469 N.E.2d 83, the court of appeals stated that, given a silent record, the law ordinarily presumes compliance with R.C. 2929.12. Since there was no objection lodged with the trial court to either of the aforementioned errors, the court of appeals ruled that these assignments of error were not appropriate grounds for appeal. The court of appeals affirmed appellant's conviction and sentence in all respects.
The court, finding its decision on the stipulations issue to be in conflict with the decision of the Court of Appeals for Cuyahoga County in State v. McKinley (Feb. 6, 1986), No. 50016, unreported, reversed on other grounds (1986), 24 Ohio St.3d 208, 24 OBR 434, 494 N.E.2d 1113, certified the record of the case to this court for review and final determination.
Robert D. Horowitz, prosecuting attorney, and Paul A. Mastriacovo, for appellee.
Jack A. Blakeslee, for appellant.
Two principal issues must be decided by this court.
First, does a stipulation by the parties to the fact of a prior conviction act as a stipulation to the constitutionality of the conviction when the issue of the constitutionality of the prior conviction is not challenged by the defendant at trial?
Second, can the court of appeals presume that the trial court considered the sentencing factors set forth in R.C. 2929.12 when the record is silent in this regard?
We affirm the posture of the court of appeals on both of the issues for the reasons that follow.
With respect to the first issue, appellant essentially argues that the state must prove the constitutionality of a defendant's prior convictions where these convictions are used to enhance the penalty of later criminal charges. Appellant correctly asserts that an uncounseled prior conviction may not be used to enhance a later conviction and sentence. Baldasar v. Illinois (1980), 446 U.S. 222. Baldasar, however, is clearly inapplicable to the case before us. Appellant failed to raise the issue of the constitutionality of the prior convictions at trial. Appellant's two prior convictions for theft are undisputed. No evidence was presented before the trial court with respect to whether these prior convictions were uncounseled and we believe that it is the responsibility of appellant to raise this issue. The practice of stipulating a prior conviction generally runs to the benefit of the defendant, as noted by Presiding Judge Milligan in the court of appeals opinion below:
"* * * [S]tipulations to prior convictions are widely recognized as a practice which benefits defendants by precluding the State from introducing evidence as to the details of the prior convictions. In addition, we find ourselves in the post- Gideon, post- Argersinger world where either defendants are in fact represented by counsel or courts ensure that defendants knowingly and intelligently waive their right to counsel."
Thus, we hold that a stipulation to the fact of a prior conviction constitutes a stipulation as to the conviction's constitutionality, unless the defendant raises the constitutional challenge at the trial where the conviction is used to enhance a penalty. When a defendant raises a constitutional question concerning a prior conviction, he must lodge an objection to the use of this conviction and he must present sufficient evidence to establish a prima facie showing of a constitutional infirmity. This view is consistent with the obligation of a defendant to bring evidentiary objections to the attention of the trial court so that it can timely deal with them. Since the defendant did not object to the constitutionality of the prior convictions at any time before or during trial, he may not do so on appeal. Any other view would endorse "ambush tactics" that undermine the truth-seeking process.
With respect to the second issue, we hold that a silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12. The decision to order a presentence report generally lies within the sound discretion of the trial court. Absent a request for a presentence report in accordance with Crim. R. 32.2, no grounds for appeal will lie based on a failure to order the report, except under the most exigent of circumstances.
Appellant erroneously asserts that a silent record raises a presumption that the trial court did not consider R.C. 2929.12. As previously stated, the defendant in the case at bar did not request a presentence investigation, nor did he object to the lack of it. The record is devoid of any indication that the trial court failed to consider R.C. 2929.12. Appellant's failure to address these issues at trial leads to a presumption that the trial court considered these factors. See State v. Davis, supra.
For the foregoing reasons, the judgment of the court of appeals is affirmed in all respects.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and H. BROWN, JJ., concur.