Medina County Courthouse

Friday, January 01, 2010

Ninth District Court of Appeals Decision Limits Use of Pre-Trial Motions to Suppress

On December 31, 2009, the Ninth District Court of Appeals on an appeal from a Medina County conviction, released the decision of State v. Patterson, 2009-Ohio-6953 which raised the issue of whether a conviction that was resulted from a plea where the defendant was not informed of post-release control could be used to enhance an offense. The defendant Patterson was convicted of a felony DUI in 1998. In 2008 he was again indicted for a felony DUI. (Once you have had a felony DUI then any subsequent DUI is a felony regardless of when it occurs.)

He filed a pre-trial motion to suppress challenging the 1998 conviction on the grounds that he wasn't advised of post-release control before entering his plea. The trial court denied his motion concluding that his prior conviction was not void. He then entered a plea of no-contest and appealed his conviction.

In a 2-1 opinion, the Ninth District Court of Appeals held that he hadn't preserved the issue for appeal and therefore didn't address the merits of his appeal. The third judge concurred in the judgment only. She agreed with the result, but believed that the Court should have addressed the merits of the appeal.

The opinion contains the following language in paragraphs 8 and 9:

"{8} A defendant may use a motion to suppress to challenge a prior DUI conviction if the basis for the challenge is that the prior conviction was uncounseled. State v. McCallum, 9th Dist. No. 08CA0037-M, 2009-Ohio-1424, at 12-16. An argument that a conviction was uncounseled amounts to a Sixth Amendment challenge, an appropriate basis for a motion to suppress. See Hilliard, 77 Ohio St.3d at 158. Yet, Patterson sought to challenge his prior DUI conviction through a motion to suppress on the basis that it was void for lack of a post-release control notification. “A defendant does not have a constitutional right to be advised of postrelease control[.]” State v. Souris, 9th Dist. No. 24550, 2009-Ohio-3562, at 5. As such, an improper post-release control notification does not amount to a constitutional violation that could be addressed through a motion to suppress. Hilliard, 77 Ohio St.3d at 158.

{9} Recently, this Court addressed the issue of whether a defendant could rely upon any pretrial motion to preserve a non-constitutional challenge to a prior conviction that, if proven, would serve as the basis for enhancing the degree of the defendant’s current conviction. See State v. Echard, 9th Dist. No. 24643, 2009-Ohio-6616. In Echard, a defendant sought to challenge a prior domestic violence conviction, the existence of which would elevate his current offense to a third-degree felony. Echard filed a motion in limine to challenge the existence of his prior conviction and entered a no contest plea after the trial court denied his motion. In considering Echard’s appeal, we noted that pretrial motions only properly address issues that are “capable of determination without the trial of the general issue.” Id. at 6, quoting Crim.R. 12(C). We concluded that, when a prior conviction is an essential element of an offense that the State must prove at trial, a challenge to the sufficiency of that prior conviction is an issue that is not “capable of determination without the trial of the general issue.” Echard at 7. Accordingly, we held that a defendant cannot preserve such a challenge for appeal simply by raising it in a pretrial motion. Id."

Under the concurring judge's analysis, the motion to suppress was a proper pre-trial motion under Crim. R. 12. Further, she agreed with Patterson's argument that a conviction that resulted in a prison sentence that was based on a plea where there wasn't sufficient notice of post-release control was defective. In Patterson's case, however, the 1998 conviction hadn't resulted in the application of community control sanctions and not in a prison sentence. Therefore, under her analysis, the 1998 conviction wasn't void

The Court's holding leaves open the question of whether Patterson could have challenged the prior conviction at trial and, if so, how would he have done so? Would the fact that Patterson hadn't received sufficient notice of post-release control have been a fact issue or a legal issue? That is, would the evidence about the change of plea in 1998 been considered by the jury in weighing the evidence of the conviction or would it be an issue for the trial court to consider before allowing the evidence of the prior conviction to be given to the jury?

Since there are five judges on the Ninth District Court of Appeals and since only three were involved in Patterson decision, it is possible that another panel would reach a somewhat different result. That is, a different panel might have found that the 1998 conviction could have been challenged in a pre-trial motion to suppress and then have addressed the merits of the appeal.

Attorneys who do criminal cases in the Ninth District Court of Appeals' jurisdiction might want to watch for future cases on this issue.

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