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Challenging Priors: Invalid Waiver of the Right to Counsel

By: April Campbell

A person’s decision to represent themselves is a hefty one.   We have all spoken to clients who have walked into court and pleaded guilty without representation to their first OVI.  It’s not such a big deal, your client thought.  The penalties were minimal, that first time. Driving Intervention Program?  No problem.  Done!  

But then there’s that second OVI.  Now, that same person is sitting in your office.  And because priors enhance penalties, that rosy walk-in plead-guilty strategy just wilted with hindsight. 

Still, because a person’s decision to represent himself has such serious consequences, that decision might prove useful in challenging that prior in trial.  Take the most recent decision on this issue, for instance.  State v. Frederick, 2020-Ohio-714 (Mar. 2, 2020).  Frederick wanted to represent himself, which was obvious from the record.  So, the trial court let him.  He was convicted.  Then, Frederick decided to appeal his own decision to represent himself, and argued that even if he wanted to represent himself, he didn’t actually properly waive his right to be represented.  

He won.  Reversing the trial court’s decision to let Frederick represent himself on Sixth Amendment grounds, the Ninth District decided that since the trial court did not engage in a meaningful discussion with Frederick about this decision, there was no proper waiver of his Sixth Amendment right.

While State v. Frederick is not an OVI case, it is a useful one. Attacking a prior conviction for an improper waiver of the right to counsel is a defense to that prior, after all. Thus, while your client might be lamenting his self-made OVI whole, there is still light at the end of the OVI tunnel.  You might want to put this decision in your back pocket. 

To learn more on challenging priors, consider joining the Advanced OVI OACDL seminar set this month, where it will be a topic of discussion.  

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