[Cite as State v. Alvarado, 2018-Ohio-5157.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

NICOLE M. ALVARADO 

Defendant-Appellant 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 27911 

Trial Court Case No. 2017-CR-1757 

(Criminal Appeal from 

Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 21st day of December, 2018. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering, 

Ohio 45429 

 Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

 

DONOVAN, J. 
-2- 

{¶ 1} This matter is before the Court on Nicole M. Alvarado’s February 26, 2018 

Notice of Appeal. Alvarado appeals from the trial court’s February 20, 2018 Judgment 

Entry of Conviction, following her no contest plea to operating a motor vehicle while under 

the influence (“OVI”)(three priors within 10 years)(breath >0.17 or greater), a felony of the 

fourth degree, in violation of R.C 4511.19(A)(1)(h)/4511.19(G)(1)(d). Alvarado was 

sentenced to a period of community control sanctions not to exceed five years, and her 

driver’s license was suspended for three years. We hereby affirm the judgment of the 

trial court. 

{¶ 2} Alvarado was indicted on July 17, 2017 for OVI; the indictment specifically 

identified 3 prior OVI convictions within the previous 10 years. On October 3, 2017, she 

filed a motion seeking to strike from the indictment the allegation that she was previously 

convicted of OVI in case number 2008-TRC-1473 in the Vandalia Municipal Court. 

Alvarado asserted that her prior conviction was without counsel or an effective waiver 

thereof, and it was “therefore constitutionally infirm, and as a result, may not be used to 

enhance a subsequent offense.” She argued that, without the prior conviction, “the 

instant offense is a misdemeanor offense.” 

{¶ 3} A hearing was held on Alvarado’s motion on December 1, 2017. At the start 

of the hearing, defense counsel indicated to the court that the parties stipulated to the 

admission of “the entire record of this matter from the Vandalia Municipal Court.” State’s 

Exhibit 1 is that record, and State’s Exhibit 2, the parties’ “Joint Stipulation,” provides that 

Exhibit 1 is the entire record of the proceedings of Vandalia Municipal Court Case No. 

2008-TRC-1473, that no audio or video recordings of any in-court proceedings exist, and 
-3- 

that no transcriptions of any in-court proceedings exist. 

{¶ 4} Attorney Christopher Thompson of the Montgomery County Public 

Defender’s Office then testified that, in 2008, he worked in private practice and frequently 

handled criminal and traffic cases in Vandalia Municipal Court. Thompson stated that 

he was very familiar with the “workings” of that court and that he had appeared there as 

defense counsel “up to 100 [times] maybe.” Thompson testified that it was his common 

practice, after being retained, to “file a notice of appearance and for municipal court cases 

that typically includes a time waiver and a request for a pretrial.” He testified that the 

court “typically will not give you a pretrial if you don’t waive speedy trial.” Thompson stated 

that he “[m]ost certainly” would have followed this practice in a “diversion case.” 

{¶ 5} Thompson testified that he knew Alvarado in early 2008, having met her 

“through [her] ex-boyfriend * * * who I represented many, many times.” Thompson stated 

that he had no recollection of representing Alvarado in an OVI diversion case in 2008 in 

Vandalia Municipal Court, and that if his standard filings were not in the file “then I 

presume that I did not represent her.” Thompson reviewed the stipulated exhibit and 

testified that he had not filed any pleadings in the case. According to Thompson, if a 

“notice of appearance is not in there then I didn’t represent her.” On cross-examination, 

Thompson stated that he “can’t guarantee” that he has followed his standard practice in 

every case. 

{¶ 6} At the conclusion of Thompson’s testimony, the State declined to call any 

witnesses. Relying on the record of the Vandalia case, the prosecutor indicated to the 

court that “the entries * * * that have been presented in Exhibit 1 show Chris Thompson’s 

name being entered on there and also a document that’s part of the plea entry of her plea 
-4- 

in that case. There’s initials next to a line that says I am represented by counsel and I’m 

satisfied with counsel with the Defendant’s own initials on it.” Further the prosecutor 

indicated that “[a]nother paragraph below that where it could be marked saying I waived 

counsel. That one is clearly blank. I’d therefore argue that she was represented by 

counsel.” 

{¶ 7} Defense counsel responded that the Vandalia court’s entries were 

“inconsistent and ambiguous,” and that Thompson testified confidently that he did not 

represent Alvarado due to the absence of his standard filings. Defense counsel argued 

that “there’s nothing that shows that Chris Thompson ever entered an appearance on this 

case.” Defense counsel asked the court “to rely on Mr. Thompson’s credible testimony 

that he did not represent her in this case.” 

{¶ 8} On December 4, 2017, the court issued a Decision and Entry overruling 

Alvarado’s Motion to Strike the prior conviction element of her pending offense. The 

court made the following factual findings: 

Defendant, Nicole Alvarado, was prosecuted for an alleged OVI or 

violation of section 4511.19(A)(1)(a) of the Ohio Revised Code * * * in 

approximately February of 2008. * * * [T]he matter was prosecuted in the 

Vandalia Municipal Court. 

Defendant appeared in the Vandalia Municipal Court on or about the 

19th day of February, 2008 and the docket sheet indicates that Defendant’s 

attorney was “C. Thompson”. Defendant initially entered a not guilty plea. 

The record of proceedings of the Vandalia Municipal Court in this 

case, case no. 08TRC1473, does not contain a written entry from attorney 
-5- 

Christopher Thompson. Christopher Thompson did not file a notice of 

appearance, request for pretrial and time waiver as is his practice when 

representing a Defendant in Municipal Court. 

Christopher Thompson does know the Defendant, he knows the 

Defendant because he has represented her ex-boyfriend in several cases. 

Defendant entered the diversion program on or about February 19, 

2008. As part of her entry into the diversion program, the Defendant 

signed a conditional plea. The conditional plea form is four pages long and 

is signed by the Defendant and the municipal court judge. On page two of 

the form Defendant indicates she is represented by a lawyer in the case 

and is satisfied by the competence of her lawyer and the quality of the legal 

assistance, advice and representation given to her by her lawyer. This 

situation is verified by Defendant initialing the form at the place where it 

indicates representation as opposed to non-representation. 

Defendant did not meet all the conditions of the Vandalia Municipal 

Court diversion program. The court found, from the evidence, that the 

Defendant failed to successfully complete the diversion program and 

therefore terminated her from the program. Her plea of guilty was ordered 

placed of record. She was sentenced on or about November 10, 2008. 

The sentence involved a jail sentence of six months. The jail sentence was 

suspended except for three days. Defendant’s driver’s license was 

suspended for six months. The sentence was memorialized by a 

sentencing entry filed November 10, 2008. 
-6- 

{¶ 9} In its conclusions of law, the court found that Alvarado had failed to make a 

prima facie showing that use of her prior conviction as a penalty enhancement was 

unconstitutional, as the evidence established it was counseled. The court noted that it 

was “not contested that the prior conviction resulted in a confinement.” The court again 

noted that Alvarado entered a conditional plea on February 19, 2008 “so she could enter 

the diversion program,” and she stated at that time that she was represented by a lawyer 

and satisfied with his competence and representation. The court noted that, at the same 

time, Alvarado “indicated she was aware she was giving up various constitutional and 

statutory rights.” The court noted that Alvarado was arraigned on February 4, 2008, and 

had a pretrial conference on February 19, 2008, at which time there was a pretrial offer 

of referral to diversion. The court was “convinced from the circumstances that an attorney 

counseled the Defendant at the time of her plea.” It was significant to the court “the fact 

that there was a pretrial conference, apparently, as opposed to a trial date,” that “certain 

benefits were provided to the Defendant,” and that “these facts are indicia of some 

counseling.” 

{¶ 10} Alvarado entered her plea of no contest in this case on January 23, 2018, 

and was found guilty. On appeal, she asserts the following assignment of error: 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

OVERRULED APPELLANT’S MOTION TO STRIKE PRIOR CONVICTION 

ELEMENT. 

{¶ 11} Alvarado asserts that Thompson confidently asserted that he did not 

represent her in the case that resulted in her prior OVI conviction, and that “[t]his 

testimony provided the Trial Court with the prima facie showing that [Alvarado] was 
-7- 

required to make.” She argues that the file from her prior conviction “added further 

weight” to her prima facie showing that she was uncounseled at her prior conviction. She 

asserts that, although “the conditional plea form showed that [Alvarado] indicated that she 

was represented by counsel, on the waiver of rights form, [she] failed to indicate whether 

or not she had counsel and whether or not she wanted counsel.” According to Alvarado, 

her “own failure to provide an unambiguous indication that she either had counsel already 

or that she did not have counsel and did not want counsel ̶ along with Chris Thompson’s 

confident and assertive testimony ̶ provided the prima facie showing that was required to 

shift the burden of proof to the State.” 

{¶ 12} The State responds that the trial court did not err in overruling Alvarado’s 

motion. The State asserts that Alvarado “was required to prove by a preponderance of 

the evidence that her prior plea was constitutionally infirm.” The State notes Thompson’s 

testimony that “one must request a pretrial or the court will set the case for trial 

immediately because of speedy trial.” The State further notes that “Alvarado’s case was 

scheduled for a pre-trial conference on February 19, 2008 wherein the prosecutor 

recommended diversion.” The State asserts that “according to the court’s journal 

entries, Alvarado was represented by counsel at the time of her plea in her prior OVI 

case.” Finally, according to the State, considering “Thompson’s inability to recall 

whether he represented Alvarado, coupled with the court’s journal entries, Alvarado failed 

to show by a preponderance of the evidence, or even make a prima facie showing, that 

her prior plea was uncounseled and, thus, constitutionally infirm.” 

{¶ 13} As this Court recently noted: 

The Supreme Court of Ohio has addressed the circumstances and 
-8- 

manner in which a prior OVI conviction may be attacked for purposes of a 

penalty enhancement. In State v. Thompson, 121 Ohio St.3d 250, 2009-

Ohio-314, 903 N.E.2d 618, the court stated: 

 “Where questions arise concerning a prior conviction, a 

reviewing court must presume all underlying proceedings were 

conducted in accordance with the rules of law and a defendant 

must introduce evidence to the contrary in order to establish a 

prima-facie showing of constitutional infirmity.” With respect to 

“uncounseled” pleas, we presume that the trial court in the prior 

convictions proceeded constitutionally until a defendant 

introduces evidence to the contrary. Thus, we conclude that for 

purposes of penalty enhancement in later convictions under R.C. 

4511.19, after the defendant presents a prima facie showing that 

the prior convictions were unconstitutional because the 

defendant had not been represented by counsel and had not 

validly waived the right to counsel and that the prior convictions 

had resulted in confinement, the burden shifts to the state to 

prove that the right to counsel was properly waived. 

Id. at ¶ 6, quoting State v. Brandon, 45 Ohio St.3d 85, 543 N.E.2d 501 

(1989), syllabus. 

State v. Wood, 2d Dist. Clark No. 2016-CA-69, 2018-Ohio-875, ¶ 29. 

{¶ 14} Having reviewed the record, we conclude that the trial court accurately 

represented the contents of the file from the Vandalia Municipal Court in Case No. 2008-
-9- 

TRC-1473. The court’s “Docket/Journal Entry” reflects that Alvarado was charged on 

February 2, 2008, with a violation of R.C. 4511.19(A)(1)(a), she was arraigned on 

February 4, 2008, and at her February 19, 2008 pretrial she was offered a referral to 

diversion, as well as a stay of an ALS suspension. The “Docket/Journal Entry” identifies 

“C. Thompson” as “Attorney” and “CK” as “Prosecutor.” 

{¶ 15} As the trial court noted, Alvarado’s four-page “Diversion Program 

Conditional Plea” form reflects an acknowledgement of the “constitutional and statutory 

rights” she gave up by entering her plea. The form provides: “In pleading guilty to the 

offense of which I am presently charged, I understand and certify: (initial one only),” and 

Alvarado’s initials appear next to the following statement on the form: “That I am 

represented by a lawyer in this case and I am satisfied with the competence of my lawyer 

and the quality of the legal assistance, advice and representation given to me by my 

lawyer.” The subsequent statement, which was not initialed, provides: 

That I am not represented by a lawyer, but understand that I have a 

right to hire a lawyer to represent me in this matter. If I do not have the 

money to hire a lawyer, the Court will appoint a lawyer to me or will appoint 

a Public Defender to represent me in this case. Knowing this, I now 

voluntarily state that I do not want a lawyer to represent me and want to 

exercise my right to represent myself herein. 

{¶ 16} The “Waiver of Rights” section of Alvarado’s February 18, 2008 Diversion 

Application contains the following sentence: “I have a lawyer at this time/ I do not want a 

lawyer at this time.” Neither of the two sentences separated by the hash mark was 

circled or underlined. 
-10-

{¶ 17} The November 10, 2008 “Sentencing Entry” in the file reflects that the State 

requested a court order terminating Alvarado’s diversion program, and that the court did 

terminate Alvarado from the Diversion Program, accepted her “plea of guilty previously 

entered in this case,” and ordered “the plea placed of record as of 2-19-08.” The entry 

reflects that Alvarado received a sentence of six months in jail with all but three days 

suspended. 

{¶ 18} We agree with the trial court that Alvarado failed to make a prima facie 

showing that her prior conviction was uncounseled and therefore constitutionally infirm. 

While Thompson testified that he appeared in Vandalia Municipal Court up to 100 times, 

and that his standard practice included routine filings absent from the municipal court file, 

he further testified that he did not remember representing Alvarado, with whom he was 

acquainted, and that he could not guarantee that he followed his standard practice in 

every case. It is well-settled that a “court speaks through its journal entries.” State v. 

Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47. The court’s 

“Docket/Journal Entry” in the parties’ stipulated exhibit identifies “C. Thompson” as 

“Attorney” for Alvarado. Presuming the proceedings in Vandalia Municipal Court were 

conducted in accordance with the rules of law, Alvarado, by marking her initials on her 

conditional plea form, certified the accuracy of the statement indicating that she was 

represented by counsel and satisfied with counsel’s representation. The statement 

indicating an intent to “represent myself herein” was not initialed. We further agree with 

the trial court that the fact that Alvarado participated in a pretrial conference, at which the 

offer of diversion and a stay of an ALS suspension were extended and accepted, are 

further “indicia of some counseling,” as evidenced by Thompson’s own testimony. 
-11-

{¶ 19} For the foregoing reasons, Alvarado’s sole assignment of error is overruled, 

and the judgment of the trial court is affirmed. 

. . . . . . . . . . . . . 

FROELICH, J. and HALL, J., concur. 

Copies sent to: 

Mathias H. Heck, Jr. 

Heather N. Jans 

Jeffrey T. Gramza 

Hon. Timothy N. O’Connell