State v. Henton , 121 Ohio App. 3d 501 ( 1997 )

I concur in the opinion and judgment of the court and write separately to express my observation that the result might have been different if the existence of the prior conviction increased solely the penalty, rather than increasing the degree of the offense.

R.C. 2941.142 provides for a separate hearing outside of the jury's presence to determine the existence of a prior conviction. When R.C. 2941.142 is applicable, once the accused requests such a hearing, the trial court must honor the request. State v.Watters (1985), 27 Ohio App. 3d 186, 187, 27 OBR 224, 225-226,500 N.E.2d 312, 313-314. However, an accused does not have the right to a bifurcated hearing pursuant to R.C. 2941.142 when a prior conviction elevates the degree of the offense rather than solely increasing the penalty. State v. Dowdy (June 14, 1996), Lake App. No. 95-L-140, unreported, at 3, 1996 WL 648833.

Therefore, in the present case, had the prior conviction solely enhanced appellant's penalty, appellant would have had the opportunity to avoid presentation of the prior conviction to the jury by requesting a bifurcated proceeding as provided in R.C. 2941.142. Thus, under those circumstances, a defendant would have the ability to avoid the prejudice claimed here, and if the defendant did not pursue bifurcation, invited error could well obtain. If that were the case, I would vote to affirm.