[Cite as State v. Klembus, 2014-Ohio-3227.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100068




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  DEAN M. KLEMBUS
                                                    DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-12-562381-A

        BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: July 24, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Stephanie N. Hall
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ON RECONSIDERATION1




      1   The original announcement of decision, State v. Klembus, 8th Dist.
Cuyahoga No. 100068, 2014-Ohio-1830, released May 1, 2014, is hereby vacated.
This opinion, issued upon reconsideration, is the court’s journalized decision in this
appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
EILEEN T. GALLAGHER, J.:

       {¶1} Pursuant to App.R. 26(A)(1)(a), appellee, state of Ohio, filed an application

for reconsideration of this court’s decision in State v. Klembus, 8th Dist. Cuyahoga No.

100068, 2014-Ohio-1830. Klembus has not opposed the state’s application.

       {¶2} In determining whether to grant a motion for reconsideration filed pursuant to

App.R. 26(A)(1)(a), the test “‘is whether the motion * * * calls to the attention of the

court an obvious error in its decision or raises an issue for our consideration that was

either not considered at all or was not fully considered by [the court] when it should have

been.’”   State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, ¶ 182,

quoting Matthews v. Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278 (10th

Dist.1982).

       {¶3} The state’s motion for reconsideration identified a need for clarification. We

therefore grant the state’s motion for reconsideration but our decision remains unchanged.

 For clarification purposes, we have made some modifications to our earlier opinion.

Therefore, we vacate the earlier opinion, and issue this opinion in its place.

       {¶4} Defendant-appellant, Dean M. Klembus (“Klembus”), appeals the denial of

his motion to dismiss a specification from the indictment charging him with driving under

the influence of alcohol (“OVI”), a fourth-degree felony. We find merit to the appeal,

reverse the trial court’s judgment in part, and remand this case to the trial court with

instructions to dismiss the specification.
      {¶5} Klembus was charged with two counts of operating a vehicle under the

influence of alcohol (“OVI”). Count 1 alleged driving under the influence of alcohol, in

violation of R.C. 4511.19(A)(1)(a). Count 2 alleged driving with an excessive blood

alcohol content, in violation of R.C. 4511.19(A)(1)(h).      Both counts contained the

following “FURTHERMORE” clause pursuant to R.C. 4511.19(G)(1)(d):

      FURTHERMORE, and he within twenty years of the offense, previously
      has been convicted of or pleaded guilty to five or more violations of that
      nature to wit: (1) on or about January 2, 2008, 6C06389, in the Bedford
      Municipal Court, in violation of 4511.19(A)(1); (2) and on or about July 12,
      2004, 4C02588, in the Bedford Municipal Court, in violation of
      4511.19(A)(1); (3) and on or about October 4, 2000, 0C04081, in the
      Bedford Municipal Court, in violation of 4511.19(A)(1); (4) and on or
      about March 17, 1997, 7C00548, in the Bedford Municipal Court, in
      violation of 4511.19(A)(1); (5) and on or about December 29, 1992,
      2C08595, in the Bedford Municipal Court, in violation of 4511.19(A)(1).

Each count also included a repeat OVI offender specification “concerning prior felony

offenses” pursuant to R.C. 2941.1413(A), which states:

      The offender, within twenty years of committing the offense, previously had
      been convicted of or pleaded guilty to five or more equivalent offenses.
      {¶6} Klembus filed a motion to dismiss the specification clause, arguing it violated

the Equal Protection Clauses of the United States and Ohio Constitutions. After a

hearing on the merits, the trial court denied Klembus’s motion to dismiss and Klembus

subsequently pleaded no contest to both charges.         The two charges merged for

sentencing, and the trial court sentenced Klembus to one year on the underlying OVI

charge and one year on the specification, to be served consecutively for an aggregate

two-year prison term.     The court also imposed a lifetime suspension of driving
privileges, and his vehicle was forfeited. Klembus now appeals the denial of his motion

to dismiss.

       {¶7} In his sole assignment of error, Klembus argues the repeat OVI offender

specification, on its face, violates the constitutional guarantees of equal protection and

due process because the specification is based upon the same information or proof

required to establish a fourth-degree felony. He contends R.C. 4511.19(G)(1)(d) and

2941.1413 allows the prosecutor to arbitrarily obtain a greater prison sentence for the

underlying offense without proof of any additional element, fact, or circumstance. Thus,

Klembus is challenging the repeat OVI offender specification on its face, not as it was

personally applied to him. “A facial challenge to the constitutionally of a statute is

decided by considering the statute without regard to extrinsic facts.” State v. Mole, 8th

Dist. Cuyahoga No. 98900, 2013-Ohio-3131, ¶ 14, citing Cleveland Gear Co. v. Limbach,

35 Ohio St.3d 229, 231, 520 N.E.2d 188 (1988).

       {¶8} Both the Ohio and United States Constitutions provide that no person shall be

deprived of life, liberty, or property without due process of law or be denied the equal

protection of the law. Ohio Constitution, Article I, Section 2; Fourteenth Amendment to

the U.S. Constitution. “Every person has a fundamental right to liberty in the sense that

the Government may not punish him unless and until it proves his guilt beyond a

reasonable doubt at a criminal trial conducted in accordance with the relevant

constitutional guarantees.” Bell v. Wolfish, 441 U.S. 520, 535, 536, 99 S.Ct. 1861, 60

L.Ed.2d 447 (1979).
       {¶9} However, once a defendant has been convicted, the court may impose upon

the defendant whatever punishment is authorized by statute for the offense, so long as the

penalty is not based on an arbitrary distinction that would violate the Due Process Clauses

of the Ohio and United States Constitutions. Chapman v. U.S., 500 U.S. 453, 465, 111

S.Ct. 1919, 114 L.Ed.2d 524 (1991). An argument based on equal protection in this

context duplicates an argument based on due process. Id. The standard for determining

whether a statute violates equal protection is “‘essentially the same under state and federal

law.’” State v. Thompkins, 75 Ohio St.3d 558, 561, 664 N.E.2d 926 (1996), quoting

Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 354, 639 N.E.2d 31 (1994).

       {¶10} The dissent cites several cases for the proposition that cumulative

punishments are constitutional if they are specifically authorized by the legislature. 2

However, not one of the cases cited in the dissent addresses the issue presented in this

case, which is whether the repeat violent offender specification violated equal protection.


       2  For example, the dissent cites State v. Gonzales, 151 Ohio App.3d 160,
2002-Ohio-4937, 783 N.E.2d 903 (1st Dist.) in which the court found the additional
penalty on a major drug offender (“MDO”) specification did not violate double
jeopardy because the cumulative punishment was specifically authorized by the
legislature. It is interesting to note that the legislature eliminated the additional
penalty for major drug offenders when it enacted H.B. 86 in September 2011.
       Prior to H.B. 86, R.C. 2925.03(C)(4)(g) provided that if the state proved the
defendant was a MDO, the court could “impose as a mandatory prison term the
maximum prison term prescribed for a felony of the first degree and may impose an
additional” one-to-ten-year mandatory prison term. To impose the additional
prison term over the mandatory ten-year prison term, the court was required to
make required finding under R.C. 2929.14(D)(2)(b)(i) and (ii). As amended by H.B.
86, R.C. 2925.03(C)(4)(g) now provides that if the state proves the defendant is a
MDO, the court must impose the mandatory maximum prison term prescribed for
first-degree felony.
 With the exception of State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), all

cases cited in the dissent involve challenges based on the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution, which states: “No person shall * * *

be subject for the same offense to be twice put in jeopardy of life or limb.”3 We do not

dispute the dissent’s analyses of these cases.4

       {¶11} Nevertheless, we disagree with the dissent’s suggestion that cumulative

punishments are constitutional simply because some courts have found that certain

statutes authorizing cumulative punishments do not violate double jeopardy. Criminal

defendants have successfully challenged enhanced penalties pursuant to other

constitutional protections such as the right to due process, the protection against ex post

facto laws, and equal protection. For example, in Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held that a

penalty enhancement provision violated the defendant’s right to a jury determination of

guilt for every element of the crime beyond a reasonable doubt. In U.S. v. Booker, 543

U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court struck a penalty enhancing

provision because it violated the defendant’s right to due process. In Peugh v. U.S., 569


       3 The Ohio Constitution mirrors the Fifth Amendment and states “No
person shall be twice put in jeopardy for the same offense.”
       4  We have no reason to dispute the dissent’s analyses of these cases, except
to state that perhaps modern courts have forgotten or ignored the original intent of
the Bill of Rights, which was established to protect individual liberties from
oppressive government regulation and control. See Charles William Hendricks,
100 Years of Double Jeopardy Erosion; Criminal Collateral Estoppel Made Extinct,
48 Drake L.Rev. 379 (2000).
U.S. 2__, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), the court recently held that increased

sentences in the United States Sentencing Guidelines Manual violated the ex post facto

clause contained in Article I, Section 9 of the United States Constitution.5

       {¶12} Furthermore, just as courts have found that some cumulative penalties

comport with double jeopardy, the United States Supreme Court has also held that some

penalty enhancing provisions offend that constitutional protection. In determing whether

a cumulative punishments violate double jeopardy, the United States Supreme Court set

fort a “same elements” test in Blockburger v. United States, 284 U.S. 299, 304, 76 L.Ed.

306, 52 S.Ct. 180 (1932). Under this test, known as the Blockburger test, the inquiry is

“whether each offense contains an element not contained in the other.” United States v.

Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). If an individual is

charged with violating two criminal statutes, each violation must contain an element that

is not contained in the other, or else both offenses are treated as the same offense. Id.

In these circumstances, double jeopardy prohibits any form of additional, cumulative
                      6
punishment.     Id.       Therefore, just because some courts have held that the


       5 In Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436
(1993), a defendant unsuccessfully challenged enhanced penalty provision for hate
crimes as violating First Amendment.
       6 See also Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134
L.Ed.2d 419 (1996) (holding that when two statutes define the “same offense,” the
Blockburger test presumes that the imposition of dual punishments for
simultaneous violation of both statutes violates double jeopardy; Brown v. Ohio, 432
U.S. 161, 168-169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (holding that each statute
must require proof of an additional fact that the other does not because the Double
Jeopardy Clause prohibits successive prosecutions as well as cumulative
punishments for a greater or lesser included offense).
penalty-enhancing provisions at issue in their cases did not violate double jeopardy does

not mean that all cumulative punishments are per se constitutional.

       {¶13} In this case, Klembus never asserted a Fifth Amendment double jeopardy

challenge to the repeat OVI offender specification. His challenge was based solely on

the Equal Protection Clause of the Fourteenth Amendment, which presents an entirely

different analysis from a double jeopardy challenge. The Equal Protection Clause of the

Fourteenth Amendment states that “[n]o state shall * * * deny to any person whithin its

jurisdiction the equal protection of the laws.”

       {¶14} In an equal protection claim, government actions that affect suspect

classifications or fundamental interests are subject to strict scrutiny by the courts. Eppley

v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 59, 2009-Ohio-1970, 908

N.E.2d 401, ¶ 14. In the absence of a suspect classification or fundamental interest, the

state action is subject to a rational basis test. Id. Under the rational basis test, a statute

must be upheld if it bears a rational relationship to a legitimate governmental interest.

Adamsky v. Buckeye Local School Dist., 73 Ohio St.3d 360, 362, 653 N.E.2d 212 (1995).

However, a statute is presumed constitutional and will be declared invalid only if the

challenging party demonstrates beyond a reasonable doubt that the statute violates a

constitutional provision. Desenco, Inc. v. Akron, 84 Ohio St.3d 535, 538, 706 N.E.2d

323 (1999).

       {¶15} “Equal protection of the law means the protection of equal laws.” Conley v.

Shearer, 64 Ohio St.3d 284, 289, 595 N.E.2d 862 (1992). There is no equal protection
issue if all offenders in a class are treated equally. Id. at 290. In Conley, the Ohio

Supreme Court explained:

       The prohibition against the denial of equal protection of the laws requires
       that the law shall have an equality of operation on persons according to
       their relation. So long as the laws are applicable to all persons under like
       circumstances and do not subject individuals to an arbitrary exercise of
       power and operate alike upon all persons similarly situated, it suffices the
       constitutional prohibition against the denial of equal protection of the laws.

(Emphasis added.) Id. at 288-289.

       {¶16} Klembus does not claim to belong to a “suspect class” or that the repeat OVI

offender specification infringes upon a fundamental right.       He argues the repeat OVI

offender specification violates equal protection because it gives the state unfettered

discretion to choose between two significantly different punishments when charging

similarly situated OVI offenders. He contends that by giving the state sole discretion to

include or omit the repeat OVI offender specification permits an arbitrary and unequal

operation of the OVI sentencing provisions.

       {¶17} Klembus was charged with violating R.C. 4511.19(G)(1), which provides in

pertinent part:

       (d) Except as otherwise provided in division (G)(1)(e) of this section, an
       offender who, within six years of the offense, previously has been convicted
       of or pleaded guilty to three or four violations of division (A) or (B) of this
       section or other equivalent offenses or an offender who, within twenty years
       of the offense, previously has been convicted of or pleaded guilty to five or
       more violations of that nature is guilty of a felony of the fourth degree. The
       court shall sentence the offender to all of the following:

       (i) If the sentence is being imposed for a violation of division (A)(1)(a), (b),
       (c), (d), (e), or (j) of this section, a mandatory prison term of one, two,
       three, four, or five years as required by and in accordance with division
      (G)(2) of section 2929.13 of the Revised Code if the offender also is
      convicted of or also pleads guilty to a specification of the type described in
      section 2941.1413 of the Revised Code or, in the discretion of the court,
      either a mandatory term of local incarceration of sixty consecutive days in
      accordance with division (G)(1) of section 2929.13 of the Revised Code or a
      mandatory prison term of sixty consecutive days in accordance with
      division (G)(2) of that section if the offender is not convicted of and does
      not plead guilty to a specification of that type. If the court imposes a
      mandatory term of local incarceration, it may impose a jail term in addition
      to the sixty-day mandatory term, the cumulative total of the mandatory term
      and the jail term for the offense shall not exceed one year, and, except as
      provided in division (A)(1) of section 2929.13 of the Revised Code, no
      prison term is authorized for the offense. If the court imposes a mandatory
      prison term, notwithstanding division (A)(4) of section 2929.14 of the
      Revised Code, it also may sentence the offender to a definite prison term
      that shall be not less than six months and not more than thirty months and
      the prison terms shall be imposed as described in division (G)(2) of section
      2929.13 of the Revised Code. If the court imposes a mandatory prison
      term or mandatory prison term and additional prison term, in addition to the
      term or terms so imposed, the court also may sentence the offender to a
      community control sanction for the offense, but the offender shall serve all
      of the prison terms so imposed prior to serving the community control
      sanction.

(Emphasis added.)    If the offender is convicted of or pleads guilty to the repeat OVI

specification, R.C. 4511.19(G)(1)(d) imposes a mandatory one, two, three, four, or

five-year prison term. If the offender is not convicted of the specification, the court has

discretion to impose either a mandatory 60-day term of local incarceration pursuant to

R.C. 2929.13(G)(1) or a mandatory 60-day prison term in accordance with R.C.

2929.13(G)(2). In addition, R.C. 4511.19(G)(1)(d) gives the trial court discretion to

impose up to 30 months in prison and community control sanctions if the offender has not

been convicted of or pleaded guilty to the repeat OVI offender specification. Thus, the

presence of the repeat OVI offender specification triggers the enhanced punishment.
       {¶18} R.C. 2941.1413, which provides the specification concerning an additional

prison term for repeat OVI offenders, states:

       (A) Imposition of a mandatory additional prison term of one, two, three,
       four, or five years upon an offender under division (G)(2) of section
       2929.13 of the Revised Code is precluded unless the indictment, count in
       the indictment, or information charging a felony violation of division (A) of
       section 4511.19 of the Revised Code specifies that the offender, within
       twenty years of the offense, previously has been convicted of or pleaded
       guilty to five or more equivalent offenses. The specification shall be stated
       at the end of the body of the indictment, count, or information and shall be
       stated in substantially the following form:

       “SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The
       Grand Jurors (or insert the person’s or the prosecuting attorney’s name
       when appropriate) further find and specify that (set forth that the offender,
       within twenty years of committing the offense, previously had been
       convicted of or pleaded guilty to five or more equivalent offenses).”

       (B) As used in division (A) of this section, “equivalent offense” has the
       same meaning as in section 4511.181 of the Revised Code.

       {¶19} Under R.C. 4511.19(G)(1)(d) and 2941.1413, a repeat OVI offender may be

subject to between one and five years of mandatory prison time instead of a mandatory 60

days of incarceration and a discretionary prison term up to 30 months without the state

calling any additional witnesses or adducing any additional testimony or evidence. The

increased penalty does not depend upon the jury finding any additional elements, facts, or

circumstances beyond a reasonable doubt. Rather, the additional punishment depends

solely on the prosecutor’s decision whether or not to present to the grand jury the repeat

OVI offender specification provided by R.C. 2941.1413.

       {¶20} In Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), the Ohio Supreme

Court held that prosecutorial discretion, in and of itself, does not violate equal protection.
 Id. at 55. However, the court in Wilson further held that if two statutes “prohibit

identical activity, require identical proof, and yet impose different penalties, then

sentencing a person under the statute with the higher penalty violates the Equal Protection

Clause.” Id. at 55-56. See also Cleveland v. Huff, 14 Ohio App.3d 207, 209, 470

N.E.2d 934 (8th Dist.1984) (holding that a Cleveland ordinance prohibiting soliciting and

another ordinance prohibiting prostitution prohibited identical activity and required

identical proof, while imposing different penalties violated equal protection).

       {¶21} The court in Wilson ultimately determined there was no equal protection

violation in that case because, although the defendant was charged under two different

burglary statutes, one of the statutes required proof of an additional element not required

in the other. Id. at 58. Here, the elements of the repeat OVI offender specification are

identical to those set forth in R.C. 4511.19(G)(1)(d) for the underlying fourth-degree

felony. The specification does not require proof of any additional element to increase the

penalty for the same conduct. Thus, the repeat OVI offender specification allows the

prosecutor to arbitrarily subject some individual defendants, such as Klembus, to

increased penalties that others are not subject to. In this way, a repeat OVI offender

charged with the specification may be treated differently from other members of his class,

who are not subject to the repeat OVI offender specification.

       {¶22} “The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others and to punish the offender.” R.C. 2929.11(A).

If the repeat OVI specification was imposed with uniformity on all similarly situated
offenders, it would be rationally related to the state’s interest in protecting the public and

punishing the offender.     Indeed, courts have held that the General Assembly may

prescribe cumulative punishments for the same offense, in certain circumstances, without

violating constitutional protections against double jeopardy. State v. Zampini, 11th Dist.

Lake No. 2007-L-109, 2008-Ohio-531, ¶ 11.

       {¶23} However, R.C. 2941.1413(A) provides no requirement that the specification

be applied with uniformity, and there is no logical rationale for the increased penalty

imposed on some repeat OVI offenders and not others without requiring proof of some

additional element to justify the enhancement, especially since the class is composed of

offenders with similar histories of OVI convictions. Under these circumstances, we

cannot say the repeat OVI offender specification is rationally related to a legitimate state

interest. We therefore find that the repeat OVI offender specification violates equal

protection.

       {¶24} We share the legislature’s desire to punish repeat OVI offenders and to

protect the public from the serious threat posed by habitual drunk drivers. And we

sympathize with the legislature’s intent to provide the public with a greater sense of

justice by distinguishing the first or second time offenders from the more serious habitual

offenders by enhancing the punishment of those who repeatedly commit OVI offenses.

Our decision merely holds that legislation enacted to achieve that purpose must comport

with equal protection.
       {¶25} Justice can be carried out with the same level of satisfaction for the victims

without the repeat OVI specification. Indeed, the trial court could have imposed the

same two-year sentence on Klembus without the repeat OVI specification because the

court had discretion to impose up to 30 months in prison on the underlying fourth-degree

felony. Furthermore, the legislature may increase the penalty for repeat OVI offenders in

the statute governing the underlying offense to achieve its objectives. In this way, all

repeat OVI offenders would be subject to the same law in an impartial and uniform

manner.

       {¶26} The sole assignment of error is sustained.

       {¶27} Judgment is reversed in part and remanded to the trial court with

instructions to vacate the repeat OVI offender specification from the indictment.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., CONCURS;
TIM McCORMACK, J., DISSENTS WITH SEPARATE OPINION

TIM McCORMACK, J., DISSENTING:
       {¶28} I respectfully dissent.      I would affirm the trial court’s decision in its

entirety as I find no constitutional violations in this case.

       {¶29} I begin with the clear, well-established premise that all statutes are afforded

a presumption of constitutionality. Burnett v. Motorists Mut. Ins. Co., 118 Ohio St.3d

493, 2008-Ohio-2751, 890 N.E.2d 307, ¶ 28.               Before a court declares a statute

unconstitutional, the court must be convinced “‘beyond a reasonable doubt that the

legislation and constitutional provisions are clearly incompatible.’” Arbino v. Johnson

& Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25, quoting State ex

rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of

the syllabus.

       {¶30} Here, Klembus was charged with one count of driving while under the

influence, in violation of R.C. 4511.19(A)(1)(a), which provides that “[n]o person shall

operate any vehicle * * * if at the time of the operation, * * * [t]he person is under the

influence of alcohol, a drug of abuse, or a combination of them.”       Klembus was also

charged with one count of driving while under the influence, in violation of R.C.

4511.19(A)(1)(h), which prohibits operating a motor vehicle with a “concentration of

seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten

liters of the person’s breath.”

       {¶31} Pursuant to R.C. 4511.19(G)(1)(d), he was charged with a fourth-degree

felony, on both counts, based upon the allegation that he had been previously convicted of

or pleaded guilty to five or more similar OVI offenses within the previous 20 years.
R.C. 4511.19(G)(1)(d) employs a 20-year look-back to previous convictions and enhances

an OVI charge to a felony of the fourth degree if “an offender who, within twenty years

of the offense, previously has been convicted of or pleaded guilty to five or more

violations of that nature * * *.”

       {¶32} The indictment also included a specification to R.C. 4511.19, on each count,

which provides an additional mandatory prison term of one, two, three, four, or five years

for repeat OVI offenders who have, within twenty years of the offense, previously been

convicted of or pleaded guilty to five or more equivalent offenses. R.C. 2941.1413(A).

       {¶33} Klembus argues that this specification to R.C. 4511.19 violates equal

protection because the specification permits the prosecution to obtain greater punishment

for the underlying offense without proof of any additional elements or facts. In support

of his argument, he cites to Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745, for the proposition

that if two different statutes prohibit identical activity and require identical proof, yet

impose different penalties, sentencing a person under the statute with the higher penalty

violates equal protection. I find Wilson is distinguishable from this case.

       {¶34} In Wilson, the defendant was charged with burglary, in violation of

R.C. 2911.12, and aggravated burglary, in violation of R.C. 2911.11(A)(3). He pleaded

guilty to both counts and requested that he be sentenced under the burglary statute

because the charges were duplicative, yet the penalties imposed were different.        The

defendant argued that the trial court was constitutionally required to sentence him in

accordance with the lesser of the two penalties.   The trial court rejected the defendant’s
request and sentenced him under the aggravated burglary statute, which the court of

appeals affirmed.

       {¶35} Upon further appeal, the Ohio Supreme Court determined that the issue was

whether both statutes required the state to prove identical elements while prescribing

different penalties.   Restating the test the appellate court applied, the Supreme Court

concluded that “if the defendant is charged with the elevated crime, the state has the

burden of proving an additional element beyond that required by the lesser offense.” Id.

at 55-56.    In affirming the court of appeals, the Supreme Court found no equal

protection violation in Wilson because the state was required to prove the elements of

burglary in addition to one of three aggravating circumstances in order to convict the

defendant of aggravated burglary. Id. at 57-58.

       {¶36} In Wilson, the court analyzed two different statutes and determined that if

two different statutes prohibited identical activity and required identical proof, yet

imposed different penalties, sentencing the defendant under the statute with the higher

penalty could violate equal protection.     Here, however, Klembus was charged under

R.C. 4511.19, which proscribed one activity.        The statute also contained a penalty

enhancement outlined in R.C. 2941.1413. The R.C. 2941.1413 penalty enhancement

does not prohibit an activity or require proof of an additional element of a crime.

Rather, it is a statutorily authorized specification that increases the severity of a penalty

imposed for certain repeat OVI offenders.
       {¶37} Courts have consistently concluded that an enhanced penalty specification,

standing alone, does not violate constitutional protections. In State v. Gonzales, the First

District Court of Appeals found no double jeopardy violation where the legislature

specifically authorized cumulative punishment. 151 Ohio App.3d 160, 2002-Ohio-4937,

783 N.E.2d 903 (1st Dist.). Gonzales involved the application of a major drug offense

(“MDO”) specification to the indictment.         The MDO specification provided that

whomever violates the drug trafficking provisions, where the amount of an identified

drug exceeds a certain amount, that individual is a major drug offender and the court must

impose the maximum ten-year prison sentence.          The defendant argued that Ohio’s

statutory drug scheme violated double jeopardy because the statutes prohibiting drug

possession and drug trafficking required proof of identical elements contained in the

MDO specification.

       {¶38} In finding no double jeopardy violation, the court determined that the

sentencing provisions clearly reflected the legislature’s intent to create a penalty for an

individual who sells or possesses a certain amount of drugs over and above the penalty

imposed for the drug trafficking or possession itself. Gonzales at ¶ 42.         The court

therefore concluded that “where ‘the legislature specifically authorizes cumulative

punishment under two statutes, regardless of whether those statutes proscribe the “same”

conduct * * *, a court’s task of statutory construction is at an end and the prosecution may

seek and the trial court may impose cumulative punishment under the statutes in a single

trial.’” Id. at ¶ 40, quoting Missouri v. Hunter, 459 U.S. 359, 369, 103 S.Ct. 673, 74
L.Ed.2d 535 (1983). A reviewing court is therefore “‘limited to ensuring that the trial

court did not exceed the sentencing authority which the General Assembly has permitted

the judiciary.’” Id., quoting State v. Moss, 69 Ohio St.2d 515, 518, 433 N.E.2d 181

(1982).

      {¶39} More specifically, Ohio courts have repeatedly upheld the R.C. 2941.1413

enhanced penalty specification contained within R.C. 4511.19, relying on legislative

intent as authorization of such cumulative punishment. The Ninth District Court of

Appeals, concluding that R.C. 2941.1413 was not a double jeopardy violation and did not

violate a defendant’s due process rights, determined that the sentencing provisions

“clearly reflect the legislature’s intent to create a penalty for a person who has been

convicted of or pleaded guilty to five or more equivalent offenses within twenty years of

the [OVI] offense over and above the penalty imposed for the [OVI] conviction itself.”

State v. Midcap, 9th Dist. Summit No. C.A. 22908, 2006-Ohio-2854, ¶ 12; see also State

v. Grosse, 9th Dist. Summit No. 2009-Ohio-5942 (because the plain language of R.C.

2929.13(G)(2) and 4511.19(G)(1)(d)(ii) specifically allows a court to sentence a

defendant on both the specification and the underlying offense, those sections are not

unconstitutionally vague).

      {¶40} The Eleventh District Court of Appeals determined that a “careful reading”

of the R.C. 2941.1413 specification demonstrates that the mandatory prison term must be

imposed in addition to the sentence for the underlying offense:

      The language and interplay of R.C. 4511.19(G)(1)(d)(ii) and R.C.
      2941.1413 demonstrate that the legislature specifically authorized a separate
       penalty for a person who has been convicted of or pleaded guilty to five or
       more OVI offenses within twenty years which shall be imposed in addition
       to the penalty for the underlying OVI conviction. See State v. Midcap, 9th
       Dist. No. 22908, 2006-Ohio-2854. Therefore, R.C. 4511.19(G)(1)(d)(ii) and
       R.C. 2941.1413 “clearly reflect the legislature’s intent to create a penalty
       for a person who has been convicted of or pleaded guilty to five or more
       equivalent offenses within twenty years of the OMVI offense over and
       above the penalty imposed for the OMVI conviction itself * * *.”

State v. Stillwell, 11th Dist. Lake No. 2006-L-010, 2007-Ohio-3190, ¶ 26; see also State

v. Zampini, 11th Dist. Lake No. 2007-L-109, 2008-Ohio-531 (finding the Double

Jeopardy Clause does no more than prevent a sentencing court from prescribing greater

punishment than the legislature intended); State v. McAdams, 11th Dist. Lake No.

2010-L-012, 2011-Ohio-157 (finding that the R.C. 2941.1413 specification could not

exist without the underlying offense and merely attaches to that offense). I find the

above analyses instructive.

       {¶41} In the not too distant past, drinking and driving was tolerated to a much

greater extent than it is today. It took a terrible toll of loss of life and a powerful grass

roots movement to push through legislative change that dealt with serial drinking and

driving with a much stricter statutory approach.

       {¶42} It is entirely understandable and proper that any provision in the criminal

code that mandates a cumulative and extensive prison sentence would be carefully

reviewed for procedural and constitutional flaws.    That is our role in this appeal.

       {¶43} Through more recent years, the Ohio General Assembly adopted a much

stricter scheme to be applied to those who have demonstrated that after five prior OVI

convictions, that person is either so diseased, or so unwilling to abide by Ohio law, that
their criminal actions must be addressed definitively.    The application of the mandatory

prison sentence certainly reflects the waste of human potential:      incarceration replaces

positive productivity.   The legislation, however, was imposed by the Ohio General

Assembly with a purpose.       The statute embraces the concept that if there is to be

suffering, it will be the multiple OVI offender who is punished and not the next innocent

victim.

       {¶44} For the mindless individual who aimlessly fires a weapon in a populated

area and strikes a victim, for the sober driver who recklessly speeds and takes the life of

an innocent victim, for the individual who puts at risk an infant or child through

endangerment, the General Assembly has identified enhanced punishments for these

egregious, inherently dangerous behaviors. This undertaking is their province.

       {¶45} The sentencing provisions outlined in R.C. 4511.19 and 2941.1413 clearly

reflect the legislature’s intent to create a penalty for an individual who has been convicted

of or pleaded guilty to five or more OVI offenses within twenty years over and above the

penalty imposed for the underlying OVI conviction itself.          Recognizing the sound

judgment of the General Assembly, and in deference to its justifiable intent in authorizing

this type of punishment, I would not find the penalty enhancement set forth in R.C.

2941.1413 to be unconstitutional.
