[Cite as State v. Rizzi, 2010-Ohio-2519.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                 CASE NO. 2-10-04

        v.

FRANK RIZZI,                                                OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                            Trial Court No. 2009-CR-89

                                       Judgment Affirmed

                               Date of Decision:   June 7, 2010




APPEARANCES:

        Rob C. Wiesenmayer, II for Appellant

        R. Andrew Augsburger for Appellee
Case No. 2-10-04


SHAW, J.

       {¶1} Defendant-appellant Frank Rizzi (“Rizzi”) appeals the December 22,

2009 Judgment Entry of the Auglaize County Court of Common Pleas denying his

Motion for Reconsideration of Sentence.

       {¶2} On August 8, 2009, at approximately 11:40 p.m., Rizzi’s vehicle was

stopped by a State Highway Patrol Trooper. The Trooper was responding to a call

about a full-sized van matching the description of Rizzi’s vehicle which was

precariously traveling on Interstate 75 and unable to maintain its lane of travel.

       {¶3} After conversing with Rizzi, the Trooper noticed a strong odor of

alcohol coming from inside the van. Rizzi admitted to the Trooper that he had

consumed alcohol earlier that evening. The Trooper subsequently administered a

number of field sobriety tests and determined that Rizzi was intoxicated. Further

investigation by the Trooper revealed that Rizzi’s operator’s license was currently

under suspension for both failing to show proof of insurance and failing to comply

with the requirements to properly reinstate his operator’s license after a prior

suspension.   Additionally, Rizzi had an outstanding misdemeanor warrant for

another traffic offense issued in the State of Florida.

       {¶4} The Trooper placed Rizzi under arrest and transported him to the

Auglaize County Correctional Center. At the facility, Rizzi refused to submit to a

breath test, refused to sign the Form 2255 and was subsequently incarcerated.



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       {¶5} The Grand Jury indicted Rizzi on three counts: Count One, a charge

of OVI, in violation of R.C. 4511.19(A)(1)(a)(G)(1)(e), a felony of the third

degree without specification; Count Two, a charge of OVI, in violation of R.C.

4511.19.(A)(1)(a)(G)(1)(d), a felony of the fourth degree without specification;

and Count Three, Driving Under Suspension, in violation of R.C. 4510.21(A), a

misdemeanor of the first degree. On August 25, 2009, Rizzi entered an initial

written plea of not guilty on all three counts. However, on October 19, 2009,

Rizzi changed his plea, entering a plea of guilty on Count One, in exchange for the

prosecution dismissing Counts Two and Three pursuant to a plea agreement.

       {¶6} Prior to conducting a sentencing hearing, the trial court ordered a

pre-sentence investigation. The pre-sentence report revealed that Rizzi had an

extensive criminal record, spanning almost twenty years, which was relevant to

the consideration of Rizzi’s sentencing for the current offense. Specifically, Rizzi

had been convicted of several DUI/OVI offenses in Florida and Ohio—the last one

prior to this offense being a fourth degree felony OVI which he incurred in Logan

County, Ohio. The pre-sentence report also revealed Rizzi had several additional

offenses involving driving a motor vehicle while under a suspended license. In

Florida, Rizzi’s multiple charges for driving while under a suspended license

resulted in him being deemed a habitual offender. This led to the State of Florida

permanently revoking his operator’s license in 2002.



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       {¶7} On December 9, 2009, Rizzi appeared for sentencing.               At the

conclusion of the sentencing hearing, the trial court sentenced Rizzi to five years

in prison, a term within the statutory range of sentencing for a third degree felony.

See R.C. 2929.14(A)(3) and R.C. 4511.19(A)(1)(a)(G)(1)(e).           The court also

advised Rizzi that he would be subject to a mandatory term of three years of post-

release control.   In addition, the court assessed Rizzi a mandatory fine of

$1,350.00, plus court costs and suspended his operator’s license for fifty years.

       {¶8} On December 21, 2009, Rizzi filed a Motion for Reconsideration of

Sentence. In support of his motion for reconsideration, Rizzi claimed that a five-

year sentence denied him equal protection because under R.C. 2929.20(C)(3) he is

not afforded an opportunity for early release through the filing of a judicial release

motion.   On December 22, 2009, the trial court denied Rizzi’s Motion for

Reconsideration of Sentence and this appeal followed.

       {¶9} Rizzi asserts the following assignment of error on appeal.

       THE SENTENCE OF THE DEFENDANT DENIES HIM DUE
       PROCESS OF LAW AND EQUAL PROTECTION UNDER
       THE LAW AS SET FORTH IN THE FIFTH AND
       FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION AND ARTICLE I, SECTIONS TWO AND
       SIXTEEN OF THE OHIO CONSTITUTION.

       {¶10} In his sole assignment of error, Rizzi maintains that the trial court’s

imposition of a prison sentence of exactly five years violates his constitutional

rights to equal protection and due process under the law. Specifically, Rizzi


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argues that the current version of R.C. 2929.20(C)(3), which governs an offender’s

eligibility for judicial release, effectively precludes any offender sentenced to a

five-year prison term from having an opportunity to file for judicial release.

       {¶11} Section 2929.20(C) of the Revised Code is the statutory provision

setting forth an offender’s period of eligibility to file a motion for judicial release:

       An eligible offender may file a motion for judicial release with
       the sentencing court within the following applicable periods:

       (1) If the stated prison term is less than two years, the eligible
       offender may file the motion not earlier than thirty days after
       the offender is delivered to a state correctional institution or, if
       the prison term includes a mandatory prison term or terms, not
       earlier than thirty days after the expiration of all mandatory
       prison terms.

       (2) If the stated prison term is at least two years but less than
       five years, the eligible offender may file the motion not earlier
       than one hundred eighty days after the offender is delivered to a
       state correctional institution or, if the prison term includes a
       mandatory prison term or terms, not earlier than one hundred
       eighty days after the expiration of all mandatory prison terms.

       (3) If the stated prison term is five years or more but not more
       than ten years, the eligible offender may file the motion not
       earlier than five years after the eligible offender is delivered to a
       state correctional institution or, if the prison term includes a
       mandatory prison term or terms, not earlier than five years after
       the expiration of all mandatory prison terms.

       {¶12} Rizzi maintains that R.C. 2929.20(C)(3) violates the Equal

Protection Clause of the Ohio and United States constitution because members of

the same class of offenders are not treated equally.           Rizzi asserts that R.C.

2929.20(C)(3) creates a specific class comprised of eligible offenders sentenced to

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Case No. 2-10-04


a prison term of five years or more, but fewer than ten years, who may apply for

judicial release after serving five years. Offenders who have been sentenced to

exactly five years are included within this class. According to the statute, all

members of this class may apply for judicial release after serving five years of

their prison terms.

        {¶13} However, Rizzi argues that R.C. 2929.20(C)(3) runs afoul of the

equal protection clause because unlike other members of the “class,” offenders

sentenced to exactly five years are effectively precluded from any opportunity for

early release because their prison terms expire the same day that they are first

permitted to apply for judicial release.

        {¶14} In sum, Rizzi argues that R.C. 2929.20(C)(3) permits offenders

within that class, who have been sentenced to longer prison terms, to apply for

judicial release prior to the expiration of those prison terms. However, those

offenders who have been sentenced to exactly five years do not have an

opportunity to apply for judicial release prior to the expiration of their prison

terms. Thus, Rizzi asserts that under the current version of R.C. 2929.20(C)(3), he

and offenders similarly situated must serve their entire term, effectively rendering

their sentence a mandatory five-year prison term.1

        {¶15} The Supreme Court of Ohio has previously addressed this issue in



1
  In his brief, Rizzi maintains that the same analysis that applies to Equal Protection also applies to his
argument that R.C. 2929.20(C)(3) denies him due process of law.

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State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812 N.E.2d 963. Peoples,

the offender, was sentenced to a prison term of exactly five years. Id. at 461. The

statute governing Peoples’ eligibility for judicial release was identical to the

current version of R.C. 2929.20(C)(3), excerpted above.2 Id. After serving more

than 180 days of his five-year sentence, Peoples filed a motion for judicial release

which was granted by the trial court. Id. The state subsequently filed an appeal

and the trial court’s decision to grant Peoples’ motion for judicial release was

upheld by both the Appellate Court and the Supreme Court of Ohio. Id. at 461,

463. The Supreme Court of Ohio ultimately held that the version of R.C. 2929.20

in effect at the time Peoples was sentenced violated his right to equal protection

and was therefore unconstitutional. Id.

        {¶16} Rizzi now requests this Court to declare his sentence voidable based

on the reasoning in Peoples and to modify his sentence to permit him to apply for

judicial release after he has served 180 days of his sentence.

        {¶17} Before addressing whether the holding in Peoples is controlling in

this case, we must highlight a procedural distinction between Peoples and the case

sub judice which proves dispositive. Unlike in Peoples, Rizzi did not file a motion

for judicial release which was subsequently ruled upon by the trial court. Here,

Rizzi simply filed a motion for reconsideration of his sentence. In denying Rizzi’s



2
 The former R.C. 2929.20 (B)(3) was the statute at issue in Peoples and was substantively identical to the
current R.C. 2929.20(C)(3)

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Case No. 2-10-04


motion for reconsideration, the trial court never made a determination of Rizzi’s

eligibility for judicial release pursuant to R.C. 2929.20(C)(3).

       {¶18} It is well established that “[t]he constitutionality of a state statute

may not be brought into question by one who is not within the class against whom

the operation of the statute is alleged to have been unconstitutionally applied and

who has not been injured by its alleged unconstitutional provision.” Palazzi v.

Estate of Gardner (1987), 32 Ohio St.3d 169, 512 N.E.2d 971, syllabus.

(Emphasis Added).

       {¶19} Therefore, before Rizzi can challenge the constitutionality of R.C.

2929.20(C)(3), he must demonstrate that he has proper standing to do so. To have

sufficient standing, the litigant must show he has suffered or is threatened with a

direct and concrete injury that is different from the injury suffered by the general

public, that the law in question has caused the injury, and that the relief requested

will redress the injury. See State ex rel. Ohio Acad. of Trial Lawyers v. Sheward,

86 Ohio St.3d 451, 469-70, 1999-Ohio-123, 715 N.E.2d 1062. When attempting

to demonstrate injury, it is not enough to show a hypothetical or potential injury.

State ex rel. Consumers League of Ohio v. Ratchford (1982), 8 Ohio App.3d 420,

424, 457 N.E.2d 878, 883. “Concrete injury in fact” must be established to have

standing to mount a constitutional challenge. Id. State v. Spikes (1998), 129 Ohio

App.3d 142, 145-146.



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       {¶20} In the instant case, Rizzi had not received a concrete injury because

the trial court never made a determination on Rizzi’s eligibility for judicial release,

or lack thereof, pursuant to R.C. 2929.20(C)(3) when it denied his motion for

reconsideration of his sentence. Therefore, until Rizzi files a motion for judicial

release and the trial court denies it pursuant to R.C. 2929.20(C)(3), Rizzi has not

suffered a concrete injury and lacks standing to challenge the constitutionality of

the statute. See State v. Brinkley, 5th Dist. No. 1999CA00412 (holding that the

issue of eligibility for judicial release is not ripe for appeal until appellant applies

for judicial release); see also State v. Strausbaugh (1997), 87 Ohio Misc.2d 31,

688 N.E.2d 1149 (noting that the offender sentenced to exactly five years

successfully challenged the state statute governing her eligibility for judicial

release only after she applied for judicial release). (Emphasis Added).

       {¶21} Accordingly, we conclude that the issue of whether R.C.

2929.20(C)(3) in its current form violates Rizzi’s right to Equal Protection and

Due Process of Law is premature and not ripe for our review until Rizzi applies

for judicial release and the trial court rules on his eligibility for judicial release

under R.C. 2929.20(C)(3).

       {¶22} Furthermore, we note that Rizzi also requests this Court to modify

his sentence in order to permit him to apply for judicial release after he has served




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180 days.3 On appeal, Rizzi does not contend that his sentence of five years is

improper under the circumstances of this case. The only error raised by Rizzi is

with regard to the application of the judicial release eligibility provisions to his

five-year sentence. However, Rizzi provides us with no authority which would

permit this Court to modify his sentence in the manner he requests. Moreover, the

issue of the application of the statute governing an offender’s eligibility for

judicial release is not a sufficient basis for modifying the trial court’s sentence,

which appears to be otherwise supported by the record and properly imposed by

law. See R.C. 2953.08(G)(2). Therefore, we find no error in the trial court’s

sentence of five-years and thus, decline Rizzi’s request to modify his sentence to

permit him to file for judicial release after he has served 180 days.

         {¶23} Based on the foregoing, Rizzi’s assignment of error is overruled and

the judgment denying Rizzi’s motion for reconsideration of his sentence is

affirmed.

                                                                                  Judgment Affirmed

WILLAMOWSKI, P.J., and PRESTON, J., concur.

/jlr



3
  Rizzi requests that his sentence be modified to a four year prison term so that he may be permitted to file
for judicial release after he has served 180 days as specified in the current version of R.C. 2929.20(C)(2).
Alternatively, Rizzi asks that if this Court affirms the five-year sentence, we remand his case to the trial
court with instructions that Rizzi is eligible for judicial release after he has served 180 days—thereby
judicially inserting into the statute a new time period which does not currently exist, within which an
application for judicial release may be filed where there is a five-year sentence.


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