[Cite as State v. Burkitt, 2015-Ohio-5292.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 2014-CA-154
                                                    :
 v.                                                 :   Trial Court Case No. 14-CR-441
                                                    :
 JAMES BURKITT                                      :   (Criminal Appeal from
                                                    :    Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........
                                              OPINION
                          Rendered on the 18th day of December, 2015.
                                               ...........

AMY M. SMITH, Atty. Reg. No. 0081712, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, Christopher B. Epley, Co., LPA, 100
East Third Street, Suite 400, Dayton, Ohio 45402
      Attorneys for Defendant-Appellant

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

HALL, J.

        {¶ 1} James Burkitt appeals from his conviction and sentence following a guilty

plea to third-degree felony OVI with a specification that he had five or more prior violations
                                                                                         -2-


within 20 years.

       {¶ 2} In his sole assignment of error, Burkitt alleges ineffective assistance of

counsel based on his attorney’s failure to argue below that the repeat-offender

specification is unconstitutional on its face.

       {¶ 3} The record reflects that Burkitt was indicted on two OVI-related counts in

violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2). Both counts included the

repeat-offender specification under R.C. 2941.1413. Burkitt subsequently entered a

negotiated guilty plea to count one, which charged a third-degree felony violation of R.C.

4511.19(A)(1)(a), and the accompanying specification. At sentencing, the trial court

imposed consecutive prison terms of three years for the OVI conviction and four years for

the specification.

       {¶ 4} On appeal, Burkitt acknowledges that a guilty plea waives the right to allege

ineffective assistance of counsel, except to the extent counsel’s performance caused the

plea to be less than knowing, intelligent, and voluntary. State v. Webb, 2d Dist.

Montgomery No. 26198, 2015-Ohio-553, ¶ 15. We perceive Burkitt’s argument to be that

his guilty plea was not made knowingly, intelligently, and voluntarily because his attorney

failed to advise him or the trial court of the unconstitutionality of the repeat-offender

specification. Even if we assume, arguendo, that this issue was not extinguished by

Burkitt’s guilty plea,1 we find no basis for reversal.


1 See, e.g., State v. Johnson, 2d Dist. Greene No. 2013-CA-1, 2013-Ohio-4077, ¶ 5
(“Johnson’s argument here is that his guilty plea was not made knowingly, intelligently,
and voluntarily because his attorney rendered ineffective assistance by not advising him
of a constitutional speedy-trial violation.”); State v. Wilson, 58 Ohio St.2d 52, 55, 388
N.E.2d 745 (1979) (distinguishing “constitutional violations which go to factual guilt from
constitutional violations which pertain to the validity of the statute relied upon by the
state to convict the defendant” and concluding that “those constitutional violations which
                                                                                             -3-


         {¶ 5} To prevail on an ineffective-assistance claim, a defendant must show that his

attorney’s performance was deficient and that the deficient performance prejudiced him.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Prejudice exists where “there is a reasonable probability that, but for counsel’s deficient

performance, the outcome would have been different.” Id. at 694. In the present case,

Burkitt cannot establish deficient performance because his constitutional argument lacks

merit.

         {¶ 6} Burkitt raises an equal-protection challenge to the constitutionality of R.C.

2941.1413, the repeat OVI offender specification. His argument relies exclusively on the

Eighth District’s 2-1 decision in State v. Klembus, 8th Dist. Cuyahoga No. 100068, 2014-

Ohio-1830, reconsideration granted, 2014-Ohio-3227, 17 N.E.3d 603 (8th Dist.), appeal

allowed, 141 Ohio St.3d 1473, 2015-Ohio-554, 25 N.E.3d 1080.

         {¶ 7} In Klembus, the defendant was convicted of OVI in violation of 4511.19(A)(1).

The OVI charge was a fourth-degree felony because the indictment alleged, pursuant to

R.C. 4511.19(G)(1)(d), that the defendant had five or more similar convictions within 20

years. In addition to that substantive charge, the defendant was convicted separately of

the repeat-offender specification at issue here. Under R.C. 2941.1413(A), the

specification required proof of five or more similar OVI convictions within 20 years.

         {¶ 8} On review, the Eighth District noted that the substantive fourth-degree felony

OVI charge (based on five or more prior convictions) and the repeat-offender specification

(based on five or more prior convictions) could be proven with the same facts, evidence



go to the ability of the state to prosecute, regardless of factual guilt, may be raised on
appeal from a guilty plea”).
                                                                                            -4-


and circumstances. In other words, “the elements of the repeat OVI offender specification

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

felony.”2 Klembus, 2014-Ohio-3227, ¶ 21. That being so, the Eighth District reasoned that

a prosecutor “arbitrarily” could choose to subject some repeat OVI offenders to the

specification while choosing not to subject other similarly-situated OVI offenders to the

specification. Id. Noting that nothing in the repeat-offender specification required it to be

applied uniformly, the Eighth District continued:

               * * * [T]here 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.

Id. at ¶ 23.

       {¶ 9} In a separate dissent, Judge Tim McCormack disagreed. He noted that the

legislature plainly intended to allow cumulative punishment for the substantive offense

and the specification. He also distinguished State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d

745 (1979), upon which the Klembus majority relied. In Wilson, the Ohio Supreme Court



2 Although this language reads like the preface to an allied-offense argument, it is not.
The Klembus majority recognized that it was not dealing with an allied-offense issue
because the legislature apparently had authorized cumulative punishment for the
substantive OVI violation and the specification. Klembus, 2014-Ohio-3227, at ¶ 10-13.
Rather, the Klembus majority addressed the issue as one involving equal-protection
principles. Id. at ¶ 13, et seq.
                                                                                           -5-


opined 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.” Wilson at 56. In finding Wilson not

applicable, Judge McCormack reasoned in part:

             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.

                                           ***

             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.
                                                                                         -6-

Klembus, 2014-Ohio-3227, ¶ 36, 45 (McCormack, J., dissenting).



       {¶ 10} After the holding in Klembus, which is currently on appeal in the Ohio

Supreme Court, the Third, Eleventh, and Twelfth Districts have disagreed with it and

followed Judge McCormack’s dissent. See, e.g., State v. Burkhart, 2015-Ohio-3409,

37 N.E.3d 220 (12th Dist.); State v. Reddick, 11th Dist. Lake No. 2014-L-082, 2015-Ohio-

1215; State v. Sprague, 3rd Dist. Auglaize No. 2-15-03, 2015-Ohio-3526, ¶ 27-28.

       {¶ 11} Here we note that, unlike the defendant in Klembus, appellant Burkitt was

not charged with fourth-degree felony OVI (based on five or more prior OVI convictions)

and the repeat-offender specification (based on five or more prior OVI convictions).

Rather, he was charged with third-degree felony OVI (based on previously having been

convicted of felony OVI) and the repeat-offender specification (based on five or more prior

OVI convictions). Even if we assume, however, that Burkitt’s situation is analogous to

Klembus,3 we find no equal-protection violation.

       {¶ 12} In Wilson, upon which the Klembus majority relied, the defendant raised an

equal-protection challenge under the United States Constitution. Wilson at 53. He argued

that the trial court had erred in convicting and sentencing him under the aggravated

burglary statute because it prohibited exactly the same activity as the burglary statute but

carried a heavier penalty. Id. at 55-56. The Ohio Supreme Court identified the issue as

“whether both statutes require the state to prove identical elements while prescribing



3  Because Burkitt’s third-degree felony offense was based on having a prior felony OVI,
it appears that he necessarily also had five or more prior OVI offenses within the past
20 years. See R.C. 4511.19(G)(1)(d) and (e). Therefore, as in Klembus, proof of the
substantive offense would prove the specification as well.
                                                                                            -7-

different penalties.” Id. at 55. The Ohio Supreme Court ultimately found no equal-

protection violation because the aggravated burglary statue required proof of an

additional element. Id. at 57-58. In the course of its ruling, however, the Ohio Supreme

Court opined that if statutes do “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 56.

       {¶ 13} Less than two months after the Ohio Supreme Court decided Wilson, the

United States Supreme Court reached a contrary conclusion in United States v.

Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). As in Wilson, the

defendant in Batchelder raised an equal-protection argument under the United States

Constitution. Batchelder involved two statutes that prohibited convicted felons from

receiving firearms. The defendant was charged and convicted under the statute that

carried the greatest penalty. As in Wilson, he argued that sentencing him under the statute

that carried the greatest penalty constituted an equal-protection violation because the two

statutes had identical substantive elements. In a unanimous decision, the United States

Supreme Court disagreed. It recognized that “when an act violates more than one criminal

statute, the Government may prosecute under either so long as it does not discriminate

against any class of defendants.” Batchelder at 123-124. “Whether to prosecute and what

charge to file or bring before a grand jury are decisions that generally rest in the

prosecutor’s discretion.” Id. at 124. The mere exercise of that discretion, even when two

statutes prohibit the same conduct and have different penalties, does not violate equal

protection. Id. at 124-126. In reaching this conclusion, the United States Supreme Court

reasoned:
                                                                                          -8-


              * * * [T]there is no appreciable difference between the discretion a

       prosecutor exercises when deciding whether to charge under one of two

       statutes with different elements and the discretion he exercises when

       choosing one of two statutes with identical elements. In the former situation,

       once he determines that the proof will support conviction under either

       statute, his decision is indistinguishable from the one he faces in the latter

       context. The prosecutor may be influenced by the penalties available upon

       conviction, but this fact, standing alone, does not give rise to a violation of

       the Equal Protection or Due Process Clause. * * * Just as a defendant has

       no constitutional right to elect which of two applicable federal statutes shall

       be the basis of his indictment and prosecution neither is he entitled to

       choose the penalty scheme under which he will be sentenced. * * *

Id. at 125; see also State v. Dixon, 2d Dist. Montgomery No. 18582, 2002 WL 191582,

*3-4 (Feb. 8, 2002) (rejecting an equal-protection argument under Wilson in light of the

United States Supreme Court’s subsequent decision in Batchelder).

       {¶ 14} Upon review, we find Batchelder to be dispositive of the argument Burkitt

raises on appeal. As noted above, he asserts that the substantive OVI charge and the

specification required identical proof to sustain a conviction. That being so, he claims the

prosecutor “arbitrarily,” and in violation of equal-protection principles, was able to obtain

a greater penalty for the same conduct by including the specification in the indictment.

We find this argument unpersuasive based on Batchelder and the decisions of the Third,

Eleventh, and Twelfth appellate districts discussed above rejecting the majority opinion

in Klembus, which we find unpersuasive.
                                                                                        -9-


      {¶ 15} The assignment of error is overruled, and the judgment of the Clark County

Common Pleas Court is affirmed.

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



FAIN, J., concurs.

FROELICH, P.J., concurring:
      {¶ 16} I agree with the majority’s conclusion that a conviction for F-3 OVI and the

specification does not violate equal protection.    On their face, the F-3 OVI and the

specification have the same elements, and logically, there cannot be a conviction of one

without the other. The unequal protection finding of the Klembus case is attractive, but

does not account for the legislature’s apparent Orwellian determination that not all F-3

OVI’s are equal – some are more equal than others. The five offenses in twenty years

could have been bunched together or spread out, there could have been charges or

convictions of prior alcohol-related offenses, the offender could have rejected attempts at

rehabilitation, or a myriad of other factors which are within the State’s discretion to

consider.

      {¶ 17} I write separately to emphasize that, in determining the appropriate

sentence for both the underlying OVI and the repeat offender specification, the trial court

must consider the statutory factors of felony sentencing set forth in R.C. 2929.11 and

R.C. 2929.12.

      {¶ 18} The Ohio Supreme Court recently addressed the sentencing requirements

for an individual convicted of a third-degree felony OVI and a repeat offender

specification. State v. South, Slip Opinion No. 2015-Ohio-3930. It held that a trial court
                                                                                      -10-


must impose on the repeat offender specification a mandatory prison term of one to five

years, which must be served prior to and consecutive with any discretionary term of 9 to

36 months imposed on the underlying OVI conviction.          Id. at ¶ 19.    With these

sentencing requirements, an offender could be placed on community control for the F-3

OVI and simultaneously, for the same act (5 OVIs within 20 years), be sentenced up to

five years of mandatory imprisonment prior to the community control sanctions.

       {¶ 19} Although the R.C. 2941.1413 specification requires a mandatory sentence,

R.C. 2929.13(G)(2), the court has the discretion to impose a range of one to five years.

Therefore, both the sentence for the underlying OVI – which is not mandatory

imprisonment – and the range of the mandatory imprisonment specification require

consideration by the sentencing court of the statutory factors. In this regard, it is no

different than a trial court’s imposition of any mandatory sentence, such as for a felony

drug offense; the court still maintains the discretion as to the length of that sentence,

guided by the R.C. 2929.12 factors.

       {¶ 20} In South, Klembus, and in this case, the court sentenced the offender to

non-minimum terms in prison under both the F-3 OVI and the specification. Therefore,

this analysis is left for another day.

                                         ..........



Copies mailed to:


Amy M. Smith
Christopher B. Epley
Hon. Douglas M. Rastatter
