[Cite as State v. Hunter, 2016-Ohio-444.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. Nos.      15CA010730
                                                                     15CA010731
        Appellant

        v.
                                                      APPEAL FROM JUDGMENT
KOREY HUNTER                                          ENTERED IN THE
                                                      COURT OF COMMON PLEAS
        Appellee                                      COUNTY OF LORAIN, OHIO
                                                      CASE Nos. 13CR088328
                                                                 14CR089085

                                 DECISION AND JOURNAL ENTRY

Dated: February 8, 2016



        MOORE, Judge.

        {¶1}     Plaintiff, the State of Ohio, appeals from two judgments of the Lorain County

Court of Common Pleas. We reverse and remand these matters for further proceedings.

                                                 I.

        {¶2}     This is a consolidated appeal from two unrelated cases that present the same issue

of law. In the first case, the Lorain County Grand Jury indicted Korey Hunter on one count of

operating a vehicle under the influence of alcohol and/or a drug of abuse (“OVI”), in violation of

R.C. 4511.19(A)(1)(a), and one count of OVI in violation of R.C. 4511.19(A)(2), with repeat

offender specifications pursuant to R.C. 2941.1413, attendant to both counts. In the second case,

the Grand Jury indicted Vonda Hunter (no relation to Korey Hunter referenced above) on one

count of OVI in violation of R.C. 4511.19(A)(1)(a), one count of OVI in violation of R.C.

4511.19(A)(2), with repeat offender specifications pursuant to R.C. 2941.1413 attendant to both
                                                  2


OVI counts, and one count of driving under suspension in violation of R.C. 4510.11(A). In both

cases, the Hunters filed motions to dismiss the repeat offender specifications on the basis that the

specifications were unconstitutional as violating their equal protection rights. Thereafter, the

trial court granted the motions to dismiss the specifications, holding that the specifications

violated the Hunters’ equal protection rights.

        {¶3}    The State appealed from the dismissals of the specifications, and it now raises

three identical assignments of error in each case. We have consolidated the assignments of error

to facilitate our discussion.

                                                 II.

                                  ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED IN DISMISSING THE REPEAT OVI
        SPECIFICATIONS BECAUSE R.C. 2941.1413 DOES NOT VIOLATE THE
        EQUAL PROTECTION CLAUSE OF THE UNITED STATES
        CONSTITUTION OR THE OHIO CONSTITUTION.

                                 ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED IN DISMISSING THE REPEAT OVI
        SPECIFICATION BECAUSE R.C. 2941.1413 DOES NOT VIOLATE THE
        EQUAL PROTECTION CLAUSE OF THE UNITED STATES OR OHIO
        CONSTITUTIONS AS HUNTER FAILED TO PROVE DISPARATE
        ENFORCEMENT.

                                 ASSIGNMENT OF ERROR III

        THE TRIAL COURT ERRED IN FINDING THAT HUNTER’S EQUAL
        PROTECTION RIGHTS WERE VIOLATED BY R.C. 2941.1413 BECAUSE
        THE SAME INFORMATION OR PROOF IS REQUIRED TO CONVICT
        HUNTER OF THE SPECIFICATION AND THE UNDERLYING OVI
        OFFENSE.

        {¶4}    In its three assignments of error in each of the appeals, the State maintains that the

trial court erred in dismissing the repeat offender OVI specifications.
                                                 3


       {¶5}     In State v. Arnold, 9th Dist. Lorain No. 14CA010628, 2015-Ohio-2188, this

Court addressed a case with the same procedural posture as the two present cases, in that the

defendant had filed a pretrial motion to dismiss the repeat offender OVI specification. Id. at ¶ 3,

6. The trial court granted the defendant’s motion on the basis that the repeat offender OVI

specification violated the defendant’s equal protection rights. Id. at ¶ 3. The State appealed,

challenging the trial court’s constitutional determination. Id. at ¶ 1, 3. This Court reversed, not

based upon the constitutional issues presented, but because we concluded that the equal

protection issue was not ripe at the time when the trial court dismissed the specification. Id. at ¶

6. This was so because the defendant “moved for dismissal of the specification before he

pleaded guilty to or was found guilty of the indicted offenses and before he was sentenced for

them.” Id. As we explained, “[i]f [the defendant were to be] acquitted at trial or the charges

[were to be] otherwise dismissed, his equal protection argument [would be] moot.”                Id.

Accordingly, we sustained the State’s assignments of error to the extent that the assignments of

error challenged the trial court’s dismissals of the specifications because the dismissals were

premature. Id. at ¶ 7. However, we expressed no opinion on the merits of the equal protection

arguments addressed in the assignments of error. Id.

       {¶6}    This case presents the same issues as set forth in Arnold insofar as the trial court

granted the Hunters’ respective pretrial motions to dismiss their repeat offender OVI

specifications on equal protection grounds. We see no reason to depart from our precedent in

Arnold, and, therefore, we conclude that the trial court erred to the extent that it dismissed the

specifications prematurely, and we sustain the State’s assignments of error solely on this basis.

We again express no opinion on the merits of the equal protection arguments.
                                                 4


                                                III.

       {¶7}    Because the Hunters’ equal protection arguments were not ripe, the trial court

erred in granting their motions to dismiss. The judgments of the trial court are reversed, and

these matters are remanded for further proceedings.

                                                                             Judgments reversed,
                                                                            and causes remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       CARLA MOORE
                                                       FOR THE COURT



WHITMORE, P. J.
SCHAFER, J.
CONCUR.
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APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellant.

MICHAEL DUFF, Attorney at Law, for Appellee.
