[Cite as State v. Burkhart, 2015-Ohio-3409.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellee,                      :     CASE NO. CA2015-01-004

                                                 :             OPINION
    - vs -                                                      8/24/2015
                                                 :

STEVEN W. BURKHART,                              :

        Defendant-Appellant.                     :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2014 CR 0312



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for defendant-appellant



        PIPER, P.J.

        {¶ 1} Defendant-appellant, Steven W. Burkhart, appeals his conviction in the

Clermont County Court of Common Pleas for operating a vehicle under the influence of

alcohol (OVI) and an accompanying repeat OVI offender specification, for which he was

sentenced to an aggregate prison term of three years. For the reasons that follow, we affirm

the judgment of the trial court.
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       {¶ 2} In 2014, appellant was indicted on one count of OVI in violation of R.C.

4511.19(A)(1)(a), a felony of the fourth degree. Normally, such a charge is a first-degree

misdemeanor. R.C. 4511.19(G)(1)(a). However, the charge is elevated to a fourth-degree

felony where the offender, within 20 years of the offense, previously has been convicted of or

pleaded guilty to five or more OVI violations. R.C. 4511.19(G)(1)(d) Here, the OVI count in

the indictment alleged, pursuant to R.C. 4511.19(G)(1)(d), that appellant previously had been

convicted of or pleaded guilty to five or more OVI violations between 1995 and 2006.

Additionally, the OVI count was accompanied by a repeat OVI offender specification under

R.C. 2941.1413, alleging that appellant, "within twenty years of the offense, previously has

been convicted of or pleaded guilty to five or more equivalent offenses[.]" The "five or more

equivalent offenses" listed in the specification were the same "five or more offenses" listed in

the OVI count pursuant to R.C. 4511.19(G)(1)(d).

       {¶ 3} Appellant moved to dismiss the specification in the indictment on the ground

that the repeat OVI offender specification in R.C. 2941.1413 violates the Equal Protection

Clauses of the United States Constitution and the Ohio Constitution. After holding a hearing,

the trial court denied the motion to dismiss. Appellant then pled no contest to the OVI count

and the repeat OVI offender specification. The trial court found appellant guilty as charged

and sentenced him to consecutive prison terms of one year in prison on the OVI count and

two years in prison on the repeat OVI offender specification, for an aggregate prison term of

three years.

       {¶ 4} Appellant now appeals, assigning the following as error:

       {¶ 5} THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

DISMISS THE REPEAT OVI SPECIFICATION.

       {¶ 6} Appellant is raising an equal protection challenge to the statutes at play in this

matter, namely, R.C. 4511.19(G)(1)(d) and 2941.1413. He contends that "the interplay
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between these two statutes is unconstitutional on its face." Specifically, he argues the repeat

OVI offender specification in R.C. 2941.1413 violates the Equal Protection Clauses of the

United States Constitution and the Ohio Constitution because the specification gives

prosecutors "unfettered discretion" in choosing between "two significantly different

punishments when charging similarly situated OVI offenders," and thus permits the arbitrary

application of the law.

                                Equal Protection Principles

       {¶ 7} The Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution provides that "[n]o State shall * * * deny to any person within its

jurisdiction the equal protection of the laws." Article I, Section 2 of the Ohio Constitution

provides that "[a]ll political power is inherent in the people. Government is instituted for their

equal protection and benefit[.]" As explained in Conley v. Shearer, 64 Ohio St.3d 284, 288-

289 (1992):

              Equal protection of the law means the protection of equal laws. It
              does not preclude class legislation or class action provided there
              is a reasonable basis for such classification. 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.

       {¶ 8} Because the Equal Protection Clauses in the United States Constitution and the

Ohio Constitution are functionally equivalent, they require the same analysis. State v.

Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, ¶ 11. "Equal protection analysis begins with

the rebuttable presumption that statutes are constitutional." State v. Peoples, 102 Ohio St.3d

460, 2004-Ohio-3923, ¶ 5. The party asserting that a statute is unconstitutional has the

burden of proving that the statute is unconstitutional beyond a reasonable doubt. State v.


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Collier, 62 Ohio St.3d 267, 269 (1991).

       {¶ 9} "A party may challenge a statute as unconstitutional on its face [i.e., a "facial

challenge"] or as applied to a particular set of facts." Harrold v. Collier, 107 Ohio St. 3d 44,

50, 2005-Ohio-5334, ¶ 37. When a party challenges a statute on the ground that it is

unconstitutional as applied to a particular set of facts, the party has the burden of presenting

clear and convincing evidence of a presently existing set of facts that make the statute

unconstitutional and void when applied to those facts. Id. at ¶ 38. A facial challenge to the

statute is even more difficult to establish, since "the challenger must establish that there

exists no set of circumstances under which the statute would be valid." Id. at ¶ 37. "The fact

that a statute might operate unconstitutionally under some plausible set of circumstances is

insufficient to render it wholly invalid." Id.

       {¶ 10} In considering whether a statute violates a person's right to equal protection,

different levels of scrutiny are applied to different types of classifications. Thompson, 2002-

Ohio-2124 at ¶ 13. "All statutes are subject to at least rational-basis review, which requires

that a statutory classification be rationally related to a legitimate government purpose." Id.

When a statutory classification is based on gender or illegitimacy, a court must employ a

"heightened" or "intermediate" level of scrutiny and require that the classification be

"substantially related to an important governmental objective."         Id. When a statutory

classification affects a fundamental constitutional right or is based on race or national origin,

a court must employ a "strict" level of scrutiny, which requires that the discriminatory

classification "be narrowly tailored to serve a compelling state interest." Id.

       {¶ 11} Here, R.C. 4511.19 and R.C. 2941.1413 are not subject to strict scrutiny as

repeat OVI offenders are not a suspect class and no one has a fundamental right to operate

a vehicle, on multiple occasions, under the influence of alcohol or drugs. These statutes are

also not subject to heightened or intermediate scrutiny as they do not involve classifications
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based on gender or illegitimacy. Therefore, the level of scrutiny to be applied here is

"rational-basis review." Thompson.

       {¶ 12} A court must grant substantial deference to the legislature when conducting

rational-basis review of a legislative distinction or classification that is being challenged on

equal protection grounds. State v. Williams, 126 Ohio St. 3d 65, 2010-Ohio-2453, ¶ 40. The

legislative distinction or classification will be invalidated only if it bears "'no relation to the

state's goals and no ground can be conceived to justify [it].'" Peoples, 2004-Ohio-3923 at ¶

7, quoting State v. Thompkins, 75 Ohio St.3d 558, 561 (1996).

                                            Klembus

       {¶ 13} In support of his argument that the repeat OVI offender specification in R.C.

2941.1413 violates the Equal Protection Clause, appellant relies on State v. Klembus, 8th

Dist. Cuyahoga No. 100068, 2014-Ohio-3227. In that case, the defendant-appellant, Dean

M. Klembus, was charged with two counts of OVI in violation of R.C. 4511.19(A)(1)(a) and

4511.19(A)(1)(h). Id. at ¶ 5. Each count contained language under R.C. 4511.19(G)(1)(d)

that elevated the counts to fourth-degree felonies, and each count included a repeat OVI

offender specification under R.C. 2941.1413(A). Id. Klembus moved to dismiss the repeat

OVI offender specifications, arguing the specifications violated the Equal Protection Clauses

of the United States Constitution and the Ohio Constitution. Id. at ¶ 6. The trial court denied

the motion, and Klembus pled no contest to the charges. Id. The trial court convicted

Klembus as charged, merged the charges for sentencing, and sentenced him to consecutive

one-year prison terms on both the OVI charge and the specification, for an aggregate prison

term of two years. Id.

       {¶ 14} On appeal, Klembus argued "the repeat OVI offender specification, on its face,

violates the constitutional guarantees of equal protection and due process." Specifically,

Klembus argued that since "the specification is based upon the same information or proof
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required to establish a fourth-degree felony[,]" the specification and R.C. 4511.19(G)(1)(d)

allow "the prosecutor to arbitrarily obtain a greater prison sentence for the underlying offense

without proof of any additional element, fact, or circumstance." Id. ¶ 7. Klembus further

argued the repeat OVI offender specification "gives the state unfettered discretion to choose

between two significantly different punishments when charging similarly situated OVI

offenders" and that "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."

Id. at ¶ 16. The Eighth District Court of Appeals, by a 2-1 majority, agreed with Klembus'

arguments.

       {¶ 15} The majority in Klembus noted that "[u]nder 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." Id. at ¶ 19. The majority in Klembus also noted that

"[t]he increased penalty does not depend upon the jury finding any additional elements, facts,

or circumstances beyond a reasonable doubt[,]" but, instead, "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." Id.

       {¶ 16} The majority in Klembus acknowledged that in State v. Wilson, 58 Ohio St.2d

52, 55-56 (1979), "the Ohio Supreme Court held that prosecutorial discretion, in and of itself,

does not violate equal protection." Klembus at ¶ 20. However, the majority in Klembus noted

that the court in Wilson also 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.'" Klembus at ¶ 20,



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quoting Wilson at ¶ 55-56.1 The majority in Klembus further noted that the court in Wilson

ultimately determined that there was no equal protection violation in that case since the

defendant was charged under two different burglary statutes, one of which required proof of

an element that the other did not. Klembus at ¶ 21, citing Wilson at ¶ 58.

        {¶ 17} The majority in Klembus then applied the equal protection principles discussed

in Wilson to the case before it and found that "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" and that, therefore, "[t]he specification does not require proof of any additional

element to increase the penalty for the same conduct." Klembus. As a result, the majority in

Klembus concluded that "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[,]" and therefore, "a repeat OVI offender charged with the

specification may be treated differently from other members of his class, who are not subject




1. Less than two months after Wilson was decided in April 1979, the United States Supreme Court issued its
decision in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198 (1979). In Batchelder, the defendant was
convicted in federal district court of receiving a firearm that had traveled through interstate commerce in violation
of a section of the Omnibus Crime Control and Safe Streets Act of 1968, for which he was sentenced to five
years in prison. The defendant's conduct also constituted a violation of another section that had a maximum
prison sentence of only two years. Id. at 116. The court of appeals vacated his five-year prison sentence and
remanded the matter for resentencing. Id. Noting that the substantive elements of the two offenses "are
identical as applied to a convicted felon who unlawfully receives a firearm," the court of appeals interpreted the
act "to allow no more than the 2-year maximum sentence provided by [the offense that carried the lesser
penalty]." Id. at 116-117. The United States Supreme Court reversed the court of appeals' decision, finding that
the prosecutor's discretion to choose the statute under which to prosecute the defendant was not "unfettered" as
the court of appeals had found, since "[s]electivity in the enforcement of criminal laws is, of course, subject to
constitutional constraints." (Footnote omitted.) Id. at 124-125. The Supreme Court further stated at 125:

              More importantly, 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. (Citations omitted.)
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to the repeat OVI offender specification." Id.

       {¶ 18} The majority in Klembus stated that "[i]f the repeat offender 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[,]" but the majority in

Klembus noted that "R.C. 2941.1413(A) provides no requirement that the specification be

applied with uniformity." Id. at ¶ 22-23. The majority in Klembus determined that "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."

Id. at ¶ 23. As a result, the majority in Klembus concluded that it was unable to say that the

repeat OVI offender specification "is rationally related to a legitimate state interest[,]" and

therefore found that "the repeat OVI offender specification violates equal protection." Id.

                                   The Dissent in Klembus

       {¶ 19} In his dissent in Klembus, Judge Tim McCormack found that Wilson was

distinguishable from the case before the court, because "[i]n 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." Id. at ¶36, McCormack, J.,

dissenting. By contrast, Judge McCormack noted that Klembus was charged under R.C.

4511.19, which proscribed one activity and contained a penalty enhancement outlined in R.C.

2941.1413. Id. Judge McCormack determined that the penalty enhancement in R.C.

2941.1413 "did not prohibit an activity or require proof of an additional element of a crime[,]"

but, instead, "is a statutorily authorized specification that increases the severity of a penalty

imposed for certain repeat OVI offenders." Id.

       {¶ 20} Judge McCormack observed that "[c]ourts have consistently concluded that an
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enhanced penalty specification, standing alone, does not violate constitutional protections."

Id. at ¶ 37, McCormack, J., dissenting. Judge McCormack noted that in State v. Gonzalez,

151 Ohio App.3d 160, 2002-Ohio-4937 (1st Dist.), the First District Court of Appeals found

"no double jeopardy violation where the legislature specifically authorized cumulative

punishment." Id. Judge McCormack also noted that "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." Id. at ¶ 39, citing State v.

Midcap, 9th Dist. Summit No. C.A. 22908, 2006-Ohio-2854, ¶ 12, and State v. Stillwell, 11th

Dist. Lake No. 2006-L-010, 2007-Ohio-3190, ¶ 26.

       {¶ 21} Judge McCormack stated that "[i]n the not too distant past, drinking and driving

was tolerated to a much greater extent than it is today[,]" and that "[i]t 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." Id. at ¶ 41. Judge

McCormack noted that in "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." Id. at ¶ 43. Judge McCormack observed

that the statute providing for mandatory prison sentences for such repeat OVI offenders

"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." Id.

       {¶ 22} Judge McCormack concluded his dissent by stating that 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[,]" and that "[r]ecognizing

the sound judgment of the General Assembly, and in deference to its justifiable intent in
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authorizing this type of punishment, I would not find the penalty enhancement set forth in

R.C. 2941.1413 to be unconstitutional." Id. at ¶ 45.

                                          Hartsook

       {¶ 23} This court considered Klembus in State v. Hartsook, 12th Dist. Warren No.

CA2014-01-020, 2014-Ohio-4528. In Hartsook, the defendant-appellant, Victor A. Hartsook,

was indicted for two OVI offenses, one in violation of R.C. 4511.19(A)(1)(a) and the other in

violation of R.C. 4511.19(A)(1)(h). Id. at ¶ 2. Because Hartsook previously had been

convicted of a felony OVI under R.C. 4511.19(A)(1), each count was elevated to a third-

degree felony. Id. Additionally, each count was accompanied by a repeat OVI offender

specification under R.C. 2941.1413. Id. Hartsook moved to dismiss the repeat OVI offender

specifications against him on several constitutional grounds, including equal protection. The

trial court overruled Hartsook's motion to dismiss. Hartsook pled guilty to one OVI charge

and one repeat OVI offender specification, in exchange for the dismissal of the other OVI

charge and specification. The trial court found Hartsook guilty and sentenced him to

consecutive prison terms of two years for the OVI and four years for the specification, for an

aggregate prison term of six years. Id. at ¶ 3-7.

       {¶ 24} Hartsook appealed to this court, arguing the repeat OVI offender specification

in R.C. 2941.1413 was unconstitutional on its face on several grounds, including that it

violated the Equal Protection Clauses of the United States Constitution and the Ohio

Constitution. In his equal protection argument, which "dr[ew] liberally from the logic of the

majority opinion in * * * Klembus," Hartsook at ¶ 43, Hartsook noted that the state has the

sole discretion to include or omit R.C. 2941.1413's repeat OVI repeat offender specification

in the indictment charging a defendant with an OVI offense. Id. at ¶ 39. He noted that "a

repeat offender charged with the specification must be sentenced to a mandatory one, two,

three, four, or five-year prison term, but that the only mandatory time facing a repeat offender
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who is not charged and convicted of a specification is either a 60-day term of local

incarceration or a 60-day prison term." Id. Hartsook asserted that the repeat OVI offender

specification in R.C. 2941.1413 violated equal protection because the statute leaves the

decision on whether or not to include such a specification in the charging instrument to the

state's sole discretion, and therefore permits an arbitrary and unequal operation of the OVI

sentencing provisions on similarly situated OVI offenders.

       {¶ 25} This court rejected all of Hartsook's constitutional challenges to R.C.

2941.1413, including his equal protection arguments. Id. at ¶ 47-53. As to Hartsook's

contention that R.C. 2941.1413 violated the equal protection rights of repeat OVI offenders

because it gives prosecutors discretion on whether or not to include such a specification in an

offender's indictment, this court observed that "[i]t is axiomatic that the decision about what

charge to file or bring before the grand jury generally rests with the discretion of the

prosecutor" and that "[i]t will not be presumed that a prosecutor's decision to prosecute has

been invidious or in bad faith." Id. at ¶ 47. We also noted that Hartsook "ha[d] offered no

argument that would call into question the rationale or the discretion that our legal system

traditionally affords the prosecutor." Id.

       {¶ 26} Additionally, we observed that Hartsook "ha[d] failed to offer an argument that

would suggest the cumulative punishment the legislature sought to impose under R.C.

4511.19 and R.C. 2941.1413 does not serve a legitimate government interest[,]" id. at ¶ 48,

and that "[a]bsent proof to the contrary, we are inclined to agree with the United States

Supreme Court that the reasoning behind a sentencing regime that finds the latest offense

for repeat offenders to be an aggravated offense because it is a repetitive one is perfectly

sound." Id., citing United States v. Rodriguez, 553 U.S. 377, 386, 128 S.Ct. 1783 (2008).

       {¶ 27} We also rejected the Eighth District's decision in Klembus that relied on the

Ohio Supreme Court's decision in Wilson in holding that the repeat OVI offender specification
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in R.C. 2941.1413(A) violated equal protection, since there was no requirement in the statute

that "the specification be applied with uniformity, and * * * '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[.]'" Hartsook at ¶ 50, quoting

Klembus at ¶ 23. This court found in Hartsook that "the Wilson analysis, and therefore the

Klembus conclusion," was "inapposite" to the case before us in Hartsook, since Wilson dealt

with two separate offenses, i.e., burglary and aggravated burglary, while the case that was

before us in Hartsook dealt with only one offense, OVI in violation of R.C. 4511.19. Hartsook

at ¶ 52. See, also, State v. Burkhead, 12th Dist. Butler No. CA2014-02-028, 2015-Ohio-

1085, ¶ 33-38 (following Hartsook, and finding Klembus and Wilson unpersuasive and that

"the habitual offender specification in R.C. 2941.1413 does not violate equal protection and

due process of law).

       {¶ 28} At least one other appellate district has rejected the reasoning of the majority in

Klembus and followed the reasoning of our decision in Hartsook instead. State v. Snowden,

11th Dist. Trumbell No. 2014-T-0092, 2015-Ohio-2611, ¶ 9-13; State v. Reddick, 11th Dist.

Lake No. 2014-L-082, 2015-Ohio-1215, ¶ 6-11; and State v. Wright, 11th Dist. Lake No.

2013-L-089, 2015-Ohio-2601, ¶ 8-13. See also State v. Stephens, 3d Dist. Seneca No. 13-

14-28, 2015-Ohio-1078, ¶ 11-12 (expressing its view that Klembus is based on "a

fundamental misconstruction of the language and operation of R.C. 4511.19[G][1][d] and

R.C. 2941.1413," but finding it was unnecessary to address Klembus, since the appellant's

guilty plea or failure to move to withdraw the guilty plea in the case before it waived any error

or claimed constitutional violations not related to the guilty plea).

               Whether Klembus or Hartsook Should Apply to this Case

       {¶ 29} Appellant argues the facts in his case are distinguishable from those present in

Hartsook. He notes that Hartsook was charged with a third-degree felony OVI and that in
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order to elevate the charge from a first-degree misdemeanor to a third-degree felony, the

state presented evidence that Hartsook had been previously convicted of a felony OVI. He

then notes that the evidence the state needed to present in order to prove the repeat OVI

offender specification against Hartsook was slightly different, namely, that Hartsook had five

OVI convictions in the past 20 years. Appellant points out that "[t]his distinction in evidentiary

standards is not present in this case."

       {¶ 30} Appellant contends that in this case, the state, in order to elevate his OVI from

a first-degree misdemeanor to a fourth-degree felony under R.C. 4511.19(G)(1)(d), needed

to present evidence that he had been convicted of five OVI offenses in the past 20 years,

and that in order to meet its burden regarding the repeat OVI offender specification under

R.C. 2941.1413(A), the state needed to prove the exact same thing, i.e., that appellant had

been convicted of five OVI offenses in the past 20 years. He contends that since the facts of

this case show that the state did not need to present any evidence on the specification that

was different from the evidence it already had presented to elevate the charge of OVI from a

first-degree misdemeanor to a fourth-degree felony, this case is more in line with the factual

situation in Klembus rather than Hartsook, and therefore, he requests that we follow Klembus

rather than Hartsook. We decline to do so.

       {¶ 31} Appellant's argument draws heavily from the majority opinion in Klembus that

stated that "the elements of the repeat offender specification are identical to those set forth in

R.C. 4511.19(G)(1)(d) for the underlying fourth-degree felony[,]" and therefore "[t]he

specification does not require proof of any additional element to increase the penalty for the

same conduct." Klembus at ¶ 21. This led the majority in Klembus to conclude that the

repeat OVI offender specification allows a prosecutor "to arbitrarily" subject some OVI

offenders to an increased penalty while letting other, similarly situated offenders to avoid

such a penalty. Id. The majority in Klembus arrived at this conclusion by applying the
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principles in Wilson to the case before it. However, Wilson is clearly distinguishable from the

situation in Klembus, Hartsook, and this case.

       {¶ 32} As noted in both the dissenting opinion in Klembus and our opinion in Hartsook,

Wilson involved two different statutes that define two different criminal offenses, i.e.,

aggravated burglary in violation of R.C. 2911.11(A)(3), a first-degree felony, and burglary in

violation of R.C. 2911.12, a second-degree felony. Wilson at 55-59; Klembus at ¶ 36 (J.

McCormack dissenting); Hartsook at ¶ 52. By contrast, Klembus, Hartsook, and the case

before us involve only one criminal statute, R.C. 4511.19.          The repeat OVI offender

specification in R.C. 2941.1413 is not a statute that defines a criminal offense.

       {¶ 33} As stated in State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, ¶ 10, "[a]n

offense is defined when one or more sections of the Revised Code state a positive

prohibition or enjoin a specific duty, and provide a penalty for violation of such prohibition or

failure to meet such duty." (Emphasis added.) R.C. 2901.03(B).

       {¶ 36} Read together, the language in R.C. 2941.1413 and 2929.13(G)(2) indicates

that the repeat OVI offender specification is contingent upon an underlying felony conviction.

See State v. Ford, 128 Ohio St.3d 398 (2011), ¶ 16 (referring to the firearm specification in

R.C. 2941.145 and 2929.14[D][1][a]). R.C. 2941.1413 and 2929.13(G)(2) do not contain "a

positive prohibition of conduct," as required by R.C. 2901.03(B). See id. Instead, these

provisions indicate that if a defendant is convicted of the OVI felony offense and, if the

defendant, within 20 years of the offense, previously has been convicted of or pleaded guilty

to five or more equivalent offenses, the underlying felony conviction will subject him to

imposition of a mandatory additional prison term of one, two, three, four, or five years under

R.C. 2929.13(G)(2). See id. In other words, the statutes do not state that a person shall not

operate a vehicle under the influence of alcohol or drugs; instead, they merely state that if a

person does operate a vehicle under the influence of alcohol or drugs, an additional penalty
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will be imposed. See id.

       {¶ 37} Thus, the repeat OVI offender specification "is merely a sentencing provision

that requires an enhanced penalty upon certain findings." See id. R.C. 2941.1413 and

2929.13(G)(2) "define a sentencing enhancement that attaches to a predicate offense." See

id. The repeat OVI offender specification in R.C. 2941.1413 is not an "offense" as defined in

R.C. 2901.03(B). See id. See also Klembus at ¶ 36 (McCormack, J., dissenting) (penalty

enhancement in R.C. 2941.1413 does not "prohibit an activity or require proof of an

additional element of a crime[,]" but, instead, "is a statutorily authorized specification that

increases the severity of a penalty imposed for certain repeat OVI offenders").

       {¶ 38} We further note that neither the majority in Klembus nor appellant have cited

any authority that specifically has held that a repeat OVI offender specification under R.C.

2941.1413 needs to contain an additional element or require additional proof than what is

needed or required under R.C. 4511.19(G)(1)(d) to prove the underlying fourth-degree felony

OVI, in order for the specification to be found consistent with equal protection. Nor are we

aware of any such authority.

               Klembus, Equal Protection, and Prosecutorial Discretion

       {¶ 39} We also disagree with the majority's decision in Klembus because the majority

failed to take into account, fully, the broad discretion that the law traditionally affords to

prosecutors in charging defendants with criminal offenses and accompanying specifications.

In Wilson, 58 Ohio St.2d at 55, the Ohio Supreme Court stated as follows:

            The issue here is not whether the prosecutor abused his discretion
            in charging appellant under the aggravated burglary statute. The
            Equal Protection Clause is not violated when, based upon
            prosecutorial discretion, a person may be charged under more than
            one statute and thereby receive different penalties. The use of
            prosecutorial discretion, in and of itself, does not violate equal
            protection. [Footnote omitted.] See Roush v. White (N.D.Ohio,



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               1975), 389 F.Supp. 396, 402.2

See also Hartsook, 2014-Ohio-4528 at ¶ 47 (the decision about what charge to file or bring

before grand jury generally rests within prosecutor's discretion and it will not be presumed

that prosecutor's decision to prosecute has been invidious or in bad faith).

        {¶ 40} Here, the majority in Klembus noted that under Wilson, "prosecutorial

discretion, in and of itself, does not violate equal protection." Nevertheless, the majority's

decision in Klembus constitutes an attack on the discretion that prosecutors traditionally have

been given in determining whether or not to charge a defendant under such provisions as a

repeat OVI offender specification under R.C. 2941.1413. Appellant has failed to offer any

proof or argument that the prosecutor's decision to charge appellant with a repeat OVI

offender specification in this case was "invidious" or "in bad faith," nor is there anything in the

record to suggest that it was. Hartsook.

                          Constitutionality of Cumulative Punishment

        {¶ 41} The primary rationale of the majority's decision in Klembus and appellant's

argument in this appeal is the alleged unfairness of (1) imposing an additional penalty on an

OVI offender under R.C. 4511.19(G)(1)(d), by elevating his OVI offense from a first-degree

misdemeanor to a fourth-degree felony when the offender, within 20 years of the offense,

previously has been convicted of or pleaded guilty to five or more violations of that nature,

and then (2) imposing a second additional penalty on the offender under R.C. 2941.1413, for

the same conduct. However, as Judge McCormack stated in his dissenting opinion in

Klembus, "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


2. In the footnote omitted from this quote, the Ohio Supreme Court stated that "[o]f course, where there exists
selectivity in enforcement of the criminal laws based upon a deliberate and unjustified basis, such as race,
religion or other arbitrary classification, a violation of the Equal Protection Clause may exist." Wilson, fn.2,
quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501 (1962).

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such cumulative punishment." Klembus at ¶ 37, 39 (McCormack, J., dissenting).

        {¶ 42} For example, in Midcap, 2006-Ohio-2854 at ¶ 12, the Ninth District Court of

Appeals concluded the penalty enhancement specification "clearly reflect[s] 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."

        {¶ 43} Additionally, in Stillwell, 2007-Ohio-3190 at ¶ 26, the Eleventh District Court of

Appeals similarly stated:

               A careful reading of the specification set forth under R.C.
               2941.1413 reveals that the mandatory 1 to 5 years of incarceration
               must be imposed in addition to the sentence for the underlying
               conviction. 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 * * * Midcap, * * * 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. Because the legislature has
               specifically authorized cumulative punishment, it is not a double
               jeopardy violation." Id. at ¶ 12.
                   3
(Emphasis sic.)


3. An additional concern regarding the majority's analysis in Klembus is the potential effect it may have on other
specifications authorized under the sentencing provisions in the Ohio Revised Code. For example, R.C.
2903.13(A), which defines the offense of "assault," a first-degree misdemeanor, provides that "[n]o person shall
knowingly cause or attempt to cause physical harm to another[.]" R.C. 2903.11(A)(2), which defines the offense
of "felonious assault," a second-degree felony, provides that "[n]o person shall knowingly * * * "[c]ause or attempt
to cause physical harm to another * * * by means of a deadly weapon [e.g., a firearm][.]" In addition to charging
an offender who knowingly caused physical harm to another by means of a firearm with felonious assault under
R.C. 2903.11(A)(2), the prosecutor may also charge the offender with a firearm specification under R.C.
2941.141, which is punishable by a consecutive, mandatory three-year prison sentence, in addition to any
sentence the offender receives for his conviction on the principal charge of felonious assault. In light of Klembus,
any offender convicted of both felonious assault by means of a firearm and an accompanying firearm
specification could challenge his or her sentence by raising the same equal protection arguments found
persuasive by the majority in Klembus, i.e., the "interplay" between the statutory offense of felonious assault and
the firearm specification violates his or her equal protection rights due to the alleged unfairness of (1) granting
prosecutors "unfettered discretion" in deciding whether or not to include a firearm specification in the indictment
as this may lead to arbitrary enforcement of the laws, and/or (2) allowing an offender to be charged with an
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                                                Conclusion

        {¶ 44} It is well-established that statutes are presumed to be constitutional and are to

be found unconstitutional only if they are determined to be unconstitutional beyond a

reasonable doubt. Collier, 62 Ohio St.3d at 269. It is also well-established that the rational-

basis standard of review used in cases like this one in which a suspect class or fundamental

constitutional right is not involved is supposed to be a deferential one. Williams, 2010-Ohio-

2453 at ¶ 40. While the majority in Klembus was careful to acknowledge these principles, it

failed to apply them faithfully to the facts and circumstances of this type of case.

Consequently, we find that neither R.C 2941.1413, nor the interplay between that statute and

R.C. 4511.19(G)(1)(d), violate the Equal Protection Clauses of the United States Constitution

or the Ohio Constitution.

        {¶ 45} In light of the foregoing, appellant's assignment of error is overruled.

        {¶ 46} Judgment affirmed.


        S. POWELL and HENDRICKSON, JJ., concur.




additional penalty without requiring proof of any additional evidence.
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