[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Klembus, Slip Opinion No. 2016-Ohio-1092.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-1092
            THE STATE OF OHIO, APPELLANT, v. KLEMBUS, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Klembus, Slip Opinion No. 2016-Ohio-1092.]
Criminal law—Operating a vehicle while under the influence—Trial court’s
        application of R.C. 4511.19(G)(1)(d) and 2941.1413 to OVI offender with
        five OVI convictions in preceding 20 years did not violate equal
        protection—Court of appeals’ judgment reversed.
  (No. 2014-1557—Submitted November 17, 2015—Decided March 22, 2016.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                              No. 100068, 2014-Ohio-3227.
                                 _____________________
                                SYLLABUS OF THE COURT
The application of R.C. 4511.19(G)(1)(d) and 2941.1413 to OVI offenders with
        five or more OVI convictions in the preceding 20 years does not violate
        equal protection.
                                   __________________
                             SUPREME COURT OF OHIO




       LANZINGER, J.
       {¶ 1} In this discretionary appeal, we are asked to examine two statutory
provisions that relate to the offense of operating a vehicle while under the influence
(“OVI”) when the offender has had five or more OVI convictions in the past 20
years: a portion of R.C. 4511.19(G)(1)(d), which raises the OVI offense to a fourth-
degree felony, and R.C. 2941.1413 (the “repeat-OVI specification”), which
requires a mandatory additional prison term of one, two, three, four, or five years.
We are asked to decide whether raising the felony level for an OVI offense and
imposing a sentencing enhancement on a specific class of OVI offenders violates
the right to equal protection.
       {¶ 2} We hold that the two statutes are part of a logical, graduated system
of penalties for recidivist OVI offenses. They are rationally related to the protection
of the public and punishment of offenders and therefore do not violate equal
protection.
                             RELEVANT BACKGROUND
       {¶ 3} In 2012, appellee Dean Klembus was arrested for driving while under
the influence of alcohol and was charged with violating R.C. 4511.19(A)(1)(a)
(driving under the influence of alcohol) and 4511.19(A)(1)(h) (driving with a
breath-alcohol concentration over 0.17 percent). He had been convicted of OVI
offenses in 2008, 2004, 2000, 1997, and 1992. Because he had been convicted of
OVI five times in the previous 20 years, Klembus was charged with two fourth-
degree felonies under R.C. 4511.19(G)(1)(d) as well as the repeat-OVI
specification described in R.C. 2941.1413 for each offense.
       {¶ 4} Klembus moved to dismiss the repeat-OVI specification attached to
each count. He argued that R.C. 2941.1413 violates equal protection because it
allows the state to seek greater punishment without providing proof beyond that
required to trigger R.C. 4511.19(G)(1)(d). The trial court denied the motion to
dismiss, and Klembus pled no contest to both counts. The court found him guilty




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and merged the two counts. After the state elected to proceed on the count of
driving under the influence, the trial court imposed a prison term of two years: one
year for the OVI offense and one year for the repeat-OVI specification, to be served
consecutively. Klembus appealed.
        {¶ 5} The Eighth District Court of Appeals reversed in a two-to-one
decision. Based on its reading of State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d
745 (1979), the court first held that criminal statutes violate equal protection if they
require identical proof yet impose different penalties. 2014-Ohio-3227, 17 N.E.3d
603, ¶ 19-20. Turning to R.C. 2941.1413, the court noted that only fourth-degree-
felony OVI offenders charged with the repeat-OVI specification are subjected to
multiple additional penalties without proof of additional factors. Id. at ¶ 21. The
court also observed that nothing in R.C. 2941.1413 requires that the specification
be charged uniformly against all similarly situated repeat OVI offenders. Id. at
¶ 23. Therefore, the court concluded, the specification is not rationally related to
the objective of protecting the public and punishing offenders because it is not
uniformly imposed on all similarly situated offenders. Id. Accordingly, the court
held that R.C. 2941.1413 violates equal protection, and remanded the matter with
instructions to vacate the repeat-OVI specifications attached to Klembus’s charges.
Id. at ¶ 23, 27.
        {¶ 6} The state appealed, and we accepted jurisdiction over the following
two propositions of law:


        1. The repeat OVI specification codified in R.C. 2941.1413(A) is
        facially constitutional under the Equal Protection Clause of both the
        United States and Ohio Constitutions.
        2. When a defendant’s conduct violates multiple criminal statutes,
        the government may prosecute under either, even when the two
        statutes prohibit the same conduct but provide for different




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        penalties, so long as the government does not discriminate against
        any class of defendants based upon an unjustifiable standard.


See 141 Ohio St.3d 1473, 2015-Ohio-554, 25 N.E.3d 1080.
                                  LEGAL ANALYSIS
        {¶ 7} Applying the traditional standard of review, which requires only that
a legislative classification bear some rational relationship to a legitimate state
purpose, we hold that R.C. 2941.1413 and the provisions of R.C. 4511.19(G)(1)(d)
at issue in this case are constitutional.
Equal protection—rational-basis review
        {¶ 8} The Equal Protection Clauses of both the United States and the Ohio
Constitution guarantee that no one will be denied the same protection of the laws
enjoyed by others in like circumstances. McCrone v. Bank One Corp., 107 Ohio
St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 6 (quoting Fourteenth Amendment to
the United States Constitution and Article I, Section 2 of the Ohio Constitution).
Equal protection does not forbid the legislature from making classifications but
simply prohibits “treating differently persons who are in all relevant respects alike.”
Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). The
standards for assessing equal-protection claims are essentially the same under the
state and federal constitutions. McCrone at ¶ 7.
        {¶ 9} Klembus’s constitutional challenge does not involve a suspect
classification or a fundamental interest; we therefore apply rational-basis review to
R.C. 2941.1413 and the portion of R.C. 4511.19(G)(1)(d) that raises an OVI offense
to a fourth-degree felony. See id. at ¶ 8. To survive rational-basis review, the
repeat-OVI specification must bear a rational relationship to a legitimate
government interest. See id.




                                            4
                                     January Term, 2016




Ohio’s OVI statutory scheme
         {¶ 10} The classifications and penalties applicable to Klembus’s case must
be understood in the context of all those applicable to similarly situated repeat OVI
offenders governed by R.C. 4511.19(G)(1).
         {¶ 11} For those with one or two misdemeanor OVI convictions in the past
six years, the offense is a first-degree misdemeanor. R.C. 4511.19(G)(1)(b) and
(c). For those with three or four misdemeanor OVI convictions in the past six years
and those with five or more misdemeanor OVI convictions in the past 20 years, the
offense is a fourth-degree felony. R.C. 4511.19(G)(1)(d). For an offender with one
or more previous felony-level OVI convictions (regardless of when the violation or
violations occurred), an OVI offense is a third-degree felony.                               R.C.
4511.19(G)(1)(e). In short, the offense level of an OVI is, in part, graduated based
on the number and type of previous OVI convictions within a specified period of
time.
         {¶ 12} The penalty for an OVI offense is also graduated based on the
number and type of previous OVI convictions.                       Within the category of
misdemeanor-level repeat OVI offenders, an OVI offender with one previous OVI
offense in the past six years faces a maximum of six months in jail, R.C.
4511.19(G)(1)(b)(i), while an offender with two previous OVI offenses in the past
six years faces a maximum of one year in jail, R.C. 4511.19(G)(1)(c)(i). For all
fourth-degree-felony OVI offenses, the base maximum term of imprisonment is 30
months plus either 60 or 1201 days. R.C. 4511.19(G)(1)(d)(i) and (ii). A third-
degree-felony OVI offender faces a base maximum term of 36 months plus 60 or
120 days in prison. R.C. 4511.19(G)(1)(e)(i) and (ii); State v. South, 144 Ohio St.3d
295, 2015-Ohio-3930, 42 N.E.3d 734, ¶ 24.


1
  Whether 60 or 120 days should be added depends on the amount of prohibited substances found
in the offender’s system at the time of the offense, R.C. 4511.19(A)(1)(a) through (j), and whether
the offender refused to submit to chemical testing, R.C. 4511.19(A)(2).




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       {¶ 13} Within the category of felony-level offenders, additional penalties
based on the number of previous OVI offenses are added through the R.C.
2941.1413 specification. The specification may be attached to a count alleging a
fourth- or third-degree felony when the accused has a history of five or more OVI
convictions in the preceding 20 years. It may not be attached to a count alleging a
fourth-degree felony based on the existence of three or four OVI convictions in the
past six years, nor may the repeat-OVI specification be attached to a count alleging
a third-degree felony with fewer than five OVI convictions in the past 20 years.
       {¶ 14} When the specification is applied, a mandatory prison term of one,
two, three, four, or five years is imposed in addition to the base term of
imprisonment for the underlying fourth- or third-degree OVI offense. With the
specification applied, offenders found guilty of fourth-degree and third-degree OVI
offenses can receive total maximum prison terms of 30 months plus five years or
36 months plus five years, respectively. In short, the penalty for an OVI offense is
graduated based on the previous number and type of OVI convictions, and the most
significant penalty increase is based on a recidivist history of five or more OVI
convictions in the preceding 20 years.
Wilson is inapposite
       {¶ 15} Klembus observes that in order to raise an OVI offense to a third-
degree-felony level and attach a repeat-OVI specification, both a prior felony OVI
conviction and a history of five OVI convictions in the previous 20 years are
required. But to raise an OVI to a fourth-degree felony and include the repeat-OVI
specification, only five OVI convictions in the previous 20 years must be proven.
He characterizes the higher felony level and the specification as cumulative
punishment for identical conduct and argues that no rational basis exists for
imposing such cumulative punishment solely against fourth-degree-felony repeat
OVI offenders like him. Relying on Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745, the
court of appeals accepted the argument that criminal offenses with identical




                                         6
                                 January Term, 2016




elements but different punishments always violate equal protection. 2014-Ohio-
3227, 17 N.E.3d 603, at ¶ 20. But Wilson does not provide such a sweeping
standard.
          {¶ 16} In Wilson, the defendant challenged the constitutionality of the
burglary statute and the aggravated-burglary statute, arguing that the two statutes
imposed different punishments for identical criminal conduct and therefore violated
equal protection. Id. at 55-56. This court framed the issue as “whether both statutes
require the state to prove identical elements while prescribing different penalties.”
Id. at 55.
          {¶ 17} This case, however, does not raise that issue. To define a criminal
offense, a statute must prohibit specific conduct. R.C. 2901.03(B). Specifications
such as R.C. 2941.1413 do not prohibit conduct; they add sentencing enhancements
to the violation of a predicate statute that does prohibit conduct. State v. Ford, 128
Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 16. And a factor that merely
increases the degree of the offense does not itself define the offense. See Blackburn
v. State, 50 Ohio St. 428, 36 N.E. 18 (1893), paragraph three of the syllabus; State
v. Allen, 29 Ohio St.3d 53, 55, 506 N.E.2d 199 (1987). Thus, although higher
felony levels and specifications may increase the length of a sentence, they do not
prohibit conduct. See State v. Witwer, 64 Ohio St.3d 421, 429, 596 N.E.2d 451
(1992).
          {¶ 18} The mere status of having a history of OVI convictions is not a
criminal offense in Ohio. The conduct prohibited in this case was Klembus’s act
of driving while under the influence in 2012. Because this case does not involve
multiple criminal offenses, Wilson’s equal-protection analysis does not apply here.
No equal-protection violation
          {¶ 19} It is well established that the government has a valid interest in
combating recidivism. Parke v. Raley, 506 U.S. 20, 27, 113 S.Ct. 517, 121 L.Ed.2d
391 (1992); Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962);




                                          7
                            SUPREME COURT OF OHIO




Moore v. Missouri, 159 U.S. 673, 678, 16 S.Ct. 179, 40 L.Ed. 3010 (1895). The
only remaining question, and the proper test for Klembus’s equal-protection
challenge, is whether R.C. 4511.19(G)(1)(d) and 2941.1413 treat OVI offenders in
Klembus’s circumstances differently than other OVI offenders based on an
arbitrary standard. See Adamsky v. Buckeye Local School Dist., 73 Ohio St.3d 360,
362, 653 N.E.2d 212 (1995).
       {¶ 20} Klembus does not object to the differing overall prison terms that
repeat OVI offenders might serve but rather, to the way in which the statutory
scheme allows them to be calculated. He objects to the form of the statutes. But it
is not inequality in mere form but inequality in substance and operation of a law
that will cause an equal-protection violation. See St. Louis Southwestern Ry. Co. v.
State ex rel. Norwood, 235 U.S. 350, 362, 35 S.Ct. 99, 59 L.Ed. 265 (1914).
       {¶ 21} In substance and operation, R.C. 4511.19(G)(1) and 2941.1413
establish a graduated system of punishment for OVI offenders according to the
number and seriousness of prior OVI convictions. An offender with five or more
prior misdemeanor OVI convictions can logically receive a heavier penalty than
one with four or fewer prior misdemeanor convictions. Similarly, another offender
may receive a lesser penalty than someone with five or more OVI convictions that
include felonies. That these different penalty levels might be devised through
higher offense levels or sentencing enhancements or both becomes immaterial.
Accordingly, Klembus’s objections do not reveal differential treatment of OVI
offenders in his circumstances based on arbitrary standards.
                                  CONCLUSION
       {¶ 22} The application of R.C. 4511.19(G)(1)(d) and 2941.1413 to OVI
offenders with five or more OVI convictions in the preceding 20 years does not
violate equal protection.     The resulting sentencing range for defendants in
Klembus’s position is not illogical or arbitrary when compared to the sentencing
ranges for other repeat OVI offenders. The possibility of longer prison sentences




                                         8
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for those who continue to violate Ohio’s OVI statute is rationally related to the
state’s legitimate interest in punishing offenders and protecting the public from the
dangers of impaired driving.
       {¶ 23} We reverse the judgment of the court of appeals and reinstate the
trial court’s order sentencing Dean Klembus to consecutive prison terms of one
year for his OVI offense and one year for the repeat-OVI specification.
                                                                Judgment reversed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
                               _________________
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel
T. Van and Brett S. Hammond, Assistant Prosecuting Attorneys, for appellant.
       Robert Tobik, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellee.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, and Hannah C. Wilson, Deputy
Solicitor, urging reversal for amicus curiae Ohio Attorney General Michael
DeWine.
       Ron O’Brien, Franklin County Prosecuting Attorney, and Michael P.
Walton, Assistant Prosecuting Attorney, urging reversal for amici curiae Ohio
Prosecuting Attorneys Association and Franklin County Prosecuting Attorney Ron
O’Brien.
                               _________________




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