[Cite as State v. Valentyn, 2015-Ohio-4834.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2015-L-072
        - vs -                                    :

CORNELIUS A. VALENTYN,                            :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR
000612.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).


THOMAS R. WRIGHT, J.



        {¶1}     Appellant, Cornelius A. Valentyn, timely appeals the May 19, 2015

sentencing entry arising from his guilty plea for operating a motor vehicle under the

influence (“OVI”) and his no contest plea to the R.C. 2941.1413 repeat offender

specification.       Appellant challenges the constitutionality of the repeat offender

specification and alleges that it authorizes double punishments without proof of
additional elements, facts, or circumstances.        He also claims that it authorizes

unfettered prosecutorial discretion in charging similarly situated offenders in

contravention to the U.S. and Ohio Equal Protection Clauses.            For the following

reasons, we affirm.

      {¶2}   The Lake County grand jury indicted appellant on three counts of

operating a vehicle while under the influence of alcohol, drugs, or a combination of the

two. Each count was a fourth degree felony in violation of R.C. 4511.19(A)(1)(a) based

on appellant’s prior five similar violations within 20 years. Each of the three counts also

contained a habitual offender specification under R.C. 2941.1413. These specifications

were based on appellant’s five, identical violations within 20 years that elevated his

underlying OVI charges to fourth degree felonies.

      {¶3}   Appellant eventually entered a guilty plea to the first count and

specification in exchange for the dismissal of the other two counts and specifications.

Thereafter, and with the court’s permission, he withdrew his guilty plea to assert an

equal protection challenge to the repeat offender specification. Appellant moved to

dismiss the repeat OVI offender specification to count one based on the Ohio Supreme

Court’s acceptance of the appeal in State v. Klembus, 8th Dist. Cuyahoga No. 100068,

2014-Ohio-3227, 17 N.E.3d 603, appeal allowed, Sup. Ct. No. 2014-1557, 141 Ohio

St.3d 1473, 2015-Ohio-554, 25 N.E.3d 1080, which addresses the constitutionality of

R.C. 2941.1413. The trial court denied his motion to dismiss.

      {¶4}   Appellant subsequently pleaded guilty to count one and no contest to the

attendant specification under R.C. 2941.1413.       The trial court sentenced him to 18

months in prison on count one to run consecutive to a one-year prison term for the




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specification, in addition to costs and a fine. It also ordered the forfeiture of his 2003

Ford truck involved in the offense.

       {¶5}      Appellant was released on bail pending this appeal. His sole assignment

of error asserts:

       {¶6}      “The trial court erred by imposing a consecutive prison term under the

repeat OVI offender specification in violation of the Defendant-Appellant’s rights to

Equal Protection and Due Process as guaranteed by the Fifth and Fourteenth

Amendment to the U.S. Constitution and Section 2 and 16, Article I of the Ohio

Constitution.”

       {¶7}      Appellant claims that the repeat offender specification requiring mandatory

prison time bestows complete discretion on the state as to when to include the

specification in an indictment. He further contends that this discretion violates his right

to equal protection under the law because it permits an arbitrary and unequal

application of the specification on similarly situated repeat OVI offenders. Appellant is

not alleging that the state has discriminated against him individually or as a member of

a suspect class; instead he claims that the repeat offender specification is

unconstitutional on its face.

       {¶8}      “All statutes have a strong presumption of constitutionality. * * * Before a

court may declare unconstitutional an enactment of the legislative branch, ‘it must

appear beyond a reasonable doubt that the legislation and constitutional provisions are

clearly incompatible.’” (Citations omitted.) Arbino v. Johnson & Johnson, 116 Ohio

St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶25. The rational-basis “test requires that

a statute be upheld if it is rationally related to a legitimate government purpose. * * *




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Under such a review, a statute will not be invalidated if it is grounded on a reasonable

justification, even if its classifications are not precise. * * *.” (Citations omitted.) Id. at

¶66.

       {¶9}   Appellant’s argument primarily relies on the Eighth District’s opinion in

Klembus, which held in part that the repeat OVI offender specification violates the equal

protection clause because it is not rationally related to a legitimate state interest. It

explained, “R.C. 2941.1413(A) provides no requirement that the specification be applied

with uniformity, and 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.

       {¶10} In addressing this precise issue in two other appeals, we have rejected the

rationale in Klembus in favor of the Twelfth District’s analysis in State v. Hartsook, 12th

Dist. Warren No. CA2014-01-0201, 2014-Ohio-4528. State v. Reddick, 11th Dist. Lake

No. 2014-L-082, 2015-Ohio-1215, ¶10-11; State v. Wright, 11th Dist. Lake No. 2013-L-

089, 2015-Ohio-2601, ¶13. Hartsook applied the rational-basis test to review to the

repeat offender specification and concluded:

       {¶11} “We disagree with [appellant’s] contention that R.C. 2941.1413 denies

equal protection of the law to repeat OVI offenders simply because the law leaves it to

the prosecutor’s discretion to insert—or not insert—the specification into the indictment.

It is axiomatic that the decision about what charge to file or bring before the grand jury

generally rests within the discretion of the prosecutor. * * * It will not be presumed that a

prosecutor’s discretion to prosecute has been invidious or in bad faith, and [appellant]




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has offered no argument that would call into question the rationale for the discretion that

our legal system traditionally affords the prosecutor. * * * Moreover, [appellant] has

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.” (Citations omitted.) Id. at ¶47-48; State v. Burkhead, 12th Dist.

Butler No. CA2014-02-028, 2015-Ohio-1085, ¶36-38.

      {¶12} Like the appellant in Hartsook, appellant in the instant case has not

offered any reason reflecting that the punishments arising under R.C. 4511.19 and R.C.

2941.1413 do not serve a legitimate government interest.

      {¶13} Accordingly, and based on the strong presumption that a statute is

constitutional, the analysis set forth in Hartsook, and our precedent, we reject

appellant’s sole assignment of error.     The mere possibility that a prosecutor may

arbitrarily enforce the repeat OVI offender specification in R.C. 2941.1413 does not

cause the statute to violate the Equal Protection Clause as a whole. Id.

      {¶14} For the foregoing reasons, appellant’s sole assignment of error lacks

merit. It is the judgment and order of this court that the judgment of the Lake County

Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.




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