STATE OF OHIO, Plaintiff-Appellee, v. STEVEN W. BURKHART, Defendant-Appellant.
CASE NO. CA2015-01-004
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
8/24/2015
[Cite as State v. Burkhart, 2015-Ohio-3409.]
PIPER, P.J.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2014 CR 0312
R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for defendant-appellant
O P I N I O N
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.
{¶ 2} In 2014, appellant was indicted on one count of OVI in violation of
{¶ 3} Appellant moved to dismiss the specification in the indictment on the ground that the repeat OVI offender specification in
{¶ 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,
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. 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,
{¶ 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
{¶ 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
{¶ 15} The majority in Klembus noted that “[u]nder
{¶ 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,
{¶ 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
{¶ 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 ”
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
{¶ 20} Judge McCormack observed that “[c]ourts have consistently concluded that an
{¶ 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
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
{¶ 24} Hartsook appealed to this court, arguing the repeat OVI offender specification in
{¶ 25} This court rejected all of Hartsook‘s constitutional challenges to
{¶ 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
{¶ 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
{¶ 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
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
{¶ 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
{¶ 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
{¶ 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
{¶ 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.)
{¶ 36} Read together, the language in
{¶ 37} Thus, the repeat OVI offender specification “is merely a sentencing provision that requires an enhanced penalty upon certain findings.” See id..
{¶ 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
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,
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
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
{¶ 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 ofR.C. 4511.19(G)(1)(d)(ii) andR.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) andR.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.
(Emphasis sic.)3
{¶ 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
{¶ 45} In light of the foregoing, appellant‘s assignment of error is overruled.
{¶ 46} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
Notes
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.)