STATE OF OHIO v. DEAN M. KLEMBUS
No. 100068
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 24, 2014
[Cite as State v. Klembus, 2014-Ohio-3227.]
BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and McCormack, J.
JOURNAL ENTRY AND OPINION; ON RECONSIDERATION; JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: July 24, 2014
Robert L. Tobik Cuyahoga County Public Defender
BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Stephanie N. Hall Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
ON RECONSIDERATION1
{¶1} Pursuant to
{¶2} In determining whether to grant a motion for reconsideration filed pursuant to
{¶3} The state‘s motion for reconsideration identified a need for clarification. We therefore grant the state‘s motion for reconsideration but our decision remains unchanged. For clarification purposes, we have made some modifications to our earlier opinion. Therefore, we vacate the earlier opinion, and issue this opinion in its place.
{¶4} Defendant-appellant, Dean M. Klembus (“Klembus“), appeals the denial of his motion to dismiss a specification from the indictment charging him with driving under the influence of alcohol (“OVI“), a fourth-degree felony. We find merit to the appeal, reverse the trial court‘s judgment in part, and remand this case to the trial court with instructions to dismiss the specification.
FURTHERMORE, and he within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more violations of that nature to wit: (1) on or about January 2, 2008, 6C06389, in the Bedford Municipal Court, in violation of 4511.19(A)(1); (2) and on or about July 12, 2004, 4C02588, in the Bedford Municipal Court, in violation of 4511.19(A)(1); (3) and on or about October 4, 2000, 0C04081, in the Bedford Municipal Court, in violation of 4511.19(A)(1); (4) and on or about March 17, 1997, 7C00548, in the Bedford Municipal Court, in violation of 4511.19(A)(1); (5) and on or about December 29, 1992, 2C08595, in the Bedford Municipal Court, in violation of 4511.19(A)(1).
Each count also included a repeat OVI offender specification “concerning prior felony offenses” pursuant to
The offender, within twenty years of committing the offense, previously had been convicted of or pleaded guilty to five or more equivalent offenses.
{¶6} Klembus filed a motion to dismiss the specification clause, arguing it violated the Equal Protection Clauses of the United States and Ohio Constitutions. After a hearing on the merits, the trial court denied Klembus‘s motion to dismiss and Klembus subsequently pleaded no contest to both charges. The two charges merged for sentencing, and the trial court sentenced Klembus to one year on the underlying OVI charge and one year on the specification, to be served consecutively for an aggregate two-year prison term. The court also imposed a lifetime suspension of driving
{¶7} In his sole assignment of error, Klembus argues the repeat OVI offender specification, on its face, violates the constitutional guarantees of equal protection and due process because the specification is based upon the same information or proof required to establish a fourth-degree felony. He contends
{¶8} Both the Ohio and United States Constitutions provide that no person shall be deprived of life, liberty, or property without due process of law or be denied the equal protection of the law.
{¶10} The dissent cites several cases for the proposition that cumulative punishments are constitutional if they are specifically authorized by the legislature.2 However, not one of the cases cited in the dissent addresses the issue presented in this case, which is whether the repeat violent offender specification violated equal protection.
{¶11} Nevertheless, we disagree with the dissent‘s suggestion that cumulative punishments are constitutional simply because some courts have found that certain statutes authorizing cumulative punishments do not violate double jeopardy. Criminal defendants have successfully challenged enhanced penalties pursuant to other constitutional protections such as the right to due process, the protection against ex post facto laws, and equal protection. For example, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held that a penalty enhancement provision violated the defendant‘s right to a jury determination of guilt for every element of the crime beyond a reasonable doubt. In U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court struck a penalty enhancing provision because it violated the defendant‘s right to due process. In Peugh v. U.S., 569
{¶12} Furthermore, just as courts have found that some cumulative penalties comport with double jeopardy, the United States Supreme Court has also held that some penalty enhancing provisions offend that constitutional protection. In determining whether a cumulative punishments violate double jeopardy, the United States Supreme Court set forth a “same elements” test in Blockburger v. United States, 284 U.S. 299, 304, 76 L.Ed. 306, 52 S.Ct. 180 (1932). Under this test, known as the Blockburger test, the inquiry is “whether each offense contains an element not contained in the other.” United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). If an individual is charged with violating two criminal statutes, each violation must contain an element that is not contained in the other, or else both offenses are treated as the same offense. Id. In these circumstances, double jeopardy prohibits any form of additional, cumulative punishment. Id.6 Therefore, just because some courts have held that the
{¶13} In this case, Klembus never asserted a Fifth Amendment double jeopardy challenge to the repeat OVI offender specification. His challenge was based solely on the Equal Protection Clause of the Fourteenth Amendment, which presents an entirely different analysis from a double jeopardy challenge. The Equal Protection Clause of the Fourteenth Amendment states that “[n]o state shall * * * deny to any person within its jurisdiction the equal protection of the laws.”
{¶14} In an equal protection claim, government actions that affect suspect classifications or fundamental interests are subject to strict scrutiny by the courts. Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 Ohio St.3d 56, 59, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 14. In the absence of a suspect classification or fundamental interest, the state action is subject to a rational basis test. Id. Under the rational basis test, a statute must be upheld if it bears a rational relationship to a legitimate governmental interest. Adamsky v. Buckeye Local School Dist., 73 Ohio St.3d 360, 362, 653 N.E.2d 212 (1995). However, a statute is presumed constitutional and will be declared invalid only if the challenging party demonstrates beyond a reasonable doubt that the statute violates a constitutional provision. Desenco, Inc. v. Akron, 84 Ohio St.3d 535, 538, 706 N.E.2d 323 (1999).
{¶15} “Equal protection of the law means the protection of equal laws.” Conley v. Shearer, 64 Ohio St.3d 284, 289, 595 N.E.2d 862 (1992). There is no equal protection
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.
(Emphasis added.) Id. at 288-289.
{¶16} Klembus does not claim to belong to a “suspect class” or that the repeat OVI offender specification infringes upon a fundamental right. He argues the repeat OVI offender specification violates equal protection because it gives the state unfettered discretion to choose between two significantly different punishments when charging similarly situated OVI offenders. He contends that by 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.
{¶17} Klembus was charged with violating
(d) Except as otherwise provided in division (G)(1)(e) of this section, an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to three or four violations of division (A) or (B) of this section or other equivalent offenses or an offender who, within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more violations of that nature is guilty of a felony of the fourth degree. The court shall sentence the offender to all of the following:
(i) If the sentence is being imposed for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory prison term of one, two, three, four, or five years as required by and in accordance with division
(G)(2) of section 2929.13 of the Revised Code if the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1413 of the Revised Code or, in the discretion of the court, either a mandatory term of local incarceration of sixty consecutive days in accordance with division (G)(1) of section 2929.13 of the Revised Code or a mandatory prison term of sixty consecutive days in accordance with division (G)(2) of that section if the offender is not convicted of and does not plead guilty to a specification of that type. If the court imposes a mandatory term of local incarceration, it may impose a jail term in addition to the sixty-day mandatory term, the cumulative total of the mandatory term and the jail term for the offense shall not exceed one year, and, except as provided in division (A)(1) of section 2929.13 of the Revised Code, no prison term is authorized for the offense. If the court imposes a mandatory prison term, notwithstanding division (A)(4) of section 2929.14 of the Revised Code, it also may sentence the offender to a definite prison term that shall be not less than six months and not more than thirty months and the prison terms shall be imposed as described in division (G)(2) of section 2929.13 of the Revised Code. If the court imposes a mandatory prison term or mandatory prison term and additional prison term, in addition to the term or terms so imposed, the court also may sentence the offender to a community control sanction for the offense, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction.
(Emphasis added.) If the offender is convicted of or pleads guilty to the repeat OVI specification,
(A) Imposition of a mandatory additional prison term of one, two, three, four, or five years upon an offender under division (G)(2) of section 2929.13 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging a felony violation of division (A) of section 4511.19 of the Revised Code specifies that the offender, within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more equivalent offenses. The specification shall be stated at the end of the body of the indictment, count, or information and shall be stated in substantially the following form:
“SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors (or insert the person‘s or the prosecuting attorney‘s name when appropriate) further find and specify that (set forth that the offender, within twenty years of committing the offense, previously had been convicted of or pleaded guilty to five or more equivalent offenses).”
(B) As used in division (A) of this section, “equivalent offense” has the same meaning as in section 4511.181 of the Revised Code.
{¶19} Under
{¶20} In Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), the Ohio Supreme Court held that prosecutorial discretion, in and of itself, does not violate equal protection.
{¶21} The court in Wilson ultimately determined there was no equal protection violation in that case because, although the defendant was charged under two different burglary statutes, one of the statutes required proof of an additional element not required in the other. Id. at 58. Here, the elements of the repeat OVI offender specification are identical to those set forth in
{¶22} “The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender.”
{¶23} However,
{¶24} We share the legislature‘s desire to punish repeat OVI offenders and to protect the public from the serious threat posed by habitual drunk drivers. And we sympathize with the legislature‘s intent to provide the public with a greater sense of justice by distinguishing the first or second time offenders from the more serious habitual offenders by enhancing the punishment of those who repeatedly commit OVI offenses. Our decision merely holds that legislation enacted to achieve that purpose must comport with equal protection.
{¶26} The sole assignment of error is sustained.
{¶27} Judgment is reversed in part and remanded to the trial court with instructions to vacate the repeat OVI offender specification from the indictment.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., CONCURS;
TIM McCORMACK, J., DISSENTS WITH SEPARATE OPINION
TIM McCORMACK, J., DISSENTING:
{¶29} I begin with the clear, well-established premise that all statutes are afforded a presumption of constitutionality. Burnett v. Motorists Mut. Ins. Co., 118 Ohio St.3d 493, 2008-Ohio-2751, 890 N.E.2d 307, ¶ 28. Before a court declares a statute unconstitutional, the court must be convinced “beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.
{¶30} Here, Klembus was charged with one count of driving while under the influence, in violation of
{¶31} Pursuant to
{¶32} The indictment also included a specification to
{¶33} Klembus argues that this specification to
{¶34} In Wilson, the defendant was charged with burglary, in violation of
{¶35} Upon further appeal, the Ohio Supreme Court determined that the issue was whether both statutes required the state to prove identical elements while prescribing different penalties. Restating the test the appellate court applied, the Supreme Court concluded that “if the defendant is charged with the elevated crime, the state has the burden of proving an additional element beyond that required by the lesser offense.” Id. at 55-56. In affirming the court of appeals, the Supreme Court found no equal protection violation in Wilson because the state was required to prove the elements of burglary in addition to one of three aggravating circumstances in order to convict the defendant of aggravated burglary. Id. at 57-58.
{¶36} In 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. Here, however, Klembus was charged under
{¶38} In finding no double jeopardy violation, the court determined that the sentencing provisions clearly reflected the legislature‘s intent to create a penalty for an individual who sells or possesses a certain amount of drugs over and above the penalty imposed for the drug trafficking or possession itself. Gonzales at ¶ 42. The court therefore concluded that “where ‘the legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those statutes proscribe the “same” conduct * * *, a court‘s task of statutory construction is at an end and the prosecution may seek and the trial court may impose cumulative punishment under the statutes in a single trial.‘” Id. at ¶ 40, quoting Missouri v. Hunter, 459 U.S. 359, 369, 103 S.Ct. 673, 74
{¶39} More specifically, Ohio courts have repeatedly upheld the
{¶40} The Eleventh District Court of Appeals determined that a “careful reading” of the
The language and interplay of
R.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 State v. Midcap, 9th Dist. No. 22908, 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 * * *.”
State v. Stillwell, 11th Dist. Lake No. 2006-L-010, 2007-Ohio-3190, ¶ 26; see also State v. Zampini, 11th Dist. Lake No. 2007-L-109, 2008-Ohio-531 (finding the Double Jeopardy Clause does no more than prevent a sentencing court from prescribing greater punishment than the legislature intended); State v. McAdams, 11th Dist. Lake No. 2010-L-012, 2011-Ohio-157 (finding that the
{¶41} In the not too distant past, drinking and driving was tolerated to a much greater extent than it is today. It 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.
{¶42} It is entirely understandable and proper that any provision in the criminal code that mandates a cumulative and extensive prison sentence would be carefully reviewed for procedural and constitutional flaws. That is our role in this appeal.
{¶43} Through 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
{¶44} For the mindless individual who aimlessly fires a weapon in a populated area and strikes a victim, for the sober driver who recklessly speeds and takes the life of an innocent victim, for the individual who puts at risk an infant or child through endangerment, the General Assembly has identified enhanced punishments for these egregious, inherently dangerous behaviors. This undertaking is their province.
{¶45} The sentencing provisions outlined in