STATE OF OHIO, PLAINTIFF-APPELLEE vs. DEAN M. KLEMBUS, DEFENDANT-APPELLANT
No. 100068
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 1, 2014
2014-Ohio-1830
BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and McCormack, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-562381-A; RELEASED AND JOURNALIZED: May 1, 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
EILEEN T. GALLAGHER, J.:
{¶1} 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.
{¶2} Klembus was charged with two counts of operating a vehicle under the influence of alcohol (“OVI“). Count 1 alleged driving under the influence of alcohol, in violation of
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.
{¶4} In his sole assignment of error, Klembus argues the repeat OVI offender specification violates his rights to equal protection and due process of law because the specification is based upon the same information or proof required to establish a fourth-degree felony. He contends
{¶5} 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.
{¶6} However, once a defendant has been convicted, the court may impose upon the defendant whatever punishment is authorized by statute for the offense, so long as the penalty is not based on an arbitrary distinction that would violate the Due Process Clauses of the Ohio and United States Constitution. Chapman v. U.S., 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). In this context, an argument based on equal protection duplicates an argument based on due process. Id. The standard for determining whether a statute violates equal protection is “‘essentially the same under state and federal law.‘” State v. Thompkins, 75 Ohio St.3d 558, 561, 664 N.E.2d 926 (1996), quoting Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 354, 639 N.E.2d 31 (1994).
{¶7} “Where neither a fundamental right nor a suspect class is involved, a legislative classification passes muster if the state can show a rational basis for the unequal treatment of different groups.” Fabrey at 353. 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). 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).
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.
{¶9} 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.
{¶10} 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,
{¶11}
(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.
{¶12} Under
{¶14} 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
{¶15} “The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender.”
{¶16} However, there is 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. Under these circumstances, we cannot say the repeat OVI offender specification is rationally related to a legitimate state interest. We therefore find that the repeat OVI offender specification violates equal protection.
{¶17} The sole assignment of error is sustained.
{¶18} 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.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., CONCURS;
TIM McCORMACK, J., DISSENTS WITH SEPARATE OPINION
STATE OF OHIO vs. DEAN M. KLEMBUS
No. 100068
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT
TIM McCORMACK, J., DISSENTING:
{¶19} I respectfully dissent. I would affirm the trial court‘s decision in its entirety. While I concur with the majority‘s analysis of equal protection, I would find no constitutional violations in this case.
{¶20} The Equal Protection Clause of the
{¶21} Courts apply varying levels of scrutiny to equal protection challenges, depending on the right at issue and the alleged discriminatory classification involved. A statute that does not implicate a fundamental right or a suspect classification does not
{¶22} Equal protection 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.” State v. Wilson, 58 Ohio St.2d 52, 55, 388 N.E.2d 745 (1979). Likewise, a prosecutor‘s decision to seek an enhanced penalty for an underlying offense, without more, does not give rise to a violation of equal protection or due process. See State v. Dixon, 2d Dist. Montgomery No. 18582, 2002-Ohio-541. Where, however, there is “selectivity in enforcement of the criminal laws based upon a deliberate and unjustified
{¶23}
{¶24} The guarantees of due process and equal protection are frequently analyzed together. See Wright v. Ohio Dept. of Human Servs., 4th Dist. Washington No. 92 CA 15, 1993 Ohio App. LEXIS 1971, *14 (Mar. 26, 1993). The scope of their protections, however, differ. While due process “generally emphasizes fairness between the state and the individual, * * * ‘equal protection’ generally emphasizes disparity of treatment between classes of individuals who are arguably indistinguishable.” Id., citing Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Substantive due process operates to protect people from arbitrary, unreasonable, or capricious legislation. Id. at *15, citing Eastlake v. Forest City Ents., Inc., 426 U.S. 668, 676, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976); see also Heiner v. Donnan, 285 U.S. 312, 326, 52 S.Ct. 358, 76 L.Ed. 772 (1932). Where there is no fundamental right and no suspect class, such as in
{¶25} 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.
{¶26} A party seeking constitutional review of a statute may either present a facial challenge to the statute as a whole or challenge the statute as applied to a specific set of facts. Id., citing Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. In this case, Klembus argues that
{¶27} Here, Klembus was charged with one count of driving while under the influence, in violation of
{¶28} Pursuant to
{¶29} The indictment also included a specification to
{¶30} Klembus argues that this specification to
{¶31} In Wilson, the defendant was charged with burglary, in violation of
{¶32} 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 WilsonId. at 57-58.
{¶34} Further,
{¶35} Moreover, courts have consistently concluded that an enhanced penalty specification, standing alone, does not violate constitutional protections. In State v. Gonzales, 151 Ohio App.3d 160, 2002-Ohio-4937, 783 N.E.2d 903 (1st Dist.), the First District Court of Appeals found no double jeopardy violation where
{¶36} 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 L.Ed.2d 535 (1983). A reviewing court is therefore “‘limited to ensuring that the trial court did not exceed the sentencing authority which the General Assembly has permitted
{¶37} More specifically, Ohio courts have repeatedly upheld the
{¶38} 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
{¶39} The sentencing provisions outlined in