STATE OF OHIO, PLAINTIFF-APPELLEE, v. MICHAEL E. STEPHENS, DEFENDANT-APPELLANT.
CASE NO. 13-14-28
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
March 23, 2015
2015-Ohio-1078
Appeal from Seneca County Common Pleas Court, Trial Court No. 13-CR-0101. Judgment Affirmed.
James A. Fruth for Appellant
Stephanie J. Reed for Appellee
{¶1} Defendant-appellant, Michael E. Stephens (“Stephens”), appeals the August 26, 2014 judgment of the Seneca County Court of Common Pleas convicting him of operating a vehicle while under the influence of alcohol (“OVI”), with specifications, and of failure to comply with an order or signal of a police officer, also with specification. Stephens received a sentence of two years plus forty-eight months in prison. Stephens assigns as error the trial court overruling his motion to dismiss challenging the constitutionality of the repeat OVI offender specification charged in the indictment, which stated that he had been convicted of five or more prior OVI offenses within the past twenty years.
{¶2} On July 17, 2013, the Seneca County Grand Jury returned an indictment against Stephens charging him with two counts of OVI in violation of
{¶3} The charges stemmed from an episode that took place on June 16, 2013, when Officer Jacob Demonte observed Stephens commit several traffic violations while driving. Officer Demonte attempted to conduct a traffic stop but Stephens failed to comply and led law enforcement on a six minute, 2.3 mile vehicle pursuit through residential streets and alleys while driving at speeds of 50 miles per hour in a 25 mile per hour zone. Stephens was driving while his operator’s license was under suspension for his 2011 felony OVI conviction. After the conclusion of the pursuit, Officer Demonte noticed an odor of alcoholic beverage on Stephens’ breath and observed Stephens’ eyes to be red, glassy and bloodshot. Stephens refused to submit to a chemical test of his breath which led to a sample of his blood being obtained pursuant to a search warrant. The result of the test indicated Stephens had an alcohol content of 0.256 grams per deciliter of plasma.
{¶4} On July 22, 2013, Stephens was arraigned and pleaded not guilty to the charges.
{¶6} On July 11, 2014, Stephens appeared for sentencing. At the hearing, Stephens orally requested a continuance to allow his counsel to research recently released case law finding the repeat OVI offender specification unconstitutional on the basis that it violated the Equal Protection Clause of the Federal and Ohio Constitutions. See State v. Klembus, 8th Dist. Cuyahoga No. 100068, 2014-Ohio-1830 (McCormack J., dissenting) reconsidered in State v. Klembus, 8th Dist. Cuyahoga No. 100068, 2014-Ohio-3227 (McCormack J., dissenting). The trial court granted the continuance, ordered the parties to brief the issue, and held oral argument on the matter.
{¶7} On August 4, 2014, the trial court overruled Stephens’ motion to dismiss finding the Klembus decision to be inapplicable to the statutory offense in this case and concluding that the repeat OVI offender specification did not violate Stephens’ right to equal protection of the law in any event because it bears a
{¶8} On August 26, 2014, the trial court sentenced Stephens to two years and twenty-four months on the OVI offense, noting that the two years was a mandatory prison term pursuant to the repeat OVI offender specification, and to a twenty-four month prison term on the failure to comply with an order or signal of a police officer offense, to be served consecutively, for a total prison term of two years and forty-eight months.1
{¶9} Stephens’ now appeals, asserting the following assignment of error.
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO DISMISS SPECIFICATION IN THE INDICTMENT BECAUSE APPELLANT’S CONSTITUTIONAL EQUAL PROTECTION AND DUE PROCESS RIGHTS WERE VIOLATED AND BECAUSE THE SPECIFICATION IS BASED UPON THE SAME INFORMATION OR PROOF REQUIRED TO ESTABLISH A LESSOR FELONY, THEREBY ARBITRARILY GIVING THE STATE THE OPPORTUNITY TO SECURE A GREATER PRISON SENTENCE FOR VIOLATION OF
{¶10} On appeal, Stephens asserts that the repeat OVI offender specification set forth in
{¶11} At the outset, we note our view that the Klembus opinion is based upon a fundamental misconstruction of the language and operation of
{¶12} However, it is unnecessary to address our view of the Klembus decision or any of the reasoning contained therein, because we find that Stephens’ guilty plea and lack of any motion to withdraw that plea in this case, waived any complaint or assignment of error as to claimed constitutional violations not related to the entry of the guilty plea. See State v. Ketterer, 111 Ohio St. 3d 70, 82, 2006-Ohio-5283, ¶ 105. “ ‘[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process.’ ” State v. Spates, 64 Ohio St.3d 269, 272 (1992), quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973). The Supreme Court of Ohio has held that “a defendant who * * * voluntarily, knowingly, and intelligently enters a guilty plea with the assistance of counsel ‘may not thereafter raise independent claims relating to the deprivation of
{¶13} When a criminal defendant admits to the facts contained in the indictment, all independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea are thereby waived. See Tollett at 267. This waiver includes any right to challenge defects in the indictment based on the constitutionality of a state statute. See, e.g., State v. Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-3606, ¶ 3–6.
{¶14} Because Stephens does not challenge the validity of his plea, and there is nothing in the record to suggest that his guilty plea was not voluntarily, knowingly and intelligently made, he waived his right to challenge the constitutionality of
Judgment Affirmed
ROGERS, P.J. and PRESTON, J., concur.
/jlr