State v. Burkitt ( 2015 )

[Cite as State v. Burkitt, 2015-Ohio-5292.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2014-CA-154
:
v. : Trial Court Case No. 14-CR-441
:
JAMES BURKITT : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 18th day of December, 2015.
...........
AMY M. SMITH, Atty. Reg. No. 0081712, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, Christopher B. Epley, Co., LPA, 100
East Third Street, Suite 400, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
.............
HALL, J.
{¶ 1} James Burkitt appeals from his conviction and sentence following a guilty
plea to third-degree felony OVI with a specification that he had five or more prior violations
-2-
within 20 years.
{¶ 2} In his sole assignment of error, Burkitt alleges ineffective assistance of
counsel based on his attorney’s failure to argue below that the repeat-offender
specification is unconstitutional on its face.
{¶ 3} The record reflects that Burkitt was indicted on two OVI-related counts in
violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2). Both counts included the
repeat-offender specification under R.C. 2941.1413. Burkitt subsequently entered a
negotiated guilty plea to count one, which charged a third-degree felony violation of R.C.
4511.19(A)(1)(a), and the accompanying specification. At sentencing, the trial court
imposed consecutive prison terms of three years for the OVI conviction and four years for
the specification.
{¶ 4} On appeal, Burkitt acknowledges that a guilty plea waives the right to allege
ineffective assistance of counsel, except to the extent counsel’s performance caused the
plea to be less than knowing, intelligent, and voluntary. State v. Webb, 2d Dist.
Montgomery No. 26198, 2015-Ohio-553, ¶ 15. We perceive Burkitt’s argument to be that
his guilty plea was not made knowingly, intelligently, and voluntarily because his attorney
failed to advise him or the trial court of the unconstitutionality of the repeat-offender
specification. Even if we assume, arguendo, that this issue was not extinguished by
Burkitt’s guilty plea,1 we find no basis for reversal.
1 See, e.g., State v. Johnson, 2d Dist. Greene No. 2013-CA-1, 2013-Ohio-4077, ¶ 5
(“Johnson’s argument here is that his guilty plea was not made knowingly, intelligently,
and voluntarily because his attorney rendered ineffective assistance by not advising him
of a constitutional speedy-trial violation.”); State v. Wilson, 58 Ohio St.2d 52, 55, 388
N.E.2d 745 (1979) (distinguishing “constitutional violations which go to factual guilt from
constitutional violations which pertain to the validity of the statute relied upon by the
state to convict the defendant” and concluding that “those constitutional violations which
-3-
{¶ 5} To prevail on an ineffective-assistance claim, a defendant must show that his
attorney’s performance was deficient and that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Prejudice exists where “there is a reasonable probability that, but for counsel’s deficient
performance, the outcome would have been different.” Id. at 694. In the present case,
Burkitt cannot establish deficient performance because his constitutional argument lacks
merit.
{¶ 6} Burkitt raises an equal-protection challenge to the constitutionality of R.C.
2941.1413, the repeat OVI offender specification. His argument relies exclusively on the
Eighth District’s 2-1 decision in State v. Klembus, 8th Dist. Cuyahoga No. 100068, 2014-
Ohio-1830, reconsideration granted, 2014-Ohio-3227, 17 N.E.3d 603 (8th Dist.), appeal
allowed, 141 Ohio St.3d 1473, 2015-Ohio-554, 25 N.E.3d 1080.
{¶ 7} In Klembus, the defendant was convicted of OVI in violation of 4511.19(A)(1).
The OVI charge was a fourth-degree felony because the indictment alleged, pursuant to
R.C. 4511.19(G)(1)(d), that the defendant had five or more similar convictions within 20
years. In addition to that substantive charge, the defendant was convicted separately of
the repeat-offender specification at issue here. Under R.C. 2941.1413(A), the
specification required proof of five or more similar OVI convictions within 20 years.
{¶ 8} On review, the Eighth District noted that the substantive fourth-degree felony
OVI charge (based on five or more prior convictions) and the repeat-offender specification
(based on five or more prior convictions) could be proven with the same facts, evidence
go to the ability of the state to prosecute, regardless of factual guilt, may be raised on
appeal from a guilty plea”).
-4-
and circumstances. In other words, “the elements of the repeat OVI offender specification
[were] identical to those set forth in R.C. 4511.19(G)(1)(d) for the underlying fourth-degree
felony.”2 Klembus, 2014-Ohio-3227, ¶ 21. That being so, the Eighth District reasoned that
a prosecutor “arbitrarily” could choose to subject some repeat OVI offenders to the
specification while choosing not to subject other similarly-situated OVI offenders to the
specification. Id. Noting that nothing in the repeat-offender specification required it to be
applied uniformly, the Eighth District continued:
* * * [T]here 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.
Id. at ¶ 23.
{¶ 9} In a separate dissent, Judge Tim McCormack disagreed. He noted that the
legislature plainly intended to allow cumulative punishment for the substantive offense
and the specification. He also distinguished State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d
745 (1979), upon which the Klembus majority relied. In Wilson, the Ohio Supreme Court
2 Although this language reads like the preface to an allied-offense argument, it is not.
The Klembus majority recognized that it was not dealing with an allied-offense issue
because the legislature apparently had authorized cumulative punishment for the
substantive OVI violation and the specification. Klembus, 2014-Ohio-3227, at ¶ 10-13.
Rather, the Klembus majority addressed the issue as one involving equal-protection
principles. Id. at ¶ 13, et seq.
-5-
opined 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.” Wilson at 56. In finding Wilson not
applicable, Judge McCormack reasoned in part:
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 R.C. 4511.19, which
proscribed one activity. The statute also contained a penalty enhancement
outlined in R.C. 2941.1413. The R.C. 2941.1413 penalty enhancement
does not prohibit an activity or require proof of an additional element of a
crime. Rather, it is a statutorily authorized specification that increases the
severity of a penalty imposed for certain repeat OVI offenders.
***
The sentencing provisions outlined in R.C. 4511.19 and 2941.1413
clearly reflect the legislature’s intent to create a penalty for an individual who
has been convicted of or pleaded guilty to five or more OVI offenses within
twenty years over and above the penalty imposed for the underlying OVI
conviction itself. Recognizing the sound judgment of the General Assembly,
and in deference to its justifiable intent in authorizing this type of
punishment, I would not find the penalty enhancement set forth in R.C.
2941.1413 to be unconstitutional.
-6-
Klembus, 2014-Ohio-3227, ¶ 36, 45 (McCormack, J., dissenting).
{¶ 10} After the holding in Klembus, which is currently on appeal in the Ohio
Supreme Court, the Third, Eleventh, and Twelfth Districts have disagreed with it and
followed Judge McCormack’s dissent. See, e.g., State v. Burkhart, 2015-Ohio-3409,
37 N.E.3d 220 (12th Dist.); State v. Reddick, 11th Dist. Lake No. 2014-L-082, 2015-Ohio-
1215; State v. Sprague, 3rd Dist. Auglaize No. 2-15-03, 2015-Ohio-3526, ¶ 27-28.
{¶ 11} Here we note that, unlike the defendant in Klembus, appellant Burkitt was
not charged with fourth-degree felony OVI (based on five or more prior OVI convictions)
and the repeat-offender specification (based on five or more prior OVI convictions).
Rather, he was charged with third-degree felony OVI (based on previously having been
convicted of felony OVI) and the repeat-offender specification (based on five or more prior
OVI convictions). Even if we assume, however, that Burkitt’s situation is analogous to
Klembus,3 we find no equal-protection violation.
{¶ 12} In Wilson, upon which the Klembus majority relied, the defendant raised an
equal-protection challenge under the United States Constitution. Wilson at 53. He argued
that the trial court had erred in convicting and sentencing him under the aggravated
burglary statute because it prohibited exactly the same activity as the burglary statute but
carried a heavier penalty. Id. at 55-56. The Ohio Supreme Court identified the issue as
“whether both statutes require the state to prove identical elements while prescribing
3 Because Burkitt’s third-degree felony offense was based on having a prior felony OVI,
it appears that he necessarily also had five or more prior OVI offenses within the past
20 years. See R.C. 4511.19(G)(1)(d) and (e). Therefore, as in Klembus, proof of the
substantive offense would prove the specification as well.
-7-
different penalties.” Id. at 55. The Ohio Supreme Court ultimately found no equal-
protection violation because the aggravated burglary statue required proof of an
additional element. Id. at 57-58. In the course of its ruling, however, the Ohio Supreme
Court opined that if statutes do “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.” Id. at 56.
{¶ 13} Less than two months after the Ohio Supreme Court decided Wilson, the
United States Supreme Court reached a contrary conclusion in United States v.
Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). As in Wilson, the
defendant in Batchelder raised an equal-protection argument under the United States
Constitution. Batchelder involved two statutes that prohibited convicted felons from
receiving firearms. The defendant was charged and convicted under the statute that
carried the greatest penalty. As in Wilson, he argued that sentencing him under the statute
that carried the greatest penalty constituted an equal-protection violation because the two
statutes had identical substantive elements. In a unanimous decision, the United States
Supreme Court disagreed. It recognized that “when an act violates more than one criminal
statute, the Government may prosecute under either so long as it does not discriminate
against any class of defendants.” Batchelder at 123-124. “Whether to prosecute and what
charge to file or bring before a grand jury are decisions that generally rest in the
prosecutor’s discretion.” Id. at 124. The mere exercise of that discretion, even when two
statutes prohibit the same conduct and have different penalties, does not violate equal
protection. Id. at 124-126. In reaching this conclusion, the United States Supreme Court
reasoned:
-8-
* * * [T]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. * * *
Id. at 125; see also State v. Dixon, 2d Dist. Montgomery No. 18582, 2002 WL 191582,
*3-4 (Feb. 8, 2002) (rejecting an equal-protection argument under Wilson in light of the
United States Supreme Court’s subsequent decision in Batchelder).
{¶ 14} Upon review, we find Batchelder to be dispositive of the argument Burkitt
raises on appeal. As noted above, he asserts that the substantive OVI charge and the
specification required identical proof to sustain a conviction. That being so, he claims the
prosecutor “arbitrarily,” and in violation of equal-protection principles, was able to obtain
a greater penalty for the same conduct by including the specification in the indictment.
We find this argument unpersuasive based on Batchelder and the decisions of the Third,
Eleventh, and Twelfth appellate districts discussed above rejecting the majority opinion
in Klembus, which we find unpersuasive.
-9-
{¶ 15} The assignment of error is overruled, and the judgment of the Clark County
Common Pleas Court is affirmed.
.............
FAIN, J., concurs.
FROELICH, P.J., concurring:
{¶ 16} I agree with the majority’s conclusion that a conviction for F-3 OVI and the
specification does not violate equal protection. On their face, the F-3 OVI and the
specification have the same elements, and logically, there cannot be a conviction of one
without the other. The unequal protection finding of the Klembus case is attractive, but
does not account for the legislature’s apparent Orwellian determination that not all F-3
OVI’s are equal – some are more equal than others. The five offenses in twenty years
could have been bunched together or spread out, there could have been charges or
convictions of prior alcohol-related offenses, the offender could have rejected attempts at
rehabilitation, or a myriad of other factors which are within the State’s discretion to
consider.
{¶ 17} I write separately to emphasize that, in determining the appropriate
sentence for both the underlying OVI and the repeat offender specification, the trial court
must consider the statutory factors of felony sentencing set forth in R.C. 2929.11 and
R.C. 2929.12.
{¶ 18} The Ohio Supreme Court recently addressed the sentencing requirements
for an individual convicted of a third-degree felony OVI and a repeat offender
specification. State v. South, Slip Opinion No. 2015-Ohio-3930. It held that a trial court
-10-
must impose on the repeat offender specification a mandatory prison term of one to five
years, which must be served prior to and consecutive with any discretionary term of 9 to
36 months imposed on the underlying OVI conviction. Id. at ¶ 19. With these
sentencing requirements, an offender could be placed on community control for the F-3
OVI and simultaneously, for the same act (5 OVIs within 20 years), be sentenced up to
five years of mandatory imprisonment prior to the community control sanctions.
{¶ 19} Although the R.C. 2941.1413 specification requires a mandatory sentence,
R.C. 2929.13(G)(2), the court has the discretion to impose a range of one to five years.
Therefore, both the sentence for the underlying OVI – which is not mandatory
imprisonment – and the range of the mandatory imprisonment specification require
consideration by the sentencing court of the statutory factors. In this regard, it is no
different than a trial court’s imposition of any mandatory sentence, such as for a felony
drug offense; the court still maintains the discretion as to the length of that sentence,
guided by the R.C. 2929.12 factors.
{¶ 20} In South, Klembus, and in this case, the court sentenced the offender to
non-minimum terms in prison under both the F-3 OVI and the specification. Therefore,
this analysis is left for another day.
..........
Copies mailed to:
Amy M. Smith
Christopher B. Epley
Hon. Douglas M. Rastatter