State v. Sprague , 2015 Ohio 3526 ( 2015 )

[Cite as State v. Sprague, 2015-Ohio-3526.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-15-03
v.
SHAWN W. SPRAGUE, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2014-CR-154
Judgment Affirmed
Date of Decision: August 31, 2015
APPEARANCES:
Rob C. Wiesenmayer, II for Appellant
R. Andrew Augsburger for Appellee
Case No. 2-15-03
SHAW, J.
{¶1} Defendant-appellant, Shawn W. Sprague (“Sprague”), appeals the
January 20, 2015 judgment of the Auglaize County Court of Common Pleas
convicting him of operating a motor vehicle while under the influence of alcohol
(“OVI”), with a specification pursuant to R.C. 2941.1413. Sprague received an
aggregate sentence of forty-two months in prison. Sprague assigns as error the
trial court overruling his motion to dismiss challenging the constitutionality of the
specification charged in the indictment, which stated that within twenty years of
committing the offense, Sprague previously had been convicted of or pleaded
guilty to five or more equivalent offenses.
{¶2} On October 2, 2014, the Auglaize County Grand Jury returned an
indictment against Sprague charging him with two counts of OVI in violation of
R.C. 4511.19(A)(1)(a), (G)(1)(d) and R.C. 4511.19(A)(2), (G)(1)(d), both felonies
of the fourth degree. The record reflects that Sprague had five prior OVI
convictions dating back to July 20, 1995. As a result, each OVI charge included
language specifying that within twenty years of the offense, Sprague previously
had been convicted of or pleaded guilty to five or more equivalent offenses.
The charges stemmed from an episode that took place on September 7,
2014, when two witnesses called the Wapakoneta Police Department to report
their observations of Sprague’s erratic operation of his vehicle. One witness
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blocked-in Sprague’s vehicle after he parked it at a gas station to purchase a
twelve-pack of beer and waited for law enforcement to arrive. Officer Golden
responded to the scene and determined Sprague to be impaired. Specifically,
Officer Golden noticed an odor of alcoholic beverage about Sprague and observed
that he had difficulty standing and slurred speech. Officer Golden offered Sprague
a breath test, which he refused. Sprague then agreed to submit to field sobriety
tests, the results of which also indicated impairment. Officer Golden reviewed
Sprague’s record and it was revealed that Sprague had five prior OVI convictions.
Sprague was subsequently arrested and charged.
{¶3} On October 15, 2014, Sprague pleaded not guilty to the charges and
was released on an own recognizance bond.
{¶4} On November 19, 2014, Sprague filed a motion to dismiss the repeat
OVI offender specification based on the Eighth Appellate District’s holding in
State v. Klembus, in which that court determined the specification was facially
unconstitutional on the ground 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 prosecutor filed a response relying on State v. Hartsook in which
the Twelfth Appellate District disagreed with the majority opinion in Klembus and
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upheld the specification as constitutionally valid. See State v. Hartsook, 12th Dist.
Warren No. CA2014-01-020, 2014-Ohio-4528.
{¶5} On January 8, 2015, the trial court overruled Sprague’s motion to
dismiss the specification finding the rationale set forth in Hartsook persuasive.
{¶6} On January 20, 2015, pursuant to a negotiated plea agreement,
Sprague withdrew his previously tendered not guilty plea and entered a plea of no
contest to one count of OVI with the specification. The prosecution dismissed the
second OVI count as a result of the parties’ agreement. The trial court
subsequently accepted Sprague’s no contest plea and found him guilty. The case
proceeded immediately to sentencing. The trial court sentenced Sprague to an
aggregate prison term of forty-two months on the OVI offense, with one year of
the sentence being a mandatory prison term pursuant to the language of R.C.
2941.1413 and an additional thirty-month prison term to be served consecutive to
the mandatory one-year prison term.
{¶7} Sprague now appeals, asserting the following assignment of error.
THE TRIAL COURT ERRED IN SENTENCING THE
DEFENDANT UNDER R.C. § 2941.1413 BECAUSE THE
STATUTE VIOLATES, ON ITS FACE, THE
CONSTITUTIONS OF THE UNITED STATES AND OF
OHIO.
{¶8} On appeal, Sprague asserts that the so-called repeat OVI offender
specification set forth in R.C. 2941.1413 is unconstitutional. Sprague’s argument
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relies entirely on the rationale utilized by the majority opinion in State v. Klembus.
Klembus, 2014-Ohio-3227 (McCormack J., dissenting). In Klembus, the court
analyzed the interaction between R.C. 4511.19(G)(1)(d) and R.C. 2941.1413 and
found that R.C. 2941.1413 was unconstitutional, on its face, because it violated the
appellant’s right to equal protection and due process of law.
{¶9} The argument made in Klembus, from which Sprague liberally
borrows, asserts that R.C. 2941.1413, which contains the same language as R.C.
4511.19(G)(1)(d) with regard to an offender having five or more prior convictions
within twenty years of the offense, operates to make the offender subject to an
enhanced penalty of one, two, three, four, or five years of mandatory prison time
which would otherwise not be available for the sentencing court to impose absent
the inclusion of a “specification” in the indictment reiterating the same elements as
the underlying fourth degree felony OVI offense. Thus, the appellant in Klembus
claimed that R.C. 2941.1413 violates his constitutional right to equal protection
and due process of law because it gives the prosecutor unfettered discretion to
“arbitrarily obtain a greater prison sentence for the underlying offense without
proof of any additional element, fact, or circumstance.” Klembus at ¶ 7.
{¶10} Specifically, the claim is that by placing the allegation pertaining to
five or more prior convictions within twenty years of the offense in the body of the
indictment alone, the prosecutor would make a defendant eligible for only a lesser
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set of penalties for a fourth degree felony. However, by arbitrarily deciding to
place the same allegation pertaining to five or more prior convictions within
twenty years of the offense in the body of the indictment and also into a separately
titled “SPECIFICATION” to that count of the indictment, the prosecutor could
subject the defendant to an enhanced level of penalties for the same fourth degree
OVI felony offense, without requiring proof of any additional element, fact or
circumstance. As such, any statute permitting such a specification must be
unconstitutional.
{¶11} The majority opinion in Klembus agreed with these arguments
regarding the constitutionally of the specification and held that:
R.C. 2941.1413(A) provides 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.
Klembus at ¶ 23.
{¶12} The primary tenets underlying the Klembus majority opinion depend
upon two statutory interpretations: (1) that R.C. 4511.19(G)(1)(d)(i) provides for
two sets of statutorily sanctioned punishments for a fourth degree felony OVI
offense involving an offender who, within twenty years of the offense, previously
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has been convicted of or pleaded guilty to five or more equivalent offenses—and
(2) that placing allegations pertaining to the five or more convictions within
twenty years in the body of the indictment alone is not sufficient to invoke the
enhanced penalties of a mandatory one to five years in prison because if such an
allegation is merely contained in the body of the indictment it does not constitute a
“specification” of that allegation under the language of R.C. 2941.1413. We
respectfully disagree with both interpretations.
{¶13} We have previously expressed our reservation regarding the
construction of R.C. 4511.19(G)(1)(d) and R.C. 2941.1413 advanced in the
Klembus opinion. State v. Stephens, 3d Dist. Seneca No. 13-14-28, 2015-Ohio-
1078, ¶ 11. Our concerns are twofold.
{¶14} First, contrary to the Klembus majority, we are not convinced that
R.C. 4511.19(G)(1)(d)(i) creates two tiers of punishment for a fourth degree
felony OVI offense involving an offender who, within twenty years of the offense,
previously has been convicted of or pleaded guilty to five or more equivalent
offenses. Stated another way, if this was the legislative intent, we find that the
language of R.C. 4511.19(G)(1)(d)(i) and R.C. 2941.1413 conclusively fails to
adequately delineate that intent.
{¶15} Rather, we believe R.C. 4511.19(G)(1)(d)(i) describes two separate
sets of punishments for the two separate offenses set forth in R.C.
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4511.19(G)(1)(d): (1) a fourth degree felony OVI offense for an offender who,
within six years of the offense, previously has been convicted of or pleaded guilty
to three or four OVI offenses; and (2) a fourth degree felony OVI offense for an
offender who, within twenty years of the offense, previously has been convicted of
or pleaded guilty to five or more OVI offenses. Specifically, the language of R.C.
4511.19(G)(1)(d) sets forth the two offenses as follows:
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:
{¶16} Keeping in line with the statutory scheme setting forth two separate
fourth degree felony OVI offenses, R.C. 4511.19(G)(1)(d)(i) also describes two
distinct punishments and provides instruction to the sentencing court in imposing
the appropriate sentence. The first sentence of the statutory provision identifies
the offenses for which the sentences are to be imposed.
If the sentence is being imposed for a violation of division
(A)(1)(a), (b), (c), (d), (e), or (j) of this section,
The statute then describes a penalty which is the harsher of the two and includes a
mandatory prison term of one to five years when the allegation of “five or more
prior convictions within twenty years” is specified in the indictment:
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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
The same provision goes on to describe a second, lesser penalty which is
applicable where there is no allegation of “five or more convictions within twenty
years” specified in the indictment:
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.
{¶17} It is our reading that the two punishments outlined above in R.C.
4511.19(G)(1)(d)(i) simply correspond to the two entirely separate fourth degree
felony offenses set forth in R.C. 4511.19(G)(1)(d), the greater of which is
designed to punish the offender’s conduct of having five or more prior OVI
convictions within twenty years of the current offense.
{¶18} The only penalty portion of R.C. 4511.19(G)(1)(d)(i) which is not
mutually exclusive to the separate fourth degree felony offenses appears to be the
last two sentences of the provision which authorize the trial court to impose an
additional definite prison term of six months to thirty months and/or community
control, on top of any mandatory prison sentence—either the mandatory sixty days
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in prison for the lesser fourth degree felony (based on three or four prior
convictions within six years) or the mandatory one to five years for the greater
fourth degree felony (based on five or more prior convictions within twenty
years.) This specific statutory language of R.C. 4511.19(G)(1)(d)(i) states:
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.
{¶19} However, there is nothing in the language of R.C.
4511.19(G)(1)(d)(i) to persuade us that the legislature ever intended to assign two
separate levels of gravity and two separate sets of punishments for those who have
five or more prior OVI convictions within twenty years.
{¶20} Second, although it might be the better practice to do so, we see
nothing in the language of R.C. 4511.19(G)(1)(d)(i) or R.C. 2941.1413 that would
require a prosecutor who has set forth the proper allegations of “five or more prior
convictions within twenty years” into the body of the indictment, to repeat that
allegation in a separately titled “SPECIFICATION” in order to invoke and impose
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the mandatory additional prison term of one, two, three, four, or five years upon
the offender. Instead, the language of R.C. 2941.1413 states as follows:
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).”
(Emphasis added). (We also note that R.C. 4511.19(G)(1)(d)(i) refers only to a
specification “of the type” described in R.C. 2941.1413.). Therefore, it is our
view that it is sufficient to specify the enhanced elements of the fourth degree
felony OVI offense by reason of five or more prior convictions within twenty
years, at “the end of the body of the indictment, count, or information” so long as
the allegation is stated in “substantially” the same form and is “of the type”
described in R.C. 2941.1413.
{¶21} Here, the indictment in the present case stated the following in Count
One:
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The Jurors of the Grand Jury of the State of Ohio, within and
for the body of the County aforesaid, on their oaths, in the name
and by the authority of the State of Ohio, do find and present
that on or about the 7th day of September, 2014, at Auglaize
County, Ohio, SHAWN W. SPRAGUE, did operate any vehicle
within this State, and at the time of the operation the person is
under the influence of alcohol, a drug of abuse, or a combination
of them, and the said SHAWN W. SPRAGUE has previously been
convicted or pleaded guilty to five or more violations of Ohio
Revised Code §4511.19 or other equivalent offenses in the past 20
years.
(Doc. No. 1)(emphasis added).
{¶22} Under the explicit provisions of R.C. 2941.1413, this language alone
was “substantially in the form” set forth in R.C. 2941.1413, sufficient to specify
the requisite allegations “of the type” described in R.C. 2941.1413 and was
therefore sufficient to comply with the sentencing provisions of R.C.
4511.19(G)(1)(d)(i). Nevertheless, as in Klembus, the prosecutor in this case also
chose to reiterate the specified language in the format suggested by the statute in a
separate paragraph as follows:
Specification to Count One of the Indictment: The Grand
Jurors further find and specify that the said SHAWN W.
SPRAGUE has been convicted of or pleaded guilty to five or
more violations of Ohio Revised Code §4511.19 or other
equivalent offenses in the past 20 years.
Said act is a felony of the fourth degree in violation of Ohio
Revised Code Title 45 §4511.19(A)(1)(a)(G)(1)(d), and against
the peace and dignity of the State of Ohio.
(Doc. No. 1).
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{¶23} The fact that the prosecutor in this case chose to reiterate the
essential statutory allegations pertaining to five or more prior convictions within
twenty years in a separate “specification” after already stating them at the end of
the first count of the indictment, while admirable for clarification and for
following the exact format suggested by R.C. 2941.1413, does not add any legal
consequence or provide any additional sentencing authority to this indictment.
{¶24} On the contrary, under the express terms of R.C. 2941.1413, it is our
conclusion that the allegation pertaining to five or more prior convictions within
twenty years inserted at “the end of the body of the count” in this case was
sufficient to “specify” the essential elements of the fourth degree felony OVI
offense necessary to invoke the imposition of a mandatory additional prison term
of one, two, three, four, or five years upon Sprague, which, as stated above, is the
only punishment described by statute for a fourth degree felony OVI offense for an
offender who, within twenty years of the offense, previously has been convicted of
or pleaded guilty to five or more OVI offenses.
{¶25} In sum, we are not convinced that R.C. 4511.19(G)(1)(d) and R.C.
2941.1413 delineate two different levels of gravity and two different sets of
punishments for an offender who has five or more prior OVI convictions within
twenty years of the offense, or that R.C. 2941.1413 gives the prosecutor any
discretion to choose an enhanced punishment by merely reiterating the allegations
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of the indictment, without having to prove any additional elements, facts or
circumstances.
{¶26} On the contrary, it is our view that where the indictment, within the
count, at the end of the count or in a separately titled paragraph after the count,
specifically alleges that the grand jurors find that the defendant “within twenty
years of the offense, previously has been convicted of or pleaded guilty to five or
more equivalent offenses,” the requisite enhancement allegations for this OVI
offense have been specified, the provisions of R.C. 2941.1413 and R.C.
4511.19(G)(1)(d)(i) are invoked and the defendant is subject to the single set of
mandatory prison terms of one to five years, together with the additional
discretionary terms of six months to thirty months in prison and/or community
control provisions set forth in those statutes.
{¶27} Finally, we note that the Supreme Court of Ohio has recently
accepted jurisdiction to review a challenge to the Klembus case. In the event that
the Supreme Court declines to address or accept our statutory analysis set forth
above, we find it necessary to express that we also disagree with the constitutional
reasoning of the majority in Klembus. Nor do we find any legitimate basis to
challenge the constitutionality of R.C. 2941.1413 based on the equal protection
and due process arguments presented in that case.
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{¶28} Accordingly, we join both the Twelfth and Eleventh Appellate
Districts in rejecting the holding in Klembus and adopt the rationale set forth in
Hartsook finding R.C. 2941.1413 constitutionally valid. See State v. Hartsook,
12th Dist. Warren No. CA2014-01-020, 2014-Ohio-4528, ¶¶ 39-54 and State v.
Burkhart, 12th Dist. Clermont No. CA2015-01-004, 2015-Ohio-3409, ¶¶ 29-38;
see also State v. Reddick, 11th Dist. Lake No. 2014-L-082, 2015-Ohio-1215, ¶ 11
and State v. Snowden, 11th Dist. Trumbull No. 2014-T-0092, 2015-Ohio-2611, ¶
13 (adopting the rationale in Hartsook and finding R.C. 2941.1413 not
unconstitutional).
{¶29} Based on the foregoing, we find no error with the trial court’s
decision to overrule Sprague’s motion to dismiss the specification pursuant to R.C.
2941.1413 and, therefore, we also overrule the assignment of error.
{¶30} For all these reasons, the judgment of the trial court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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