State v. Ballard , 2016 Ohio 364 ( 2016 )

[Cite as State v. Ballard, 2016-Ohio-364.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-140755
C-140690
Plaintiff-Appellee, : TRIAL NO. B-1305043
vs. : O P I N I O N.
ELMER BALLARD, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 3, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Presiding Judge.
{¶1} This is an appeal from a conviction for drunk driving. Elmer Ballard has
a long history of driving drunk and was convicted and sentenced under a provision of
Ohio law that provides for an enhanced punishment when a “repeat offender”
specification is included in the indictment. He argues that the statute providing for the
repeat-offender specification is facially unconstitutional because the prosecutor has
discretion as to whether to seek the specification. He points out that one Ohio court has
indeed found the repeat-offender specification to be unconstitutional. We don’t buy the
argument. Prosecutorial discretion is an inherent part of our criminal justice system,
and we see nothing on the face of the statute at issue that rises to the level of a
constitutional violation. Mr. Ballard also claims other errors in the proceedings below,
but we find no grounds to reverse his conviction and sentence. We therefore affirm the
judgment of the trial court.
I. Background
{¶2} Mr. Ballard crashed his pickup truck into an apartment building.
Responding police officers observed Ballard, who appeared to be under the influence of
alcohol, attempting to back the truck away from the building. A breath test revealed that
he had a breath-alcohol level of .183 grams per 210 liters of breath. Because Ballard had
had five prior OVIs within the past 20 years, he was charged with two fourth-degree-
felony OVIs with accompanying repeat-offender specifications. See R.C. 2941.1413.
{¶3} Mr. Ballard filed a motion to dismiss the repeat-offender specifications on
the ground that R.C. 2941.1413 was unconstitutional. After the trial court denied his
motion, Mr. Ballard pled no contest to the two counts of OVI and accompanying
specifications. The court found him guilty, merged the counts and specifications, and
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OHIO FIRST DISTRICT COURT OF APPEALS
imposed a sentence of two years for the OVI and a mandatory one-year sentence for the
specification. The court also ordered that Ballard’s license be suspended for ten years
beginning on the day of sentencing. Mr. Ballard now appeals.1
II. The Repeat-Offender Specification is Constitutional
{¶4} The Ohio legislature has enacted a statutory scheme geared toward
habitual drunk drivers with five or more previous convictions within the past 20 years.
Such drivers are subject to a mandatory sentence of one to five years in addition to the
sentence that is imposed on the underlying charge. See R.C. 4511.19(G)(1)(d). To invoke
the scheme, the indictment must contain a “specification” that an individual has been
convicted of five or more OVI offenses within the past 20 years. See R.C. 2941.1413.
{¶5} In this case, Mr. Ballard pled no contest to a violation of R.C.
4511.19(A)(1)(h) with five prior OVI convictions in the last 20 years and to a repeat-
offender specification. He was sentenced under R.C. 4511.19(G)(1)(d)(ii), which
provides in relevant part that
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:
***
a mandatory prison term of one, two, three, four, or five years * * * if the
offender also is convicted of [the repeat-offender specification.] * * * If the
court imposes a mandatory prison term, * * * it also may sentence the
1 Two notices of appeal of Ballard’s conviction were filed on his behalf. Those appeals have been
consolidated for this opinion.
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OHIO FIRST DISTRICT COURT OF APPEALS
offender to a definite prison term that shall be not less than six months
and not more than thirty months * * * .
Thus an offender like Ballard, who had five previous OVIs in the past 20 years and who
is convicted of the specification and the underlying OVI, will receive the mandatory one
to five years on the specification and may also receive six to 30 months on the
underlying charge.
{¶6} In his first assignment of error, Mr. Ballard argues that R.C. 2941.1413
violates the Equal Protection and Due Process Clauses of the United States and Ohio
Constitutions. He contends that the statute is unconstitutional because the potential
length of a sentence depends on whether the prosecutor chooses to seek a repeat-
offender specification in the indictment.
{¶7} The gist of the equal-protection argument is that the statute is
unconstitutionally unfair because two defendants, each with five or more prior OVIs,
could be subject to a different potential range of sentences depending on whether the
repeat-offender specification is included in their indictments. The due-process
argument is similar: the statute violates (substantive) due-process guarantees because
it arbitrarily creates different punishment schemes depending on whether the repeat-
offender specification is included.
{¶8} Mr. Ballard raises a facial challenge to the statute. That is, he doesn’t
argue that the statute was applied to him in an unconstitutional manner—for example,
that he was singled out for harsh treatment because of some particular attribute or
prosecutorial vindictiveness; rather he contends that the statute is unconstitutional on
its face because it allows for differential treatment.
{¶9} The first step in both the equal-protection and due-process analyses is to
locate the standard of review. Mr. Ballard makes no claim that the scheme burdens a
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OHIO FIRST DISTRICT COURT OF APPEALS
fundamental right or involves a suspect classification, so we apply only rational-basis
review. See State v. McKinney, 1st Dist. Hamilton Nos. C-140743 and C-140744, 2015-
Ohio-4398, ¶ 27. Under such review, “legislative distinctions are invalid only if they
bear no relation to the state’s goals and no ground can be conceived to justify them.”
State v. Thompkins, 75 Ohio St.3d 558, 561, 664 N.E.2d 926 (1996). Here, one can
hardly quibble with the legislative judgment that those who repeatedly drive drunk
ought to suffer enhanced punishments.
{¶10} But Ballard’s beef is not so much with the rationality of enhanced
punishments, but that the statute allows for prosecutorial discretion. Even though an
offender has five OVIs, a prosecutor might not choose to seek the repeat-offender
specification, and thus that lucky defendant would be subject to a much lesser
punishment than the one Ballard received.
{¶11} Mr. Ballard faces an uphill struggle with the argument that he has chosen.
Our criminal justice system is replete with situations where a defendant’s sentence
depends on the discretionary decisions of a prosecutor. Prosecutors frequently exercise
discretion as to the offenses—and their level—with which to charge a particular
defendant. In any case involving a specification, a prosecutor might choose not to seek
the specification. Discretion continues after the initial charging process. The whole area
of plea bargaining is rife with prosecutorial discretion. Similarly, prosecutors routinely
exercise discretion in choosing whether to recommend or agree to a certain sentence.
And of course, it is not just prosecutors who exercise discretion; judges exercise
discretion in the process as well. So long as selectivity in enforcement is not based upon
an unjustifiable standard (e.g., race, religion or other suspect classification), “the
conscious exercise of some selectivity in enforcement” does not amount to a
constitutional violation. Bordenkircher v. Hayes, 434 U.S. 357, 364-365, 98 S.Ct. 663,
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OHIO FIRST DISTRICT COURT OF APPEALS
54 L.Ed.2d 604 (1978), quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7
L.Ed.2d 446 (1962). Once a “prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or not to prosecute, and
what charge to file or bring before a grand jury, generally rests entirely in his discretion.”
Bordenkircher at 364.
{¶12} For support, Mr. Ballard looks to the Eighth Appellate District’s decision
in State v. Klembus, 8th Dist. Cuyahoga No. 100068, 2014-Ohio-3227, a case that is now
under review by the Ohio Supreme Court. The Klembus court found the repeat-offender
specification unconstitutional based upon the Ohio Supreme Court’s decision in State v.
Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979). In Wilson, the court noted that there
was no violation of the Equal Protection Clause of the United States Constitution “when,
based upon prosecutorial discretion, a person may be charged under more than one
statute and thereby receive different penalties.” Id. at 55. The court went on to state,
however, that if “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.” Id. at 56. Relying upon this sentence,
the court in Klembus concluded that, because the repeat-offender specification “does not
require proof of any additional element to increase the penalty for the same conduct[,]”
it unconstitutionally “allows the prosecutor to arbitrarily subject some individual
defendants * * * to increased penalties that others are not subject to.” Klembus at ¶ 21.
{¶13} We are not persuaded by the reasoning in Klembus. The court neglected
to consider in its analysis that, a few months after the Ohio Supreme Court issued its
decision in Wilson, the United States Supreme Court made a very different ruling in
United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). There,
a unanimous court rejected the analysis applied by the Ohio Supreme Court in Wilson
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OHIO FIRST DISTRICT COURT OF APPEALS
and subsequently by the Eighth District in Klembus. “There is no appreciable
difference,” the Batchelder court explained, “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.” Id. at 125. “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.{¶14} The Wilson decision was decided solely on the grounds of the United
States Constitution. Wilson at paragraph two of the syllabus. Thus, the United States
Supreme Court’s subsequent decision in Batchelder is controlling for purposes of
Ballard’s federal claims. Indeed, in the 35 years between the issuance of the Batchelder
decision and Klembus, no Ohio appellate court had ever applied Wilson to find a
criminal statute unconstitutional. Furthermore, Mr. Ballard has not presented anything
that would suggest that a different result is warranted under the Ohio Constitution.
{¶15} We are not alone in rejecting the Eighth District’s analysis in Klembus.
The Third, Eleventh and Twelfth Districts have done the same. See State v. Sprague, 3d
Dist. Auglaize No. 2-15-03, 2015-Ohio-3526; State v. Reddick, 11th Dist. Lake No. 2014-
L-082, 2015-Ohio-1215; State v. Hartsook, 12th Dist. Warren No. CA2014-01-020,
2014-Ohio-4528.
{¶16} Thus, we hold that R.C. 2941.1413 does not on its face violate the Equal
Protection Clauses or the Due Process Clauses of the United States and Ohio
Constitutions. The first assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. The Court Didn’t Err in Finding Ballard Guilty of the Specification
{¶17} Mr. Ballard insists in his second assignment of error that the court erred
when it found him guilty of the repeat-offender specification because one of the previous
convictions listed in the indictment was not an OVI or “equivalent offense.” It appears
that the wrong offense was listed in count one in the indictment. The indictment
referenced “C/97/TRC/11360” rather than “C/96/TRC/11360.” In the recitation of the
facts to which Ballard pled, however, the assistant prosecuting attorney cited the correct
OVI case number. Mr. Ballard waived any challenge to the facts underlying his
conviction when he pled no contest. See Crim.R. 11(B)(2); State v. Bird, 81 Ohio St.3d
582, 584, 692 N.E.2d 1013 (1998). The second assignment of error is overruled.
IV. The Court Didn’t Err in Ordering the Suspension to Begin at Sentencing
{¶18} Ballard’s third assignment of error is that the court erred when it ordered
that his ten-year driver’s license suspension begin on the date of sentencing. Mr. Ballard
cites no legal authority for his contention that the suspension should have been made
retroactive to the date of his arrest.
{¶19} The court was required to order a driver’s license suspension within the
range of three years to life. See R.C. 4511.19(G)(1)(d)(iv) and 4510.02. Nothing in the
statutes dictates when the suspension must begin. Courts considering the start-date of
license suspensions have recognized the discretion allowed to the trial court. The Fourth
Appellate District thus found no error when the court ordered the suspension to begin
on the date of sentencing. See State v. Tetzlaff, 4th Dist. Highland No. 712, 1990 Ohio
App. LEXIS 1128, *9 (Mar. 7, 1990). See also State v. Jordan, 10th Dist. Franklin Nos.
14AP-978 and 14AP-979, 2015-Ohio-4457, ¶ 24 (“Absent statutory indication that the
suspension may not be deferred, a trial court acts within its sentencing discretion to
order the suspension to be served upon the offender’s release from prison.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} We conclude that the court did not abuse its discretion when it ordered
that the suspension start on the date of sentencing. The third assignment of error is
overruled.
V. The Sentence Wasn’t Contrary to Law
{¶21} In the final assignment of error, Mr. Ballard argues that the aggregate
three-year sentence imposed by the court was excessive. We may modify or vacate
Ballard’s sentence only if “we ‘clearly and convincingly find’ that either (1) the record
does not support the mandatory sentencing findings, or (2) that the sentence is
‘otherwise contrary to law.’ ” State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11
(1st Dist.). Because no findings were required, our review is limited to whether
Ballard’s sentence is clearly and convincingly contrary to law. Here, the one-year
sentence for the specification and the 24-month sentence for the underlying OVI
were within the statutory range. See R.C. 4511.19(G)(1)(d)(ii). And absent a
demonstration to the contrary, we presume that the court considered the purposes
and principles of sentencing. See State v. Love, 194 Ohio App.3d 16, 2011-Ohio-
2224, 954 N.E.2d 202, ¶ 14 (1st Dist.). The fourth assignment of error is overruled.
{¶22} We therefore affirm the judgment of the trial court.
Judgment affirmed.
M OCK and S TAUTBERG , JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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