State v. Wilson ( 1978 )

I. I concur in that portion of the majority opinion which holds that the defendant did not waive his right to challenge the constitutionality of the statute. However, I respectfully dissent from the majority disposition of Assignments of Error Nos. 1 and 2. II. There can be no disagreement with the general principle that a court must strain to uphold the constitutionality of a statute. This concept reflects the deference due to the legislative body. However, a principle of statutory construction has relaxed the strain:

"R. C. 2901.04 Rules of construction.

"(A) Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."

The majority view is that this statute is inapplicable to the present case because the criminal statutes involved are "distinguishable, rather than ambiguous." Presumably, then, the majority is only stating the clear meaning (to them) as opposed to interpreting. This distinction is, at best, a thin one. For any statute can be deemed unambiguous if the reading ignores all facets of the alleged ambiguity except one. Once the possibility of ambiguity is accepted, R. C. 2901.04 (A) compels a narrow interpretation of the reach of the substantive criminal statute, R. C. 2911.11 (A) (3). With this in mind, consider the merits.

III. In my view, the issue presented is whether the plea and sentencing under the aggravated burglary statute violates equal protection because precisely the same act could have been charged under the simple burglary statute carrying a lighter minimum sentence.⁷ This possibility, appellant claims, quickens the Equal Protection Clause of the Fourteenth Amendment and the defendant cannot be dealt the heavier sentence. This is so because a prosecutor's whim in charging under one statute or another for identical acts can result in different minimum sentences and will certainly result in different maxima depending upon which statute the state chooses as a basis for prosecution.⁸ IV. Appellant requested to be sentenced under the Burglary statute, R. C. 2911.12. It provides:

"2911.12 Burglary

"(A) No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony.

"(B) Whoever violates this section is guilty of burglary, a felony of the second degree."

Defendant was indicated, plead, and sentenced under Aggravated Burglary, R. C. 2911.11. That statute states:

"2911.11 Aggravated burglary

"(A) No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply:

"(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;

"(2) The offender has a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code on or about his person or under his control;

"(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present.

"(B) Whoever violates this section is guilty of aggravated burglary, a felony of the first degree."

Each of the statutes specifically refers to the Arson chapter of the Revised Code for the definition of "occupied structure." The definition is found in R. C. 2909.01:

" § 2909.01 Definitions. As used in sections 2909.01 to 2909.07 of the Revised Code, an ``occupied structure' is any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies:

"(A) Which is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied, and whether or not any person is actually present;

"(B) Which at the time is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present;

"(C) Which at the time is specially adapted for the overnight accommodation of any person, whether or not any person is actually present;

"(D) In which at the time any person is present or likely to be present."

Under Burglary, any person who trespasses in an occupied structure with purpose to commit a theft offense or a felony is guilty of a second degree felony. "Occupied structure" under R. C. 2909.01 includes a house:

"(B) Which at the time is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present; * * *

"(D) In which at the time any person is present or likely to be present."

Under Aggravated Burglary (A) (3), a person who trespasses in an occupied structure with purpose to commit a theft offense or felony is guilty of a first degree felony when the structure is: "* * * the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present." R. C. 2911.11 (A) (3).

When the definitional phrases specifically incorporated into the statute by the legislature are inserted, it is apparent that the elements of Burglary and Aggravated Burglary, R. C. 2911.11 (A) (3), are the same. For each statute prohibits a trespass in a structure that is a permanent or temporary habitation in which a person is present or likely to be present.⁹

This identity renders R. C. 2911.11 (A) (3) constitutionally infirm because it carries a more serious criminal classification than R. C. 2911.12 without proscribing an act coupled with an aggravating circumstance distinct from those found in the Burglary statute. This discrepancy mounts a constitutional fault, for the Equal Protection Clause mandates that persons in like situations be dealt with in a like manner under the law,Skinner v. Oklahoma (1942), 316 U.S. 535, 541. Thus, the flaw in the instant statute is that it gives the prosecutor unfettered discretion to charge a person under the first degree felony statute (R. C. 2911.11 [A] [3]) without having to prove anything more than is required under the second degree felony "simple" Burglary statute. This power to invidiously discriminate through arbitrary selection between two identical statutes with different penalties cannot be permitted because of its inherent potential for abuse:

"Where * * * there are no standards governing the exercise of the discretion, * * * the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for ``harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.'" Papachristou v. Cityof Jacksonville (1972), 405 U.S. 156, 170, 31 L. Ed. 2d 110,120, quoting Thornhill v. Alabama (1940), 310 U.S. 88, 97-98. Accord, People v. Favors (Colo. 1976), 556 P.2d 72, 74; see also, Olsen v. Delmore (1956), 295 P.2d 324, 327.

This unfettered discretion is not only inconsistent with the equal protection guarantees of the Fourteenth Amendment, but it also raises serious questions under the fundamental fairness doctrine of the Due Process Clause. In order to comport with the requirements of that clause a statute: "* * * must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." Grayned v. City of Rockford (1972),408 U.S. 104, 108-109.

Identical proscriptions with different penalties provide a classic opportunity for a capricious act of discretion. Such an occasion for official arbitrariness ought not survive a due process test.

⁷ This issue appears to be one of the first impression. InState, ex rel. Corrigan, v. White (1976), 46 Ohio St. 2d 29, the problem of duplicity was raised, but the Supreme Court found that it was not relevant to the disposition of the writ ofmandamus, id. at 30. In State v. Kilby (1977), 50 Ohio St. 2d 21, the present constitutional problem was not raised at all. Although defendant was convicted under R. C. 2911.11 (A) (3), his allegations of error went only to the weight of the evidence and the jury instructions, id. at 22. The court, accordingly, decided the appeal solely on those issues.

⁸ Felony 1 carries a minimum term of 4, 5, 6, or 7 years fixed by the court and a statutory maximum term of 25 years. Felony 2 has court determined minimum terms of 2, 3, 4, or 5 years and a statutory maximum of 15 years.

⁹ The argument is made that the R. C. 2909.01 definitions (B) and (D) cannot be read together. However, this argument fails because the legislature made plain its intent to allow combinations of qualifying subparagraphs when it introduced them with the phrase "any of the following applies." Moreover, one may read (B) and (D) very closely without discovering a substantive difference between the two. Both R. C. 2911.11 and .12 incorporate the 2909.01 definition of "occupied structure."