[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 

v. 

JAMES BURKITT 

Defendant-Appellant 

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Appellate Case No. 2014-CA-154 

Trial Court Case No. 14-CR-441 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 18th day of December, 2015. 

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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 

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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 
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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 
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{¶ 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”).
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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. 
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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. 
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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-Ohio1215; 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. 
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different penalties.” Id. at 55. The Ohio Supreme Court ultimately found no equalprotection 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: 
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 * * * [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. 
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{¶ 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 
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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