[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Klembus, Slip Opinion No. 2016-Ohio-1092.]

NOTICE This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of De cisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2016-O HIO -1092

T HE S TATE OF O HIO , A PPELLANT , v. K LEMBUS , A PPELLEE . [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Klembus, Slip Opinion No. 2016-Ohio-1092.] Criminal law—Operating a vehicle while under the influence—Trial court’s application of R.C. 4511.19(G)(1)(d) and 2941.1413 to OVI offender with five OVI convictions in preceding 20 years did not violate equal protection—Court of appeals’ judgment reversed. (No. 2014-1557—Submitted November 17, 2015—Decided March 22, 2016.)

A PPEAL from the Court of Appeals for Cuyahoga County, No. 100068, 2014-Ohio-3227.

_____________________ S YLLABUS OF THE C OURT The application of R.C. 4511.19(G)(1)(d) and 2941.1413 to OVI offenders with
five or more OVI convictions in the preceding 20 years does not violate equal protection.

__________________S UPREME C OURT OF O HIO

2 L ANZINGER , J. {¶ 1} In this discretionary appeal, we are asked to examine two statutory provisions that relate to the offense of operating a vehicle while under the influence (“OVI”) when the offender has had five or more OVI convictions in the past 20 years: a portion of R.C. 4511.19(G)(1)(d), wh ich raises the OVI offense to a fourthdegree felony, and R.C. 2941.1413 (the “r epeat-OVI specification”), which requires a mandatory additional prison term of one, two, three, four, or five years. We are asked to decide whether raising the felony level for an OVI offense and imposing a sentencing enhancement on a specific class of OVI offenders violates the right to equal protection. {¶ 2} We hold that the two statutes are pa rt of a logical, graduated system of penalties for recidivist OVI offenses. They are rationally related to the protection of the public and punishment of offend ers and therefore do not violate equal protection.

R ELEVANT B ACKGROUND {¶ 3} In 2012, appellee Dean Klembus was arrested for driving while under the influence of alcohol and was charged with violating R.C. 4511.19(A)(1)(a) (driving under the influence of alcohol ) and 4511.19(A)(1)(h) (driving with a breath-alcohol concentration over 0.17 percen t). He had been convicted of OVI offenses in 2008, 2004, 2000, 1997, and 1992. Becau se he had been convicted ofOVI five times in the previous 20 years, Klembus was charged with two fourthdegree felonies under R.C. 4511.19(G)(1 )(d) as well as the repeat-OVI specification described in R.C. 2941.1413 for each offense. {¶ 4} Klembus moved to dismiss the repeat-OVI specification attached to each count. He argued that R.C. 2941.1413 violates equal protection because it allows the state to seek greater punish ment without providing proof beyond that required to trigger R.C. 4511.19(G)(1)(d). The trial court denied the motion to dismiss, and Klembus pled no contest to both counts. The court found him guiltyJanuary Term, 2016

3 and merged the two counts. After the st ate elected to proceed on the count of driving under the influence, the trial court imposed a prison term of two years: one year for the OVI offense and one year for the repeat-OVI specification, to be served consecutively. Klembus appealed. {¶ 5} The Eighth District Court of Appeals reversed in a two-to-one decision. Based on its reading of State v. Wilson , 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), the court first held that criminal statutes violate equal protection if they require identical proof yet impose diffe rent penalties. 2014-Ohio-3227, 17 N.E.3d603, ¶ 19-20. Turning to R.C. 2941.1413, the court noted that only fourth-degreefelony OVI offenders charged with the repeat-OVI specification are subjected to multiple additional penalties without proof of additional factors. Id. at ¶ 21. The court also observed that nothing in R. C. 2941.1413 requires that the specification be charged uniformly against all similarly situated repeat OVI offenders. Id. at ¶ 23. Therefore, the court concluded, the specification is not rationally related to the objective of protecting the public and punishing offenders because it is not uniformly imposed on all similarly situated offenders. Id. Accordingly, the court held that R.C. 2941.1413 violates equal pr otection, and remande d the matter with instructions to vacate the repeat-OVI specifi cations attached to Klembus’s charges.
Id. at ¶ 23, 27. {¶ 6} The state appealed, and we accepted jurisdiction over the following two propositions of law:

1. The repeat OVI specification codified in R.C. 2941.1413(A) is facially constitutional under the Equa l Protection Clause of both the
United States and Ohio Constitutions.
2. When a defendant’s conduct viol ates multiple criminal statutes, the government may prosecute under either, even when the two statutes prohibit the same condu ct but provide for differentS UPREME C OURT OF O HIO

4 penalties, so long as the government does not discriminate against any class of defendants base d upon an unjustifiable standard.

See 141 Ohio St.3d 1473, 2015-Ohio-554, 25 N.E.3d 1080.

L EGAL A NALYSIS {¶ 7} Applying the traditional standard of review, which requires only that a legislative classification bear some rational relationship to a legitimate state purpose, we hold that R.C. 2941.1413 and the provisions of R.C. 4511.19(G)(1)(d)
at issue in this case are constitutional. Equal protection—rational-basis review {¶ 8} The Equal Protection Clauses of bot h the United States and the Ohio Constitution guarantee that no one will be denied the same protection of the laws enjoyed by others in like circumstances. McCrone v. Bank One Corp. , 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 6 (quoting Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Ohio Constitution). Equal protection does not forbid the legi slature from making classifications but simply prohibits “treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn , 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). The standards for assessing equa l-protection claims are esse ntially the same under the
state and federal constitutions. McCrone at ¶ 7. {¶ 9} Klembus’s constitutional challenge does not involve a suspect
classification or a fundamental interest; we therefore appl y rational-basis review to R.C. 2941.1413 and the portion of R.C. 4511.19(G)(1)(d) that raises an OVI offense to a fourth-degree felony. See id . at ¶ 8. To survive rational-basis review, the repeat-OVI specification must bear a rational relationship to a legitimate government interest. See id.January Term, 2016

5 Ohio’s OVI statutory scheme {¶ 10} The classifications and penalties applicable to Klembus’s case must be understood in the context of all those app licable to similarly situated repeat OVI offenders governed by R.C. 4511.19(G)(1). {¶ 11} For those with one or two misdemea nor OVI convictions in the past six years, the offense is a first-de gree misdemeanor. R.C. 4511.19(G)(1)(b) and (c). For those with three or four misdem eanor OVI convictions in the past six years and those with five or more misdemeanor OVI convictions in the past 20 years, the offense is a fourth-degree felony. R.C. 4511.19(G)(1)(d). For an offender with one or more previous felony-level OVI convic tions (regardless of when the violation or violations occurred), an OVI offense is a third-degree felony. R.C. 4511.19(G)(1)(e). In short, the offense level of an OVI is, in part, graduated based on the number and type of previous OVI c onvictions within a specified period of
time. {¶ 12} The penalty for an OVI offense is also graduated based on the number and type of previous OVI c onvictions. Within the category of misdemeanor-level repeat OVI offenders, an OVI offender with one previous OVI offense in the past six years faces a maximum of six months in jail, R.C. 4511.19(G)(1)(b)(i), while an offender with two previous OVI offenses in the past six years faces a maximum of one year in jail, R.C. 4511.19(G)(1)(c)(i). For all fourth-degree-felony OVI offenses, the base maximum term of imprisonment is 30 months plus either 60 or 120 1 days. R.C. 4511.19(G)(1)(d)(i) and (ii). A thirddegree-felony OVI offender faces a base maximum term of 36 months plus 60 or 120 days in prison. R.C. 4511.19(G)(1)(e)(i) and (ii); State v. South , 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, ¶ 24.

1 Whether 60 or 120 days should be added depends on the amount of prohibited substances found in the offender’s system at the time of the offense, R.C. 4511.19(A)(1)(a) thro ugh (j), and whether the offender refused to submit to chemical testing, R.C. 4511.19(A)(2).S UPREME C OURT OF O HIO

6 {¶ 13} Within the category of felony-level offenders, additional penalties based on the number of previous OVI offenses are added through the R.C. 2941.1413 specification. The specification may be attached to a count alleging a fourth- or third-degree felony when the accused has a history of five or more OVI convictions in the preceding 20 years. It ma y not be attached to a count alleging a fourth-degree felony based on the existence of three or four OVI convictions in the past six years, nor may the repeat-OVI speci fication be attached to a count alleging a third-degree felony with fewer than five OVI convictions in the past 20 years. {¶ 14} When the specification is applied, a mandatory prison term of one, two, three, four, or five years is impos ed in addition to the base term of imprisonment for the underlying fourth- or third-degree OVI offense. With the specification applied, offenders found guilty of fourth-degree and third-degree OVI offenses can receive total maximum prison terms of 30 months plus five years or 36 months plus five years, respectively. In short, the penalty for an OVI offense is graduated based on the previ ous number and type of OVI convictions, and the most significant penalty increase is based on a recidivist history of five or more OVI convictions in the preceding 20 years.
Wilson is inapposite {¶ 15} Klembus observes that in order to raise an OVI offense to a thirddegree-felony level and attach a repeat-O VI specification, both a prior felony OVI conviction and a history of five OVI c onvictions in the previous 20 years are required. But to raise an OVI to a fourth -degree felony and include the repeat-OVI specification, only five OVI convictions in the previous 20 years must be proven. He characterizes the higher felony level and the specification as cumulative punishment for identical conduct and argu es that no rational basis exists for imposing such cumulative punishment solely against fourth-degree-felony repeat OVI offenders like him. Relying on Wilson , 58 Ohio St.2d 52, 388 N.E.2d 745, the court of appeals accepted the argument that criminal offenses with identicalJanuary Term, 2016

7 elements but different p unishments always violate equal protection. 2014-Ohio3227, 17 N.E.3d 603, at ¶ 20. But Wilson does not provide such a sweeping
standard. {¶ 16} In Wilson , the defendant challenged the constitutionality of the burglary statute and the aggravated-burglary statute, arguing that the two statutes imposed different punishments for identical criminal conduct and therefore violated equal protection. Id. at 55-56. This court framed the issue as “whether both statutes require the state to prove identical elements while prescribing different penalties.”
Id. at 55. {¶ 17} This case, however, does not raise that issue. To define a criminal offense, a statute must prohibit specifi c conduct. R.C. 2901.03(B). Specifications such as R.C. 2941.1413 do not prohibit conduct; they add sentencing enhancements to the violation of a predicate st atute that does prohibit conduct. State v. Ford , 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 16. And a factor that merely increases the degree of the offense does not itself define the offense. See Blackburn
v. State , 50 Ohio St. 428, 36 N.E. 18 (1893), paragraph three of the syllabus; State
v. Allen , 29 Ohio St.3d 53, 55, 506 N.E.2d 199 (1987). Thus, although higher felony levels and specifications may increase the length of a sentence, they do not prohibit conduct. See State v. Witwer , 64 Ohio St.3d 421, 429, 596 N.E.2d 451 (1992). {¶ 18} The mere status of having a history of OVI convictions is not a criminal offense in Ohio. The conduct pr ohibited in this case was Klembus’s act of driving while under the influence in 2012. Because this case does not involve multiple criminal offenses, Wilson ’s equal-protection analysis does not apply here. No equal-protection violation {¶ 19} It is well established that the government has a valid interest in combating recidivism. Parke v. Raley , 506 U.S. 20, 27, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992); Oyler v. Boles , 368 U.S. 448, 452, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962);S UPREME C OURT OF O HIO

8 Moore v. Missouri , 159 U.S. 673, 678, 16 S.Ct. 179, 40 L.Ed. 3010 (1895). The only remaining question, and the proper test for Klembus’s equal-protection challenge, is whether R.C. 4511.19(G)(1 )(d) and 2941.1413 treat OVI offenders in
Klembus’s circumstances di fferently than other OVI offenders based on an arbitrary standard. See Adamsky v. Buckeye Local School Dist. , 73 Ohio St.3d 360, 362, 653 N.E.2d 212 (1995). {¶ 20} Klembus does not object to the diffe ring overall prison terms that repeat OVI offenders might serve but rather, to the way in which the statutory scheme allows them to be calculated. He objects to the form of the statutes. But it is not inequality in mere form but ine quality in substance and operation of a law that will cause an equal-protection violation. See St. Louis Southwestern Ry. Co. v.
State ex rel. Norwood , 235 U.S. 350, 362, 35 S.Ct. 99, 59 L.Ed. 265 (1914). {¶ 21} In substance and operation, R.C. 4511.19(G)(1) and 2941.1413 establish a graduated system of punishme nt for OVI offenders according to the number and seriousness of prior OVI convicti ons. An offender with five or more prior misdemeanor OVI convictions can lo gically receive a heavier penalty than one with four or fewer prior misdemeanor convictions. Similarly, another offender may receive a lesser penalty than someone w ith five or more OVI convictions that
include felonies. That th ese different penalty levels might be devised through higher offense levels or sentencing en hancements or both becomes immaterial. Accordingly, Klembus’s objections do not reveal differential treatment of OVI
offenders in his circumstances based on arbitrary standards.
C ONCLUSION {¶ 22} The application of R.C. 4511.19(G)(1)(d) and 2941.1413 to OVI offenders with five or more OVI convictions in the preceding 20 years does not violate equal protection. The resulting sentencing range for defendants in Klembus’s position is not illogical or arbitrary when compared to the sentencing ranges for other repeat OVI offenders. The possibility of longer prison sentencesJanuary Term, 2016

9 for those who continue to violate Ohio’s OVI statute is rationally related to the state’s legitimate interest in punishing offenders and protecting the public from the dangers of impaired driving. {¶ 23} We reverse the judgment of the court of appeals and reinstate the trial court’s order sentencing Dean Klem bus to consecutive prison terms of one year for his OVI offense and one year for the repeat-OVI specification. Judgment reversed.
O’C ONNOR , C.J., and P FEIFER , O’D ONNELL , K ENNEDY , F RENCH , and
O’N EILL , JJ., concur.

_________________ Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel T. Van and Brett S. Hammond, Assistant Prosecuting Attorneys, for appellant. Robert Tobik, Cuyahoga County Pub lic Defender, and John T. Martin, Assistant Public Defender, for appellee. Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy So licitor, and Hannah C. Wilson, Deputy Solicitor, urging reversal for amicus curiae Ohio Attorney General Michael
DeWine. Ron O’Brien, Franklin County Prosecuting Attorney, and Michael P. Walton, Assistant Prosecuting Attorney, urging reversal for amici curiae Ohio Prosecuting Attorneys Association and Fr anklin County Prosecuting Attorney Ron
O’Brien.

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