Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Indigency;
Jury Matters; Sentencing;
Prosecutors, Powers and duties.
Fourteenth Amendment, U.S. Constitution --
No state shall "deny to any person within its jurisdiction the equal
protection of the laws."
Article I, Section 2, Ohio Constitution: "All
political power is inherent in the people. Government is instituted for
equal protection and benefit..."
State v. Fugate,
117 Ohio St. 3d 261,
2008-Ohio-856, ¶22 -- "When a defendant is sentenced to consecutive
terms, the terms of imprisonment are served one after another. Jail-time
credit applied to one prison term gives full credit that is due, because the
credit reduces the entire length of the prison sentence. However, when a
defendant is sentenced to concurrent terms, credit must be applied against
all terms, because the sentences are served simultaneously. If an offender
is sentenced to concurrent terms, applying credit to one term only would, in
effect, negate the credit for the time that the offender has been held. To
deny such credit would constitute a violation of the Equal Protection
Clause. Therefore we hold that when a defendant is sentenced to concurrent
prison terms for multiple charges, jail-time credit pursuant to
must be applied toward each concurrent prison term."
Michel, 181 Ohio App. 3d 124,
2009-Ohio-450 -- Appellate review of selective prosecution
claims is de novo, conducted as is review of suppression rulings
where the fact finding by the trial court is accepted if
sufficiently supported by the evidence. To establish selective
prosecution the defendant must (1) demonstrate he has been
singled out for prosecution, and (2) this was or an invidious or
discriminatory purpose. Defendant here failed to meet the first
prong. Others had been prosecuted, but the extent of prosecution
was limited by resources.
State v. Hartikainen (2000), 137 Ohio
App. 3d 421 -- The state, not being a legal person, has no standing to
assert due process or equal protection against itself.
Cleveland v Maistros (2001), 145 Ohio App.
3d 346 -- R.C. 2907.07(B), the same sex portion of the importuning statute, held
to violate equal protection through application of the rational relationship
standard. Also see State v. Thompson 95 Ohio St. 3d 264,
-- Syllabus: "R.C. 2907.07(B) is facially invalid under the Fourteenth Amendment
to the United States Constitution and Section 2, Article I of the Ohio
Constitution." The Supreme Court finds the provision is a content-based
restriction on speech and applies the strict scrutiny test. Though the parties
agreed rational relationship standard applied, the court is not bound by their
positions. See concurring opinion which maintains court should hold provision
invalid under the rational relationship standard which would have broader
implications in matters involving gay rights.
State v. Norris 147 Ohio App. 3d 224,
2002-Ohio-1033 -- A Cincinnati ordinance required licensing of all massage
practitioners, but was enforced only against those advertising such services in
a sexually suggestive manner in the "adult" section of a weekly newspaper. City
admitted selective enforcement, but maintained it was proper. Equal protection
Cleveland v. Rafter, 127 Ohio Misc. 2d
2004-Ohio-1399 -- Charging the defendant with aggravated disorderly conduct
shortly after he threatened to sue the Browns is highly suspect, and raises
questions of bad faith and retaliatory prosecution, but defendant failed to make
out the elements of a selective prosecution claim.
State v. Melhado, Franklin App. No.
2003-Ohio-4763 -- If the jury recommends death, the judge may elect to
impose any of the life sentences, but if the recommendation is life without
parole, only that sentence may be imposed. No equal protection violation found.
State, ex rel. Heller, v. Miller (1980),
61 Ohio St. 2d 6, 8 -- As to the guarantee of equal protection under the Ohio
Constitution: "...The Ohio Constitution's guarantees in these matters are
substantially equivalent to the United States Constitution's guarantees. The
phrase in Section 2 of Article I that '***[g]overnment is instituted for their
[the people's] equal protection and benefit' is essentially identical to the
Fourteenth Amendment's equal protection clause. Kinney v. Kaiser Aluminum &
Chemical Corp. (1975), 41 Ohio St. 2d 120, 123... As a consequence,
decisions of the United States Supreme Court can be used to give meaning to the
guarantees of Article I of the Ohio Constitution."
Williams v. Rhodes (1968), 393 U.S. 23,
30-34 -- A strict scrutiny test is to be applied when
fundamental rights, such as those secured by the First
Amendment, are involved. Also see Thomas v. Collins
(1944), 323 U.S. 516, 530.
Massachusetts Board of Retirement v. Murgia
(1976), 427 U.S. 307, 314 -- When a fundamental right or the
rights of a suspect class are not involved, there need only be a
rational basis for differential treatment, "...reflecting the
Court's awareness that the drawing of lines that create
distinctions is peculiarly a legislative task and an unavoidable
one. Perfection in making the necessary classifications is
neither possible or necessary. Dandridge v. Williams
[(1970), 397 U.S. 471] at 485. Such action by a legislature is
presumed to be valid."
Pack v. Cleveland (1982), 1 Ohio St. 3d
129 -- A person potentially facing prosecution under a statute
may bring a declaratory judgment action to determine whether it
is violative of equal protection or other constitutional
Vasquez v. Hillery (1986), 474 U.S. 254
-- Intentional racial discrimination in the selection of grand
jurors is a denial of equal protection.
Batson v. Kentucky (1986), 476 U.S. 79;
Powers v. Ohio (1991), 499 U.S. 400 -- Regardless of the
race of the defendant, the prosecutor may not exercise his
peremptory challenges in a manner calculated to exclude racial
J.E.B. v. Alabama (1994), 511 U.S. 1419
-- The Equal Protection Clause of the Fourteenth Amendment
prohibits discrimination by representatives of the state in the
jury selection process through the exercise of gender-based
peremptory challenges. Case involved the removal of all male
jurors in a paternity action by a state-employed attorney.
Decision does not extend the rule to private parties in civil
litigation or to criminal defendants.
In re Morehead (1991), 75 Ohio App. 3d
711 -- While race and cultural heritage are factors which may be
considered by a court, it is a violation of equal protection to
pursue a police restricting the adoption of black children by
United States v. Batchelder (1979), 442
U.S. 114, 123-124 -- "This Court has long 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...Whether to prosecute and what
charge to file or bring before a grand jury rest in the
State v. Miles (1983), 8 Ohio App. 3d
410 -- Headnote: "Where two statutes proscribe the same criminal
conduct, in the absence of proof that the prosecution is based
upon an impermissible criterion such as race, religion, or other
arbitrary classification, a defendant may be charged and
convicted under that statute providing the greater penalty." But
see State v. Volpe
(1988), 38 Ohio St. 3d 191 -- Specifically defined misdemeanor
offense governs over generally applicable felony.
State v. Wilson (1979), 58 Ohio St. 2d
52, 55-59 -- No equal protection violation presented by the
burglary and aggravated burglary statutes as the latter requires
additional elements of proof.
State v. Brown (1996), 117 Ohio App. 3d
6 -- Inclusion of minor misdemeanors as predicate offenses for
involuntary manslaughter is not a denial of equal protection.
Cincinnati v. Thompson (1994), 96 Ohio
App. 3d 7 -- Cincinnati's medical facility trespass ordinance
survives equal protection challenge by anti-abortion
Cleveland v. Huff (1984), 14 Ohio App.
3d 207 -- Cleveland prostitution ordinances providing differing
penalties for the same conduct violate equal protection.
State v. Flynt (1980), 63 Ohio St. 2d
132 -- Some selectivity in enforcement of criminal provisions is
not a constitutional violation. To establish impropriety the
defendant must show: (1) that others similarly situated have not
generally been proceeded against and that he has been singled
out for prosecution; and (2) that the government's choice of who
to prosecute has been invidious or in bad faith, for example
based upon an improper consideration such as race, religion or
the desire to prevent exercise of constitutional rights. Also
see State v. Freeman (1985), 20 Ohio St. 3d 55, 58 (must
show intentional and purposeful discrimination).
State v. Wolery (1976), 46 Ohio St.
316, 325-326 -- A person claiming selective prosecution must
articulate the classification defining the difference between
those not prosecuted and himself. Also see Olyer v. Boles
(1962), 368 U.S. 448, 456;
Cleveland v. Trzebuckowski (1999), 85
Ohio St 524 -- Selective enforcement of ordinance banning
juveniles from pool halls against privately owned properties,
but not against municipal facilities, violates equal protection.
Whitehall v. Moling (1987), 40 Ohio
App. 3d 66 -- The Equal Protection Clause does not prohibit
enforcement of a ban of parking commercial vehicles on
residential property on a complaints only basis.
Toledo v. Wacenske (1994), 95 Ohio App.
3d 282 -- No equal protection violation found in a Toledo
ordinance which only requires motorcyclists to operate at all
times with the headlight on.
State v. Lamp (1977), 59 Ohio App. 2d
125 -- No equal protection violation in prosecutor's office
establishing a special program for prosecution of "career
State v. Ward (1993), 92 Ohio App. 3d
631 -- Providing an enhanced penalty for drug sales within 1000
feet of a schoolyard does not violate due process or equal
State v. Thompkins (1996), 75 Ohio St.
3d 75 -- Court rejects equal protection attack on the mandatory
license suspension required upon conviction of drug offenses,
even if an auto has not been used in the commission of the
crime, finding a rational basis for the legislation. Since all
drug offenders are treated equally, court questions whether
there is a classification.
State v. Bonello (1981), 3 Ohio App. 3d
365 -- Requirement of actual incarceration for some drug
offenses not violative of equal protection.
State v. Woerner (1984), 16 Ohio App.
3d 60, 61 -- No equal protection violated by fact those
prosecuted for OMVI in Mayor's Courts under municipal ordinances
may receive a lesser penalty than those prosecuted under the
Revised Code provision.
State ex rel. Lemmon v. Ohio Adult Parole
Authority (1997), 78 Ohio St. 3d 186 -- The amended
sentencing provisions of Senate Bill 2 do not afford those
serving indeterminate sentences imposed before July 1, 1996 the
basis for a mandamus action seeking release after serving what
would be their maximum sentences under the new provisions. Court
finds no denial of due process or equal protection, citing Sperry & Hutchinson Co. v. Rhodes (1911), 220 U.S. 502, 505
for the proposition "[T]he 14th Amendment does not forbid
statutes and statutory changes to have a beginning, and thus to
discriminate between the rights of an earlier and later time."
State v. Strausbaugh (1997), 87 Ohio
Misc. 2d 31 -- Defendant was sentenced to five years after
shooting her boyfriend in the leg. Prosecutor and boyfriend
concurred in motion for judicial release filed after serving 180
2929.20(B)(3) provides those serving between five
and ten years must wait five years before filing. Court finds
equal protection violation and orders release.
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