COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70178 : ACCELERATED DOCKET CITY OF GARFIELD HEIGHTS : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : BRADLEY E. HAMMEL : PER CURIAM : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 27, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Garfield Hts. Municipal Court Case No. 95-TRC-9072 A/C JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JIM MCGRATH, ESQ. MATTHEW MARTINEZ, ESQ. Prosecutor 4148 Rustic Road City of Garfield Heights Cleveland, Ohio 44135 5555 Turney Road Garfield Heights, Ohio 44125 -2- PER CURIAM: Defendant-appellant, Bradley Hammel, appeals a decision from the trial court convicting him of driving under the influence of alcohol and sentencing him accordingly. Hammel assigns the following two errors for our review: I. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT AS A STATUTORY REPEAT OFFENDER, ON THE GROUNDS THAT ORC 4511.99, WHICH PROVIDES THAT THE FIVE YEAR PERIOD WITHIN WHICH A DEFENDANT WILL BE CONSIDERED A REPEAT OFFENDER RUNS FROM THE PREVIOUS CONVICTION TO THE CURRENT OFFENSE, VIOLATES THE EQUAL PROTECTION CLAUSES OF THE UNITED STATES CONSTITUTION, BECAUSE A DEFENDANT WHO EXERCISES HIS FUNDAMENTAL RIGHT TO A TRIAL IS TREATED MORE HARSHLY THAN A DEFENDANT WHO DOES NOT. II. THE TRIAL COURT ERRED IN NOT DISMISSING THE CHARGES AGAINST DEFENDANT ON THE GROUNDS THAT DEFENDANT HAS ALREADY BEEN SENTENCED UNDER THE ADMINISTRATIVE LICENSE SUSPENSION PROVISION AND TO SENTENCE HIM AGAIN WOULD AMOUNT TO DOUBLE JEOPARDY, AN ISSUE NOW BEFORE THE OHIO SUPREME COURT. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Hammel was arrested for DUI on October 27, 1990. He was convicted of that charge on January 29, 1991. Within five years, on November 21, 1995, Hammel was again arrested for DUI and tried as a repeat offender. A one year Administrative License Suspension (ALS) was immediately issued under R.C. 4511.191(E)(1)(a). Hammel filed a motion to suppress his prior conviction arguing that R.C. 4511.99 violated the Equal Protection clause by -3- authorizing different treatment of offenders. The trial court denied the motion, and Hammel pleaded guilty on January 2, 1996. He was fined $1000 and sentenced to 180 days in jail as a repeat offender under R.C. 4511.99. One hundred eighty days of the jail time and $600 of fine were suspended. Hammel's driver's license was also suspended for three years and his car was immobilized. This appeal followed. In his first assignment of error, Hammel argues the trial court erred in sentencing him as a repeat offender. We disagree. A repeat offender under R.C. 4511.99 is one who is convicted of a second DUI within a five year period. Hammel was arrested for DUI on October 27, 1990. He was convicted after a trial on January 29, 1991, which was three months after his arrest. Within five years of the January 29, 1991 conviction, on November 21, 1995, Hammel was again arrested. Thereafter, he was tried as a repeat offender. Under these facts, the trial court acted correctly in sentencing Hammel as a repeat offender under R.C. 4511.99. Nevertheless, Hammel asserts if he had pleaded guilty on October 27, 1990, or thereabouts, he would not have been within the five years when he committed his second offense on November 21, 1995. Therefore, R.C. 4511.99 treats those who pleaded guilty differently than those who wait and go to trial. Aside from the fallacy of non sequitur, Hammel's argument is irrelevant. The point is he was arrested for a second DUI within five years of his first DUI conviction; therefore, he is a repeat offender. Hammel's first assignment of error is overruled. -4- Hammel also asserts that sentencing him for DUI after his administrative license suspension violates the double jeopardy clause. His appellate brief contains no argument on this issue. Nevertheless, this issue was decided in State v. Gustafson (1996), 76 Ohio St.3d 425, which held that "double jeopardy prohibitions do not preclude the state from trying a defendant criminally for violation of R.C. 4511.19 after an administrative license suspension is imposed under R.C. 4511.191. The state retains its right to seek criminal conviction through criminal prosecution." Gustafson at 436. Hammel's second assignment of error is overruled. Judgment affirmed. -5- It is ordered that Appellee recover of Appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Garfield Heights Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, PRESIDING J. JOSEPH J. NAHRA, JUDGE TERRENCE O'DONNELL, JUDGE "N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .