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State v. Celli

Court of Appeals of Ohio, Ninth District, Summit

May 10, 2017

STATE OF OHIO Appellee
v.
FRANK J. CELLI Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2015 10 3257

          DAWN M. KING, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN, Judge.

         {¶1} Appellant, Frank Celli, appeals from his conviction for domestic violence in the Summit County Court of Common Pleas. For the reasons set forth below, this Court affirms.

         I.

         {¶2} Mr. Celli was indicted for domestic violence involving his pregnant girlfriend, N.H. He proceeded to trial and the jury found him guilty.

         {¶3} Mr. Celli has timely appealed his conviction and raises three assignments of error.

         II.

         FIRST ASSIGNMENT OF ERROR

          {¶4} In his first assignment of error Mr. Celli argues the mandatory prison provision of R.C. 2919.25(D)(3)-(6) violates the Equal Protection Clause and thereby is unconstitutional both facially and as applied to him. This Court disagrees.

         {¶5} Mr. Celli asserts the mandatory prison provision in the domestic violence statute is unconstitutional because it is based on gender discrimination. Specifically, Mr. Celli contends the mandatory prison terms are only implicated when the victim is pregnant and since only females can bear children, the enhanced penalty discriminates based on gender. Further, he argues the mandatory prison provision applies regardless of any actual harm to the unborn child.

         {¶6} An appellate court reviews a constitutional challenge de novo. State v. Honey, 9th Dist. Medina No. 08CA0018-M, 2008-Ohio-4943, ¶ 4. The relevant portion of the Fourteenth Amendment to the United States Constitution provides that "[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." The Ohio Constitution provides a similar protection in Article I, Section 2: "All political power is inherent in the people. Government is instituted for their equal protection and benefit * * *." The federal and Ohio equal protection clauses are "functionally equivalent, " State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, ¶ 38, and "are to be construed and analyzed identically, " Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60 (1999).

         {¶7} When assessing an equal protection challenge, a court must "apply varying levels of scrutiny * * * depending on the rights at issue and the purportedly discriminatory classifications created by the law." Pickaway Cty. Skilled Gaming, L.L.C v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, ¶ 18. If the challenged statute does not implicate a suspect classification or a fundamental interest, then the court applies rational basis review. State v. Klembus, 146 Ohio St.3d 84, 2016-Ohio-1092, ¶ 9. A statute implicating a classification based on gender or illegitimacy is subject to intermediate scrutiny and must bear a substantial relation to an important government interest. Clark v. Joseph, 95 Ohio App.3d 207, 211-212 (9th Dist.1994). The parties presented their arguments solely under the intermediate scrutiny test.

         {¶8} Mr. Celli was convicted of domestic violence in violation of R.C. 2919.25(A), which provides that "[n]o person shall knowingly cause or attempt to cause physical harm to a family or household member." Additionally, he was convicted of the pregnancy specification, which enhances the degree of the offense from a first degree misdemeanor to a fifth degree felony when the "offender knew that the victim of the [domestic violence] was pregnant at the time of the violation." (Emphasis added.) R.C. 2919.25(D)(2), (5). In addition to the degree enhancement, the pregnancy specification includes a mandatory prison term. R.C. 2919.25(D)(5). In this case, Mr. Celli was subject to a six-month mandatory prison term. See R.C. 2919.25(D)(6)(a).

         {¶9} "'Only when it is shown that the legislation has a substantial disparate impact on classes defined in a different fashion may analysis continue on the impact of those classes.'" Beagle v. Walden, 78 Ohio St.3d 59, 63 (1997), quoting Califano v. Boles, 443 U.S. 282, 294 (1979). When analyzing the pregnancy specification in the domestic violence statute as it applies to the offender, the statute makes no distinction between the punishment it imposes on male or female offenders. The mandatory prison time applies equally to a male or a female offender who "knowingly cause[ed] or attempt[ed] to cause physical harm to a family or household member"[1] and knew the victim was pregnant at the time of the violation. R.C. 2919.25(A), (D)(5). Accordingly, the pregnancy specification does not define the offender based on a class and the intermediate scrutiny test is not applicable.

         {¶10} Mr. Celli clarifies his position by noting that an offender is not subject to the mandatory prison time when the victim is a male, because males cannot bear children. The parties have not cited and this Court has not found any Ohio law addressing Mr. Celli's equal protection argument that the mandatory prison time is unconstitutional because it is based on the gender of the victim.

         {¶11} This Court must apply the same threshold analysis from above to the victim. Mr. Celli's argument fails because he does not take into consideration all of the elements of the pregnancy specification. The pregnancy specification requires more than proof that the victim was pregnant. It also requires that the offender "knew" the victim was pregnant at the time the domestic violence occurred. R.C. 2919.25(D)(5). Thus, an offender who commits domestic violence against a pregnant victim, but does not know that the victim is pregnant is not subject to the mandatory prison term. The pregnancy specification is not based on a gender classification of the victim and the intermediate scrutiny test is not applicable.

         {¶12} Mr. Celli also argues the statute is unconstitutional because mandatory prison time applies regardless of whether there is actual harm to the unborn child. Mr. Celli only presented his equal protection claim under the intermediate scrutiny test which applies to classifications based on gender and illegitimacy. See Clark, 95 Ohio App.3d at 211-212. The above framed argument does not fall ...


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