Although I agree that the Supreme Court of Ohio's holding inState v. Weitbrecht (1999), 86 Ohio St. 3d 368, is dispositive of the cruel and unusual punishment challenge to R.C. 2903.04(B),1 I do not agree with this Court's disposition of the equal protection challenge. Accordingly, I concur in Section II.A and respectfully disagree with Section II.B of the majority opinion.
In addressing the appellees' equal protection arguments, the majority states that every Ohio appellate district that has addressed the arguments presented has declined to find a violation of equal protection. While this may indeed be true, it nevertheless fails to account for the fact that R.C. 2903.04(B)does violate equal protection when the predicate offense is a minor misdemeanor traffic offense. In his dissent to State v. Brown (1996)117 Ohio App. 3d 6, appeal denied (1997), 78 Ohio St. 3d 1452,
Judge Melvin L. Resnick adopted a well-reasoned opinion from the Huron County Court of Common Pleas, which explained:
*Page 505[T]he Ohio Supreme Court [has] noted that where statutes prohibit identical activity, require identical proof and yet impose different penalties, sentencing under the statute with the higher penalty violates the Equal Protection Clause.
State v. Wilson, supra, 58 Ohio St. 2d at 55-56. The court held in Wilson that the test is "`whether, if the defendant is charged with the elevated crime, the state has the burden of proving an additional element beyond that required by the lesser offense.'" Id. at 55. * * * The Supreme Court of Ohio has not chosen to overrule Wilson * * *. Until it does so, an Ohio trial court is obligated to follow Wilson.
Applying the Wilson test to R.C. 2903.04(B), it is clear that the legislative scheme violates the Equal Protection Clauses [of the United States and Ohio Constitutions]. The statute, instead of requiring the state to prove an additional element for the elevated crime of involuntary manslaughter, actually eliminates one of the elements required to establish the lesser offense of vehicular homicide because to prove involuntary manslaughter all the state has to prove is the violation of a minor misdemeanor traffic rule, which is by law a lapse of due care, i.e., negligence, but to prove vehicular homicide the state must additionally prove that the violation constituted a substantial lack of due care, i.e., substantial negligence.
The statutory scheme on its face, therefore, violates the Equal Protection Clauses.
In analyzing the equal protection issue, the court must look at the statutory classifications to determine whether the law discriminates against a class and, if it does, whether there is a rational basis for such discrimination that can pass muster under the Equal Protection Clauses. In the case of the involuntary manslaughter statute where the predicate offense is a minor misdemeanor traffic violation there are two different ways to classify persons who are affected by the law.
The first classification is based on all drivers who cause vehicular accidents by violation of a minor misdemeanor traffic rule, without aggravating conduct that makes their violation a substantial lapse of due care. Is there a rational basis to differentiate between those who cause the death of a person and are subjected to up to ten years in prison and a $5,000 fine for the first offense and those who only cause injury, no matter how grievous that injury may be, and are subject only to a maximum fine of $100? * * *
While the death of a person is certainly a basis to distinguish between accidents causing injury and accidents causing death, the Supreme Court of Ohio has observed that it is not a logical (i.e., rational) basis * * *.
'* * *
Thus, while the Supreme Court has not directly decided this issue, its most recent pronouncement [in State v. Collins (1993), 67 Ohio St. 3d 115, 117] suggests that death alone would not be a rational basis for imposing manslaughter punishment on a driver who caused an accident, resulting in the death of another, by violating a minor misdemeanor traffic rule.
The second classification to be considered is all drivers who cause the death of another in a vehicular accident by the violation of a minor misdemeanor traffic rule. The Ohio statutory scheme differentiates between three classes of such drivers: (1) drivers who, in violating a minor misdemeanor traffic rule, are reckless (aggravated vehicular homicide — an aggravated third-degree felony punishable for first time offenders by up to ten years in prison and a fine up to $5,000); (2) drivers who, in violating a minor misdemeanor traffic rule, are substantially negligent (vehicular homicide — a first-degree misdemeanor punishable by up to [six] months in the county jail and a $1,000 fine); and (3) drivers who, by simply violating a minor misdemeanor traffic rule, are negligent (involuntary manslaughter punishable for first time offenders by up to ten years in prison and a $5,000 fine).
Certainly, there is a rational basis for punishing more severely the reckless conduct required as an element of aggravated vehicular homicide than the substantially negligent conduct required as an element of vehicular homicide. * * * But there is no rational basis for punishing mere negligent conduct more severely than substantially negligent conduct. This clearly does not meet the *Page 506 requirement of State v. Wilson, supra, that the statute imposing the more severe punishment contain an additional element beyond that required by the statute imposing the lesser punishment.
Ohio's involuntary manslaughter statute allows a prosecutor who does not have the evidence to prosecute a first-degree misdemeanor because he cannot prove substantial negligence to prosecute an aggravated third-degree felony simply because he can show the violation of a minor misdemeanor traffic rule. Instead of requiring the same or an additional element of the offense be proved, the involuntary manslaughter statute allows a more severe penalty to be imposed for conduct that is less culpable. It is this type of statutory scheme that the framers of our
Constitutions sought to prohibit when they said that government is instituted for the equal protection of all citizens and that no state shall deny any person the equal protection of the laws.
Surely, in cases where the death of another is caused by a vehicular traffic accident, the state can have no legitimate interest in punishing more severely conduct that is a mere violation of a traffic law than conduct that is a substantial violation of a traffic law. The court, therefore, concludes that R.C. 2903.04(B) is unconstitutional when the predicate offense is a minor misdemeanor traffic violation.
(Emphasis sic; footnotes and duplicative citations omitted.) Id. at 14-18, Appendix (Resnick, P.J., dissenting).
Based upon my agreement with the foregoing analysis, I would find the equal protection argument addressed in Section II.B to be well taken and would hold that R.C. 2903.04(B) is unconstitutional when predicated upon a minor misdemeanor.2
1 As this Court has previously observed, "[a]n appellate court may not disregard a clear and unambiguous directive from the Supreme Court of Ohio expressed in the syllabus of an opinion."State v. Szefcyk (1995), 104 Ohio App. 3d 118, 122, citing Smithv. Klem (1983), 6 Ohio St. 3d 16, 18.
2 While Collins is no longer the Supreme Court of Ohio's most recent pronouncement on R.C. 2903.04(B), it nonetheless remains the Court's most recent discussion of the rationale underlying the rational basis argument against the statute. The Supreme Court of Ohio explicitly avoided discussion of an equal protection challenge to R.C. 2903.04(B) in Weitbrecht, holding that the issue was not before the Court. Weitbrecht, supra, at 369, fn. 1. *Page 507