dissenting.
{¶ 31} The “due course of law” provision in the Ohio Constitution is “the equivalent of the ‘due process of law’ clause in the Fourteenth Amendment.” Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 544, 38 N.E.2d 70 (1941); see also Peebles v. Clement, 63 Ohio St.2d 314, 317, 408 N.E.2d 689 (1980). For this reason, we look to federal case law in interpreting the right to counsel under both the Ohio and federal constitutions. State ex rel. Heller v. Miller, 61 Ohio St.2d 6, 8, 399 N.E.2d 66 (1980); Liming v. Damos, 133 Ohio St.3d 509, 2012-Ohio-4783, 979 N.E.2d 297, ¶ 24-32.
{¶ 32} Or at least, that used to be the law.
{¶ 33} Today’s majority opinion creates an entirely new, and entirely unfounded, interpretation of the constitutional right to counsel. Initially, the majority recognizes that federal constitutional limits — limits we have avowed as the equivalent of our own — would set “actual imprisonment,” not possible imprisonment, as the trigger for the right to counsel in Bode’s case. Scott v. Illinois, 440 U.S. 367, 373-374, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); see also Nichols v. United States, 511 U.S. 738, 743, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (“where no sentence of imprisonment [is] imposed, a defendant charged with a misdemeanor ha[s] no constitutional right to counsel”). But no matter, the majority concludes, because “states have the ability under their own constitutions to grant greater rights than those provided by the federal Constitution.” Majority opinion at ¶ 23. True enough. But we should not exercise this solemn ability in the face of clear precedent to the contrary, see State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 12, or to reach specific results in specific cases. And at the very least, when we do exercise the awesome power of creating new constitutional rights, that undertaking should be grounded in paragraphs, if not pages, of compelling legal analysis — Why would we do this? Under what rationale? By what case law? For what purpose and to what end? — something more than “a couple of waves of the Supreme Wand to produce the desired result.” Young v. United Parcel Serv., Inc., — U.S. — , 135 S.Ct. 1338, 1364, 191 L.Ed.2d 279 (2015) (Scalia, J., dissenting). Indeed, we have *163sworn not to create new, Ohio-specific constitutional doctrines absent “compelling reasons why Ohio constitutional law should differ from the federal law.” State v. Wogenstahl, 75 Ohio St.3d 344, 363, 662 N.E.2d 311 (1996). And the majority offers none.
{¶ 34} First, it cites In re Gault, 387 U.S. 1, 36-37, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), for the proposition that a juvenile’s constitutional right to counsel attaches in any case in which imprisonment is possible. But Gault predates the Supreme Court’s establishment of the “actual imprisonment” standard. In Scott and Nichols, both post-Gault decisions, the court clarified when the constitutional right to counsel attaches in misdemeanor cases. And these more recent cases set that line at “actual” — not “possible” — imprisonment. Scott at 373; Nichols at 743. In fact, the post-Gault line of cases explicitly denounces the standard that the majority advances now. See, e.g., Scott at 373 (rejecting the “authorized imprisonment” standard espoused in Justice Brennan’s dissent, id. at 382, in favor of an “actual imprisonment” standard); Nichols at 746.
{¶ 35} The majority’s references to Bode’s statutory right to counsel are likewise misplaced. This case concerns only Bode’s constitutional right to counsel. To begin with, Bode did not challenge his juvenile adjudication on statutory grounds. More importantly, though, the question before us is whether the state can use Bode’s prior conviction for enhancement purposes. And the only thing that could prevent that enhancement is constitutional infirmity in the prior conviction, not statutory infirmity. Nichols at 746-749; Brooke at ¶ 9. Therefore, in evaluating whether the state can use Bode’s juvenile adjudication, this court’s sole inquiry is whether the adjudication passed constitutional muster. Statutory guarantees are irrelevant here.
{¶ 36} Finally, the majority relies on State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 1033, as support for the claim that in Ohio, we look to “the possibility of confinement.” (Emphasis sic.) Majority opinion at ¶ 24. The majority argues, and rightly so, that our opinion in Schleiger does not apply the “actual imprisonment” standard for triggering the right to counsel. But of course it doesn’t. Schleiger was a felony case. Id. at ¶ 1, 3. The “actual imprisonment” standard applies only in misdemeanor cases. Nichols at 743. So it proves nothing to say that the “actual imprisonment” standard is missing from Schleiger. It certainly does not substantiate the claim that this court “grant[s] greater rights that those provided by the federal Constitution.” Majority opinion at ¶ 23.
{¶ 37} In fact, Schleiger demonstrates exactly the opposite. Schleiger was a right-to-counsel case in which we unreservedly cited and followed federal precedent. Id. at ¶ 13-14. The irony is palpable: the majority cites a case relying *164exclusively on federal right-to-counsel case law to argue that we do not follow federal right-to-counsel case law.
{¶ 38} What is perhaps even more troubling is that this court already adopted and followed the Nichols “actual imprisonment” standard in a past OVI-enhancement case. In Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, at ¶ 12, we held that “[a]n uncounseled conviction cannot be used to enhance the penalty for a later conviction if the earlier conviction resulted in a sentence of confinement.” (Emphasis added.) We repeated this holding multiple times throughout the opinion, including in the syllabus itself. Id. at paragraph one of the syllabus (“For purposes of penalty enhancement in later convictions under R.C. 4511.19, when the defendant presents a prima facie showing that prior convictions were unconstitutional because they were uncounseled and resulted in confinement, the burden shifts to the state to prove that the right to counsel was properly waived” [emphasis added]); see also id. at ¶ 11.
{¶ 39} There is no possible way to characterize our statements in Brooke as just a passing nod to “the facts of that case.” Majority opinion at ¶ 20. Especially because when we stated that a “sentence of confinement” was necessary, we cited the specific portion of Nichols that affirmed the “actual imprisonment” standard. Brooke at ¶ 12, citing Nichols, 511 U.S. at 749, 114 S.Ct. 1921, 128 L.Ed.2d 745.
{¶ 40} Our history is clear: we accepted the “actual imprisonment” standard in Brooke. We cited Nichols as law in Brooke. Our present should be equally clear and consistent.
{¶ 41} Actual imprisonment is the standard that applies here. (Not even Bode argued otherwise.) And in this case, Bode was never sentenced to a term of imprisonment for his 1992 juvenile adjudication. Participation in an open-door substance-abuse-treatment program is not actual imprisonment. See, e.g., State v. Nagle, 23 Ohio St.3d 185, 186-187, 492 N.E.2d 158 (1986) (rehabilitation facility is not confinement); State v. Watkins, 2d Dist. Greene No. 2001-CA-15, 2001 WL 1461138, *4 (Nov. 16, 2001) (“a three-day alcohol treatment program is not actual imprisonment” under Nichols). Nor is it, as Bode argues, the equivalent of a suspended sentence of imprisonment. See Alabama v. Shelton, 535 U.S. 654, 674, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). Accordingly, Bode had no constitutional right to counsel at the time of his adjudication. I would therefore hold that the state can use the adjudication to enhance the penalties for Bode’s 2011 OVIs,3 *165even though Bode was unrepresented at the time of the juvenile proceedings. Nichols at 746-747 (an uncounseled conviction that did not result in actual imprisonment “may be relied upon to enhance the sentence for a subsequent offense”); Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, at ¶ 12.
Gregg Marx, Fairfield County Prosecuting Attorney, and Jocelyn S. Kelly, Assistant Prosecuting Attorney, for appellee. Dagger, Johnston, Miller, Ogilvie & Hampson, Scott P. Wood, and Alyssa L. Parrott, for appellant.{¶ 42} Rather than craft new constitutional rights without justification, I would follow our precedent and United States Supreme Court precedent and affirm the court of appeals. Because the majority chooses otherwise, I respectfully dissent.
O’Donnell and Kennedy, JJ., concur in the foregoing opinion.. I stress, too, that the state does not even need the juvenile adjudication to enhance the penalty for Bode’s latest OVI. Importantly, this case concerns two 2011 OVI incidents: one from May 2011 and one from December 2011. Bode’s December 2011 offense was his seventh overall, if we include the juvenile adjudication. But even if we do not include the juvenile adjudication, the December *1652011 OVI is still Bode’s sixth, meaning it meets the five-or-more-prior-convictions requirement for felony enhancement, even under the majority’s holding. See R.C. 4511.19(G)(1)(d).