State v. McElfresh , 2012 Ohio 1307 ( 2012 )

[Cite as State v. McElfresh, 2012-Ohio-1307.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2011-CA-0109
RONALD E. MCELFRESH :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Municipal Court, Case No. 11-TRD-06800
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 26, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TRICIA MOORE DAVID STOKES
40 West Main Street 21 W. Church St., Ste 206
Newark, OH 43055 Newark, OH 43055
[Cite as State v. McElfresh, 2012-Ohio-1307.]
Gwin, P.J.
{1} On June 24, 2011, appellant, Ronald L. McElfresh, was stopped, arrested,
and charged with a single violation, R.C. 4510.21, failure to reinstate a license.
{2} On September 7, 2011, appellant was found guilty after a bench trial. The
trial court imposed a sentence of 30 days incarceration and a $750.00 fine, plus costs.
{3} Appellant initially filed a direct appeal of his conviction in case number 11-
CA-96. This Court dismissed that appeal on October 3, 2011 for lack of a final
appealable order pursuant to the Ohio Supreme Court’s decision in State v. Bake, 119
Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163 (2008). Thereafter, the trial court
issued an amended sentencing entry on October 19, 2011. Appellant has timely
appealed from that sentencing entry in the above-captioned case, raising as his sole
Assignment of Error,
{4} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR BY FINDING
APPELLANT GUILTY OF VIOLATING R.C. 4510.21, AND SENTENCING APPELLANT
FOR SUCH VIOLATION.”
I.
{5} In the case at bar, appellant stipulated he was driving at the time of the
stop. The essence of appellant's argument is at the time of the stop, June 24, 2011, he
was not driving after his suspension expired; rather appellant’s operator's license was
under various suspensions until 2026. Appellant argued therefore that because his
driver license was still under a suspension that was in effect at the time of the citation,
he is not driving “after the suspension expired” and therefore could not be found guilty of
violation R.C. 4510.21. We disagree.
Licking County, Case No. 2011-CA-0109 3
{6} R.C. 4510.21, states in relevant part,
4510.21 Failure to reinstate a license
(A) No person whose driver's license, commercial driver's license,
temporary instruction permit, or nonresident's operating privilege has been
suspended shall operate any motor vehicle upon a public road or highway
or any public or private property after the suspension has expired unless
the person has complied with all license reinstatement requirements
imposed by the court, the bureau of motor vehicles, or another provision of
the Revised Code.
{7} Failing to reinstate a license following the expiration of the suspension is a
misdemeanor of the first degree under R.C. 4510.21. Maintaining proof of financial
responsibility and paying the reinstatement fee are conditions precedent to the
restoration of appellant's license, not conditions precedent to the termination of the
suspension. See State v. Uskert, 85 Ohio St.3d 593, 596, 709 N.E.2d 1200, 1999-Ohio-
289 (finding that, in the context of an administrative suspension for driving while
intoxicated, “proof of responsibility and payment of the reinstatement fee * * * are * * *
conditions precedent to the return of the license by the registrar”). The suspension
terminates automatically. State v. Gorham, 12th Dist. No. CA2006-08-197, 2007-Ohio-
6028 at ¶19.
{8} In this case, appellant himself argued that his driver’s license was under
suspension when he was stopped on June 24, 2011. There is no dispute that appellant
had failed to reinstate his license after the expiration of at least one of appellant’s
numerous suspensions. Accordingly, as to the suspensions that have expired and for
Licking County, Case No. 2011-CA-0109 4
which appellant has not paid his reinstatement fee, he could be found guilty of violating
R.C. 4510.21. The fact that his license is still under suspension for other reasons does
not change that fact. Additionally, either the state or the court could have utilized
Crim.R. 7 to amend the charge to driving under any one of the numerous suspensions
appearing on appellant’s driving record that was admitted into evidence at the
September 7, 2011 trial.
{9} Appellant’s sole Assignment of Error is overruled.
{10} For the foregoing reasons, the judgment of the Licking County Municipal
Court is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0312
[Cite as State v. McElfresh, 2012-Ohio-1307.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
RONALD E. MCELFRESH :
:
:
Defendant-Appellee : CASE NO. 2011-CA-0109
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Licking County Municipal Court is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER