State v. McElfresh

2012 Ohio 1307

Opinion

[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.