State v. Gales ( 2012 )

[Cite as State v. Gales, 2012-Ohio-3143.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26199
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ELLIOTT CHEVELLE GALES COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2011 03 0734 (B)
DECISION AND JOURNAL ENTRY
Dated: July 5, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} Elliott Gales pleaded guilty to operating a motor vehicle so as to willfully
elude or flee a police officer, a felony of the third degree under Section 2921.33.1(B) of
the Ohio Revised Code. The trial court sentenced him to three years in prison. Because
Mr. Gales had previously been found guilty of an offense under the same section, the
court also suspended his driver’s license for life under Section 2921.33.1(E). Mr. Gales
has appealed the lifetime suspension of his driver’s license, arguing that whether he had
previously been convicted under Section 2921.33.1 had to be alleged in the indictment
and proven beyond a reasonable doubt. We affirm because whether Mr. Gales had a
prior conviction under Section 2921.33.1 did not enhance the degree of his offense and,
therefore, did not need to be alleged in the indictment or proved by the State.
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PRIOR CONVICTION
{¶2} Mr. Gales’s assignment of error is that the trial court incorrectly suspended
his driver’s license for life. According to Mr. Gales, whether he had a prior conviction
under Section 2921.33.1 had to be alleged in the indictment and proved beyond a
reasonable doubt.
{¶3} In State v. Allen, 29 Ohio St. 3d 53, syllabus (1987), the Ohio Supreme
Court held that, “[if] the existence of a prior conviction enhances the penalty for a
subsequent offense, but does not elevate the degree thereof, the prior conviction is not an
essential element of the subsequent offense, and need not be alleged in the indictment or
proved as a matter of fact.” Under Section 2921.33.1(E), “[i]n addition to any other
sanction imposed for a violation of this section, the court shall impose a class two
suspension from the range specified in division (A)(2) of section 4510.02 of the Revised
Code. If the offender previously has been found guilty of an offense under this section,
the court shall impose a class one suspension as described in division (A)(1) of that
section.”
{¶4} Whether Mr. Gales had previously been convicted of an offense under
Section 2921.33.1 increased the penalty for his offense but did not elevate the degree.
Accordingly, the fact that he had been found guilty under Section 2921.33.1 did not have
to be “alleged in the indictment or proved as a matter of fact.” State v. Allen, 29 Ohio St.
3d 53, syllabus (1987). Mr. Gales’s assignment of error is overruled.
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CONCLUSION
{¶5} Because Mr. Gales’s prior conviction under Section 2921.33.1 enhanced
the penalty but did not elevate the degree of his subsequent offense under that section, it
was not an essential element of the subsequent offense. The judgment of the Summit
County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, P.J.
CARR, J.
CONCUR
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APPEARANCES:
ADAM VAN HO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD KASAY, Assistant
Prosecuting Attorney, for Appellee.