State v. Fowler, Unpublished Decision (4-29-1998) ( 1998 )

OPINION On July 31, 1997, appellant Ronald Fowler was indicted by the Licking County Grand Jury on a charge of Escape in violation of R.C. 2921.34(A). The indictment stated that the charge was a felony of the second degree, although the indictment did not specifically allege the additional element which elevated the crime to a second degree felony. On September 19, 1997, appellant entered a plea of guilty to the charge. He was sentenced to three years incarceration.

Appellant assigns a single error on appeal:

ASSIGNMENT OF ERROR:

THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT FOR A FELONY OF THE SECOND DEGREE WHEN THE INDICTMENT CHARGING THE DEFENDANT FAILED TO ALLEGE ELEMENTS THAT WOULD ELEVATE THE OFFENSE BEYOND A MISDEMEANOR OF THE FIRST DEGREE.

Appellant argues that the indictment was only sufficient to charge a first degree misdemeanor, as the indictment does not allege any element that would elevate the crime charged to a felony of the second degree.

R.C. 2945.75(A)(1) provides that when the presence of an additional element makes an offense one of a more serious degree, the indictment shall either state the degree of the offense which the accused is alleged to have committed, or shall allege the additional element or elements. The indictment in the instant case clearly states that the charge is a felony of the second degree. Accordingly, pursuant to R.C. 2945.75, the indictment was sufficient to charge appellant with a second degree felony, as R.C. 2945.75 does not require that the indictment allege both the degree of the offense and the additional element.

The Assignment of Error is overruled.

The judgment of the Licking County Common Pleas Court is affirmed.

By: Reader, J., Hoffman, P. J. and Wise, J. concur.

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Licking County Common Pleas Court is affirmed. Costs to appellant.