[Cite as State v. Elliott, 2011-Ohio-6723.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
         Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 2011 CA 00060
J. MARK ELLIOTT

         Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Municipal Court,
                                                Case No. 11 TRD 3253


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         December 23, 2011



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

WILLIAM PAUL BRINGMAN                           AMY S. WEEKS
13 East College Street                          40 West Main Street, 4th Floor
Fredericktown, Ohio 43019-1192                  Newark, Ohio 43055
Licking County, Case No. 2011 CA 00060                                                 2

Wise, J.

           {¶1}      Defendant-Appellant J. Mark Elliott appeals the Licking County

  Municipal Court’s order of forfeiture in this matter.

           {¶2}      Plaintiff-Appellee is the State of Ohio.

                        STATEMENT OF THE CASE AND FACTS

           {¶3}      On March 30, 2011, Appellant J. Mark Elliott was driving his vehicle

  eastbound on Interstate 70 in Licking County. A Sheriff’s deputy noticed Appellant's

  vehicle had what the trooper believed to be excessive tinting of its driver's side

  window. The deputy initiated a traffic stop of Appellant's vehicle. Upon investigation,

  the trooper discovered Appellant was driving under suspension.

           {¶4}      As a result, Appellant was cited for violations of R.C. §4510.16

  (Driving under an FRA Suspension) and §4510.14 (Driving Under an OVI

  Suspension).

           {¶5}      On May 10, 2011, the State of Ohio filed a motion to amend the

  Driving Under an OVI Suspension, a violation of R.C. §4510.14 to a charge of Driving

  under suspension or in violation of license restriction, a violation §4510.11.

           {¶6}      The trial court granted said motion to amend and Appellant

  changed his plea and entered a plea of guilty to Driving Under FRA Suspension, in

  violation of R.C. §4510.16 and Driving under suspension or in violation of license

  restriction, in violation of R.C. §4510.11.

           {¶7}      On May 10, 2011, upon conviction of §4510.11, the trial court

  ordered forfeiture of Appellant's vehicle.
Licking County, Case No. 2011 CA 00060                                                3


         {¶8}       It is from this order that Appellant now appeals, assigning the

  following sole error for review:

                               ASSIGNMENT OF ERROR

         {¶9}       “I. THE TRIAL COURT ERRED IN APPLYING THE CRIMINAL

  FORFEITURE       STATUTE       TO    APPELLANT’S       CONVICTION       OF   HABITUAL

  OFFENDER.”

                                             I.

         {¶10}      In Appellant’s sole assignment of error, Appellant argues that the

  trial court erred in ordering forfeiture in this matter. We disagree.

         {¶11}      In this case, Appellant pled guilty to and was convicted of R.C.

  §4510.16 and R.C. §4510.11.

         {¶12}      Revised Code 4510.11 contains a forfeiture provision. The version

  of R.C. §4510.11 in effect at the time of Appellant’s conviction and sentence provides

  as follows:

         {¶13}      R.C. §4510.11 Driving under suspension or in violation of

  license restriction

         {¶14}      “(A) No person whose driver's or commercial driver's license or

  permit or nonresident operating privilege has been suspended under any provision of

  the Revised Code, other than Chapter 4509. of the Revised Code, or under any

  applicable law in any other jurisdiction in which the person's license or permit was

  issued shall operate any motor vehicle upon the public roads and highways or upon

  any public or private property used by the public for purposes of vehicular travel or

  parking within this state during the period of suspension unless the person is granted
Licking County, Case No. 2011 CA 00060                                                  4


  limited driving privileges and is operating the vehicle in accordance with the terms of

  the limited driving privileges.

         {¶15}       “(B) No person shall operate any motor vehicle upon a highway or

  any public or private property used by the public for purposes of vehicular travel or

  parking in this state in violation of any restriction of the person's driver's or

  commercial driver's license or permit imposed under division (D) of section 4506.10

  or under section 4507.14 of the Revised Code.

         {¶16}       “(C)(1) (a) Except as provided in division (C)(1)(b) of this section,

  whoever violates division (A) of this section is guilty of driving under suspension, a

  misdemeanor of the first degree. The court shall impose upon the offender a class

  seven suspension of the offender's driver's license, commercial driver's license,

  temporary instruction permit, probationary license, or nonresident operating privilege

  from the range specified in division (A)(7) of section 4510.02 of the Revised Code.

         {¶17}       “ ***

         {¶18}       “(5) If the offender previously has been convicted of or pleaded

  guilty to two or more violations of this section or of a substantially similar municipal

  ordinance, the court, in addition to any other sentence that it imposes on the offender

  and if the vehicle is registered in the offender's name, shall order the criminal

  forfeiture of the vehicle involved in the offense to the state.”

         {¶19}       A review of Appellant’s driving record reflects that Appellant has

  two previous convictions of R.C.§ 4510.11.           Based on these prior convictions,

  forfeiture was mandatory pursuant to R.C. 4510.11(C)(5) as set forth above.
Licking County, Case No. 2011 CA 00060                                                     5


         {¶20}         Based on the foregoing, we do not find that the trial court abused its

  discretion in ordering forfeiture in this matter.

         {¶21}         The judgment of the Municipal Court of Licking County, Ohio, is

  affirmed.


By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.



                                               ___________________________________


                                               ___________________________________


                                               ___________________________________

                                                                   JUDGES
Licking County, Case No. 2011 CA 00060                                         6


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
J. MARK ELLIOTT                             :
                                            :
       Defendant-Appellant                  :         Case No. 2011 CA 00060




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Licking County, Ohio, is affirmed.

       Costs assessed to Appellant.




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                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
