[Cite as State v. From, 2011-Ohio-1254.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :
                                              :      Hon. William B. Hoffman, P.J.
                       Plaintiff-Appellee     :      Hon. Sheila G. Farmer, J.
                                              :      Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :      Case No. 10-CA-15
ANDREW F. FROM                                :
                                              :
                                              :
                      Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                          Appeal from the County Court of Perry
                                                  County Case No. TRC 09 00947


JUDGMENT:                                         AFFIRMED

DATE OF JUDGMENT ENTRY:                           March 16, 2011


APPEARANCES:

For Plaintiff-Appellee:                              For Defendant-Appellant:

MICHELLE L. MONTY 0075130                            SCOTT P. WOOD 0063217
Village of Somerset Solicitor                        Dagger, Johnston, Miller, Ogilvie &
233 Main Street                                      Hampson, LLP
Zanesville, Ohio 43701                               144 East Main Street
                                                     P.O. Box 667
                                                     Lancaster, Ohio 43130
[Cite as State v. From, 2011-Ohio-1254.]


Delaney, J.

        {¶1}     Defendant-Appellant, Andrew From, appeals from the judgment of the

County Court in Perry County Ohio, convicting him of one count of Operating a Vehicle

under the Influence (“OVI”), in violation of R.C. 4511.19(A)(1).

        {¶2}     On July 2, 2009, Appellant was arrested for violating R.C. 4511.19. The

officer charged Appellant under R.C. 4511.19(A)(2), which involves refusing to submit to

a chemical test with a prior OVI refusal within the past 20 years.

        {¶3}     On July 7, 2009, Appellant entered a not guilty plea. On March 17, 2010,

the State of Ohio filed a Motion to Amend the charges against Appellant under Crim. R.

7, from the original charge of R.C. 4511.19(A)(2) to R.C. 4511.19(A)(1)(a), which

charges that the defendant operated a vehicle while under the influence.

        {¶4}     Appellant objected to the amendment. Over Appellant’s objection, the trial

court granted the State’s Motion to Amend on April 22, 2010.1

        {¶5}     On June 17, 2010, Appellant entered a no contest plea to the charge of

OVI under R.C. 4511.19(A)(1)(a) and was sentenced to thirty days in jail with twenty-

seven days suspended provided that he comply with the terms of probation for one

year.




1
  Appellee argues that Appellant was arraigned on the new charge; however, the record is devoid of any such
arraignment. A pretrial was scheduled for June 15, 2010, however, this Court sees no sign of a second arraignment,
nor does the State cite to a reference in its brief where the record the alleged second arraignment occurred.
Perry County, Case No. 10-CA-15                                                                       3




      {¶6}        Appellant raises one Assignment of Error:

      {¶7}        “I. THE TRIAL COURT ERRED IN PERMITTING THE STATE OF OHIO

TO AMEND THE ORIGINAL CITATION AGAINST APPELLANT.”

                                                     I.

      {¶8}        In Appellant’s sole assignment of error, he argues that the trial court erred

by allowing the State of Ohio to amend the original citation against Appellant from that

of R.C. 4511.19(A)(2) to R.C. 4511.19(A)(1)(a).

      {¶9}        A trial court's decision to permit the amendment of a criminal charge is

reviewed under an abuse of discretion standard. State v. Beach, 148 Ohio App.3d 181,

2002-Ohio-2759, 772 N.E.2d 677, at ¶ 23, appeal not allowed, 96 Ohio St.3d 1516,

2002-Ohio-4950. “The term ‘abuse of discretion’ connotes more than an error of law or

judgment;    it     implies   that   the   court's        attitude   is   unreasonable,   arbitrary   or

unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d

1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. To

demonstrate error, defendant must show not only that the trial court abused its

discretion, but that the amendment prejudiced his defense. Id.

      {¶10} Crim R. 7(D) provides:

      {¶11} “The court may at any time before, during, or after a trial amend the

indictment, information, complaint, or bill of particulars, in respect to any defect,

imperfection, or omission in form or substance, or of any variance with the evidence,

provided no change is made in the name or identity of the crime charged. If any

amendment is made to the substance of the indictment, information, or complaint, or to
Perry County, Case No. 10-CA-15                                                              4


cure a variance between the indictment, information, or complaint and the proof, the

defendant is entitled to a discharge of the jury on the defendant's motion, if a jury has

been impaneled, and to a reasonable continuance, unless it clearly appears from the

whole proceedings that the defendant has not been misled or prejudiced by the defect

or variance in respect to which the amendment is made, or that the defendant's rights

will be fully protected by proceeding with the trial, or by a postponement thereof to a

later day with the same or another jury. Where a jury is discharged under this division,

jeopardy shall not attach to the offense charged in the amended indictment, information,

or complaint. No action of the court in refusing a continuance or postponement under

this division is reviewable except after motion to grant a new trial therefor is refused by

the trial court, and no appeal based upon such action of the court shall be sustained nor

reversal had unless, from consideration of the whole proceedings, the reviewing court

finds that a failure of justice resulted.”

       {¶12} In the case at bar, the original charge was made under R.C.

4511.19(A)(2), which provides:

       {¶13} “(2) No person who, within twenty years of the conduct described in

division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a

violation of this division, a violation of division (A)(1) or (B) of this section, or any other

equivalent offense shall do both of the following:

       {¶14} “(a) Operate any vehicle, streetcar, or trackless trolley within this state

while under the influence of alcohol, a drug of abuse, or a combination of them;

       {¶15} “(b) Subsequent to being arrested for operating the vehicle, streetcar, or

trackless trolley as described in division (A)(2)(a) of this section, being asked by a law
Perry County, Case No. 10-CA-15                                                        5


enforcement officer to submit to a chemical test or tests under section 4511.191 of the

Revised Code, and being advised by the officer in accordance with section 4511.192 of

the Revised Code of the consequences of the person's refusal or submission to the test

or tests, refuse to submit to the test or tests.”

       {¶16} The amendment was made under R.C. 4511.19(A)(1)(a), which provides:

       {¶17} “A)(1) No person shall operate any vehicle, streetcar, or trackless trolley

within this state, if, at the time of the operation, any of the following apply:

       {¶18} “(a) The person is under the influence of alcohol, a drug of abuse, or a

combination of them.”

       {¶19} While we do not find Appellee’s argument that R.C. 4511.19(A)(1)(a) is a

lesser-included offense of R.C. 4511.19(A)(2), we do find that the trial court was within

its discretion to allow the amendment. Under either section, Appellant was on notice

that he was charged with operating a vehicle under the influence of alcohol or drugs.

There was no prejudice to Appellant in the preparation of his defense and no surprise,

undue or otherwise. Accordingly, we do not find that the trial court was in error.

       {¶20} Appellant’s assignment of error is overruled.
Perry County, Case No. 10-CA-15                                               6


      {¶21} For the foregoing reasons, the judgment of the County Court of Perry

County is affirmed.

By: Delaney, J.

Hoffman, P.J. and

Farmer, J. concur.



                                    HON. PATRICIA A. DELANEY



                                    HON. WILLIAM B. HOFFMAN



                                    HON. SHEILA G. FARMER
[Cite as State v. From, 2011-Ohio-1254.]


                IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                 :
                                              :
                       Plaintiff-Appellee     :
                                              :
                                              :
-vs-                                          :    JUDGMENT ENTRY
                                              :
ANDREW F. FROM                                :
                                              :
                      Defendant-Appellant     :    Case No. 10-CA-15
                                              :




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

judgment of the County Court of Perry County is affirmed. Costs assessed to Appellant.



                                                  _________________________________
                                                  HON. PATRICIA A. DELANEY


                                                  _________________________________
                                                  HON. WILLIAM B. HOFFMAN


                                                  _________________________________
                                                  HON. SHEILA G. FARMER
