[Cite as State v. Angelo, 2019-Ohio-422.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. CT2018-0044
DAVID M. ANGELO

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. TRD 1801394


JUDGMENT:                                      Reversed and Vacated



DATE OF JUDGMENT ENTRY:                         February 7, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

R. MICHAEL HADDOX                               R. SCOTT PATTERSON
PROSECUTING ATTORNEY                            2609 Bell Street
GERALD V. ANDERSON II                           Zanesville, Ohio 43701
ASSISTANT PROSECUTOR
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2018-0044                                                    2

Wise, J.

       {¶1}   Defendant-appellant David M. Angelo appeals his conviction and sentence

on one count of operating a vehicle under a twelve-point suspension entered in the

Muskingum County Court.

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

                           STATEMENT OF THE FACTS AND CASE

       {¶3}   The relevant facts and procedural history are as follows:

       {¶4}   On March 12, 2018 Muskingum County Sheriff's Deputy Nicole Brown,

while on routine patrol, encountered a white car stopped at the side of a road in front of a

residential address. Deputy Brown observed that the brake lights were illuminated, and

from that surmised the vehicle was not in park. She observed two people in the vehicle.

She then pulled her cruiser next to the subject car, at which time the white car began to

slowly move forward and into a yard. The license tags came back to a different vehicle.

Once the Deputy approached the vehicle, the driver, Appellant David M. Angelo, told Dep.

Brown that the vehicle was not drivable and that help was on the way. Appellant was

unable to produce a valid driver’s license, but instead produced an ID with "NON-

DRIVER" emblazoned upon it. Dep. Brown then ran Appellant's information through the

Redhawk system. According to the Dep., Appellant came back "with several open

suspensions, one being a twelve point.” Appellant was placed under arrest for a twelve-

point suspension violation and taken to the Muskingum County Jail, where an inventory

search turned up a small amount of marijuana and paraphernalia.

       {¶5}   On March 15, 2018, Appellant was charged with one count of Illegal Use or

Possession of Drug Paraphernalia, in violation of R.C. §2925.14, a minor misdemeanor,
Muskingum County, Case No. CT2018-0044                                                   3


one count of Possession of Marijuana, in violation of R.C. §2925 .11, a minor

misdemeanor, one count of Driving Under Twelve Point Suspension, in violation of R.C.

§4510.037(J), a misdemeanor of the first degree, and one count of Fictitious Registration,

in violation of R.C. §4549.08, a misdemeanor of the fourth degree.

       {¶6}   At pretrial, defense counsel attempted to make clear to the representative

of the Prosecuting Attorney and to the trial court that the charge was improper due to the

expiration of the actual suspension period. The response was the suspension remained

in effect until Appellant reinstated his license.

       {¶7}   On June 4, 2018, Appellant pled no contest to each charge. Appellant was

found guilty by the trial court on all counts. Appellant was sentenced to 140 days in jail,

ordered to pay fines and court costs, and ordered to not have any criminal or Ml traffic

convictions for 60 months.

       {¶8}   For purposes of this appeal, Appellant is only contesting his conviction for

operating a vehicle under a twelve-point suspension. Appellant now raises the following

assignment of error on appeal:

                                    ASSIGNMENT OF ERROR

       {¶9}   “I. THE TRIAL COURT [SIC] TO APPELLANT'S PREJUDICE WHEN IT

OVERRULED DEFENDANT'S MOTION TO DISMISS THE CHARGE OF VIOLATING

ORC 4510.37(J), DRIVING UNDER A TWELVE-POINT SUSPENSION WHEN THAT

SUSPENSION HAD EXPIRED MONTHS PRIOR TO DEFENDANT'S ARREST ON THE

CURRENT CHARGE OF DRIVING UNDER A TWELVE-POINT SUSPENSION.”
Muskingum County, Case No. CT2018-0044                                                 4


                                               I.

      {¶10} Appellant argues that the trial court erred in denying his motion to dismiss

the charge of driving under a twelve-point suspension. We agree.

      {¶11} On review, we find that Appellant was placed under a twelve-point

suspension from August 30, 2016, to February 26, 2017, as the result of a 2016

conviction.

      {¶12} The Ohio Supreme Court has held that, "the suspension of a driver's license

for six months for accumulation of twelve points for traffic violations terminates by

operation of law upon the expiration of that six-month period." Columbus v. Herbert, 1992

Ohio App. LEXIS 6720, citing, State v. Roberts, 62 Ohio St. 2d 94, 403 N.E.2d 971, 1980

Ohio LEXIS 695, 16 Ohio Op. 3d 102.

      {¶13} While the BMV still has Appellant's driving record marked with an active

twelve-point suspension, the State concedes that the twelve-point suspension terminated

by operation of law upon the expiration of a six-month period. Therefore, when Appellant

was pulled over by Officer Brown on March 12, 2018, his twelve-point suspension had

already expired from his 2016 conviction. As such, charging Appellant under R.C.

4510.037(J) was improper as he was no longer under a twelve-point suspension.
Muskingum County, Case No. CT2018-0044                                     5


      {¶14} Appellant’s first assignment of error is sustained.

      {¶15} Accordingly, the judgment of the Court of Common Pleas, Muskingum

County, Ohio, is reversed, and Appellant’s conviction is vacated.


By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



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