[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.
                                             2


                                 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.
                                                 3


                                        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.
