[Cite as State v. McElfresh, 2012-Ohio-1307.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee     :       Hon. Sheila G. Farmer, J.
                                                :
-vs-                                            :
                                                :       Case No. 2011-CA-0109
RONALD E. MCELFRESH                             :
                                                :
                    Defendant-Appellant         :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Licking County
                                                    Municipal Court, Case No. 11-TRD-06800

JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             March 26, 2012




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

TRICIA MOORE                                        DAVID STOKES
40 West Main Street                                 21 W. Church St., Ste 206
Newark, OH 43055                                    Newark, OH 43055
[Cite as State v. McElfresh, 2012-Ohio-1307.]


Gwin, P.J.

        {1}      On June 24, 2011, appellant, Ronald L. McElfresh, was stopped, arrested,

and charged with a single violation, R.C. 4510.21, failure to reinstate a license.

        {2}      On September 7, 2011, appellant was found guilty after a bench trial. The

trial court imposed a sentence of 30 days incarceration and a $750.00 fine, plus costs.

        {3}      Appellant initially filed a direct appeal of his conviction in case number 11-

CA-96. This Court dismissed that appeal on October 3, 2011 for lack of a final

appealable order pursuant to the Ohio Supreme Court’s decision in State v. Bake, 119

Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163 (2008). Thereafter, the trial court

issued an amended sentencing entry on October 19, 2011. Appellant has timely

appealed from that sentencing entry in the above-captioned case, raising as his sole

Assignment of Error,

        {4}      “I. THE TRIAL COURT COMMITTED HARMFUL ERROR BY FINDING

APPELLANT GUILTY OF VIOLATING R.C. 4510.21, AND SENTENCING APPELLANT

FOR SUCH VIOLATION.”

                                                   I.

        {5}      In the case at bar, appellant stipulated he was driving at the time of the

stop. The essence of appellant's argument is at the time of the stop, June 24, 2011, he

was not driving after his suspension expired; rather appellant’s operator's license was

under various suspensions until 2026. Appellant argued therefore that because his

driver license was still under a suspension that was in effect at the time of the citation,

he is not driving “after the suspension expired” and therefore could not be found guilty of

violation R.C. 4510.21. We disagree.
Licking County, Case No. 2011-CA-0109                                                      3


      {6}      R.C. 4510.21, states in relevant part,

               4510.21 Failure to reinstate a license

               (A) No person whose driver's license, commercial driver's license,

      temporary instruction permit, or nonresident's operating privilege has been

      suspended shall operate any motor vehicle upon a public road or highway

      or any public or private property after the suspension has expired unless

      the person has complied with all license reinstatement requirements

      imposed by the court, the bureau of motor vehicles, or another provision of

      the Revised Code.

      {7}      Failing to reinstate a license following the expiration of the suspension is a

misdemeanor of the first degree under R.C. 4510.21. Maintaining proof of financial

responsibility and paying the reinstatement fee are conditions precedent to the

restoration of appellant's license, not conditions precedent to the termination of the

suspension. See State v. Uskert, 85 Ohio St.3d 593, 596, 709 N.E.2d 1200, 1999-Ohio-

289 (finding that, in the context of an administrative suspension for driving while

intoxicated, “proof of responsibility and payment of the reinstatement fee * * * are * * *

conditions precedent to the return of the license by the registrar”). The suspension

terminates automatically. State v. Gorham, 12th Dist. No. CA2006-08-197, 2007-Ohio-

6028 at ¶19.

      {8}      In this case, appellant himself argued that his driver’s license was under

suspension when he was stopped on June 24, 2011. There is no dispute that appellant

had failed to reinstate his license after the expiration of at least one of appellant’s

numerous suspensions. Accordingly, as to the suspensions that have expired and for
Licking County, Case No. 2011-CA-0109                                                  4


which appellant has not paid his reinstatement fee, he could be found guilty of violating

R.C. 4510.21. The fact that his license is still under suspension for other reasons does

not change that fact. Additionally, either the state or the court could have utilized

Crim.R. 7 to amend the charge to driving under any one of the numerous suspensions

appearing on appellant’s driving record that was admitted into evidence at the

September 7, 2011 trial.

       {9}    Appellant’s sole Assignment of Error is overruled.

       {10}   For the foregoing reasons, the judgment of the Licking County Municipal

Court is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur


                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             _________________________________
                                             HON. SHEILA G. FARMER




WSG:clw 0312
[Cite as State v. McElfresh, 2012-Ohio-1307.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                           Plaintiff-Appellant   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
RONALD E. MCELFRESH                              :
                                                 :
                                                 :
                        Defendant-Appellee       :       CASE NO. 2011-CA-0109




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

the Licking County Municipal Court is affirmed. Costs to appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN


                                                     _________________________________
                                                     HON. SHEILA G. FARMER
