State v. Elliott

[Cite as State v. Elliott, 2012-Ohio-771.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2011-CA-00064
J. MARK ELLIOTT :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Municipal Court, Case No.11TRD3253

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 24, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM PAUL BRINGMAN AMY S. WEEKS
13 East College Street 40 West Main Street, 4th Floor
Fredericktown, OH 43019-1192 Newark, OH 43055
[Cite as State v. Elliott, 2012-Ohio-771.]

Gwin, J.

{¶ 1} In the case sub judice, the record transmitted on appeal does not contain a

complete transcript of either the change of plea hearing or the sentencing hearing. App.

R. 9 in effect at the time appellant filed his notice of appeal in this case provided for the

record on appeal, and stated in pertinent part1:

{¶ 2} “(A) Composition of the record on appeal. The original papers and exhibits

thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and

a certified copy of the docket and journal entries prepared by the clerk of the trial court

shall constitute the record on appeal in all cases. A videotape recording of the

proceedings constitutes the transcript of proceedings other than hereinafter provided,

and, for purposes of filing, need not be transcribed into written form. Proceedings

recorded by means other than videotape must be transcribed into written form. When

the written form is certified by the reporter in accordance with App. R. 9(B), such written

form shall then constitute the transcript of proceedings. When the transcript of

proceedings is in the videotape medium, counsel shall type or print those portions of

such transcript necessary for the court to determine the questions presented, certify

their accuracy, and append such copy of the portions of the transcripts to their briefs.”

{¶ 3} Accordingly, if the transcript of proceedings is in the videotape medium, the

appellant must type or print those portions of the transcript necessary for the appellate

court to determine the questions presented, certify their accuracy, and append such

copy of the portions of the transcript to his or her brief.

1
App. R. 9 was amended July 2011 to provide that a transcript is required for the record on
appeal; a videotaped recording of the trial court proceedings is no longer adequate.
Licking County, Case No. 2011-CA-00064 3

{¶ 4} Accordingly, absent a complete transcript we are unable to review the facts

underlying the amendment of the charge and appellant’s plea to the amended charge.

Factual assertions appearing in a party's brief, but not in any papers submitted for

consideration to the trial court below, do not constitute part of the official record on

appeal, and an appellate court may not consider these assertions when deciding the

merits of the case. Akro-Plastics v. Drake Industries (1996), 115 Ohio App.3d 221, 226,

685 N.E.2d 246, 249. The record transmitted to this court establishes the following

facts.

{¶ 5} 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.

{¶ 6} As a result, Appellant was cited for violations of R.C.4510.16 (Driving under

an FRA Suspension) and R.C. 4510.14 (Driving Under an OVI Suspension).

{¶ 7} 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 R.C. 4510.11.

{¶ 8} 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.
Licking County, Case No. 2011-CA-00064 4

{¶ 9} On May 10, 2011, upon conviction of R.C. 4510.11, the trial court ordered

forfeiture of Appellant's vehicle.

{¶ 10} On June 1, 2010, appellant filed his Notice of Appeal from the trial court’s

May 10, 2011 ruling. Appellant raised as his sole assignment of error,

{¶ 11} “THE TRIAL COURT ERRED IN APPLYING THE CRIMINAL

FORFEITURE STATUTE TO APPELLANT'S CONVICTION OF HABITUAL

OFFENDER.”

{¶ 12} On December 23, 2011, we affirmed the trial court’s decision. See, State

v. Elliott, Fifth District No. 11-60, 2011-Ohio-6723, 2001 WL 6888841. [Hereinafter

“Elliott I”.]

{¶ 13} On June 13, 2011, Appellant filed a second Notice of Appeal in Case No.

11-64. On July 1, 2011, we dismissed appellant’s notice of appeal as untimely. On July

11, 2011, Appellant filed a Motion to Reconsider, together with the affidavit of counsel

and the clerk of courts. Based upon the affidavit of the clerk, this Court found the Notice

of Appeal was timely filed. Accordingly, by Judgment Entry filed July 21, 2011 this Court

granted Appellant’s motion to reconsider.

{¶ 14} It is from the trial court’s May 10, 2011 order that Appellant now appeals,

assigning the following sole error for review:

{¶ 15} “I. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF

BEING A HABITUAL ALCOHOLIC UNDER THE STATUTE DESIGNATED AS OHIO

REVISED CODE SECTION 4510.11? [Sic.]”
Licking County, Case No. 2011-CA-00064 5

{¶ 16} Appellant argues that the trial court abused its discretion by permitting the

State to amend the traffic citation to reflect the proper numerical designation for a

habitual alcoholic driver's license suspension.

{¶ 17} R.C. 4507.08 provides in pertinent part:

{¶ 18} “No temporary instruction permit or driver's license shall be issued to, or

retained by:

{¶ 19} “(A) Any person who is an alcoholic, or is addicted to the use of controlled

substances to the extent that the use constitutes an impairment to the person's ability to

operate a motor vehicle with the required degree of safety [.]”

{¶ 20} On March 30, 2011 appellant was issued a traffic citation for non-

compliance and habitual alcoholic driver's license suspensions. The initial charge on the

citation for a "habitual alcoholic" driver's license suspension was cited as R.C. 4510.14,

which states, in relevant part.

{¶ 21} “4510.14 Driving under OVI suspension

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

nonresident operating privilege has been suspended under section 4511.19, 4511.191,

or 4511.196 of the Revised Code or under section 4510.07 of the Revised Code for a

conviction of a violation of a municipal OVI ordinance shall operate any motor vehicle

upon the public roads or highways within this state during the period of the suspension.”

{¶ 23} On May 10, 2011, the state 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 R.C. 4510.11. The trial court granted said

motion to amend.
Licking County, Case No. 2011-CA-00064 6

{¶ 24} R.C. 4510.11 Driving under suspension or in violation of license

restriction, states, in part,

{¶ 25} “(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 limited driving privileges

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

privileges.

{¶ 26} “(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.

{¶ 27} “(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.

{¶ 28} “ * * *
Licking County, Case No. 2011-CA-00064 7

{¶ 29} “(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.”

{¶ 30} Crim.R. 7( D) provides in part: “[t]he 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. * * *”

{¶ 31} “Courts should allow liberal amendment of traffic tickets, in particular,

because they are typically prepared by law enforcement officers who lack formal legal

training and because they are intended to provide a less formal means for the efficient

disposal of traffic offenses. Traffic tickets are legally sufficient if they describe the nature

of the offense and refer to the statute or ordinance allegedly violated even though the

description fails to allege all of the essential elements of the offense charged.” (Citations

omitted.) State v. Campbell, 150 Ohio App.3d 90, 779 N.E.2d 811, 2002-Ohio-6064, ¶

7, affirmed State v. Campbell, 100 Ohio St.3d 361, 800 N.E.2d 356, 2003-Ohio-6804.

{¶ 32} The Supreme Court of Ohio has held that an amendment of an indictment

changing the count to a different subparagraph of the same statute does not change the

name or identity of the crime charged.

{¶ 33} The citation in appellant’s case referred to R.C. 4510.14. It is readily

apparent that R.C. 4510.14 and R.C. 4511.19 both prohibit driving while the individual’s
Licking County, Case No. 2011-CA-00064 8

operator license is under suspension. Appellant was never charged with a violation of

R.C. 4507.08. The officer’s handwritten reference to “Habitual alcoholic” is not

controlling. Despite the officer's erroneous reference the substantive information

provided on the citation provided ample warning to appellant that he was charged with

driving while under suspension.

{¶ 34} As we noted in Elliott I, “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.” Id. at ¶ 19.

{¶ 35} There was no prejudice to the appellant and no surprise, undue or

otherwise.

{¶ 36} Appellant’s sole assignment of error is denied.

{¶ 37} The judgment of the Municipal Court of Licking County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Edwards, J., concur

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. PATRICIA A. DELANEY

_________________________________
HON. JULIE A. EDWARDS

WSG:clw 0125
[Cite as State v. Elliott, 2012-Ohio-771.]

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-00064

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

of the Municipal Court of Licking County, Ohio, is affirmed. Costs to appellant.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. PATRICIA A. DELANEY

_________________________________
HON. JULIE A. EDWARDS