State v. Pendergrass

Citations

• 2018 Ohio 3813
• 111 N.E.3d 120

Syllabus

Defendant-appellee was indicted for two counts of unlawful sexual conduct with a minor, violations of R.C. 2907.04(A), as second, as opposed to fourth, degree felonies based upon his previous conviction for unlawful sexual conduct with a minor. The previous conviction was for conduct which occurred after the conduct alleged in the current indictment. The trial court dismissed the indictment concluding that for Defendant-appellee to have been indicted for a second degree felony upon the basis of a previous conviction, the previous conviction must have already been a matter of record at the time he committed the acts alleged in the indictment. R.C. 2907.04(B) allows an offense degree elevation \if the offender previously has been convicted of or pleaded guilty to a violation of [R.C.] 2907.04.\ This language unambiguously allows a violation of R.C. 2907.04 to be elevated to a second degree felony if the defendant, at the time of the indictment, had already been convicted of a violation of R.C. 2907.04. The trial court, since this conclusion applies to Defendant-appellee's situation, erred by dismissing the indictment. Judgment reversed and remanded. (Froelich, J., concurring.) (Donovan, J., dissenting.)