State v. Pendergrass, 111 N.E.3d 120

Gerald Pendergrass was indicted in 2016 for unlawful sexual conduct with a minor (events alleged Oct–Dec 2015), pleaded guilty, and was sentenced on September 30, 2016.
In August–September 2017 he was indicted for separate acts alleged May 19, 2013–May 19, 2014; a re‑indictment enlarged the date range to May 19, 2013–May 19, 2015 and alleged his 2016 conviction made the 2013–14 charges second‑degree felonies under R.C. 2907.04(B)(4).
Pendergrass moved to dismiss the re‑indictment under Crim.R. 12(C)(2); the trial court granted the motion, reasoning the prior conviction post‑dated the conduct charged in the re‑indictment and thus could not serve as a “previous” conviction under the statute.
The State appealed; the appellate court reviewed the Crim.R. 12(C)(2) dismissal de novo and considered the statutory meaning of “previously has been convicted” in R.C. 2907.04(B)(4).
The court held that “conviction” is defined by legal proceedings (guilty plea/conviction and sentence) and that R.C. 2907.04(B)(4) looks to whether the offender has already been convicted at the time of the later prosecution/sentencing, not whether the prior criminal act occurred before or after the conduct charged in the later indictment.
The appellate court reversed the trial court’s dismissal and remanded for further proceedings; a concurring opinion agreed, while a dissent would have construed “previous” to mean before commission of the instant offense and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a prior conviction can elevate a later‑filed indictment for earlier conduct to a higher felony under R.C. 2907.04(B)(4)	The statute’s reference to a person who “previously has been convicted” refers to convictions already on record at the time of the subsequent prosecution/sentencing, so the 2016 conviction supports second‑degree charges in the 2017 re‑indictment	“Previous” must be read as prior to the commission of the acts charged; because the 2013–14 acts occurred before the 2016 conviction, the prior conviction cannot make the earlier conduct a second‑degree felony	Reversed trial court: prior conviction (2016) may be used to elevate the 2013–14 charges in the 2017 re‑indictment; dismissal was error
Whether the re‑indictment should be reformed to lesser included offenses instead of dismissed	The court should permit reformation to fourth‑degree offenses if the prior‑conviction element fails	The re‑indictment’s elevation was invalid and dismissal of the re‑indictment was proper	Moot (court resolved first issue in favor of State and reversed dismissal)

State v. Smith, 104 Ohio St.3d 106 (Ohio 2004) (specification based only on convictions existing prior to indictment of underlying offense)
State v. Baker, 119 Ohio St.3d 197 (Ohio 2008) (defines “conviction” as having been proved guilty; legal significance tied to guilty verdict and imposition of sentence)
State ex rel. Steffen v. Court of Appeals, 126 Ohio St.3d 405 (Ohio 2010) (Crim.R. 12(C)(2) tests legal sufficiency of indictment)
Deal v. United States, 508 U.S. 129 (U.S. 1993) (statutory text using “conviction” rather than “offense” can permit application to earlier acts where conviction exists)
Brantley v. State, 1 Ohio St.2d 139 (Ohio 1965) (statutory construction principles regarding effect of statutory language)