[Cite as State v. Armes, 2016-Ohio-5087.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.     15CA0022-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BO ARMES                                              MEDINA MUNICIPAL COURT
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   14 TRC 07728

                                 DECISION AND JOURNAL ENTRY

Dated: July 25, 2016



        HENSAL, Judge.

        {¶1}     Bo Armes appeals a judgment entry of the Medina Municipal Court that denied

his motion to suppress. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     On November 27, 2014, a state trooper ticketed Mr. Armes for operating a vehicle

under the influence. After the municipal court initially set his trial for January 2, 2015, Mr.

Armes moved to continue it, asserting that he needed additional time to conduct discovery. The

court granted his motion, and rescheduled the trial for January 30. When Mr. Armes needed

even more time for discovery, he filed another motion to continue, which the court granted. It

rescheduled his trial for February 13.

        {¶3}     On February 6, Mr. Armes moved to suppress the evidence against him, arguing

that the trooper had no lawful reason to stop him and have him perform field sobriety tests. The

State objected, arguing that Mr. Armes failed to file his motion to suppress in the required time.
                                                 2


In reply, Mr. Armes argued that his motion was consistent with the “spirit” of the rule, noting

that he had explained in his motions to continue that he was asking for those continuances so that

he could obtain the additional discovery that he needed to file a motion to suppress. He also

noted that the trial court could hear his motion in the interest of justice. The municipal court

denied Mr. Armes’s motion to suppress as untimely, however, noting that Mr. Armes had not

requested leave to file his motion late. Mr. Armes’s subsequently pleaded no contest to the

offense. The municipal court found him guilty and sentenced him to 10 days in jail. Mr. Armes

has appealed, assigning as error that the municipal court incorrectly denied his motion to

suppress.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       DENIED THE DEFENDANT’S MOTION TO SUPPRESS WITHOUT A
       HEARING.

       {¶4}    Mr. Armes argues that the municipal court abused its discretion when it denied his

motion to suppress.     He argues that he filed his motion expeditiously after receiving the

discovery materials the State had not provided to him. He also contends that he included in his

prior motions to continue an explanation that the reason he was asking for those continuances

was so that he could file a motion to suppress after receiving additional discovery.

       {¶5}    Traffic Rule 11(C)1 provides that pretrial motions “shall be made within thirty-

five days after arraignment or seven days before trial, whichever is earlier. The court, in the

interest of justice, may extend the time for making * * * pretrial motions.” “A defendant’s


       1
         Although the parties cited to Criminal Rule 12 in their arguments to the trial court and
their appellate briefs, we conclude that the traffic rules apply to this case. Traf.R. 2. The rules
contain equivalent, if not identical, language regarding the timing of pretrial motions.
                                                  3


failure to timely file a motion to suppress results in waiver of that issue, ‘but the court for good

cause shown may grant relief from the waiver.’” State v. Skorvanek, 9th Dist. Lorain No.

07CA009229, 2008-Ohio-4937, ¶ 55, quoting Crim.R. 12(H); see also Traf.R. 11(F). “The

decision as to whether to permit leave to file an untimely motion to suppress is within the sound

discretion of the trial court.” Id. “A trial court abuses its discretion when it makes a decision

that is unreasonable, unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, ¶ 34.       “Abuse-of-discretion review is deferential and does not permit an

appellate court to simply substitute its judgment for that of the trial court.” Id.

       {¶6}    Upon review of the record, we cannot conclude that the municipal court abused its

discretion. Although Mr. Armes was aware that, because of his difficulty in obtaining discovery,

he would not be able to file a motion to suppress within the required time frame, he did not seek

leave of the court for an extension of time. Instead, he waited until the State opposed his motion

to suppress to argue that the court should grant an exception to the deadline in the interest of

justice. Mr. Armes’s assignment of error is overruled.

                                                 III.

       {¶7}    The municipal court did not abuse its discretion when it declined to consider Mr.

Armes’s untimely motion to suppress. The judgment of the Medina Municipal Court is affirmed.

                                                                                  Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, 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.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, J.
CONCURS.

CARR, P. J.
DISSENTING.

       {¶8}    I respectfully dissent as, in my opinion, the trial court implicitly approved the

untimely filing of a motion to suppress. The trial court granted two continuances of the trial date

in order for Armes to obtain discovery from the State to file a motion to suppress.


APPEARANCES:

MYRON P. WATSON, Attorney at Law, for Appellant.

GREGORY A. HUBER, Prosecuting Attorney, for Appellee.
