[Cite as State v. Rhea, 2018-Ohio-2597.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                   Court of Appeals No. E-17-051

        Appellee                                Trial Court No. TRD 1703494

v.

Lawrence P. Rhea                                DECISION AND JUDGMENT

        Appellant                               Decided: June 29, 2018

                                           *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Martha S. Schultes, Assistant Prosecuting Attorney, for
        appellee.

        Geoffrey L. Oglesby, for appellant.

                                           *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Lawrence P. Rhea, appeals from the August 7, 2017 judgment of

the Erie County Municipal Court finding appellant guilty, following a bench trial, of

driving under suspension, a violation of R.C. 4510.11, and fined him $100, plus court
costs. The municipal court granted a stay of execution of its judgment pending appeal.

For the reasons which follow, we affirm.

       {¶ 2} On appeal, appellant asserts the following assignments of error:

              Assignment of Error No. I

              The trial court erred in convicting the Defendant and a conviction

       predicated upon an improperly denied suppression must be reversed.

              Assignment of Error No. II

              The Court erred in denying the Defendant time to file a motion to

       suppress since it was in the interest of justice.

              Assignment of Error No. III

              The Court erred in denying the Defendant’s motion in limine since

       there was highly prejudicial and inadmissible evidence that the court

       allowed to be presented at trial.

       {¶ 3} The traffic citation was issued against appellant on May 26, 2017, for

driving a vehicle on public highways when his license was under suspension due to

forfeiture. His arraignment was initially scheduled for June 7, 2017, but was continued

until June 14, 2017. At a pre-trial conference on July 21, 2017, a trial date was set for

August 4, 2017, thirteen days later. On the morning of trial, appellant failed to appear but

counsel filed a notice of appearance and a motion for discovery. Appellee filed its

discovery evidence. Appellee’s counsel also filed a motion for leave to file a motion to




2.
suppress. Although appellee was prepared to go to trial, the trial court granted a

continuance to August 7, 2017, but denied the motion for leave.

       {¶ 4} At trial, appellant again sought a continuance, which was denied. He also

orally requested a motion in limine to exclude evidence that he was driving under a

suspended license on the ground that there was no basis for the traffic stop. The trial

court also denied the oral motion.

       {¶ 5} All of appellant’s assignments of error are interrelated and will be addressed

together. In his first assignment of error, appellant argues the trial court erred in

convicting him when his conviction was predicated by an improperly denied motion to

suppress. In his second assignment of error, appellant argues that the trial court erred in

denying his motion for leave to file a motion to suppress. Finally, in his third assignment

of error, appellant argues the trial court erred in denying his oral motion in limine

asserted at trial.

       {¶ 6} We first consider whether the trial court erred in denying appellant’s motion

for leave to file an untimely motion to suppress.

       {¶ 7} A motion to suppress is a pre-trial motion and must be filed within 35 “days

after arraignment or seven days before trial, whichever is earlier.” Crim.R. 12(D). The

trial court has the discretion to extend the time for making pretrial motions “in the

interest of justice * * *.” Id. Unless the time limits are honored, the state would lose its

right to appeal the granting of the motion prior to trial. State v. Phillips, 74 Ohio St.3d

72, 97, 656 N.E.2d 643 (1995); State v. Smith, 12th Dist. Butler No. CA2009-02-038,




3.
2010-Ohio-1721, ¶ 77. We review the trial court’s decision under an abuse of discretion

standard. State v. Garrett, 2d Dist. Greene No. 2004 CA 110, 2005-Ohio-4832, ¶ 14. An

abuse of discretion standard requires that we find the trial court’s decision was an

“unreasonable, arbitrary, or unconscionable use of discretion, or as a view or action that

no conscientious judge could honestly have taken.” State v. Brady, 119 Ohio St.3d 375,

2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.

       {¶ 8} Appellant argues that it was unjust to require him to file a motion to

suppress before he was provided with discovery on the morning of trial. He argues that

the production of evidence should toll the time for filing the motion. We disagree.

Appellant’s counsel did not enter an appearance until the morning of trial. Therefore, the

inability to file a timely motion to suppress is attributable solely to appellant’s conduct.

We find the trial court did not abuse its discretion by denying the motion for leave.

Compare State v. Davis, 4th Dist. Jackson No. 03CA16, 2004-Ohio-1226, ¶ 12, 19

(failure to file was due to defendant’s delay in securing counsel); Cleveland v. Greissing,

8th Dist. Cuyahoga No. 60666, 1991 Ohio App. LEXIS 2683, *8 (June 6, 1991) (delay in

filing of discovery was the cause of the state’s failure to timely file a motion to suppress).

       {¶ 9} Second, we find that since the trial court did not consider whether there was

a basis for granting a motion to suppress, we cannot review the merits of the motion to

suppress. Third, the trial court denied the motion in limine because it was actually an

improper attempt to address the motion to suppress. We find the trial court did not err by




4.
denying the motion on that basis. Compare State v. Corbett, 6th Dist. Williams No.

WM-00-002, 2001 Ohio App. LEXIS 2648, *13-14 (June 15, 2001).

       {¶ 10} Accordingly, appellant’s first, second, and third assignments of error are

not well-taken.

       {¶ 11} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Erie County

Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




5.
