[Cite as State v. Williams, 2017-Ohio-7371.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY


STATE OF OHIO,                                      :

       Plaintiff-Appellee,                          :   Case No. 16CA3564

       vs.                                          :

CAITLYN B. WILLIAMS,                                :   DECISION AND JUDGMENT ENTRY


       Defendant-Appellant.                         :

_________________________________________________________________

                                               APPEARANCES:

James T. Boulger, Chillicothe, Ohio, for appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant Ross
County Prosecuting Attorney, Chillicothe, Ohio, for appellee.


CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 8-23-17
ABELE, J.

        {¶ 1} This is an appeal from a Ross County Common Pleas Court judgment that denied a

motion for leave to file a motion to suppress filed by Caitlyn Williams, defendant below and appellant

herein. Appellant assigns the following errors for review:


               FIRST ASSIGNMENT OF ERROR:

               “THE TRIAL COURT’S DENIAL OF SUBSTITUTE COUNSEL’S
               MOTION FOR LEAVE TO FILE A MOTION TO SUPPRESS
               CONSTITUTED AN ABUSE OF DISCRETION.”

               SECOND ASSIGNMENT OF ERROR:
ROSS, 16CA3564                                                                                    2


                 “THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
                 OF COUNSEL AS GUARANTEED UNDER ARTICLE I, SECTION 10
                 OF THE OHIO CONSTITUTION AND THE SIXTH AND
                 FOURTEENTH AMENDMENTS OF THE UNITED STATES
                 CONSTITUTION WHEN COUNSEL FAILED TO TIMELY FILE A
                 MOTION CHALLENGING SUBSTANTIAL COMPLIANCE WITH
                 DEPARTMENT OF HEALTH REGULATIONS AND STATUTORY
                 REQUIREMENTS PERTAINING TO THE TAKING AND HANDLING
                 OF A SPECIMEN OF THE DEFENDANT’S BLOOD.”

        {¶ 2} On December 12, 2014, the Ross County Grand Jury returned an indictment that

charged appellant with (1) one count of aggravated vehicular assault in violation of R.C. 2903.08

(while operating a motor vehicle while under the influence of alcohol or drugs in violation of R.C.

4511.19(A)(1)(a)), a third-degree felony, and (2) one count of aggravated vehicular assault in violation

of R.C. 2903.08 (while operating a motor vehicle with a concentration of eight-hundredths of one per

cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol

in the person’s whole blood in violation of R.C. 4511.19(A)(1)(b)), also a third-degree felony.

        {¶ 3} On September 15, 2015, appellant pled not guilty to both charges. On November 6,

2015, appellant filed a motion to suppress oral statements given without the benefit of Miranda

warnings. Appellant argued that a trooper who had responded to the accident began to question her at

the scene without giving her a Miranda warning.

        {¶ 4} On January 21, 2016, the trial court heard arguments and took testimony regarding the

motion to suppress. Trooper Holbrook testified that he responded to a single vehicle accident on May

28, 2014 in Ross County. Trooper Holbrook was dispatched at 5:35 a.m. and arrived at 5:54 a.m.

Three people were in the vehicle and appellant was the driver. Trooper Holbrook stated that he

detected a strong odor of alcohol coming from the vehicle and that appellant had glassy and blood-shot
ROSS, 16CA3564                                                                                     3

eyes, and “very slurred” speech.     Also, the trooper observed an empty beer carton was in the back

seat, an empty beer can in the passenger-side door cup holder and a “four-loco beverage” in the center

console.

        {¶ 5} Trooper Holbrook noted that appellant told him she had “four to five beers while

driving” before the crash. Trooper Holbrook testified that the two additional occupants of the vehicle

were questioned at the scene, one of whom was injured and transported to a hospital. Trooper

Holbrook questioned appellant again at the hospital around 7:15 a.m. On January 21, 2016, the trial

court overruled the motion to suppress, finding that appellant was not in custody at the time of the

questioning at the scene.

        {¶ 6} On April 22, 2016, substitute counsel filed a motion for leave to file a motion to

suppress pertaining to substantial compliance with Department of Health regulations in the collection

and handling of a specimen of appellant’s blood prior to its placement in the U.S. mail for delivery to

the State Patrol Crime Laboratory.        In particular, counsel wished to determine whether the

authorities obtained the blood specimen within the three-hour time interval from vehicle operation as

mandated by R.C. 4511.19(D)(1)(b). The trial court denied the motion for leave on May 4, 2016,

stating that “there is no time available between the time the motion was filed and the scheduled jury

trial [May 11], therefore the motion for leave to file a motion to suppress is denied.”

        {¶ 7} On May 11, 2016, the state dismissed count one and appellant entered a no contest

plea to count two. On June 13, 2016, the trial court sentenced appellant to serve twelve months in

prison, suspended appellant’s driver’s license for three years, ordered appellant to pay $250

restitution to one of the victims and to pay the costs of the proceedings. This appeal followed.

                                                   I.
ROSS, 16CA3564                                                                                    4

        {¶ 8} In her first assignment of error, appellant asserts that the trial court’s denial of

substitute counsel’s motion for leave to file a motion to suppress constituted an abuse of discretion.

        {¶ 9} Generally, the grant or denial of leave to file an untimely motion to suppress is within

the sound discretion of the trial court judge and, accordingly, will not be reversed on appeal absent

an abuse of that discretion. See State v. Karns, 80 Ohio App.3d 199, 204, 608 N.E.2d 1145 (1st

Dist.1992), Akron v. Milewski, 21 Ohio App.3d 140, 142, 487 N.E.2d 582 (9th Dist.1985). An

abuse of discretion “connotes action by the trial court that is unreasonable, arbitrary or

unconscionable.” State v. Brown, 38 Ohio St.3d 305, 312, 528 N.E.2d 523 (1988), see also State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

        {¶ 10} Appellant filed a motion for leave to file a motion to suppress the results of the

analysis of appellant’s blood specimen. Ohio Administrative Code 3701-53-05(F) requires that

“[w]hile not in transit or under examination, all blood and urine specimens shall be refrigerated.”

Appellant argues that six hours or more elapsed between taking her blood sample and delivering it to

the U.S. mail, which she contends fell outside the five-hour boundary for substantial compliance

identified in State v. Baker, 146 Ohio St.3d 456, 2016-Ohio-451, 58 N.E.3d 1114, ¶ 26.

        {¶ 11} Crim.R. 12(C) establishes the time frame under which a motion to suppress must be

filed. Crim.R. 12(D) provides: “All 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.”        “Failure by the defendant to raise defenses or

objections or to make requests that must be made prior to trial, at the time set by the court pursuant

to division (D) of this rule, or prior to any extension of time made by the court, shall constitute

waiver of the defenses or objections, but the court for good cause shown may grant relief from the
ROSS, 16CA3564                                                                                     5

waiver.”    Crim.R. 12(H).      Therefore, the crux of our review is whether appellant arguably

established good cause in her motion for leave and whether the trial court's ruling constitutes an

abuse of discretion.

        {¶ 12} Appellant argues that her change in counsel established good cause. In State v.

Smith, 4th Dist. Ross No. 10CA3148, 2011-Ohio-602, this court considered the same issue of

changing counsel and a denial of leave to file a motion to suppress. In Smith, we noted that it was

undisputed that the defendant did not file his motion within the Crim.R. 12(D) time limits, nor did he

request an extension of time to do so within that period. Focusing on whether Smith demonstrated

“good cause” to the trial court to allow him relief from his waiver, we noted that Smith filed his

motion approximately two weeks prior to his trial date, and over six months from the date of his

arraignment, well over the thirty-five day time limit. Unlike the case at bar, the motion for leave in

Smith set forth no facts to support the merit of Smith’s suppression issue.             However, more

important, we noted that Smith’s memorandum failed to explained why Smith could not, or did not,

raise a suppression issue before waiver occurred, other than alluding to the fact that “it is not unusual

for different attorneys to view the information provided in discovery in a different light.” Smith at ¶

40. We pointed out that Smith did not contend that he was unaware of any of the alleged facts

supporting the suppression motion, that the state provided untimely discovery or withheld any

information, or that he was unable to discuss the facts that might establish a Fourth Amendment

violation with prior counsel. The only justification Smith offered was that prior counsel viewed the

evidence “differently.” Based on that record, we concluded that we could not say that the court

acted unreasonably in finding that good cause did not exist given the fact that trial was only two

weeks away. Smith at ¶ 41.
ROSS, 16CA3564                                                                                 6

        {¶ 13} In State v. Hoover, 9th Dist. Wayne No. 02CA0056, 2003-Ohio-2344, the Ninth

District considered a case in which the defendant changed counsel, as in the case sub judice. The

court held that “[d]espite the fact that Defendant changed counsel, he was represented by counsel

from the inception of the charges against him. The record does not indicate that Defendant was

unaware of the circumstances surrounding the charges.        In fact, Defendant’s original attorney

received discovery from the prosecutor within thirty-five days of his arraignment.        Therefore,

Defendant had full knowledge of the surrounding facts and circumstances pertaining to his case

within the time requirements of Crim.R. 12(D).” Hoover at ¶ 6. The court concluded that the trial

court had not abused its discretion in denying Hoover’s motion for leave to file the motion to

suppress. Id.

        {¶ 14} In State v. Randazzo, 8th Dist. Cuyahoga No. 76914, 2000 WL 1754005, the Eighth

District considered another case in which the defendant argued that the fact that he had changed

counsel before trial demonstrated cause for an untimely filing of a motion to suppress. Again,

however, the court held that Randazzo was represented by counsel from the inception of the charges

against him. His original attorney had several pretrials and requested discovery from the prosecutor.

 The court concluded that Randazzo had full knowledge of the circumstances and surrounding facts

pertaining to his case within the time requirements of Crim.R. 12(C). Id. The court noted that

“[a]lthough perhaps the State would have suffered no prejudice by the court’s permitting the

untimely motion, we do not find this as a reason for interfering with the court’s broad discretion in

this matter.” Id.

        {¶ 15} Finally, we highlight State v. Estep, 2d Dist. Montgomery No. 17455, 1999 WL

148109, in which the Second District held that “the fact that Estep’s Motion to Suppress raised a
ROSS, 16CA3564                                                                                      7

potentially dispositive issue did not constitute ‘good cause shown’ for granting relief from the waiver

since Estep had ample opportunity to bring a suppressing motion within the time allotted by Crim.R.

12(C), or to ask for an extension of those time limits in the interests of justice if he needed one.” Id.

at 3.

        {¶ 16} Appellant points to State v. Merritt, 126 Ohio App.3d 711, 711 N.E.2d 279 (6th

Dist.1998), to support her argument that the trial court erred by denying her leave to file her motion

to suppress. In Merritt, the defendant’s case was not scheduled to go to trial for several months, and

the court conclude that the trial court’s denial of the appellant’s motion for leave to file the motion to

suppress appeared to be arbitrary and unreasonable and, therefore, amounted to an abuse of

discretion. We, however, find Merritt to be distinguishable. In Merritt, the trial was scheduled

several months away when the defendant sought leave to file the motion to suppress. In the case sub

judice, the trial was scheduled to be held in nineteen days. Appellant was indicted on December 12,

2014 and arraigned on September 15, 2015, the same day the court appointed counsel and the

prosecution provided discovery. Seven months later, after a trial date had been set and several

witnesses subpoenaed, including out of county and professional witnesses, appellant filed a motion

for leave to file her second motion to suppress. In her motion, appellant stated that the issues had not

been addressed before, providing no “good cause” for why the court should not deem the issues

waived. The trial court denied appellant’s motion, noting “there is no time available between the

time the motion was filed and the scheduled jury trial.”

        {¶ 17} We conclude that the trial court did not abuse its discretion in denying the motion for

leave to file a second motion to suppress. Thus, we overrule appellant’s first assignment of error.

                                                         II.
ROSS, 16CA3564                                                                                  8

        {¶ 18} In her second assignment of error, appellant asserts that she received ineffective

assistance of counsel because her original counsel “failed to timely file a motion challenging

substantial compliance with Department of Health Regulations and statutory requirements pertaining

to the taking and handling of a specimen of the Defendant’s blood.” Appellant argues that a timely

motion to suppress would have been successful.

        {¶ 19} Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets

forth the standard for judging ineffective-assistance claims.        “When a convicted defendant

complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's

representation fell below an objective standard of reasonableness.” Id. at 687-688, 104 S.Ct. at

2064, 80 L.Ed.2d at 693. Further, “[t]he defendant must show that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at

694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. See also State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989), paragraphs two and three of the syllabus.

        {¶ 20} As the Supreme Court of Ohio instructed in State v. Sanders, 94 Ohio St.3d 150, 761

N.E.2d 18 (2002), “Strickland charges us to ‘[apply] a heavy measure of deference to counsel's

judgments,’ 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, and to ‘indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional assistance,’

id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. * * * [W]e note that courts must ‘judge the

reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the

time of counsel's conduct.’ Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.”

Sanders at 151.
ROSS, 16CA3564                                                                                     9

        {¶ 21} Appellant’s proffered second motion to suppress raised two issues: (1) that the blood

specimen was drawn more than three hours from the time of operation of the vehicle, and (2) that the

blood specimen was not handled in accordance with Ohio Adm.Code 3701-53-05(F) because an

alleged six-hour lapse occurred between the time the specimen was drawn and placed in the U.S.

Mail.

        {¶ 22} “The failure to file a motion to suppress does not constitute per se ineffective

assistance of counsel.” State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, ¶ 13;

State v. James, 4th Dist. Ross No. 13CA3370, 2013-Ohio-5475, ¶ 19; State v. Walters, 4th Dist.

Adams No. 12CA949, 2013-Ohio-772, ¶ 20. “Instead, the failure to file a motion to suppress

amounts to ineffective assistance of counsel only when the record demonstrates that the motion

would have been successful if made.” Waters at ¶ 13, citing State v. Resendiz, 12th Dist. Preble No.

CA2009-04-012, 2009-Ohio-6177, ¶ 29.

        {¶ 23} Appellant argues that with respect to the first prong of the Strickland test, this court’s

holding in State v. Mullins, 4th Dist. Ross No. 12CA3350, 2013-Ohio-2688, should have placed

counsel on notice that the Property Control Form provided in discovery established an issue

concerning substantial compliance with Department of Health Regulations absent any further inquiry

into the circumstances surrounding the taking of the blood specimen. However, Mullins involved

an approximate twelve-hour period in which the defendant’s urine sample was unrefrigerated while

not in transit or under examination, see Mullins at ¶ 1. Appellant further contends that the Supreme

Court's recent decision in State v. Baker, 146 Ohio St.3d 456, 2016-Ohio-451, 58 N.E.3d 1114,

would have cemented this issue prior to the scheduling of a trial date, meaning that the trial court

would not have had the same rationale for denying the motion for leave had such a motion been
ROSS, 16CA3564                                                                                  10

timely filed following Baker.

        {¶ 24} In Baker, the court clarified the State v. Burnside (100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71) burden-shifting test, holding: “A defendant must first challenge the

validity of the alcohol test by way of a pretrial motion to suppress evidence; failure to file such a

motion ‘waives the requirement on the state to lay a foundation for the admissibility of the test

results.’ (citation omitted) The state then has the burden to show that it substantially complied with

regulations prescribed by the director of health in the Ohio Administrative Code. If the state meets

its burden of going forward with the evidence in this regard, a presumption of admissibility arises,

and the burden then shifts back to the defendant to rebut the presumption by demonstrating prejudice

from the state’s failure to strictly comply with the applicable regulations in the Ohio Administrative

Code.” Baker at ¶ 23.

        {¶ 25} While appellant’s counsel did not challenge the admissibility of the blood test via a

pretrial motion to suppress evidence, it appears that the state would have established substantial

compliance with the regulations. The Baker court went on to hold that failing to refrigerate a blood

specimen for a period of four hours and ten minutes before placing it in transit for analysis is a de

minimis error and did not render the test result inadmissible for failure to substantially comply with

the regulation requiring that all blood and urine specimens be refrigerated while not in transit or

under examination. Further, the court noted that it had previously held that the failure to refrigerate

a sample for a period of up to five hours substantially complied with the administrative regulations,

citing State v. Plummer, 22 Ohio St.3d 292, 194-295, 490 N.E.2d 902 (1986).

        {¶ 26} In another case, the Eleventh District concluded that a blood specimen that went

unrefrigerated for six hours before mailing does not violate Ohio Adm.Code 3701-53-05(F). See
ROSS, 16CA3564                                                                                 11

State v. Price, 11th Dist. Geauga No. 2007-G-2785, 2008-Ohio-1134, ¶ 26, citing State v. Burnside,

100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 34 (“were we to agree * * * that any

deviation whatsoever from the regulation rendered the results of a [test] inadmissible, we would be

ignoring the fact that strict compliance is not always realistically or humanly possible.”). Thus,

even assuming arguendo that appellant could establish that the failure to refrigerate the specimen was

close to six hours, appellant has demonstrated only a possibility, not a probability, that she would

have succeeded if her motion to suppress had been timely filed.

        {¶ 27} Moreover, the state points out that even if the motion to suppress had been successful,

the record shows that the state would have been successful in prosecuting Count One, which was

dismissed as part of plea negotiations and remained pending at the time the court denied leave to file

the motion to suppress. Count One charged appellant with causing “serious harm to another person,

as proximate result of committing a violation of division (A) section 4511.19 of the Ohio Revised

Code, to wit: Ohio Revised Code 4511.19(A)(1)(a).” That code section precludes persons from

operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them.

Appellant admitted that she had been drinking and driving, and that she had consumed four or five

beers while driving the vehicle. Further, Trooper Holbrook testified that appellant was impaired and

that he had found empty beer containers in the vehicle, as well as a four loco alcoholic beverage in

the center console. Therefore, even if we assume for purposes of argument that the blood evidence

would have been suppressed as to Count Two of the indictment, the State would likely have been

successful in a prosecution of Count One. Thus, appellant has not demonstrated prejudice.

        {¶ 28} Accordingly, we conclude that appellant has failed to establish her claim of

ineffective assistance of counsel. Consequently, and we overrule appellant’s second assignment of
ROSS, 16CA3564                                                      12

error and affirm the trial court's judgment.

                                               JUDGMENT AFFIRMED.
ROSS, 16CA3564                                                                                   13



                                        JUDGMENT ENTRY

        It is ordered that the judgment is affirmed and that appellee recover of appellant the costs
herein taxed.

        The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.

        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to
allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency
of the proceedings in that court. The stay as herein continued will terminate at the expiration of the
sixty-day period.

       The stay will also terminate if appellant fails to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the
Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.

        Harsha, J. & McFarland, J.: Concur in Judgment & Opinion

                                                      For the Court




                                                      BY:
                                                      Peter B. Abele, Judge
ROSS, 16CA3564                                                                                14



                                     NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk.
