[Cite as Bedford v. McLeod, 2011-Ohio-3380.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                          JOURNAL ENTRY AND OPINION
                                  No. 94649

                               CITY OF BEDFORD
                                                     PLAINTIFF-APPELLEE

                                               vs.

                               LANCE D. McLEOD
                                                     DEFENDANT-APPELLANT



                              JUDGMENT:
                         VACATED AND REMANDED


                                   Criminal Appeal from the
                                   Bedford Municipal Court
                                    Case No. 08TRC07283

        BEFORE:          E. Gallagher, J., Sweeney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                       July 7, 2011
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 ATTORNEYS FOR APPELLANT

Joseph A. Dubyak
Dubyak & Goldense
50 Public Square
Suite 920
Cleveland, Ohio 44113-2206

David M. King
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Ross S. Cirincione
Law Director, City of Bedford Hts.
Castleton Building
5306 Transportation Blvd.
Garfield Heights, Ohio 44125

Kenneth A. Schuman
Law Director, City of Bedford
5306 Transporation Blvd.
Garfield Heights, Ohio 44125




EILEEN A. GALLAGHER, J.:

      {¶ 1} Lance McLeod appeals from the decision of the Bedford Municipal Court.

McLeod argues the trial court erred when it denied his motion to suppress, erred when it

failed to commence his trial in a timely fashion, and that these errors resulted in an
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inadequate record on appeal.     Finding merit to this appeal, we vacate McLeod’s underlying

convictions.

       {¶ 2} On October 11, 2008, Bedford Police Officer Ronald Niemann issued a citation

charging McLeod with violating R.C. 4511.19(A)(1)(a), operating a vehicle whi`le

intoxicated, R.C. 4511.19(A)(1)(d), blood alcohol content, and Bedford Codified Ordinances

333.022(D) full time and attention.      At his arraignment, McLeod pleaded not guilty and

executed a waiver of speedy trial.      Specifically, McLeod acknowledged “by signing this

waiver, you are knowingly and in open court, waiving the * * * under O.R.C. 2945.71 and

allowing the Court to set the matter at its earliest convenience for hearing or trial.”

       {¶ 3} On December 4, 2008, McLeod filed a motion to suppress the results of the

field sobriety and breathalyzer tests, any statements made by McLeod and any observations

and opinions of the arresting officers concerning McLeod’s intoxication.        On December 29,

2008, the trial court conducted a hearing on the motion to suppress.           On May 5, 2009,

McLeod filed a motion to dismiss and a renewed motion to suppress, seeking a dismissal of

the charges for the trial court’s failure to rule on his December 4, 2008 motion to suppress.

On September 30, 2009, the trial court issued a journal entry setting the case for a status

review.   On January 29, 2010, more than one year after McLeod filed his motion to

suppress, the trial court summarily denied the motion.
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       {¶ 4} The trial court proceeded to a jury trial that same day.    The city presented the

testimony of Officer Niemann and Officer Paul Kellerman.        Officer Niemann testified that

on October 11, 2008, at approximately 11:30 p.m., he was on duty and driving westbound on

Rockside Road.     Officer Niemann noted that two cars were at the red light on Broadway

Road and continued to sit at the light even though it turned green.   Neither car moved until a

motorcycle approached from behind and beeped.          Then, the GMC pickup truck driven by

appellant, “chirped” its tires as it proceeded through the intersection.     Officer Niemann

testified that although the driver of the truck only remained sitting at the intersection for a

few seconds, he decided to initiate a traffic stop.

       {¶ 5} Officer Niemann stated that McLeod was the driver of the pickup truck and

that he immediately smelled alcohol emanating from McLeod and that McLeod             appeared

dazed and lacked focus.     Officer Niemann testified that upon questioning, McLeod admitted

that he had consumed one drink.        Believing McLeod to be intoxicated, Officer Niemann

initiated field sobriety tests.   The officer asked McLeod to count from forty-three to

thirty-seven and McLeod counted from forty-three to thirty-three.            Officer Niemann

attempted the horizontal gaze nystagmus (HGN) test but McLeod lacked the ability to focus

on the officer’s pen so the officer then stopped the test.

       {¶ 6} Officer Niemann asked McLeod to exit the vehicle for further field sobriety
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testing.     When asked to perform the balance test, McLeod informed the officer that he had a

previous injury that affected his balance.     McLeod attempted the balance test anyway, but

failed.     The officer asked McLeod to walk a straight line touching his feet heel-to-toe as he

walked.      McLeod could not perform the heel-to-toe or walk a straight line and then stopped

the testing by stating, “I can’t do this.”   Officer Niemann placed McLeod under arrest and

transported him to the police station.    At the station, Officer Niemann repeated the tests and

McLeod submitted to a breathalyzer, which produced a reading of .128.

           {¶ 7} The defense presented no witnesses.     The jury found McLeod guilty of both

OVI charges, R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d), and not guilty of Bedford

Codified Ordinances 333.022(D).        The trial court proceeded to sentencing and sentenced

McLeod to 30 days in jail with 27 suspended, imposed a $500 fine, ordered him to pay court

costs, and then stayed the imposition of the sentence pending the outcome on appeal.

           {¶ 8} On February 10, 2010, McLeod filed the instant appeal, raising the three

assignments of error contained in the appendix to this opinion.       On March 15, 2010, this

Court dismissed the appeal for failure to file the record.      On August 2, 2010, this Court

granted McLeod’s motion to reconsider and vacated the dismissal.       On September 21, 2010,

the trial court granted McLeod’s motion to assign a court reporter and prepare the transcript,

which was then filed on October 21, 2010.             Upon review of the transcript, McLeod’s
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counsel noted that a transcript of the suppression hearing held on December 29, 2008 was not

included.   After conferring with Bedford Municipal Court, McLeod’s counsel learned that

no recording of the suppression hearing existed.        Specifically, the court only maintains

recordings for eighteen months, and, thereafter, records over them.      In view of the fact that

the suppression hearing took place 21 months earlier, the recording had been destroyed.

       {¶ 9} In his first assignment of error, McLeod argues the trial court erred when it

denied his motion to suppress.     In his second assignment of error, McLeod argues the trial

court’s delay in ruling on his motion to suppress resulted in an inadequate record on appeal.

More specifically, McLeod argues that the trial court’s delay in ruling on his motion to

dismiss caused the recording of the suppression hearing to be destroyed.           Because these

assignments of error involve the same facts, we shall address them contemporaneously.

       {¶ 10} In arguing that his motion to suppress should have been granted, McLeod

claims that Officer Niemann had no reasonable suspicion to believe that McLeod committed

any traffic violation nor engaged in any illegal activity.   In response, the City argues that the

officer had probable cause to believe that a traffic violation had occurred and, therefore, had

probable cause to make the stop.

       {¶ 11} Although not mentioned by either party in their appellate briefs, we first look

at whether the trial court erred in failing to make findings of fact and conclusions of law.
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Crim.R. 12(F) provides that “[w]here factual issues are involved in determining a motion, the

court shall state its essential findings on the record.”       Here, in denying the motion to

suppress, the trial court stated only that the “[m]otion to suppress is overruled along with any

motion to dismiss, which is also overruled.”           The court ruled on McLeod’s motion to

suppress on the day of trial, well more than one year after it conducted the suppression

hearing.

       {¶ 12} Crim.R.12(F) mandates, by use of the word “shall,” that the trial court state its

essential findings on the record when issues of fact are involved in determining a motion.

But we have found that a trial court’s failure to provide its “essential findings” on the record

in a case may not be fatal to a review of the trial court’s ruling on the motion when the record

provides a sufficient basis to review appellant’s assignments of error. State v. Bennett,

Cuyahoga App. No. 86962, 2006-Ohio-4274, appeal not allowed by 114 Ohio St.3d 1425,

2007-Ohio-2904, 868 N.E.2d 679; State v. Ogletree, Cuyahoga App. No. 86285,

2006-Ohio-448; State v. Martin, Cuyahoga App. No. 89030, 2007-Ohio-6062.           In this case,

as stated above, no transcript of the suppression hearing exists and accordingly, we have no

basis upon which to review the trial court’s ruling.

       {¶ 13} Moreover, while we are presented with a transcript of McLeod’s trial, the

record is unclear as to the basis for McLeod’s motion to suppress and, therefore, it is equally
                                               8

unclear whether the trial court’s decision to deny McLeod’s motion to suppress was

supported by the testimony presented at trial.       There is no evidence before the court that

Officer Niemann was certified to perform field sobriety tests or that he did so in compliance

with the National Highway Traffic Safety Administration (NHTSA) dictates.               Although

Officer Kellerman testified that he is qualified to administer a breathalyzer test, there was no

evidence that the machine was properly calibrated.       This is all the more problematic as the

trial court failed to preserve the suppression hearing record and further, failed to either reduce

its findings to writing or state them on the record. See State v. Alhajjeh, Cuyahoga App. No.

93077, 2010-Ohio-3179 (finding that the trial court’s stating its findings on the record was

sufficient to meet the requirements of Crim.R. 12(F)). Therefore, there is nothing substantive

in the record for us to review.        See Bedford v. Clark, Cuyahoga App. No. 95594,

2011-Ohio-941.

       {¶ 14} We do note that McLeod failed to request findings of fact and historically this

court has held that an appellant waives his right to challenge a violation of Crim.R. 12(F) if

he or she does not make a timely request for the findings.       See State v. Martin, Cuyahoga

App. No. 89030, 2007-Ohio-6062, appeal not allowed by 117 Ohio St.3d 1441,

2008-Ohio-1279, 883 N.E.2d 458 (stating that “[i]t is well-settled in Ohio * * * that in order

for a court to have a duty to issue findings of fact, there must be a request from the
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defendant.”) However, this court reviewed relevant case law in Bedford v. Clark and

determined that “in cases where we found that a violation of Crim.R. 12(F) did not require

reversal, there was other evidence in the record from which we could review and determine

whether the trial court erred in ruling on the motion to suppress.”            Id.   See Martin;

Ogletree; State v. Arrington, Cuyahoga App. No. 92556, 2009-Ohio-4721; State v. Little

(Oct. 12, 2000), Cuyahoga App. No. 77258.

       {¶ 15} As further stated in Clark:

       “Notably, in State v. Brown, 64 Ohio St.3d 476, 1992-Ohio-96, 597 N.E.2d 97, the
       Ohio Supreme Court held that ‘[w]hen a defendant makes no request to the trial court
       to state findings of fact in support of an order overruling a motion to dismiss on
       speedy trial grounds, and the trial court does not state its findings of fact, an appellate
       court errs in reversing a conviction on the ground that the defendant was denied a
       speedy trial if there is sufficient evidence demonstrating that the trial court’s decision
       was legally justified and supported by the record.’ (Emphasis added.) Id. at
       syllabus. We extended the holding in Brown to include motions to suppress in State
       v. Burrell (Apr. 16, 1998), Cuyahoga App. No. 72113, appeal not allowed by (1998),
       83 Ohio St.3d 1429, 699 N.E.2d 945 (holding that the trial court did not err in failing
       to comply with Crim.R. 12 because there was sufficient evidence in the record to
       support the trial court’s ruling).”

       {¶ 16} Thus, it does not appear to be a blanket rule that an appellant must request

factual findings in order to invoke Crim.R.12(F).        Clark.    If, as in this case, there is

insufficient evidence in the record demonstrating that the trial court’s decision is justified,

then a trial court may violate Crim.R. 12(F) even if the appellant fails to make a timely

request.   Clark.
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       {¶ 17} Crim.R. 12(F) does require, however, that there be factual issues in dispute

before a trial court is required to make findings of fact.      In the case at bar, McLeod

challenged whether the police had probable cause to arrest him, the manner in which police

administered the breathalyzer test, and the admissibility of statements he made to the police.

Based on his motion, we find that there were factual issues for the trial court to determine.

Although the trial court did conduct a hearing on McLeod’s motion to suppress, it denied the

motion more than one year later and without any findings of fact or conclusions of law.

Moreover, the court’s delay in ruling on McLeod’s motion to suppress caused the recording

of the suppression hearing to be destroyed.     Thus, we cannot properly review whether the

court erred in overruling the motions to suppress. Clark.

       {¶ 18} In many instances we have presumed regularity in a trial court’s actions in the

absence of a transcript for review. “An appellant has the responsibility of providing the

reviewing court with a record of the facts, testimony, and evidentiary matters that are

necessary to support the appellant’s assignments of error.     In the absence of a complete

record, an appellate court must presume regularity in the trial court’s proceedings.” (Internal

citations omitted.) State v. Smith, Cuyahoga App. No. 94063, 2010-Ohio-3512.            In this

instance, however, McLeod’s failure to provide a transcript was not due to McLeod’s or his

counsel’s failure to provide it.   It no longer exists.   Thus, we cannot presume regularity
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where the court’s failure to rule on a motion to suppress in a timely fashion caused the

destruction of a record capable of review and then blame that failure on the appellant.      See

Village of N. Randall v. Withrow, Cuyahoga App. No. 94572, 2011-Ohio-1675.

       {¶ 19} Further, we are not convinced that an App.R. 9(C) statement would have

provided clarity.   App.R. 9(C) provides in relevant part: “If no report of the evidence or

proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may

prepare a statement of the evidence or proceedings from the best available means, including

the appellant’s recollection * * *.”    It would not have contained the trial court’s findings of

fact and conclusions of law in light of the assigned error in this case.

       {¶ 20} Accordingly, for the reasons stated above, McLeod’s first and second

assignments of error are sustained.

       {¶ 21} In his third and final assignment of error, McLeod argues that his rights to a

speedy trial were violated.   We find that the trial court did not comport with the speedy trial

waiver that McLeod executed.

       {¶ 22} McLeod’s waiver, which he acknowledged signing, allowed the court to “set

the matter at its earliest convenience for hearing or trial.”   However, the court acknowledged

its error in causing the delay in bringing McLeod to trial and stated as follows:

       “I’m perfectly willing to take my beating. Somehow the file did get put somewhere
       where I didn’t rule on it, however, there is a time waiver in here and in addition to
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       whatever time. And I made it very clear in the previous status conferences that I
       wasn’t (inaudible) that particular motion, and so your motion to dismiss is overruled.”
        Tr. 6.

       {¶ 23} Accordingly, by the court’s own admission, it did not rule on McLeod’s

motion to suppress or set McLeod’s trial at the court’s earliest convenience; the court simply

neglected the case and allowed it to linger.      More specifically, McLeod was arrested on

October 11, 2008.    The trial court did not hear McLeod’s case until more than four hundred

days later.   We find such a delay, without any further explanation by the court, per se

unreasonable and constitutes a violation of the waiver of McLeod’s speedy trial rights.

       {¶ 24} Accordingly, finding merit to McLeod’s third assignment of error, we vacate

McLeod’s convictions.     See State v. Benson (1985), 29 Ohio App.3d 321, 505 N.E.2d 987;

R.C. 2945.73.

       {¶ 25} This cause is vacated and remanded to the lower court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover of said appellee 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 lower court to

carry this judgment into execution.

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




EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR




                                           Appendix

Assignments of Error:

       “I. The trial court erred in violation of the Fourth and Fourteenth Amendments to
       the United States Constitution and Article I, Section 14 of the Ohio Constitution when
       it denied Mr. McLeod’s motion to suppress because there was no reasonable suspicion
       to believe that Mr. McLeod had committed any traffic violation or was engaged in
       illegal activity at the time he was detained by the police.”

       “II. Mr. McLeod was denied his constitutional right to appeal in violation of federal
       and state due process by the inadequacy of the record prepared in the instant case.”

       “III.   The trial court erred by not commencing trial in a timely fashion in violation of
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R.C. 2945.71 the Sixth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section 10 of the Ohio Constitution.”
