[Cite as State v. Schwentker, 2015-Ohio-5526.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellant,            :
                                                        CASE NO. 2015-A-0012
        - vs -                                   :

FRED M. SCHWENTKER,                              :

                 Defendant-Appellee.             :


Criminal Appeal from the Ashtabula Municipal Court, Case No. 13 TRC 00246.

Judgment: Affirmed.


Lori B. Lamer, Assistant Ashtabula City Solicitor, Ashtabula Municipal Court, 110 West
44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellant).

Michael J. Feldman, Lallo & Feldman Co., L.P.A., Interstate Square Building I, 4230
State Route 306, #240, Willoughby, OH 44094 (For Defendant-Appellee).




CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, state of Ohio, appeals the judgment of the Ashtabula Municipal

Court, granting appellee, Fred M. Schwentker’s, motion to dismiss. At issue is whether

the trial court erred in granting Mr. Schwentker’s motion to dismiss on speedy-trial

grounds. For the reasons that follow, we affirm.

        {¶2}     On January 26, 2013, Mr. Schwentker was charged with operating a

vehicle while under the influence of alcohol (“OVI”), a first-degree misdemeanor, in
violation of R.C. 4511.19(A)(1)(a), and failure to obey a traffic-control device, a minor

misdemeanor, in violation of R.C. 4511.12. On February 1, 2013, Mr. Schwentker pled

not guilty to both charges and executed a speedy-trial waiver.

      {¶3}   On March 15, 2013, Mr. Schwentker filed a motion to suppress evidence

obtained as a result of a traffic stop. A suppression hearing was held on May 10, 2013.

The trial court heard testimony from one witness, Trooper Damien Assink, of the Ohio

State Highway Patrol.

      {¶4}   On direct examination, Trooper Assink testified he was on duty and came

into contact with Mr. Schwentker on January 26, 2013, at approximately 1:16 a.m. At

the time, Trooper Assink was stationary at the corner of West Avenue and West 29th.

He described the intersection as having two lanes, a left lane for traffic proceeding

straight ahead and a right-turn-only lane, depicted by markings on the travelled portion

of the roadway. Trooper Assink said the left lane was clear and the right lane was

snow-covered and unplowed. He observed a silver BMW, operated by Mr. Schwentker,

drive straight ahead through the intersection, using the right-turn-only lane. Trooper

Assink pulled out, followed the BMW, and initiated a traffic stop in a safe area. Mr.

Schwentker provided his driver’s license, registration, and proof of insurance.      Mr.

Schwentker refused to perform any field sobriety tests.

      {¶5}   On cross-examination, Trooper Assink testified he made a dash-cam

video of the incident, which was submitted to the court as Exhibit “A.” He said Mr.

Schwentker never cut off another driver and did not cause an accident. Mr. Schwentker

did not weave or speed. Rather, the only violation Trooper Assink observed was when




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Mr. Schwentker proceeded through the intersection in the right-turn-only lane, which, as

noted above, was snow-covered and unplowed.

       {¶6}   Following the hearing, the court did not rule on the motion to suppress.

       {¶7}   As a result, nearly one year after the suppression hearing, on March 28,

2014, Mr. Schwentker filed a motion to dismiss. In his motion, Mr. Schwentker said he

was in “limbo” because no judgment was ever rendered on his motion to suppress. Mr.

Schwentker said that he could not apply for a new job, get his license, or move out of

the area until the court ruled on his motion to suppress.

       {¶8}   Nearly one year after Mr. Schwentker filed his motion to dismiss, on

January 19, 2015, the trial court granted that motion. The court stated in its entry:

       {¶9}   UPON CONSIDERATION, the Court originally heard this matter on
              May 10, 2013 relative to Defendant’s Motion to Suppress. The
              issue raised involves a de minimus violation of ORC 4511.12. The
              violation occurred on a snowy day, and concerned an allegation
              that Defendant failed to obey a traffic control device. Plaintiff’s
              witness indicated there were markings on the travelled portion of
              the roadway designating Defendant’s lane as a turning lane.
              Defendant did not turn. Rather, Defendant proceeded on a straight
              path. He was stopped by the citing officer herein. The evidence
              established that the road surface was snow covered at the time.
              Defendant refused all tests requested by the State, and he seeks
              dismissal of the instant charge based upon a lack of probable
              cause to stop.

       {¶10} The State of Ohio introduced a video of the alleged violation for the
             Court’s consideration. However, this video was inadvertently
             placed in an unrelated case file. As a consequence, it was “lost” to
             the Court for nearly 17 months. The video was discovered when
             the unrelated matter again came before the Court. The defendant
             therein had been arrested on an outstanding warrant.

       {¶11} The Court finds Defendant’s motion should be granted. A “speedy
             trial” issue has arisen herein due to this Court’s inadvertence.
             (Emphasis added.)




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      {¶12} It is from this judgment that the state filed this appeal and raises the

following two assignments of error for our review:

      {¶13} “[1.] The trial court’s decision to grant [Mr. Schwentker’s] motion to

suppress was not supported by the facts or the law.

      {¶14} “[2.] The trial court erred when it granted [Mr. Schwentker’s] Motion to

Dismiss.”

      {¶15} In its first assignment of error, the state argues the trial court erred in

granting Mr. Schwentker’s motion to suppress. The state alleges the court’s decision is

not supported by competent, credible evidence.

      {¶16} With respect to the standard of review of a judgment ruling on a motion to

suppress, this court in State v. Haynes, 11th Dist. Ashtabula No. 2012-A-0032, 2013-

Ohio-2401, ¶36, stated:

      {¶17} “Appellate review of a motion to suppress presents a mixed
            question of law and fact.” State v. Burnside, 100 Ohio St.3d 152,
            2003-Ohio-5372, ¶8. During a hearing on a motion to suppress, the
            trial judge acts as the trier of fact and, as such, is in the best
            position to resolve factual questions and assess the credibility of
            witnesses. State v. Mills, 62 Ohio St.3d 357, 366 (1992). The
            appellate court must accept the trial court’s factual findings,
            provided they are supported by competent, credible evidence.
            Burnside at ¶8. Thereafter, the appellate court must determine,
            without deference to the trial court, whether the applicable legal
            standard has been met. Bainbridge v. Kaseda, 11th Dist. Geauga
            No. 2007-G-2797, 2008-Ohio-2136, ¶20. Thus, we review the trial
            court’s application of the law to the facts de novo. State v.
            McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).

      {¶18} However, the trial court never ruled on Mr. Schwenkter’s motion to

suppress. Since the court did not rule on that motion, there is no judgment granting or

denying Mr. Schwenkter’s motion to suppress and, thus, there is nothing for us to

review.



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      {¶19} Pursuant to Ohio Constitution, Article IV, Section 3(B)(2) and R.C.

2505.03, appellate courts have jurisdiction to review only final orders, judgments or

decrees. “‘“[T]he entire concept of ‘final orders’ is based upon the rationale that the

court making an order which is not final is thereby retaining jurisdiction for further

proceedings. A final order, therefore, is one disposing of the whole case or some

separate and distinct branch thereof.”’” Browder v. Shea, 10th Dist. Franklin No. 04AP-

1217, 2005-Ohio-4782, ¶10, quoting Noble v. Colwell, 44 Ohio St.3d 92, 94 (1989),

quoting Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306 (1971).

      {¶20} Further, “R.C. 2945.67 and Crim.R. 12([K]) establish the state’s right to

appeal an adverse ruling on a motion to suppress and the procedure for such appeals.”

State v. Bertram, 80 Ohio St.3d 281, 283 (1997). The state’s appeal of the trial court’s

judgment granting a motion to suppress, made pursuant to R.C. 2945.67, is not a

discretionary appeal, but, rather, an appeal as of right. See State v. Fraternal Order of

Eagles Aerie 0337, 58 Ohio St.3d 166, 168 (1991).

      {¶21} Pursuant to Crim.R. 12(K), when the state appeals an order suppressing

evidence, the prosecuting attorney must certify that the appeal is not taken for the

purpose of delay and that the ruling on the motion has rendered the state’s proof with

respect to the pending charge so weak that any reasonable possibility of effective

prosecution has been destroyed.

      {¶22} Because the state certifies that the trial court’s ruling granting the motion

to suppress has destroyed its case, the court’s ruling is, in essence, a final order. See

State v. French, 72 Ohio St.3d 446, 449 (1995); State v. Davidson, 17 Ohio St.3d 132

(1985), syllabus.




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         {¶23} Here, because the trial court never ruled on Mr. Schwenkter’s motion to

suppress, there is nothing for us to review and, therefore, we can neither affirm nor

reverse.

         {¶24} In its second assignment of error, the state contends the trial court erred in

granting Mr. Schwentker’s motion to dismiss.

         {¶25} “We review a trial court’s decision on a motion to dismiss pursuant to a de

novo standard of review.” State v. Rode, 11th Dist. Portage No. 2010-P-0015, 2011-

Ohio-2455, ¶14, citing State v. Wendel, 11th Dist. Geauga No. 97-G-2116, 1999 Ohio

App. LEXIS 6237, *5 (Dec. 23, 1999).

         {¶26} R.C. 2945.71 designates the varying time frames, ranging from 30 days

up to 270, in which a defendant must be brought to trial. See R.C. 2945.71(A) (minor

misdemeanor – 30 days); R.C. 2945.71(B) (third or fourth degree misdemeanor – 45

days; first or second degree misdemeanor – 90 days); R.C. 2945.71(C) (felony – 270

days).

         {¶27} As a general proposition, the defendant in a criminal action can waive his

speedy-trial rights as long as the waiver is made voluntarily. State v. King, 70 Ohio

St.3d 158, 160 (1994).

         {¶28} On February 1, 2013, Mr. Schwentker pled not guilty to both charges and

executed a written, unambiguous speedy-trial waiver in which he waived his rights

under R.C. 2945.71, et seq., as well as his federal and state constitutional speedy-trial

rights. Therefore, pursuant to King, the written waiver was valid.

         {¶29} Regarding the duration of a speedy-trial waiver, when such a waiver does

not contain any reference to a specific time period, it will be deemed to be unlimited in




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duration. See State v. Kuriger, 175 Ohio App.3d 676, 2008-Ohio-1673, ¶16 (7th

Dist.2008); State v. Peek, 9th Dist. Wayne No. 10CA0040, 2011-Ohio-3624, ¶6. Mr.

Schwentker’s speedy-trial waiver did not include a specific time frame or limit. Thus,

there was no limit to the duration of his speedy-trial waiver.

        {¶30} However, a criminal defendant can withdraw or revoke his speedy-trial

waiver. “‘[F]ollowing an express written waiver of an unlimited duration by an accused

of his speedy trial rights[,] the accused is not entitled to a discharge for delay in bringing

him to trial unless the accused files a formal written objection to any further

continuances and makes a demand for trial, following which the state must bring him to

trial within a reasonable time.’” State v. Braden, 197 Ohio App.3d 534, 2011-Ohio-6691,

¶41 (11th Dist.), quoting State v. O’Brien, 34 Ohio St.3d 7, 9 (1987).

        {¶31} It is undisputed that appellant filed a speedy-trial waiver of unlimited

duration. It is also undisputed that he never filed a formal written objection to any

further continuances and never made a demand for trial. Thus, Braden does not apply

here.

        {¶32} However, the Sixth District has held that the filing of a motion to dismiss

based on speedy-trial grounds also acts to revoke a prior speedy-trial waiver. Toledo v.

Burns, 6th Dist. Lucas No. L-13-1017, 2014-Ohio-1669, ¶13, citing Toledo v. Sauger,

179 Ohio App.3d 285, 2008-Ohio-5810, ¶19 (6th Dist.).

        {¶33} While appellant filed a motion to dismiss, that motion was not expressly

based on speedy-trial grounds. Thus, in order for the rule in Burns and Sauger to apply

here, the trial court would have had to construe appellant’s motion to dismiss as being

based on speedy-trial grounds.       The circumstances in which appellant’s motion to




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dismiss was filed and the language of the motion itself support such construction. For

example, (1) the suppression hearing was held one year before the motion to dismiss

was filed; (2) the trial court had still not ruled on the motion to suppress when the motion

to dismiss was filed; and, (3) Mr. Schwentker stated in his motion to dismiss that as a

result of the court’s inaction, he had been “in limbo” in that he had been unable to apply

for a new job; obtain his license; or move out of the area until the trial court ruled on his

motion to suppress. Further, the language of the trial court’s judgment granting Mr.

Schwentker’s motion to dismiss indicates that the court construed his motion as being

based on a speedy-trial violation. Specifically, the court stated in its judgment that “a

‘speedy trial’ issue has arisen herein due to this Court’s inadvertence.” Because the

trial court reasonably construed Mr. Schwentker’s motion to dismiss as being based on

speedy-trial grounds, pursuant to Burns and Sauger, Mr. Schwentker’s motion acted to

revoke his speedy-trial waiver.

       {¶34} Thus construed, the time began to run for speedy-trial purposes on the

day Mr. Schwentker filed his motion to dismiss (March 28, 2014). Burns, supra. As a

result, pursuant to R.C. 2945.71(B), the state had 90 days from March 28, 2014, in

which to bring Mr. Schwentker to trial, i.e., until June 30, 2014. Id. The state failed to

bring him to trial within that period of time. In fact, nearly one full year passed after Mr.

Schwentker filed his motion to dismiss before the trial court granted it. As a result, Mr.

Schwentker’s right to a speedy trial was violated, and the trial court did not err in

granting his motion to dismiss.




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      {¶35} For the reasons stated in this opinion, the assignments of error lack merit

and are overruled. It is the order and judgment of this court that the judgment of the

Ashtabula Municipal Court is affirmed.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN M. O’TOOLE, J., concurs in judgment only.




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