[Cite as State v. Beal, 2019-Ohio-2479.]


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

STATE OF OHIO                                         C.A. No.       18CA0069-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RUSSELL W. BEAL                                       COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   17CR1094

                                  DECISION AND JOURNAL ENTRY

Dated: June 24, 2019



        HENSAL, Judge.

        {¶1}     Russell Beal appeals the denial of his motion for leave to file motion to suppress

and continue the trial in the Medina County Court of Common Pleas. For the following reasons,

this Court affirms.

                                                 I.

        {¶2}     A Brunswick police officer used file-sharing software to search for files known to

contain child pornography. After he was able to download a number of those files from a

particular internet protocol (IP) address, the grand jury issued a subpoena to a local internet

service provider to obtain the name and address associated with the IP address. The results

revealed that the IP address was linked to Mr. Beal’s address in Medina. A detective went to the

address and learned that Mr. Beal was the sole resident.

        {¶3}     The grand jury subsequently indicted Mr. Beal on three counts of pandering

sexually oriented matter involving a minor. On the morning of trial, which was a Monday, Mr.
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Beal moved for leave to file a motion to suppress and continue the trial based on the decision of

the United States Supreme Court in State v. Carpenter, __ U.S. __, 138 S.Ct 2206 (2018), which

had been announced the previous Friday. Following discussions about the decision, the trial

court denied Mr. Beal’s motion, concluding that Carpenter was not applicable to Mr. Beal’s

case. A jury found Mr. Beal guilty of the offenses, and the trial court sentenced him to three

years imprisonment. Mr. Beal has appealed, assigning as error that the trial court abused its

discretion when it denied his motion for leave.

                                                  II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ACTED ARBITRARILY AND CAPRICIOUSLY IN
       DENYING RUSSELL BEAL’S MOTION FOR LEAVE TO FILE MOTION TO
       SUPPRESS WHEN COUNSEL SET FORTH A CONVINCING REASON TO
       WARRANT RELIEF.

       {¶4}    Mr. Beal argues that the trial court erred when it denied his motion for leave

because, instead of addressing the timeliness of the motion and whether it set forth sufficient

justification to warrant a hearing on a motion to suppress, it denied the motion based on its

assessment that Carpenter did not apply to his case. Criminal Rule 12(D) provides that all

pretrial motions shall be made within 35 days after arraignment or seven days before trial,

whichever is earlier. It also provides that “[t]he court in the interest of justice may extend the

time for making pretrial motions.” Crim.R. 12(D). Criminal Rule 12(H), meanwhile, provides

that, if a defendant fails to raise defenses or make requests that must be made at the time

designated in Rule 12(D), they are waived. That rule also provides, however, that “the court for

good cause shown may grant relief from the waiver.” Crim.R. 12(H). Mr. Beal acknowledges

that his motion was untimely but argues that he could not have filed a motion to suppress within

the time designated by Rule 12(D) because Carpenter was decided only three days before his
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trial. Whether to allow leave to file an untimely motion to suppress is within the discretion of

the trial court, which this Court will not reverse absent an abuse of discretion. State v. Justus,

9th Dist. Wayne No. 15AP0044, 2016-Ohio-7078, ¶ 11; State v. Lisle, 9th Dist. Wayne No.

05CA0073, 2006-Ohio-3877, ¶ 12.

       {¶5}    Mr. Beal argues that the trial court did not go through the appropriate analysis in

evaluating his motion for leave, pointing to this Court’s decision in Justus. In that case, a police

officer conducted a traffic stop after he observed Zachary Justus commit a marked lane violation.

When the officer approached the vehicle, Mr. Justus’s appearance and conduct made the officer

suspect that he was intoxicated. When Mr. Justus refused to submit to field sobriety tests, the

officer arrested him and cited him for operating a vehicle while under the influence.

       {¶6}    Mr. Justus pleaded not guilty and requested discovery from the State.             He

subsequently moved to suppress evidence from the stop, arguing that the officer lacked

reasonable suspicion to prolong it. Although acknowledging that he had filed his motion beyond

the 35-day time limit, he asked the court to accept the motion and hold a hearing on it. In

support of his request, Mr. Justus explained that his counsel had only met him 13 days earlier,

that he did not receive any discovery until 31 days after his arraignment, and that he had still not

received a video recording of the stop from the officer’s cruiser.

       {¶7}     The trial court construed Mr. Justus’s motion as a combined motion for leave to

file a motion to suppress and a motion to suppress. It denied his motion for leave, pointing to

differences between the officer’s affidavit of probable cause and Mr. Justus’s factual allegations

about the stop. It concluded that Mr. Justus’s argument did not, in the interest of justice, merit

extending the time to file a motion to suppress.
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       {¶8}    On appeal, this Court determined that its review of the trial court’s decision was

“hindered” because, although the court stated that it was denying leave to file the motion to

suppress, it did not refer to whether there was good cause for Mr. Justus’s delay in filing. Justus,

2016-Ohio-7078, at ¶ 12. Instead, the trial court had considered the persuasiveness of the merits

of the motion to suppress. Id. Although this Court acknowledged that the basis of a motion to

suppress could affect whether the reasons for a delay in filing constituted good cause for the

delay, the trial court had engaged in a discussion of the merits of the suppression motion itself by

examining the conflict between Mr. Justus’s allegations and the officer’s affidavit. Id. Upon

review of the record, this Court concluded that it was “unable to discern whether the trial court

found a convincing reason for the delay in filing the motion.” (Emphasis sic.) Id. at ¶ 13. It,

therefore, remanded the matter to the trial court to clarify its holding with respect to leave to file

the motion. Id. It declined to consider the merits of Mr. Justus’s motion to suppress until the

court clarified whether it would allow the filing of the motion out of time. Id.

       {¶9}    According to Mr. Beal, the same problem exists in this case. He notes that he

moved to continue the trial date and for leave to file a motion to suppress based on Carpenter,

which he asserted was a landmark privacy case with implications that he had not been able to

adequately explore yet. He argues that when the court denied his motion, however, it focused on

the merits of his arguments, concluding that Carpenter was not applicable to his case. Mr. Beal

argues that the trial court erred by failing to address the timeliness of his motion or whether he

had set forth a convincing reason to warrant relief. He also compares his case to Carpenter,

noting that both deal with a governmental agency obtaining a defendant’s location information

from a third party without obtaining a warrant. Mr. Beal requests that this Court reverse his
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convictions and remand the matter to the trial court so that it can determine whether he set forth

sufficient reasons to justify granting him leave to file a motion to suppress.

       {¶10} Upon review of the record, we conclude that this case is different than Justus.

Unlike in Justus, Mr. Beal did not file a motion to suppress, so the trial court could only have

been deciding his motion for leave. Thus, there is no uncertainty about whether the court

evaluated whether to grant leave before moving onto the merits of an underlying motion to

suppress. In addition, it was reasonable for the trial court to consider the applicability of

Carpenter to Mr. Beal’s case in determining whether it would be in the “interest of justice” to

extend his time to file a motion to suppress. See id. at ¶ 12. Furthermore, just because the

United States Supreme Court did not decide Carpenter until three days before his trial does not

mean that Mr. Beal could not have argued that he had a reasonable expectation of privacy in his

internet service provider’s records within the time permitted under Rule 12(D). Carpenter did

not overturn any established Supreme Court precedent, it only applied the Fourth Amendment to

“a new phenomenon[.]” Carpenter, __ U.S. __, 238 S.Ct 2206, at 2216. We, therefore,

conclude that the trial court exercised appropriate discretion when it denied Mr. Beal’s motion

for leave to file motion to suppress and continue the trial. Mr. Beal’s assignment of error is

overruled.

                                                 III.

       {¶11} Mr. Beal’s assignment of error is overruled. The judgment of the Medina County

Court of Common Pleas 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 Court of Common

Pleas, 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



TEODOSIO, P. J.
CARR, J.
CONCUR.


APPEARANCES:

DAVID C. SHELDON, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
