[Cite as State v. Diersing, 2012-Ohio-4673.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Sheila G. Farmer, J.
                                               :
-vs-                                           :
                                               :       Case No. 2012-CA-26
RONALD J. DIERSING, JR.                        :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Delaware County
                                                   Court of Common Pleas, Case No. 11-CR-
                                                   I-08-0427

JUDGMENT:                                          Reversed and Remanded



DATE OF JUDGMENT ENTRY:                            October 8, 2012



APPEARANCES:




For Plaintiff-Appellee                             For Defendant-Appellant

CAROL HAMILTON O’BRIEN                             DAVID BIRCH
PETER B. RUFFING                                   2 West Winter
Delaware County Prosecutor’s Office                Delaware, OH 43015
140 North Sandusky Street
Delaware, OH 43015
[Cite as State v. Diersing, 2012-Ohio-4673.]


Gwin, P.J.

         {¶1}    Appellant Ronald J. Diersing, Jr. [“Diersing’] appeals the November 17,

2011 Judgment Entry of the Delaware County Court of Common Pleas dismissing his

motion to suppress as not having been timely filed in accordance with Crim.R. 12(D).

Appellee is the State of Ohio.

                                        Facts and Procedural History

         {¶2}    On August 12, 2011, Diersing was indicted on one charge of criminal drug

possession in violation of R.C. 2925.11(A), a felony of the third degree. Diersing was

charged with knowingly obtaining, possessing or using Oxycodone, a Schedule II

controlled substance, in an amount equaling or exceeding bulk but less than five times

bulk.1

         {¶3}    On October 7, 2011, Diersing was arraigned in Delaware County, Ohio.

The Judgment Entry of arraignment was dated October 7, 2011; however, it was not

filed in the Delaware County Court of Common Pleas until October 10, 2011.

         {¶4}    On November 14, 2011, Diersing filed a motion to suppress evidence and

statements pursuant to Crim.R. 12(C)(3). The trial court denied this motion on

November 17, 2011 without a hearing as being untimely filed.

         {¶5}    On January 5, 2012, Diersing entered a written plea of no contest to the

indictment. On February 13, 2012, the Court sentenced Diersing to four (4) years of

Community Control sanctions to be monitored by the Delaware County Office of Adult

Court Services.


         1
          A Statement of the Facts underlying Diersing’s original stop are unnecessary to our disposition
of this appeal. Any facts needed to clarify the issues addressed in appellant’s assignment of error shall be
contained therein
Delaware County, Case No. 2012-CA-26                                                      3


                                      Assignment of Error

       {¶6}   Diersing raises one assignment of error,

       {¶7}   “I. THE TRIAL COURT ERRED BY FINDING THAT APPELLANTS

MOTION TO SUPPRESS WAS NOT TIMELY FILED.”

                                              Analysis

       {¶8}   Diersing contends that his motion to suppress was filed within the thirty-

five day period set forth in Crim.R. 12(D).

       {¶9}   The time for filing a motion to suppress is governed by Crim.R. 12(D),

which requires that the motion be made within 35 days after arraignment or seven days

before trial, whichever is earlier. The court may exercise its discretion to extend the time

for making a motion to suppress where it is “in the interest of justice” to do so.

       {¶10} The failure to comply with the time requirement of Crim.R. 12(D)

constitutes a waiver of the defense or objections, “but the court for good cause shown

may grant relief from the waiver.” Crim.R. 12(H). See State v. F.O.E. Aerie 2295, 38

Ohio St.3d 53, 526 N.E. 2d 66(1988), paragraph two of the syllabus; State v. Wade, 53

Ohio St.2d 182, 373 N.E.2d 1244(1978), paragraph three of the syllabus, vacated in

part on other grounds 438 U.S. 911, 98 S.Ct. 3138(1978); State v. Moody, 55 Ohio

St.2d 54, 66, 377 N.E.2d 1008(1978).

       {¶11} Diersing appeared in the trial court on October 7, 2011 for arraignment.

The trial court entry of that arraignment was filed on October 10, 2011. Diersing’s

motion to suppress was filed November 14, 2011.

       {¶12} Thirty-five days from October 7, 2011 is Friday, November 12, 2011. That

day was Veteran’s Day, a legal holiday. Crim. R. 45(A) provides that if the last day of a
Delaware County, Case No. 2012-CA-26                                                     4


specified time period ends on a weekend or a legal holiday, the period runs until the end

of the next day that is not a Saturday, Sunday or legal holiday. In the case at bar, that

would be Monday, November 14, 2011. Thus, Diersing’s motion to suppress was timely

filed within thirty-five days of his arraignment.

       {¶13} The state argues that the trial court correctly dismissed the motion

because Diersing failed to comply with Delaware County Court of Common Pleas, Local

Rule 7.07, which state in relevant part,

              If an oral hearing on the motion is desired, the motion shall contain

       a request for an oral hearing, with the anticipated length of the hearing in

       the caption.

       {¶14} The state submits that Diersing failed to request an oral hearing on his

motion to suppress and failed to set forth the anticipated length of the hearing.

According to the state, the trial court was correct to dismiss the motion for failure to

comply with the local rule.

       {¶15} We begin by noting that our own Local Appellate Rules clearly and

unequivocally inform a party that failure to comply with the rules can result in dismissal.

5th Dist.Loc.R. 5 provides,

              Rule 5 Dismissals for failure to prosecute the appeal

              Unless the appellant demonstrates that no undue delay and no

       prejudice to appellee has been caused by the failure to comply with the

       rules, the following shall be deemed good cause for dismissal of an

       appeal, sua sponte, for failure to prosecute:
Delaware County, Case No. 2012-CA-26                                                        5


              (A) Failure to cause the record on appeal to be timely transmitted to

       the clerk of this Court;

              (B) Failure to timely file the brief or otherwise fail to comply with all

       the provisions of App.R. 16 or Loc.App.R. 9;

              (C) Failure to timely file a fully completed docketing statement

       pursuant to Loc.App.R. 6.

       {¶16} Emphasis added. Delaware County recognizes that due process prefers

notice to a litigant of the potential for dismissal as a sanction for failure to comply with a

local rule. Local Rule 7.03 provides,

              7.03 Upon filing and where appropriate, complaints shall have

       attached proof of assignment from the original creditor or original party in

       interest to the plaintiff establishing standing and jurisdiction of the court.

       The court may dismiss the complaint without prejudice if the proof of

       assignment is not attached to the complaint upon filing.

       {¶17} Emphasis added. Local Rule 7.05 likewise provides notice of a

possible dismissal for failure to comply with the rule,

              7.05 Except as otherwise ordered by the trial judge, all motions

       (except dispositive motions) shall be accompanied by a proposed entry.

       Failure to submit a proposed entry may delay consideration of the motion

       or result in the court denying the motion for failure to comply with this rule.

Emphasis added. In Webster v. Timken Co., 5th Dist. No. 2004CA00260, 2005-Ohio-

1759, this Court observed,
Delaware County, Case No. 2012-CA-26                                                 6


           It is a fundamental tenet of judicial review in Ohio that courts should

     decide cases on the merits. See, e.g., Cobb v. Cobb (1980), 62 Ohio St.2d

     124, 403 N.E.2d 991. Judicial discretion must be carefully-and cautiously-

     exercised before this court will uphold an outright dismissal of a case on

     purely procedural grounds.

           “Judicial discretion” was defined by the Ohio Supreme Court as: “* *

     * the option which a judge may exercise between the doing and not doing

     of a thing which cannot be demanded as an absolute legal right, guided by

     the spirit, principles and analogies of the law, and founded upon the

     reason and conscience of the judge, to a just result in the light of the

     particular circumstances of the case.” Krupp v. Poor (1970), 24 Ohio St.2d

     123, 265 N.E.2d 268, paragraph two of the syllabus.

           Upon review, we find the facts of this case to be substantially

     similar to those in Dehart v. Aetna Life Insurance Co., (1982) 69 Ohio St.

     2d 189, 431 N.E. 2d 644. In Dehart, counsel for Appellant had

     inadvertently placed a checkmark on the Praecipe indicating the need for

     a transcript in his appeal to the Court of Appeals, when in fact there was

     no transcript because the trial court had disposed of the matter pursuant

     to summary judgment. Based on the failure of Appellant to file a transcript,

     the Court of Appeals dismissed the matter sua sponte pursuant to its local

     rules. Appellant filed a motion for reconsideration and for leave to amend

     the Praecipe, which the Court of Appeals denied.
Delaware County, Case No. 2012-CA-26                                                      7


              Upon review, the Supreme Court reversed the lower court, finding:

       “The particular circumstances of the case sub judice include: (1)

       appellant's counsel's mistake was inadvertent, correctable and made in

       good faith, not as part of a continuing course of conduct for the purpose of

       delay, (2) appellee suffered no prejudice from this error, (3) the Court of

       Appeals suffered no prejudice from this error since the entire record was

       before the court at the time the case was dismissed, (4) the sanction of

       dismissal for a hyper-technical, clerical error is disproportionately harsh in

       view of the nature of the mistake, and (5) appellant should not be

       punished for a highly technical error of his counsel.”

              The Supreme Court went on to hold:

              “Only a flagrant, substantial disregard for the court rules can justify

       a dismissal on procedural grounds. Local rules, at any level of our state

       court system, should not be used as a judicial mine field, with disaster

       lurking at every step along the way. Since appellant's counsel's error was

       a minor, technical, correctable, inadvertent oversight, we find no

       conceivable justification for a disposition, by the Court of Appeals, other

       than on the merits.”

Webster at ¶¶ 15-22.

       {¶18} Applying the five-prong Dehart test herein, it is clear that the trial court

abused its discretion in dismissing Diersing's motion to suppress. There is no evidence

in the record that Diersing’s failure to comply with the local rule was part of a continuing

course of conduct designed to delay the proceedings. Rather, it appears to be based
Delaware County, Case No. 2012-CA-26                                                    8


upon a common sense belief that virtually every motion to suppress requires an

evidentiary hearing that requires the state to go forward to establish the actions were in

fact constitutional. Moreover, we feel that the dismissal of the motion to suppress is a

sanction that is greatly disproportionate to the procedural error. In addition, no

conceivable prejudice to the opposing party or to the court could result from this minor,

technical error. National Mut. Ins. Co. v. Papenhagen, 30 Ohio St.3d 14, 16, 505 N.E.2d

980.

       {¶19} Accordingly, we hold the trial court abused its discretion in denying

Diersing’s timely motion to suppress for failing to request for an oral hearing with the

anticipated length in the caption of the motion per Local Rule 7.07.

       {¶20} Accordingly, Diersing’s sole assignment of error is sustained.

       {¶21} The judgment of the Delaware County Court of Common Pleas is reversed

and this case is remanded for further proceedings consistent with this opinion.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur

                                              _________________________________
                                              HON. W. SCOTT GWIN


                                              _________________________________
                                              HON. WILLIAM B. HOFFMAN


                                              _________________________________
                                              HON. SHEILA G. FARMER



WSG:clw 0910
[Cite as State v. Diersing, 2012-Ohio-4673.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
RONALD J. DIERSING, JR.                           :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2012-CA-26




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Delaware County Court of Common Pleas is reversed and this case is remanded for

further proceedings consistent with this opinion. Costs to appellee.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER
