[Cite as State v. Bryson, 2017-Ohio-830.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 16-CA-70
MICHELLE BRYSON                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Municipal Court, Case No. 16TRC04246

JUDGMENT:                                          Reversed and Remanded



DATE OF JUDGMENT ENTRY:                            March 6, 2017


APPEARANCES:



For Plaintiff-Appellee                             For Defendant-Appellant

TRICIA MOORE                                       KEVIN J. GALL
ASSISTANT LAW DIRECTOR                             BURKETT & SANDERSON, iNC.
40 West Main Street                                73 North 6th Street
Newark, OH 43055                                   Newark, OH 43055
Licking County, Case No. 16-CA-70                                                       2

Gwin, P.J.

      {¶1}   Appellant Michelle Bryson [“Bryson”] appeals her convictions and

sentences after a negotiated plea in the Licking County Municipal Court.

                                 Facts and Procedural History

      {¶2}   Bryson was charged with one count of operating a vehicle while impaired

in violation of R.C. 4511.19(A)(1)(a) [“Under the Influence”]; one count of violating R.C.

4511.19(A)(2) [“Refusal”]; driving without a valid license in violation of R.C. 4510.111;

and Reckless Operation in violation of R.C. 4511.20.

      {¶3}   Bryson was arraigned on the charges on May 16, 2016.              A pre-trial

conference took place on May 31, 2016. Bryson received the state’s response to her

Crim.R. 16 request for discovery on June 2, 2016. Bryson received a copy of the

trooper’s dash-cam video of the traffic stop on June 28, 2016.

      {¶4}    On July 8, 2016, Bryson filed a Request for Leave to File an Untimely

Motion to Suppress Evidence contemporaneously with a Motion to Suppress Evidence.

On July 14, 2016, without a hearing the trial court denied Bryson's request for leave to

file an untimely motion to suppress without explanation.

      {¶5}   On August 1, 2016, Bryson filed a written proffer in response to the trial

court's denial of her request for leave to file an untimely motion to suppress. On August

12, 2016, Bryson entered pleas of no contest to all charges. The trial court granted Ms.

Bryson's request for a stay of her sentence so that she could pursue this appeal.

                                     Assignments of Error

      {¶6}   Bryson raises two assignments of error,
Licking County, Case No. 16-CA-70                                                         3


       {¶7}   “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN SUMMARILY

DENYING THE DEFENDANT-APPELLANT'S REQUEST FOR LEAVE TO FILE AN

UNTIMELY MOTION TO SUPPRESS EVIDENCE.”

       {¶8}   “II. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL.”

                                                I.

       {¶9}   In her first assignment of error, Bryson contends that the trial court abused

its discretion in denying her request for leave to file an untimely motion to suppress.

       {¶10} A failure to timely file a motion to suppress evidence amounts to a waiver

of any such issues for purposes of trial pursuant to Crim.R. 12(D) and (H). State v.

Montgomery, 5th Dist. Licking No. 2007 CA 95, 2008–Ohio–6077, ¶ 43, citing State v.

Wade (1973), 53 Ohio St.2d 182, 373 N.E.2d 1244 (1978), vacated and remanded on

other grounds, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157(1978). The decision as to

whether to permit leave to file an untimely motion to suppress is within the sound

discretion of the trial court, and we will not reverse a trial court’s decision regarding an

untimely filed motion absent an abuse of discretion. Montgomery, citing State v. Rush,

5th Dist. Delaware No. 03CAC01002, 2003 WL 21694004 (July 22, 2003), ¶ 7.

              An abuse of discretion involves far more than a difference in* * *

       opinion * * *. The term discretion itself involves the idea of choice, of an

       exercise of the will, of a determination made between competing

       considerations. In order to have an ‘abuse’ in reaching such determination,

       the result must be so palpably and grossly violative of fact and logic that it

       evidences not the exercise of will but perversity of will, not the exercise of
Licking County, Case No. 16-CA-70                                                      4


      judgment but defiance thereof, not the exercise of reason but rather of

      passion or bias.

State v. Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264(1984), quoting Spaulding v.

Spaulding, 355 Mich. 382, 384–385, 94 N.W.2d 810(1959).

      {¶11} In State v. Hahn, this court observed,

             Crim. R. 12(F) requires a court ruling on a pre-trial motion to state

      its essential findings on the record if, as in the case sub judice, factual

      issues are involved.

             In order to invoke this provision, trial counsel must request the trial

      court to state its essential findings of fact on the record. State v. Benner

      (1988), 40 Ohio St.3d 301, 317, 533 N.E.2d 701, abrogated in part on other

      grounds by Horton v. California (1990), 496 U.S. 128, 110 S.Ct. 2301, 110

      L.Ed.2d 112.; State v. Richey (1992), 64 Ohio St.3d 353, 366, 595 N.E.2d

      915, 927, abrogated in part on other grounds by State v. McGuire (1997),

      80 Ohio St.3d 390, 402, 1997-Ohio-335, 686 N.E.2d 1112, 1122; State v.

      Brown (1992), 64 Ohio St.3d 476, 481, 597 N.E.2d 97, 101.               ([The

      defendant’s] failure to invoke the rule waived any error); State v. Williams

      (1977), 51 Ohio St.2d 112, 364 N.E.2d 1364; State v. Eley (1996), 77 Ohio

      St.3d 174, 179, 672 N.E.2d 640, superseded by constitutional amendment

      in part State v. Smith (1997), 80 Ohio St.3d 89, 103 at n. 4, 684 N.E.2d

      668, 684.

             While it is error for the trial court to fail in providing requested

      findings of fact, it is not prejudicial where the record provides an appellate
Licking County, Case No. 16-CA-70                                                        5

      court with a sufficient basis to review the assignments of error. State v.

      Benner, supra, at 317-318, 533 N.E.2d 701; State v. Loza (1994), 71 Ohio

      St.3d 61, 73, 641 N.E.2d 1082, 1098. [“Upon an independent review of the

      record, we find the evidence supports the denial of appellant’s motion to

      suppress.”]; State v. Alexander (1997) 120 Ohio App.3d 164, 169, 697

      N.E.2d 255, appeal dismissed, 80 Ohio St.3d 1408, 684 N.E.2d 702; State

      v. Jarvis (May 12, 2000), 6th Dist. No. L-99-1184; State v. Gibson (July 7,

      1999), 9th Dist. No. 97CA006967.

5th Dist. Perry No. 05 CA 17, 2007-Ohio-557, ¶37-39. In the case at bar, the trial court

did not state its essential findings in its judgment entry overruling Bryson’s request for

leave to file an untimely motion to suppress. In addition, Bryson did not request the trial

court state its essential findings on the record. The question then becomes whether the

record before this court demonstrates Bryson and her counsel knew of the circumstances

under which the evidence was obtained in ample time to prepare and file a pretrial motion

to suppress such evidence. State v. Davis, 1 Ohio St.2d 28, 203 N.E.2d 357(1964),

para. one of the syllabus; See, State v. Davis, 12th Dist. Butler No. CA 97-12-240, 1998

WL 667677 (Sept. 28, 1998); State v. Charlton, 9th Dist. Lorain No. 93CA005584, 94 WL

592551 (Oct. 26, 1994); State v. Gaddis, 35 Ohio App.2d 15, 21-22, 299 N.E.2d 304(1st

Dist. 1973).

      {¶12} In her motion requesting leave to file a motion to suppress out of time,

Bryson reasoned,

               That the investigating officer did not have the requisite reasonable

      suspicion that she had committed a traffic offense. Exhibit B. Definitive
Licking County, Case No. 16-CA-70                                                          6


       proof in support of this claim was not discovered until the dashboard

       camera was provided to trial counsel on June 28, 2016. At this date, more

       than thirty-five days had already elapsed since Ms. Bryson's arraignment.

       {¶13} Accordingly, Bryson argued that the videotape failed to show that she was

driving erratically and therefore no probable cause existed for the stop, and that the state

had not provided the dash-cam video until after the deadline for filing a motion to

suppress.

       {¶14} In the case at bar, the trial court had continued the scheduled trial date by

Judgment Entry filed June 27, 2016. No new trial date had been set. Bryson requested

leave to file her motion to suppress ten days after the state provided her with the video

evidence.

       {¶15} A trial court abuses its discretion by denying a pretrial motion to suppress

in an OVI case as “untimely filed” where the motion to suppress was promptly filed after

the state provided discovery and the request for leave articulate the reason for the late

filing. See, State v. Jones, 8th Dist. Cuyahoga No. 93114, 2010-Ohio-2777; State v.

Wisniewski, 8th Dist. Cuyahoga No. 74980, 1994 WL 980596(Oct. 28, 1999); State v.

Sargent, 2nd Dist. Clark No. 3042, 1994 WL 450079(Aug. 17, 1994); Columbus v. Ridley,

10th Dist. Franklin No. 15AP-84, 2015-Ohio-4968, 38(Brunner, J., concurring, in part,

dissenting in part).

       {¶16} In the case at bar, there was no compelling reason to proceed with haste

as no trial date had been scheduled, the issue involved could be dispositive of the case

and the state provided the discovery upon which the motion is based after the deadline.

The state has not articulated any prejudice from the filing of the motion outside the thirty-
Licking County, Case No. 16-CA-70                                                         7


five day time frame. Crim R. 12(D) permits a trial court “in the interest of justice” to

extend the time for making pretrial motions. Discovery of the grounds for the suppression

motion after the thirty-five day period would support the conclusion that extending time

would be in the interest of justice.

       {¶17} Accordingly, we hold that it was an abuse of discretion for the trial court to

overrule Bryson’s motion for leave to file a motion to suppress.

       {¶18} Bryson’s first assignment of error is sustained.

                                                  II.

       {¶19} In her second assignment of error, Bryson argues that counsel was

ineffective in failing to timely file a motion to suppress.

       {¶20} In light of our disposition of Bryson’s first assignment of error, we find this

assignment of error to be moot and we therefore do not address it.            See, App.R.

12(A)(1)(c).
Licking County, Case No. 16-CA-70                                                      8


      {¶21} Bryson’s first assignment of error is sustained. Section 3(B) (2), Article IV

of the Ohio Constitution and R.C. 2953.07, give an appellate court the power to affirm,

reverse, or modify the judgment of an inferior court. Accordingly, the judgment of the

Licking County Municipal Court denying Bryson leave to file an untimely motion to

suppress is reversed, the conviction and sentence is vacated and this case is remanded

for proceedings in accordance with our opinion and the law.



By Gwin, P.J., and

Baldwin, J., concur;

Hoffman, J., concurs

separately
Licking County, Case No. 16-CA-70                                                         9

Hoffman, J., concurring

          {¶22} I concur in the majority’s decision the trial court abused its discretion in

overruling Bryson’s motion for leave to file a motion to suppress.1

          {¶23} I write separately only to note I find the majority’s discussion regarding

Crim.R. 12(F) unnecessary in this case. Because a ruling on a motion for leave to file an

(untimely) motion to suppress does not involve determining disputed factual issues, I find

the trial court was not required to issue findings of fact whether requested by Appellant

or not.




1
 I also concur in the majority’s conclusion Appellant’s second assignment of error is
rendered moot as a result.
