[Cite as State v. Fornshell, 2011-Ohio-3560.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 10 CA 48
JACOB FORNSHELL

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Municipal Court,
                                                Case No. TRC 0907236


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         July 18, 2011



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

MATTHEW B. WIDEMAN                              J. MATTHEW DAWSON
ASSISTANT PROSECUTOR                            35 South Park Place
Post Office Box 1008                            Suite 10
123 East Chestnut Street                        Newark, Ohio 43055
Lancaster, Ohio 43130
Fairfield County, Case No. 10 CA 48                                                     2

Wise, J.

      {¶1}    Appellant Jacob Fornshell appeals the decision of the Fairfield County

Municipal Court, which denied his untimely motion to suppress evidence. The relevant

facts leading to this appeal are as follows.

      {¶2}    On July 22, 2009, Officer David Thompson of the Lancaster Police

Department made a traffic stop of a 2006 Chevrolet van being driven by appellant. The

officer thereupon cited appellant for operating a motor vehicle under the influence of

alcohol (“OMVI”). Appellant thereafter pled not guilty upon arraignment in the Fairfield

County Municipal Court.

      {¶3}    The trial court originally set a hearing for August 28, 2009. On that date,

appellant filed a motion for continuance, stating that he intended to obtain the

assistance of counsel. The trial court granted same, and set the trial for November 4,

2009. The court thereafter sua sponte rescheduled the trial for January 4, 2010.

      {¶4}    On the day of trial, appellant, having been deployed by the United States

Army for military service, failed to appear before the court. The trial court thereupon

issued a bench warrant.

      {¶5}    Appellant thereafter obtained the services of his present counsel, who filed

a request for discovery and a jury demand on June 30, 2010. The court subsequently

removed the bench warrant, and a trial date was re-set for August 17, 2010. On July 30,

2010, appellant, via counsel, filed a motion for leave to file an untimely motion to

suppress.

      {¶6}    On the trial date of August 17, 2010, the trial court denied appellant’s

motion for leave to file his untimely motion to suppress. At that point, appellant entered
Fairfield County, Case No. 10 CA 48                                                        3


a plea of no contest to the charge of OMVI. The trial court found appellant guilty and

sentenced him, inter alia, to 180 days in jail, with 164 days suspended.

      {¶7}    On September 13, 2010, appellant filed a notice of appeal. He herein

raises the following two Assignments of Error:

      {¶8}    “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

THE DEFENDANT’S MOTION TO SUPPRESS AS BEING FILED OUT OF RULE.

      {¶9}    “II. PREVIOUS COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO

FILE A MOTION TO SUPPRESS EVIDENCE [AND] REVIEW THE PROPER BAC

LOGS AND DVD.”

                                             I.


      {¶10} In his First Assignment of Error, appellant contends the trial court erred in

denying his motion to suppress evidence on the grounds of untimeliness. We disagree.

      {¶11} Crim.R. 12(D) states: “All pretrial motions except as provided in Crim.R.

7(E) and 16(F) shall be made within thirty-five days after arraignment or seven days

before trial, whichever is earlier. The court in the interest of justice may extend the time

for making pretrial motions.”

      {¶12} 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, Licking App.No. 2007 CA 95, 2008-Ohio-6077, ¶ 43, citing State v. Wade

(1973), 53 Ohio St.2d 182, 373 N.E.2d 1244. 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. Id., citing State v. Rush, Delaware App.No. 03CAC01002, 2003 WL
Fairfield County, Case No. 10 CA 48                                                     4


21694004, ¶ 7. The term “abuse of discretion” implies the court's attitude is

unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151,

157, 404 N.E.2d 144.

      {¶13} In the case sub judice, appellant was arraigned on July 22, 2009. Thus, by

the end of August 2009, appellant’s opportunity to file a timely motion to suppress under

Crim.R. 12(D) had already passed. However, even though appellant had more than two

months before the first scheduled trial date of November 4, 2009 and another two

months before the rescheduled trial date of January 4, 2010, appellant made no request

to the court during this time for leave to file an untimely motion to suppress. When

appellant finally did request such leave to file on July 30, 2010, he provided scant

details as to his failure to maintain contact with the court during the months leading up

to the January 2010 trial. Most notably, appellant never set forth the time parameters

and nature of his armed forces deployment, nor did he provide basic documentation

thereof, such that the impact of his military duties on his ability to file a suppression

motion and appear for trial could be reviewed by the trial court.

      {¶14} Appellant directs us to State v. Robson, 165 Ohio App.3d 621, 847 N.E.2d

1233 in support of reversal. In that case, the Fourth District Court of Appeals reversed a

municipal court’s decision to disallow an untimely motion to suppress. However, the

Fourth District Court’s decision was based on a determination that the trial court had

acted unreasonably by scheduling a suppression hearing, having witnesses appear,

and accepting testimony, but then finding that the motion was untimely filed and

declining to address the merits of the suppression motion. See Id. at ¶ 1. Appellant

herein concedes that Robson is distinguishable from the perspective that no hearing
Fairfield County, Case No. 10 CA 48                                                     5


was conducted in the case sub judice, but appellant maintains that the trial court’s

deferral on ruling on the untimely suppression request until the day of trial (August 17,

2010) was an unreasonable waste of counsels’ and the court’s time and resources.

      {¶15} Upon review, we find appellant’s reliance on Robson is unpersuasive, and

based on our above analysis, we hold the trial court’s decision to disallow appellant’s

untimely suppression motion was not unreasonable, arbitrary or unconscionable under

the circumstances of this case.

      {¶16} Appellant’s First Assignment of Error is therefore overruled.

                                              II.

      {¶17} In his Second Assignment of Error, appellant contends he was denied the

effective assistance of trial counsel in regard to his first attorney in 2009.

      {¶18} This Court has previously addressed ineffective assistance claims upon

appeal from a misdemeanor DUI conviction. See State v. Moore, Stark App.Nos.

2004CA00266, 2004CA00295, 2005-Ohio-2849. However, this Court is reluctant to

attempt to redress an appellate argument seeking to demonstrate that a motion to

suppress would have been granted by the trial court, where such an argument

essentially speculates as to evidence dehors the record. See State v. Jackson, Stark

App.No. 2005CA00198, 2006-Ohio-4453,¶ 27.

      {¶19} In the case sub judice, appellant’s present assertions that his original trial

counsel should have reviewed and challenged technical aspects of the BAC Datamaster
Fairfield County, Case No. 10 CA 48                                                   6


results and related issues via a timely motion to suppress are effectively impossible to

review under the limited record before us.1

      {¶20} Appellant’s Second Assignment of Error is therefore overruled.

      {¶21} For the reasons stated in the foregoing opinion, the judgment of the

Municipal Court, Fairfield County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.



                                              ___________________________________


                                              ___________________________________


                                              ___________________________________

                                                               JUDGES
JWW/d 0628




1
    In particular, we cannot rely on the photocopy of the Bureau of Alcohol and Drug
Testing Instrument Site Inspection Report appellant has attached to his brief, as it was
not attached to or referenced in appellant’s trial court motions.
Fairfield County, Case No. 10 CA 48                                            7


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :
                                             :
       Plaintiff-Appellee                    :
                                             :
-vs-                                         :         JUDGMENT ENTRY
                                             :
JACOB FORNSHELL                              :
                                             :
       Defendant-Appellant                   :         Case No. 10 CA 48




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

judgment of the Municipal Court of Fairfield County, Ohio, is affirmed.

       Costs assessed to appellant.




                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                 JUDGES
