[Cite as State v. Hubbs, 2010-Ohio-4849.]




                          STATE OF OHIO, COLUMBIANA COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )
                                              )      CASE NO.     09 CO 24
        PLAINTIFF-APPELLEE,                   )
                                              )
        - VS -                                )      OPINION
                                              )
THOMAS HUBBS,                                 )
                                              )
        DEFENDANT-APPELLANT.                  )


CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Common Pleas
                                                  Court, Case No. 08CR68.


JUDGMENT:                                         Reversed and Remanded.


APPEARANCES:
For Plaintiff-Appellee:                           Attorney Robert Herron
                                                  Prosecuting Attorney
                                                  Attorney Tammie Jones
                                                  Assistant Prosecuting Attorney
                                                  105 South Market Street
                                                  Lisbon, Ohio 44432


For Defendant-Appellant:                          Attorney Bryan Felmet
                                                  1100 Jackson Place
                                                  Steubenville, Ohio 43952


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                                  Dated: September 29, 2010
VUKOVICH, P.J.

       ¶{1}   Defendant-appellant Thomas Hubbs appeals the decision of the
Columbiana County Common Pleas Court finding him guilty of one count of driving
under the influence in violation of R.C. 4511.19(A)(1)(i). Counsel for Hubbs has filed a
no merit brief and requested leave to withdraw. Thus, the issue before this court is
whether the appeal is frivolous, i.e. whether there are any appealable issues. We find
that there is an appealable issue and for the reasons discussed below, the plea and
conviction are vacated, the trial court’s suppression ruling is reversed and the matter is
remanded for further proceedings.
                                 STATEMENT OF CASE
       ¶{2}   At 2:13 a.m. on March 3, 2008, Trooper Smith was dispatched to a one
car accident at Mahoning Avenue and Hartley Road in Columbiana County, Ohio.
Trooper Smith found Hubbs asleep in the passenger seat. The trooper noticed open
containers of beer in the cab and observed that Hubbs’ breath smelled of alcohol and
that his eyes were red and glassy. The trooper asked Hubbs if he was driving and
Hubbs admitted that he was. He then explained that his automobile ended up in the
yard because the road was icy. The trooper also asked Hubbs if anyone else was with
him. He explained that his son had been with him but left after the accident because
he did not like police. Field sobriety tests were then performed on Hubbs, which he
failed. The trooper attempted to administer a breath test on Hubbs, however, Hubbs
failed to give a sample correctly. As such, a urine specimen was taken and that test
indicated that Hubbs had 0.340 grams by weight of alcohol per one hundred milliliters
of urine, which is above the legal limit.
       ¶{3}   As a result of the accident, a complaint was issued against Hubbs in
Columbiana County Municipal Court; the complaint alleged that Hubbs failed to control
his vehicle, a minor misdemeanor, and that he was driving under the influence of
alcohol in violation of R.C. 4511.19(A)(1)(a). Hubbs pled no contest to the failure to
control charge and was found guilty. The driving under the influence charge was
bound over to the common pleas court. The grand jury then issued a two count
indictment against Hubbs. Count one asserted a violation of R.C. 4511.19(A)(1)(a),
driving under the influence of alcohol, a fourth degree felony; and count two asserted a
violation of R.C. 4511.19(A)(1)(i), driving under the influence of alcohol when he had a
concentration of two hundred-thirty-eight-thousandths of one gram or more by weight
of alcohol per one hundred milliliters of his urine, a fourth degree felony. Both counts
contained the specification that Hubbs within the last twenty years had been previously
convicted of or pleaded guilty to five or more equivalent offenses.
       ¶{4}   Hubbs entered a not guilty plea to the DUI charges. On March 10, 2009,
the state filed a motion in limine asking for the court to find that the conviction for
failure to control in the municipal court (that arose out of the same incident that led to
the DUI charges) was admissible. The state filed this motion because Hubbs began
asserting that he was not the driver of the vehicle, and as such, he claimed he could
not be guilty of the DUI offenses. It appears Hubbs was asserting that his son was the
driver. In response to the state’s motion, Hubbs filed a Motion to Suppress requesting
the trial court prohibit the admission of the no contest plea and conviction to the failure
to control charge.    The state then filed a motion in opposition to the Motion to
Suppress. Considering the motions before it, the trial court found that the conviction
for failure to control was admissible in the felony DUI proceedings. It held as such
because the minor misdemeanor traffic offense of failure to control arose out of the
same incident as the DUI offense. 04/01/09 J.E.
       ¶{5}   Following that ruling, Hubbs and the state reached a plea agreement,
whereby Hubbs would plead no contest to the second count of the indictment for a
violation of R.C. 4511.19(A)(1)(i) and the attached specification, and the state would
dismiss the first count for a violation of R.C. 4511.19(A)(1)(a). Following the plea, the
trial court found Hubbs guilty of R.C. 4511.19(A)(1)(i) and the specification.
Accordingly, he was sentenced to twelve months incarceration, which included the
mandatory 120 days, he was fined $1,500, and his license was suspended for 99
years. 07/03/09 J.E. Hubbs filed a timely appeal from the conviction and sentence.
                                       ANALYSIS
       ¶{6}   When appellate counsel seeks to withdraw and discloses that there are
no meritorious arguments for appeal, the filing is known as a no merit brief or an
Anders brief. See Anders v. California (1967), 386 U.S. 738. In this district, it has also
been called a Toney brief. See State v. Toney (1970), 23 Ohio App.2d 203.
       ¶{7}   In Toney, this court set forth the procedure to be used when counsel of
record determines that an indigent's appeal is frivolous:
         ¶{8}   “3. Where court-appointed counsel, with long and extensive experience
in criminal practice, concludes that the indigent's appeal is frivolous and that there is
no assignment of error which could be arguably supported on appeal, he should so
advise the appointing court by brief and request that he be permitted to withdraw as
counsel of record.
         ¶{9}   “4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and the indigent
should be granted time to raise any points that he chooses, pro se.
         ¶{10} “5. It is the duty of the Court of Appeals to fully examine the proceedings
in the trial court, the brief of appointed counsel, the arguments pro se of the indigent,
and then determine whether or not the appeal is wholly frivolous.
         ¶{11} “* * *
         ¶{12} “7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of
record should be allowed, and the judgment of the trial court should be affirmed.” Id.
at syllabus.
         ¶{13} The no merit brief was filed by counsel on December 7, 2009.           On
December 18, 2009, this court informed Hubbs of counsel's no merit brief and granted
him 30 days to file his own written brief. 12/18/09 J.E. Hubbs has not filed a pro se
brief.   Thus, we will proceed to independently examine the record to determine
whether the appeal is frivolous.
         ¶{14} As aforementioned, during pre-trial proceedings, the state filed a motion
in limine asking for the court to find that the conviction for failure to control was
admissible and Hubbs filed a motion to suppress the admission of that conviction and
no contest plea on the basis of Crim.R. 11(B) and Evid.R. 410. The trial court deemed
that the conviction could be used.
         ¶{15} Generally, motions to suppress are used to raise challenges to evidence
that is alleged to have been obtained in violation of the Constitution, while motions in
limine are used to raise challenges to evidence based on the Rules of Evidence. State
v. Edwards, 107 Ohio St.3d 16, 2005-Ohio-6180, ¶16 (addressing motions in limine);
State v. French (1995), 72 Ohio St.3d 446, 449 (addressing suppression motions).
However, the Ohio Supreme Court has not strictly limited motions to suppress to
constitutional violations. French, supra at 450-451. It explained:
       ¶{16} “[T]he Kretz court noted that the intent of the Rules of Criminal
Procedure ‘is to determine matters before trial when possible.’ Id. at 4. This policy
‘applies not only to constitutional issues but also to non-constitutional claims capable
of determination without a trial on the general merits.’ State v. Ulis (1992), 65 Ohio
St.3d 83, 85.” Id.
       ¶{17} While Crim.R. 11(B) and Evid.R. 410 govern the admissibility of a prior
conviction in a subsequent proceedings, in the limited situation before this court, we do
not view the trial court’s ruling as an in limine ruling, rather we view it as a suppression
ruling. The admissibility of Hubbs’ prior conviction can be resolved without a trial on
the general merits. Furthermore, permitting Hubbs to file a motion to suppress in this
limited situation protects his due process rights during his criminal proceedings.
       ¶{18} Consequently, the trial court’s suppression ruling is reviewable on
appeal. See generally, Crim.R. 12(I); State v. Ulis (1992), 65 Ohio St.3d 83. Cf. State
v. Stanley, 7th Dist. No. 03CO41, 2004-Ohio-3040, ¶27 (indicating that a no contest
plea does not preserve for appellate review the trial court’s in limine ruling).
       ¶{19} Our standard of review on a suppression decision requires us to
determine whether the trial court's findings are supported by competent, credible
evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶100. Thus, the
general rule is that the trial court as fact-finder is in the best position to resolve
questions of fact and evaluate the credibility of witnesses. State v. Mills (1992), 62
Ohio St.3d 357, 366, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20. Our only
independent determination is whether the trial court applied the appropriate legal
standard. Roberts, 110 Ohio St.3d 71 at ¶100.
       ¶{20} The issue raised in the suppression motion was whether Hubbs’
misdemeanor conviction for failure to control, which was the result of a no contest
plea, was admissible in the proceedings against him for felony DUI charges. Although
the DUI offense and the failure to control charge both arose from the one car accident
that occurred on March 3, 2008, they were adjudicated separately; the misdemeanor
conviction occurred prior to the felony proceeding. The trial court determined that
since the charges arose from the same transaction, the misdemeanor conviction was
admissible in the felony proceedings.
       ¶{21} The question presented to the trial court and its subsequent ruling
centered around a purely legal question that did not involve any questions of fact or
evaluations of witness credibility. Thus, we employ a de novo standard of review.
       ¶{22} Crim.R. 11(B)(2) states that a no contest plea “shall not be used against
the defendant in any subsequent civil or criminal proceeding.”          Similarly, Evid.R.
410(A)(2) provides that a no contest plea is not admissible in “any civil or criminal
proceeding against the defendant who made the plea.”
       ¶{23} While the language of these rules focus on the no contest plea and not
the conviction that resulted from the no contest plea, the Ohio Supreme Court has
recently held that these rules also prevent the use of convictions based on no contest
pleas. Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, __ Ohio St.3d __, 2010-Ohio-
1043, ¶14. It provided the following reason for coming to that conclusion:
       ¶{24} “The purpose behind the inadmissibility of no contest pleas in
subsequent proceedings is to encourage plea bargaining as a means of resolving
criminal cases by removing any civil consequences of the plea. Mapes, 19 Ohio St.3d
at 111; Rose v. Uniroyal Goodrich Tire Co. (C.A.10, 2000), 219 F.3d 1216, 1220. The
rule also protects the traditional characteristic of the no contest plea, which is to avoid
the admission of guilt. Id. The prohibition against admitting evidence of no contest
pleas was intended generally to apply to a civil suit by the victim of the crime against
the defendant for injuries resulting from the criminal acts underlying the plea. Allstate
Ins. Co. v. Simansky (1998), 45 Conn.Supp. 623, 628, 738 A.2d 231.              The plain
language of Evid.R. 410(A) prohibits admission of a no contest plea, and the
prohibition must likewise apply to the resulting conviction. To find otherwise would
thwart the underlying purpose of the rule and fail to preserve the essential nature of
the no contest plea.” Id.
       ¶{25} Based on the above rules and case law, we disagree with the trial court’s
holding that the misdemeanor conviction from the no contest was admissible in the
proceedings for the felony charges.       The fact that the misdemeanor and felony
charges arose from the same transaction does not constitute a reason to disregard the
aforementioned court cases as well as the clear language set forth in the rules of
evidence and criminal procedure. The focus in the rules and in Elevators is that the no
contest plea and conviction resulting from that plea cannot be used in any action.
There is no distinction in either the rules or the case law between pleas entered in
proceedings arising out of the same incident and those arising out of separate
incidents. Consequently, the trial court erred in failing to suppress the misdemeanor
failure to control conviction.
       ¶{26} In some situations this error may not be reversible. However, given the
record before us, we find that in this instance it was prejudicial and requires reversal.
       ¶{27} During sentencing, Hubbs stated that he would not have pled to the DUI
charge had the trial court suppressed the failure to control conviction.          06/29/09
Sentencing Tr. 27. He claimed that he was not the driver of the vehicle. 06/29/09
Sentencing Tr. 27.
       ¶{28} In order to be convicted of R.C. 4511.19(A)(1)(i), Hubbs had to have
operated the vehicle while having a prohibited level of alcohol in his urine. While the
record clearly indicates that Hubbs did have a prohibited level of alcohol in his urine,
the record is not as clear as to whether Hubbs was the driver of the vehicle. The
record before this court reveals that at the time of the stop on March 3, 2008, Hubbs
was sitting in the passenger seat, was the only person found in the vehicle, and he
admitted to Trooper Smith that he was the driver of the vehicle. Presumably, if the
case would have gone to trial, the trooper would have testified to as much. However,
the record also reveals that Hubbs additionally told the trooper that his son was with
him, but had left the scene prior to the trooper arriving because he did not like police.
The record contains a subpoena for Hubbs son to testify if the DUI charges went to
trial. It appears that Hubbs’ son testimony would indicate that he, not Hubbs, was the
actual driver of the vehicle.
       ¶{29} Thus, we cannot find that the record before us clearly indicates that
Hubbs was the driver of the vehicle. Rather, we find that the record contains a factual
dispute/credibility determination that is best left to the trier of fact. Seasons Coal Co.,
Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80; State v. DeHass (1967), 10 Ohio St.2d
230, paragraph one of the syllabus. The trier of fact is in the best position to decide to
believe Hubbs’ son that Hubbs was not the driver of the vehicle, or to believe the
statement Hubbs made to Trooper Smith that he was the driver of the vehicle.
       ¶{30} As such, since Hubbs clearly stated that he would have gone to trial on
the DUI charges had the trial court suppressed the failure to control conviction and
since there is a factual determination as to whether he was the driver of the vehicle,
we must conclude that Hubbs was prejudiced by the trial court’s suppression ruling.
We cannot conclude that the conviction and/or plea would have occurred if the trial
court properly suppressed the misdemeanor conviction. The suppression ruling is
reversed, the plea and sentence is vacated, and the cause is remanded to the trial
court for further proceedings.1


Donofrio, J., concurs.
DeGenaro, J., concurs.




       1
        Since we are already vacating the plea and sentence, reversing the suppression ruling and
remanding the cause to the trial court for further proceedings, we do not need to decide whether the
plea complied with Crim.R. 11’s constitutional and nonconstitutional mandates. Likewise, any
sentencing issues also do not need to be addressed. Neither of those issues would result in out right
dismissal of the charges. Any ruling on those issues would be dicta.
