[Cite as State v. Kelley, 2014-Ohio-3673.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellant    :       Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :       Case No. 13-CA-78
MATTHEW K. KELLEY                               :
                                                :
                      Defendant-Appellee        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Fairfield County
                                                    Court of Common Pleas, Case No.2013-
                                                    CR-0003



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             August 22, 2014




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

GREGG MARX                                          SCOTT WOOD
By: JOCELYN S. KELLY                                Dagger, Johnston, Miller,
239 W. Main Street, Ste. 101                        Ogilvie & Hampson
Lancaster, OH 43130                                 Lancaster, OH 43130
[Cite as State v. Kelley, 2014-Ohio-3673.]


Gwin, P.J.

        {¶1}     Plaintiff-appellant State of Ohio appeals the November 14, 2013 Judgment

Entry of the Fairfield County Court of Common Pleas granting defendant-appellee

Matthew K. Kelly’s motion to suppress evidence.

                                             Facts and Procedural History

        {¶2}     A Statement of the Facts underlying the stop and search of the appellee is

unnecessary to our disposition of this appeal. The state does not challenge the trial

court’s factual findings. Nor does the state argue the trial court failed to apply the

appropriate test or correct law to the findings of fact. Finally, the state does assign as

error that the trial court has incorrectly decided the ultimate or final issue raised in the

motion to suppress. See State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583(1982);

State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141(4th Dist. 1991); State v.

Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(4th Dist. 1993); State v. Boyd, 5th

Dist. Richland No. 95 CA 21, 1995 WL 76873(Nov. 20, 1995).

        {¶3}     Appellee was indicted by the Fairfield County Grand Jury for one count of

possession of heroin, a felony of the third degree. On February 21, 2013, appellee filed

a motion to suppress challenging the detention of appellee, the search of his person,

and the admissibility of any statements appellee made to law enforcement. The motion

hearing was held four months later on June 13, 2013, and the motion was overruled on

July 10, 2013. The trial court noted in the Judgment Entry overruling the motion to

suppress,

                 As an initial matter, the Court elects only to consider the three

        arguments set forth in Defendant's Motion to Suppress, filed February 21,
Fairfield County, Case No. 13-CA-78                                                        3


       2013. The Court acknowledges that Defendant has raised an additional

       issue in his post-hearing brief, but agrees with the State's argument that

       the issue is not properly before the Court for consideration. As the State

       was not put on notice of Defendant's additional allegation, the Court finds

       it is not ripe for consideration or review.

              Therefore, only the three suppression issues as set forth in

       Defendant's original Motion to Suppress will be considered.

       {¶4}   Five days after the trial court overruled his motion, appellee asked for

leave to supplement the motion to suppress to include whether the arresting officer had

exceeded the lawful bounds of a pat-down search - the issue that the trial court had

declined to consider. On July 16, 2013, the trial court overruled appellee’s motion for

reconsideration. However, the trial court granted appellee leave to supplement his

motion to suppress. There is no indication in the record that the state had received

appellee's motion before the trial court ruled on it. The trial court did not set the matter

for a hearing and did not receive a response from the state before it issued its ruling.

       {¶5}   On July 19, 2013, appellee filed his Supplement to his Motion to

Suppress, which specifically raised the issue that Officer Kidwell had exceeded the

lawful bounds of a pat-down search.

       {¶6}   On September 6, 2013, the state filed a memorandum in opposition to

appellee’s motion for reconsideration and motion to supplement the motion to suppress

requesting the trial court deny both motions. In the Judgment Entry filed October 10,

2013 overruling the state’s motion, the trial court found the appellee had asserted a
Fairfield County, Case No. 13-CA-78                                                   4


single new argument and the state would have the opportunity address this issue and

present evidence at the oral hearing on the supplemented motion to suppress.

      {¶7}     On November 6, 2013, a second oral hearing was held. The arresting

officer was again the only witness to testify and his testimony was similar to his prior

testimony.

      {¶8}     On November 14, 2013, the trial court sustained appellee's supplement to

his motion to suppress and suppressed the evidence obtained by the state from the pat-

down search.

                                      Assignments of Error

      {¶9}     The state raises two assignments of error,

      {¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING

APPELLEE'S MOTION THE DAY AFTER IT WAS FILED, WITHOUT PROVIDING THE

STATE WITH AN OPPORTUNITY TO RESPOND. ENTRY GRANTING DEFENDANT

LEAVE TO FILE SUPPLEMENTAL MOTION TO SUPPRESS, JULY 16, 2013.

      {¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT

APPELLEE HAD SHOWN GOOD CAUSE TO SUPPLEMENT HIS MOTION TO

SUPPRESS. ENTRY GRANTING DEFENDANT LEAVE TO FILE SUPPLEMENTAL

MOTION TO SUPPRESS, JULY 16, 2013.”

                                     State’s Right to Appeal

      {¶12} A court of appeals has jurisdiction to entertain the state's appeal from a

trial court's decision to suppress evidence only where the state has complied with

Crim.R. 12(K). State v. Perez, 1st Dist. Hamilton Nos. C-040363, C-040364, C-040365,
Fairfield County, Case No. 13-CA-78                                                    5

2005-Ohio-1326, ¶12, citing State v. Buckingham, 62 Ohio St.2d 14, 402 N.E.2d

536(1980), syllabus (interpreting former Crim.R. 12(J)).

       {¶13} Crim.R. 12(K) states in pertinent part:

               When the state takes an appeal as provided by law from an order

       suppressing or excluding evidence, the prosecuting attorney shall certify

       that both of the following apply:

               (1) the appeal is not taken for the purpose of delay;

               (2) the ruling on the motion or motions has rendered the state's

       proof with respect to the pending charge so weak in its entirety that any

       reasonable possibility of effective prosecution has been destroyed.

               The appeal from an order suppressing or excluding evidence shall

       not be allowed unless the notice of appeal and the certification by the

       prosecuting attorney are filed with the clerk of the trial court within seven

       days after the date of the entry of the judgment or order granting the

       motion. * * *.

       {¶14} Our review of the record reveals a certifying statement by the prosecutor

as outlined in Crim.R. 12(K). We therefore have jurisdiction to proceed to the merits of

this appeal.

                                                 I.

       {¶15} In the first assignment of error, the state maintains it was unreasonable

and arbitrary to rule on appellee's motion to supplement his motion to suppress without

providing the state an opportunity to respond.
Fairfield County, Case No. 13-CA-78                                                      6


      {¶16} Appellee's motion for leave to supplement his motion to suppress was filed

July 15, 2013. The state filed its memorandum contra requesting the court overrule

appellee’s motion to supplement on September 6, 2013. The trial court considered the

state's arguments and rejected them by Judgment Entry filed October 10, 2013.

      {¶17} The state has failed to articulate how this result would have been different

had the trial court delayed ruling upon the motion to supplement until the state had filed

a response.

      {¶18} The state’s reliance on State v. Palivoda, 11th Dist. Ashtabula No. 2006-

A-0019, 2006-Ohio-6494, ¶11-14 (motion to dismiss for failure to preserve evidence);

State v. Engle, 166 Ohio App.3d 262, 2006-Ohio-1884, 850 N.E.2d 123, ¶9-10 (3rd

Dist.) (motion to dismiss for violation of discovery order); State v. Deltoro, 165 Ohio

App.3d 750, 2006-Ohio-1280, 848 N.E.2d 558, ¶30-31 (7th Dist.) (motion to compel

disclosure of confidential informant); State v. Etzler, 3rd Dist. Van Wert No. 15-04-03,

2004- Ohio-4808, ¶9-10 (motion for new trial); State v. Dalehuk, 9th Dist. Summit No.

C.A. 21422, 2003- Ohio-4268, ¶ 5 (motion to terminate administrative license

suspension) is misplaced. In each of these cases, the trial court issued a dispositive

ruling that effectively terminated the criminal proceedings against the defendants. In the

case at bar, the state had the opportunity to respond to the motion. In addition, the state

had time and opportunity to present evidence and further argument concerning the

issue of the scope of the pat-down search of the appellee.

      {¶19} Under the circumstances presented in the case at bar, we do not find the

trial court’s granting of the motion to supplement was unreasonable, arbitrary or

unconscionable because the state has failed to demonstrate any cognizable prejudice.
Fairfield County, Case No. 13-CA-78                                                        7


Any error in the timing of the trial court’s decision to permit appellee to supplement his

motion to suppress was harmless beyond a reasonable doubt because the state did in

fact respond and the trial court considered the state’s response.

       {¶20} The state’s first assignment of error is overruled.

                                                 II.

       {¶21} In the second assignment of error, the state argues the trial court abused

its discretion in finding that appellee demonstrated good cause to supplement his

motion to suppress.

       {¶22} A motion to suppress is a pre-trial motion. Crim.R. 12(C)(3). Crim.R. 12(D)

provides,

              All pretrial motions except as provided in Crim.R. 7(E) and 16(M)

       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.

       {¶23} Failure to move for the suppression of evidence on the basis that it was

illegally obtained within Crim.R. 12(D)'s time limit constitutes a waiver of the error. State

v. Campbell, 69 Ohio St.3d 38, 44, 630 N.E.2d 339 (1994); Crim.R. 12(H). However,

“the court for good cause shown may grant relief from the waiver.” Crim.R. 12(H).

       {¶24} The trial court's decision whether to permit leave to file an untimely motion

to suppress is within its sound discretion. State v. Perry, 3rd Dist. Marion 9-12-09, 2012-

Ohio-4656, ¶13; State v. Monnette, 3rd Dist. Marion No. 9–08–33, 2009–Ohio–1653,

¶17, citing Akron v. Milewski, 21 Ohio App.3d 140, 142 (9th Dist. 1985). Appellate
Fairfield County, Case No. 13-CA-78                                                        8


review is, therefore, limited to whether the trial court abused its discretion in rendering

its decision. Id.

               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 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).

       {¶25} The trial court noted that appellee had originally attempted to address the

scope of the pat-down search in his post-hearing brief on the original motion to

suppress filed February 21, 2013. The trial court agreed with the state that the state was

not put on notice of this additional issue and therefore the trial court declined to consider

the issue.

       {¶26} Courts have held that the trial court has discretion to decide whether to

allow a defendant to add additional issues at a hearing on a previously filed motion to

suppress. State v. Wells, 11 Ohio App.3d 217, 219–220, 464 N.E.2d 596(6th Dist.

1983). Accord, State v. Rife, 4th Dist. Ross No. 11CA3276, 2012-Ohio-3264, ¶33; State

v. Smith, 9th Dist. Summit No. 21069, 2003-Ohio-1306, ¶13; State v. Garrett, 2nd Dist.

Greene No. 2004 CA 110, 2005-Ohio-4832, ¶20.
Fairfield County, Case No. 13-CA-78                                                        9


       {¶27} We see no fundamental unfairness in the procedure employed by the trial

court in the case at bar. The trial court refused to initially consider the issue because the

state did not have time to prepare or present evidence on the scope of the pat-down

search of the appellee. The trial court thereafter allowed the state to present evidence

and argument at the hearing on the second motion to suppress. The state did not argue

in the trial court, nor does it contend in this Court that it was unprepared to address the

issue in the second hearing. As we have previously noted, the state does not assign as

error that the trial court has incorrectly decided the ultimate or final issue raised in the

motion to suppress.

       {¶28} Under the circumstances presented in the case at bar, we do not find the

trial court’s finding that appellee demonstrated good cause to supplement his motion to

suppress was unreasonable, arbitrary or unconscionable.

       {¶29} The state’s second assignment of error is overruled.
Fairfield County, Case No. 13-CA-78                                           10


       {¶30} For the forgoing reasons, the judgment of the Court of Common Pleas,

Fairfield County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Baldwin, J., concur
