[Cite as State v. Justus, 2016-Ohio-7078.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                        C.A. No.      15AP0044

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ZACHARY G. JUSTUS                                    WAYNE COUNTY MUNICIPAL COURT
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   2015 TRC 6670

                                  DECISION AND JOURNAL ENTRY

Dated: September 30, 2016



        MOORE, Presiding Judge.

        {¶1}     Defendant, Zachary G. Justus, appeals from his conviction in the Wayne County

Municipal Court. We reverse and remand this matter for further proceedings consistent with this

decision.

                                                I.

        {¶2}     In the early morning hours of July 5, 2015, Officer Laskowski of the Wooster

Police Department effectuated a traffic stop of Mr. Justus after the officer purportedly witnessed

Mr. Justus commit marked lane violations. In an affidavit of probable cause prepared by the

officer, he maintained that, during the stop, Mr. Justus was slurring his speech, was

uncooperative, and blew smoke from a cigarette into the officer’s face. The officer maintained

that Mr. Justus would not listen to his instructions and smiled at him. He then observed Mr.

Justus use his arms for balance while exiting the car, and he staggered while walking. When Mr.

Justus refused to submit to field sobriety tests, the officer placed him under arrest. The officer
                                                 2


cited Mr. Justus with OVI in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2) along

with failure to travel within marked lanes in violation of Wooster Codified Ordinance 331.08.

       {¶3}    On July 7, 2015, Mr. Justus pleaded not guilty to the charges at his arraignment.

On July 8, 2015, Mr. Justus requested discovery from the State. The State responded on August

7, 2015, setting forth in part that a link to view video had been sent to defense counsel via email.

       {¶4}    On August 12, 2015, another traffic citation was filed in the trial court relative to

the July 5, 2015 stop.      This citation charged Mr. Justus with OVI in violation of R.C.

4511.19(A)(1)(f). Mr. Justus pleaded not guilty to this charge on August 18, 2015.1

       {¶5}    On August 25, 2015, Mr. Justus filed a motion to suppress evidence in which he

alleged that the police lacked a reasonable suspicion to justify the officer’s continued detention

of Mr. Justus to request him to perform field sobriety tests.2 In the motion, Mr. Justus requested

that, although the motion was not filed within the required time limits, the court accept the

motion outside of the time limits and hold a hearing on the matter. In support of permitting the

time for filing the motion to be extended, defense counsel maintained that he had only recently

met with Mr. Justus on August 12, 2015, that counsel did not receive discovery for this case until

August 7, 2015, and that counsel had not yet received the video from the police cruiser.

       {¶6}    The trial court construed Mr. Justus’ motion as a combined motion for leave to

file a motion to suppress and a motion to suppress. The trial court denied Mr. Justus’ motion for



       1
          It appears that the trial court recorded the charge as a violation of R.C. 4511.19(A)(1)(h)
on the journal entry reciting Mr. Justus’ plea. However, it appears that the charged offense as set
forth on the traffic ticket was a violation of R.C. 4511.19(A)(1)(f), and this is the offense to
which Mr. Justus ultimately pleaded no contest.
        2
          Once within his motion, Mr. Justus refers to the officer requesting “Mr. Fulmer” to exit
the vehicle to perform field sobriety tests. The reference to “Mr. Fulmer” appears to be a clerical
error, as the motion is filed in Mr. Justus’ case and refers to the driver throughout the remainder
of the motion as Mr. Justus.
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leave. In its journal entry, the trial court referenced the affidavit of probable cause of Officer

Laskowski, and it noted the conflicts between the affidavit and Mr. Justus’ factual allegations

surrounding the stop set forth in the motion to suppress. The trial court concluded that the

argument presented on behalf of Mr. Justus did not, in the interest of justice, merit extending the

time to file the motion to suppress. The trial court did not reference any of the reasons for delay

cited by Mr. Justus.

       {¶7}    Thereafter, upon the State’s motion, the Court dismissed all of the original

charges in exchange for Mr. Justus’ plea to OVI in violation of R.C. 4511.19(A)(1)(f). Mr.

Justus pleaded no contest to this charge. The trial court found Mr. Justus guilty and imposed

sentence.

       {¶8}    Mr. Justus timely appealed from the sentencing entry, and he now presents one

assignment of error for our review.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING [MR.]
       JUSTUS’ REQUEST TO FILE A MOTION TO SUPPRESS OUTSIDE OF THE
       TIME ALLOTTED IN EVID.R. 12(C) AND SET A HEARING ON THE
       MATTER BECAUSE [MR.] JUSTUS OFFERED BOTH GOOD CAUSE FOR
       THE DELAY AND STATED FACTS WHICH, IF FOUND TO BE TRUE AT A
       HEARING, WOULD SUPPORT SUPPRESSION.

       {¶9}     In his sole assignment of error, Mr. Justus maintains that the trial court abused its

discretion in denying his request to file his motion to suppress outside of the prescribed time

limitations, and by failing to hold a hearing on the motion to suppress.3




       3
         Although Mr. Justus refers to “Evid.R. 12(C)” in his stated assignment of error, it is
clear from the argument that his assignment of error pertains to Crim.R. 12(C), which is
substantially similar to Traf.R. 11(C), which governs pretrial motions in traffic cases, such as
                                                 4


       {¶10} Traf.R. 11(C) provides that “[a]ll pretrial motions, except as provided in Criminal

Rule 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 pre-

plea or pretrial motions.” “Failure by the defendant to raise defenses or objections or to make

motions and requests which must be made prior to plea, trial, or at the time set by the court

pursuant to subdivision (C), or prior to any extension thereof made by the court, shall constitute

waiver thereof, but the court for good cause shown may grant relief from the waiver.” Traf.R.

11(F). “[W]hen a motion to suppress is filed out of the rule timelines, the movant must ‘offer a

convincing reason to warrant relief.’” State v. Robson, 165 Ohio App.3d 621, 2006-Ohio-628, ¶

14 (4th Dist.) (discussing Crim.R. 12(D) and (H) which are substantially similar to Traf.R. 11(C)

and (F)), quoting State v. Phillips, 74 Ohio St.3d 72 (1995).

       {¶11} “The decision as to whether to permit leave to file an untimely motion to suppress

is within the sound discretion of the trial court.” State v. Skorvanek, 9th Dist. Lorain No.

07CA009229, 2008-Ohio-4937, ¶ 55, citing Akron v. Milewski, 21 Ohio App.3d 140, 142 (9th

Dist.1985). An abuse of discretion implies that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The trial

court has no obligation to hold a hearing on an untimely motion to suppress. State v. Rucci, 7th

Dist. Mahoning No. 13 MA 34, 2015-Ohio-1882, ¶ 49. Where a motion to suppress is properly

before the court, “in order to require a hearing on [the] motion [], the accused must state the

motion’s legal and factual bases with sufficient particularity to place the prosecutor and the court




this. See State v. Armes, 9th Dist. Medina No. 15CA0022-M, 2016-Ohio-5087, ¶ 5, fn. 1;
Traf.R. 2.
                                                 5


on notice of the issues to be decided.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574,

¶ 10, quoting State v. Shindler, 70 Ohio St.3d 54, 1994-Ohio-452, syllabus.

       {¶12} Here, our review of the trial court’s judgment is hindered because the trial court

specifically stated that it was denying “leave” to file the motion. However, it did not reference

whether there existed good cause for the delay in filing. Instead, the trial court considered at

length the persuasiveness of the merits of Mr. Justus’ motion to suppress. Although the basis of

the suppression motion may affect the trial court’s decision as to whether the reasons advanced

for the delayed filing constitute good cause for the delay, here the trial court engaged in what

amounted to a discussion of the merits of the suppression motion itself by indicating that the

facts alleged in support of suppression conflicted with the officer’s affidavit. See Traf.R. 11(F);

see also State v. Ross, 9th Dist. Lorain No. 09CA009742, 2012-Ohio-536, ¶ 15 (rejecting

defendant’s argument that the “good cause shown” requirement of Crim.R. 12(H) pertains to the

persuasiveness of a motion to dismiss on its merits without respect to whether leave is filed or an

explanation for the delay provided).

       {¶13}    Because the court purported to deny leave to file the motion but focused on the

factual inconsistencies between the allegations contained in the motion to suppress and the

officer’s probable cause affidavit, we are unable to discern whether the trial court found a

convincing reason for the delay in filing the motion. We remand this matter to the trial court to

clarify its holding with respect to leave to file the motion. We do not reach the issue of whether

the motion to suppress itself warranted a hearing on its merits, as such a discussion would be

premature prior to the trial court clarifying its decision as to whether to permit the filing of the

motion out of time.
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       {¶14} Lastly, it appears that neither Mr. Justus nor the trial court differentiated between

the timeliness of the motion with respect to the original charges and with respect to the August 8,

2015 OVI charge. Because this issue is not before us, we emphasize that we make no judgment

as to whether the time for filing the motion to suppress was subject to tolling.

                                                 II.

       {¶15} Mr. Justus’ sole assignment of error is sustained for the reasons set forth above.

The judgment of the trial court is reversed and this matter is remanded for further proceedings

consistent with this decision.

                                                                                Judgment reversed,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.



                                                       CARLA MOORE
                                                       FOR THE COURT
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WHITMORE, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

CHRISTINA I. REIHELD, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
