[Cite as State v. Jenny, 2019-Ohio-1491.]


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

STATE OF OHIO                                          C.A. No.      18CA0041-M

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DONALD LEE JENNY, JR.                                  MEDINA MUNICIPAL COURT
                                                       COUNTY OF MEDINA, OHIO
        Appellant                                      CASE No.   18 TRC 00443

                                 DECISION AND JOURNAL ENTRY

Dated: April 22, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Defendant-Appellant, Donald Jenny, Jr., appeals from the judgment of the Medina

Municipal Court, denying his motion to suppress as untimely. This Court affirms.

                                                  I.

        {¶2}     Mr. Jenny was involved in a single vehicle crash on Lafayette Road. As a result of

the crash, he was charged with one count of operating a vehicle while under the influence of

alcohol and one count of failure to control. His arraignment was continued so that he could procure

counsel, and a public defender later entered a not guilty plea on his behalf.

        {¶3}     More than 35 days after he entered his not guilty plea, Mr. Jenny filed a motion to

suppress. The State opposed the motion on the basis that it was untimely, and, in response, Mr.

Jenny asked the court for a filing extension. The trial court considered Mr. Jenny’s request for

leave to file, but ultimately denied the motion to suppress as untimely. Though the court allowed

Mr. Jenny to file a motion to reconsider, it likewise denied that motion. The court concluded that
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the motion to suppress was untimely and Mr. Jenny had failed to set forth good cause to excuse its

late filing.

        {¶4}    Following the court’s denial of his motion for reconsideration, Mr. Jenny pleaded

no contest to both of his charges. The court sentenced him to jail, a fine, and a license suspension.

Upon request, however, the court stayed his sentence so that he could pursue his appeal.

        {¶5}    Mr. Jenny now appeals from the trial court’s denial of his motion to suppress and

raises two assignments of error for our review.

                                                   II.

                                ASSIGNMENT OF ERROR ONE

        THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING
        DEFENDANT-APPELLANT’S MOTION TO SUPPRESS AS BEING
        UNTIMELY FILED, WHERE (1) NO ARRAIGNMENT HEARING WAS EVER
        HELD; (2) THE MOTION TO SUPPRESS WAS FILED FOUR WEEKS
        BEFORE THE SCHEDULED TRIAL DATE; (3) THE STATE OF OHIO DID
        NOT ALLEGE IN ITS WRITTEN OBJECTION TO THE MOTION TO
        SUPPRESS THAT IT WOULD BE PREJUDICED IN ANY WAY BY THE
        ALLEGEDLY UNTIMELY FILING; AND (4) THE DEFENDANT-
        APPELLANT FILED A RESPONSE TO THE STATE’S OBJECTION,
        REQUESTING AN EXTENSION OF TIME TO FILE HIS MOTION TO
        SUPPRESS IN THE INTEREST OF JUSTICE AND EXPLAINING THE
        REASON FOR THE ALLEGEDLY DELAYED FILING, BEFORE THE TRIAL
        COURT FILED ITS JUDGMENT ENTRY DENYING THE MOTION TO
        SUPPRESS WITHOUT A HEARING.

        {¶6}    In his first assignment of error, Mr. Jenny argues that the trial court erred when it

denied his motion to suppress on the basis that it was untimely. He argues that, in the interests of

justice, the court ought to have granted his request for leave to file and heard his motion on its

merits. Upon review, we do not agree that the trial court erred when it denied Mr. Jenny’s motion

as untimely.

        {¶7}    “A motion to suppress must be filed within thirty-five days after arraignment unless

a trial court extends that time period in the interest of justice or grants relief from it for good cause
                                                 3


shown.” State v. Woodson, 9th Dist. Wayne No. 07CA0044, 2008-Ohio-1469, ¶ 10, citing Crim.R.

12(D), (H). It is the defendant’s burden to “demonstrat[e]‘good cause’ to excuse the late filing.”

In re McCall, 9th Dist. Summit No. 20455, 2001 WL 755127, *2 (July 5, 2001). “This Court will

not reverse a trial court’s decision denying leave to file an untimely motion to suppress absent an

abuse of discretion.” State v. Lisle, 9th Dist. Wayne No. 05CA0073, 2006-Ohio-3877, ¶ 12. An

abuse of discretion indicates that the trial court was unreasonable, arbitrary, or unconscionable in

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

         {¶8}   Mr. Jenny was never formally arraigned in open court. The court continued his

arraignment so that he could procure counsel. Prior to the date secured for the arraignment, his

new counsel filed a notice of appearance wherein he also entered a not guilty plea on Mr. Jenny’s

behalf and waived the reading of the charges. In light of that filing, the court set the matter for

trial.

         {¶9}   Mr. Jenny’s first argument on appeal is that, because he was never arraigned, the

35-day time limit set forth in Crim.R. 12(D) never began to run. The record reflects, however, that

Mr. Jenny never raised this argument in the lower court. See State v. Tyburski, 9th Dist. Lorain

No. 18CA011291, 2018-Ohio-4248, ¶ 14 (“This Court will not address new arguments for the first

time on appeal.”). Indeed, in both his response to the State’s objection to his motion to suppress

and his motion for reconsideration, he conceded that Crim.R. 12(D)’s time limit had expired. Mr.

Jenny may not now reverse course and argue, for the first time, that the 35-day time limit never

commenced. See id.

         {¶10} When Mr. Jenny filed his motion to suppress beyond the 35-day time limit set forth

in Crim.R. 12(D), he made no attempt to address its untimeliness. Only after the State objected to

his motion on the basis that it was untimely did he seek a filing extension. Mr. Jenny requested
                                                  4


the extension due to understaffing at the public defender’s office. His counsel asserted that the

current size of his caseload had rendered him unable to review discovery and file the motion to

suppress before the expiration of the filing deadline. Likewise, when asking the court to reconsider

its ruling, counsel cited his substantial caseload. He also argued that the State had made no attempt

to explain how it would suffer prejudice if the court granted him an extension.

       {¶11} The trial court denied Mr. Jenny’s request for a filing extension because it

determined that he had failed to set forth good cause to excuse the late filing. The court noted that

defense counsel had received the State’s discovery packet almost two weeks before the 35-day

time limit was set to expire. Even if counsel found himself unable to file the motion to suppress

in a timely manner, the court reasoned, he had the ability to file a motion for an extension within

that timeframe. The court found that counsel waited until the State objected to seek an extension

and never explained why he had failed to seek an extension before that point in time. Because Mr.

Jenny failed to demonstrate good cause to justify the delay in his filing, the court denied his motion

as untimely.

       {¶12} Having reviewed the record, we cannot conclude that the court abused its discretion

when it denied Mr. Jenny’s motion as untimely. See Lisle, 2006-Ohio-3877, at ¶ 12. Mr. Jenny

never moved for a filing extension before the 35-day time limit expired, and he failed to explain

in his original motion to suppress why it was being untimely filed. See State v. Straub, 9th Dist.

Medina No. 1714, 1988 WL 104402, *1 (Oct. 5, 1988). While we are not unsympathetic to the

demands of his counsel’s caseload, counsel was aware of those demands before the 35-day time

limit expired. See State v. Pelsozy, 9th Dist. Summit No. 23297, 2007-Ohio-148, ¶ 8. He

nevertheless failed to seek a filing extension before time expired and “waited until the State

opposed his motion to suppress to argue that the court should grant an exception to the deadline in
                                                  5


the interest of justice.” State v. Armes, 9th Dist. Medina No. 15CA0022-M, 2016-Ohio-5087, ¶ 6.

Though Mr. Jenny faults the State for not explaining how it would be prejudiced by a filing

extension, it was his burden to “demonstrat[e]‘good cause’ to excuse the late filing.” In re McCall,

2001 WL 755127, at *2. The record reflects that the trial court acted within its sound discretion

when it concluded that he failed to satisfy his burden. See Armes at ¶ 6; Straub at *1. As such,

Mr. Jenny’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       DEFENDANT-APPELLANT’S TRIAL COUNSEL PROVIDED INEFFECTIVE
       ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT
       TO THE UNITED STATES CONSTITUTION, BY FAILING TO TIMELY FILE
       A LIKELY-DISPOSITIVE MOTION TO SUPPRESS IN APPELLANT’S OVI
       CASE, WHICH RESULTED IN DISMISSAL OF THAT MOTION BY THE
       TRIAL COURT WITHOUT A HEARING AND WAIVER OF THE
       SUPPRESSION ISSUES RAISED.

       {¶13} In his second assignment of error, Mr. Jenny argues that he received ineffective

assistance of counsel because his counsel failed to timely file his motion to suppress. Upon review,

we cannot conclude that Mr. Jenny has demonstrated ineffective assistance of counsel.

       {¶14} To prove ineffective assistance of counsel, one must establish that: (1) his counsel’s

performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient if it falls below an

objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989),

paragraph two of the syllabus. Prejudice can be shown by proving “there exists a reasonable

probability that, were it not for counsel’s errors, the result of the trial would have been different.”

Id. at paragraph three of the syllabus. In the context of a motion to suppress, prejudice will lie

only if the defendant shows “that there was a reasonable probability [] the motion to suppress

would have been granted.” State v. Kendall, 9th Dist. Summit No. 25721, 2012-Ohio-1172, ¶ 7.
                                                  6


       {¶15} Mr. Jenny argues that, had his counsel filed a timely motion to suppress, the motion

likely would have succeeded on its merits. In support of his argument, he offers an explanation of

the facts underlying this matter. No sworn testimony was ever taken in this case, however, as Mr.

Jenny pleaded no contest in the absence of a suppression hearing. “Because we do not know what

credible evidence would have been presented at a suppression hearing, Mr. [Jenny] cannot show

that he was prejudiced by his lawyer’s decision not to file a motion to suppress.” State v. Davis,

9th Dist. Summit No. 25680, 2012-Ohio-788, ¶ 10.

       Ordinarily, the types of arguments raised by [Mr. Jenny] could be raised in a
       petition for postconviction relief, which permits the petitioner in felony cases to
       establish a complete record related to the alleged ineffective assistance of counsel;
       however, because [Mr. Jenny’s] conviction arises from municipal court
       proceedings, postconviction relief is not available to [him]. See [State v. Zupancic,
       9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 5]. “Nonetheless, because
       [his] arguments rely on evidence outside the record, they are inappropriate for
       consideration on direct appeal, and [his] assignment of error must be overruled on
       that basis.” Id.

State v. Buzek, 9th Dist. Medina No. 14CA0011-M, 2015-Ohio-4416, ¶ 8. Because Mr. Jenny

cannot demonstrate prejudice as a result of his counsel’s failure to file a timely motion to suppress,

his second assignment of error is overruled.

                                                 III.

       {¶16} Mr. Jenny’s assignments of error are overruled. The judgment of the Medina

Municipal Court is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.
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        We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, 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 Appellant.




                                                      THOMAS A. TEODOSIO
                                                      FOR THE COURT



CALLAHAN, J.
CONCURS.

CARR, J.
DISSENTING.

        {¶17} I respectfully dissent. Traf.R. 11(C) provides that pretrial motions “shall be made

within thirty-five days after arraignment or seven days before trial, whichever is earlier.”1 Notably,

Traf.R. 11(C) further provides that the court may extend the time for making pretrial motions “in

the interest of justice[.]” Id.




1
  This Court has noted that while Traf.R. 11(C) and Crim.R. 12(D) contain equivalent language
regarding the filing of pretrial motions, Traf.R. 11(C) should be applied in traffic cases. State v.
Armes, 9th Dist. Medina No. 15CA0022-M, 2016-Ohio-5087, ¶ 5, fn 1.
                                                   8


       {¶18} Under the circumstances of this case, the interest of justice required the trial court

to extend the timeframe for filing a motion to suppress and the failure to do so constituted an abuse

of discretion. After waiving his right to a speedy trial, Jenny filed his motion to suppress one week

late. When the State objected on the basis that the motion was untimely, Jenny filed a response

requesting that the trial court extend time in the interest of justice. In support of his request, Jenny

noted that the Medina County Public Defender Office was understaffed and that defense counsel

was covering a caseload that was previously handled by two attorneys. In addition to defense

counsel’s high case volume, discovery was not completed until February 14, 2018, well into the

35-day window for filing pretrial motions. While the trial court certainly had authority to consider

the motion under Traf.R. 11(C), a review of the trial court’s journal entry denying the motion for

reconsideration suggests that the trial court may have concluded that it was prohibited from

granting the motion under this Court’s precedent. I would sustain Jenny’s first assignment of error

as there was no compelling reason to proceed in haste given the lack of any indication that the

State would have been prejudiced.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

GREGORY A. HUBER, Prosecuting Attorney, for Appellee.
