State v. Stuber

[Cite as State v. Stuber, 2018-Ohio-2809.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-17-38

v.

MICHAEL W. STUBER, OPINION

DEFENDANT-APPELLANT.

Appeal from Lima Municipal Court
Trial Court No. 17TRD04526

Judgment Affirmed

Date of Decision: July 16, 2018

APPEARANCES:

Michael W. Stuber, Appellant

John R. Payne for Appellee
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PRESTON, J.

{¶1} Defendant-appellant, Michael W. Stuber (“Stuber”), pro se, appeals the

August 10, 2017 judgment entry of the Lima Municipal Court. We affirm.

{¶2} On May 1, 2017, Stuber was cited for driving under suspension in

violation of R.C. 4510.111(A), an unclassified misdemeanor. (Doc. No. 1). On

May 12, 2017, Stuber appeared for arraignment and entered a plea of not guilty.

(Doc. No. 4).

{¶3} On June 9, 2017, Stuber filed a motion to dismiss the charge arguing

that the trial court lacked “jurisdiction in this matter” for a number of reasons. (Doc.

No. 5). On June 14, 2017, the trial court denied Stuber’s motion to dismiss. (Doc.

No. 7).

{¶4} After a bench trial on August 10, 2017, the trial court found Stuber

guilty of the charge in the citation. (Doc. No. 9). The trial court imposed a $50 fine

plus court costs and assessed two points on his operator’s license. (Id.).

{¶5} On September 8, 2017, Stuber filed a notice of appeal. (Doc. No. 10).

He raises four assignments of error for our review. Because they raise jurisdictional

issues, we will begin by addressing Stuber’s first and third assignments of error,

followed by his second and fourth assignments of error.

Assignment of Error No. I

The Trial Court Judge, Without Justifiable Cause, Failed to Make
a Valid Final Appealable Order of Judgment and the State of

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Ohio/Appellee Failed to insure [sic] that the Judgment Rendered
Against the Defendant/Appellant, in Their Favor, was a Valid,
Final Appealable Order.

{¶6} In his first assignment of error, Stuber argues that the June 14 and

August 10, 2017 judgment entries of the trial court do not constitute final,

appealable orders because those entries do “not contain an entry on the journal by

the clerk.” (Appellant’s Brief at 5).

{¶7} Courts of appeal in Ohio have appellate jurisdiction over “final

appealable orders.” Ohio Constitution, Article IV, Section 3(B)(2). “A judgment

of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth

(1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the

time stamp indicating the entry upon the journal by the clerk.” State v. Lester, 130

Ohio St.3d 303, 2011-Ohio-5204, paragraph one of the syllabus. See also Crim.R.

32(C). Because it presents a question of law, we review de novo whether a judgment

constitutes a final, appealable order. State v. Robinson, 9th Dist. Summit No. 26365,

2012-Ohio-3669, ¶ 7. “De novo review is independent, without deference to the

lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-

647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145,

147 (1992).

{¶8} Stuber contends that the trial court’s June 14 and August 10, 2017

judgment entries do not constitute final, appealable orders because those entries

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were not entered on the journal by the clerk as required by Crim.R. 32(C). Stuber’s

argument is erroneous. The entries clearly reflect file stamps indicating

journalization. (Doc. Nos. 7, 9). See Niki D’Arti Ents. v. Hines, 7th Dist. Mahoning

No. 13MA57, 2014-Ohio-803, ¶ 4 (“The time-stamp is the indication that the entry

was entered in the clerk’s journal.”). Moreover, the trial court’s clerk’s docketing

statement reflects that the clerk journalized the entries. (Doc. No. 19).

{¶9} Although interlocutory during the pendency of the case, the trial court’s

June 14, 2017 entry denying Stuber’s motion to dismiss the charge merged into the

trial court’s August 10, 2017 judgment entry of sentence. See State v. Eberhardt,

56 Ohio App.2d 193, 198 (8th Dist.1978) (“Generally speaking, the overruling of a

motion to dismiss in a criminal case or a civil case is not considered a final

appealable order. Ordinarily, after a motion to dismiss is overruled, the case will

proceed to trial and in the event of judgment adverse to the moving party, the trial

court’s action overruling the motion may become one of the assignments of error

on appeal.”). See also State v. Shaffer, 8th Dist. Cuyahoga No. 87552, 2006-Ohio-

5563, ¶ 21 (noting “that it is well-established that an order overruling a motion to

dismiss an action is not a final order from which an appeal may be taken” because

“an order denying a motion to dismiss does not determine the action, nor does it

foreclose the possibility of relief in the future”); State v. Leece, 12th Dist. Butler

No. CA89-06-084, 1990 WL 49993, *2 (Apr. 23, 1990) (“The denial of a motion

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to dismiss an indictment is interlocutory and generally does not constitute a final

appealable order.”); App.R. 3. As such, the trial court’s June 14, 2017 entry is final

and subject to appeal with the August 10, 2017 judgment.

{¶10} Further, even though Stuber’s statement of his first assignment of error

does not state that he is presenting the issue for review, Stuber contends that the trial

court erred by notifying him that “‘[t]he clerk shall use license forfeiture and

registration block as a means to collect unpaid fines and cost[s].’” (Appellant’s

Brief at 6, quoting Doc. No. 9). Despite Stuber’s failure to comply with the rules of

appellate procedure, in the interest of justice, we will address his argument. See

State v. Thomas, 3d Dist. Mercer No. 10-10-17, 2011-Ohio-4337, ¶ 25; App.R. 12

and 16. There is no evidence that the trial court ordered Stuber’s operator’s license

forfeited in this case. Indeed, Stuber admits that his license was forfeited in a

previous case. (Appellant’s Brief at 3). Furthermore, there is no indication that the

trial court’s notification to the clerk regarding license forfeiture and registration

block have “actually been used as a means to collect fines and costs” in this case.

State v. Ellis, 3d Dist. Allen No. 1-17-37, 2018-Ohio-898, ¶ 29. Accordingly,

because there is no evidence of forfeiture in this case, Stuber’s argument is

meritless. Id.

{¶11} Stuber’s first assignment of error is overruled.

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Assignment of Error No. III

The Trial Court Lacked Personal Jurisdiction, as well as Subject
Matter Jurisdiction in this Matter.

{¶12} In his third assignment of error, Stuber argues that the trial court

lacked subject-matter and personal jurisdiction in this matter because (1) the law

enforcement officer failed to sign the citation as required by Traf.R. 3(F)(2) and (E)

and (2) the Ohio Bureau of Motor Vehicles (“OBMV”) failed to notify him of his

license forfeiture.

{¶13} We review de novo the existence of a trial court’s subject-matter and

personal jurisdiction. State v. Williams, 12th Dist. Butler No. CA2014-06-144,

2015-Ohio-1090, ¶ 7; Columbus v. Ford, 10th Dist. Franklin No. 04AP-260, 2004-

Ohio-5715, ¶ 4. As we stated in Stuber’s first assignment of error, de novo review

is independent and without deference to the lower court’s determination. Hudson,

2013-Ohio-647, at ¶ 27, citing Ohio Bell Tel. Co., 64 Ohio St.3d at 147.

{¶14} “Subject-matter jurisdiction involves a court’s power to hear a case.”

Williams at ¶ 7. “As such, the issue can never be waived and may be raised at any

time.” Id., citing State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, ¶ 10. On

the other hand, “[p]ersonal jurisdiction goes to the court’s authority to render

judgment against a party to an action.” Cleveland v. Kutash, 8th Dist. Cuyahoga

No. 99509, 2013-Ohio-5124, ¶ 11. A court acquires personal jurisdiction over a

“defendant when: (1) service of process is completed over the defendant, (2) the

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defendant voluntarily appears and submits to the court’s jurisdiction, or (3) the

defendant involuntarily submits to the court’s jurisdiction.” Id., citing Maryhew v.

Yova, 11 Ohio St.3d 154, 156 (1984). “[A] challenge to personal jurisdiction is

waivable by the defendant’s voluntary submission at an appearance or by entering

a plea.” Id. at ¶ 12, citing State v. Holbert, 38 Ohio St.2d 113, 118 (1974).

{¶15} “Ohio municipal courts ‘are created by statute, R.C. 1901.01, and their

subject-matter jurisdiction is also set by statute.’” State v. Gunnell, 10th Dist.

Franklin No. 13AP-90, 2013-Ohio-3928, ¶ 8, quoting Mbodji at ¶ 11. “An Ohio

Municipal Court ‘has jurisdiction over misdemeanors occurring within its territorial

jurisdiction.’” Id., quoting Mbodji at ¶ 11, citing R.C.1901.20(A)(1). “The filing

of a complaint invokes the jurisdiction of a municipal court.” Id. at ¶ 12. “An Ohio

Uniform Traffic Ticket serves as the complaint and summons.” State v. Matthews,

2d Dist. Greene No. 2015-CA-73, 2016-Ohio-5055, ¶ 4, citing Traf.R. 3(A).

{¶16} Under Traf.R. 3, a municipal court may adopt rules permitting “the

use of a ticket that is produced by a computer or other electronic means.” Traf.R.

3(F)(1). See State v. Lyons, 6th Dist. Huron No. H-17-003, 2018-Ohio-526, ¶ 9.

Rule 4.1 of the Lima Municipal Court permits “[t]he use and filing of a

ticket/citation that is produced by computer or other electronic means” so long as

that electronically produced ticket conforms “in all substantive respects to the Ohio

Uniform Traffic Ticket.” When an electronically produced ticket is issued and a

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law enforcement officer “electronically affixes the officer’s signature” to the ticket,

that electronically produced signature “shall be considered to have certified the

ticket and shall have the same rights, responsibilities, and liabilities as with all other

tickets issued * * *.” Traf.R. 3(F)(2).

{¶17} The ticket issued against Stuber and filed with the trial court was

electronically produced and reflects the electronically produced signature of the

issuing law enforcement officer. As such, the ticket conforms with the Ohio

Uniform Traffic Ticket and is a valid complaint. See Lyons at ¶ 9. Moreover, the

electronically produced ticket cited Stuber for violating R.C. 4510.111(A)—a

misdemeanor offense—and alleged that the offense occurred in the city of Lima.

See Gunnell at ¶ 9. Therefore, the trial court had subject-matter jurisdiction over

the offense. See id.

{¶18} Similarly, the trial court had personal jurisdiction over Stuber. Id. at

¶ 10, citing State v. Yoder, 6th Dist. Fulton No. F-94-020, 1995 WL 358545, *1

(June 16, 1995) and Traf.R. 3(A). However, as the State points out, Stuber failed to

raise the issue of personal jurisdiction prior to entering his initial plea. Compare id.

(“Further, as noted by plaintiff-appellee, the State of Ohio, appellant did not raise

the issue of lack of personal jurisdiction until after he entered his initial plea (of not

guilty on December 7, 2012).”). As we noted above, “[u]nder Ohio law, ‘[a]

defendant in a traffic case must raise any defenses or objections based on defects in

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the institution of the proceedings before the entry of a plea.’” Id., quoting Ford,

2004-Ohio-5715, at ¶ 7, citing Traf.R. 11(B). Because Stuber failed to assert any

objection to the trial court’s personal jurisdiction over him prior to entering his plea,

Stuber waived any personal-jurisdiction argument. Id. (“Thus, ‘a defendant waives

any objections to the trial court’s exercise of personal jurisdiction by failing to assert

such objections at the time the defendant appears in the trial court and enters a not

guilty plea.’”), quoting Ford at ¶ 7. For these reasons, Stuber’s jurisdictional

arguments regarding the validity of the citation are without merit.

{¶19} Turning to Stuber’s jurisdictional argument that the trial court lacked

personal and subject-matter jurisdiction because the OBMV failed to notify him of

his license forfeiture, we reject Stuber’s argument. Whether Stuber was properly

notified that his license was suspended does not affect the personal or subject-matter

jurisdiction of the trial court. Stated another way, whether Stuber was properly

notified that his license was suspended goes to the merits of the case involving

Stuber, not whether the trial court had the ability to hear the merits of the case

against Stuber. Moreover, even if Stuber’s argument affected the personal

jurisdiction of the trial court, Stuber, as we determined above, waived any personal-

jurisdiction argument when he voluntarily appeared and entered a plea before

submitting any personal-jurisdiction objection.

{¶20} Stuber’s third assignment of error is overruled.

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Assignment of Error No. II

The Trial Court Judge and Counsel for the State of Ohio/Appellee
Erred as a Matter of Law and Abused it”s [sic] Discretion by Not
Avoiding Impropriety and the Appearance of Impropriety in
Their Respective Capacities in the Proceedings of the Court.

{¶21} In his second assignment of error, Stuber argues that he was prejudiced

by impropriety, or the appearance of impropriety, because counsel for the State and

the trial court judge share identical surnames—Smith. In presenting his argument,

Stuber alleges that counsel for the State and the trial court judge violated the Rules

of Professional Conduct.

{¶22} Not only is Smith a common surname, Judge Smith, who is from

outside of the area, was sitting by assignment in the Lima Municipal Court.

Notwithstanding, “[w]e have no authority to address claimed violations of the Rules

of Professional Conduct—that authority rests solely with the Ohio Supreme Court.”

State v. Montgomery, 8th Dist. Cuyahoga No. 99452, 2013-Ohio-4193, ¶ 36, citing

State ex rel. Buck v. Maloney, 102 Ohio St.3d 250, 2004-Ohio-2590.

{¶23} Accordingly, Stuber’s second assignment of error is overruled.

Assignment of Error No. IV

The Judgment of the Trial Court is Not Sustained by the
Evidence.

{¶24} In his fourth assignment of error, Stuber contends that his driving-

under-suspension conviction is based on insufficient evidence.

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{¶25} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

{¶26} R.C. 4510.111 sets forth the offense of driving under suspension and

provides, in pertinent part, “No person shall operate any motor vehicle upon a

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highway * * * in this state whose driver’s * * * license has been suspended * * *

pursuant to section * * * 4510.22 * * * of the Revised Code.”1 R.C. 4510.111(A).

[A] copy of the law enforcement automated data system report or a

noncertified copy of a record of the registrar of motor vehicles that

shows the name, date of birth, and social security number of a person

charged with a violation of division (A) of this section may be

admitted into evidence as prima-facie evidence that the license of the

person was under suspension at the time of the alleged violation of

division (A) of this section.

R.C. 4510.111(B).

{¶27} At trial, the State offered the testimony of Ohio State Highway Patrol

Trooper Brandon Schreiber (“Trooper Schreiber”), who testified that he initiated a

stop of the vehicle operated by Stuber on April 28, 2017 for “traveling * * * with

only one working headlight.” (Aug. 10, 2017 Tr. at 8-10). Trooper Schreiber

identified Stuber in court as the person operating the vehicle that he stopped on April

28, 2017. (Id. at 11). Trooper Schreiber testified that, after he initiated the traffic

stop, he learned through a Law-Enforcement-Automated-Data-System (“LEADS”)

search that Stuber’s license was suspended. (Id. at 11-12). Trooper Schreiber

1
Under R.C. 4510.22, a trial court may declare the forfeiture of a person’s license when that person “is found
guilty of [a specified] violation and fails within the time allowed by the court to pay the fine imposed by the
court * * *.” R.C. 4510.22(A).

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identified State’s Exhibit A as a copy of Stuber’s OBMV certified driving record.2

(Id. at 12). State’s Exhibit A reflected that Stuber’s license was suspended on

February 23, 2017. (Aug. 10, 2017 Tr. at 13). That exhibit also reflected that a

letter was sent to Stuber on March 8, 2017 informing him that his license was

suspended on February 23, 2017. (Id.).

{¶28} At the conclusion of Trooper Schreiber’s testimony, the State moved

to admit its exhibit, which was admitted, and rested. At that time, Stuber did not

make a Crim.R. 29 motion for acquittal. He similarly did not make a Crim.R. 29

motion for acquittal at the close of evidence. Accordingly, Stuber waived his

challenge to the sufficiency of the evidence for purposes of appeal, absent plain

error. State v. Smith, 3d Dist. Hardin No. 6-14-14, 2015-Ohio-2977, ¶ 43, citing

State v. LeMasters, 11th Dist. Lake No. 2007-L-129, 2008-Ohio-2139, ¶ 17, citing

State v. McCrory, 11th Dist. Portage No. 2006-P-0017, 2006-Ohio-6348, ¶ 39.

{¶29} “However, ‘[w]hether a sufficiency of the evidence argument is

reviewed under a prejudicial error standard or under a plain error standard is

academic.’” State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 38,

citing Perrysburg v. Miller, 153 Ohio App.3d 665, 2003-Ohio-4221, ¶ 57 (6th Dist.),

quoting State v. Brown, 2d Dist. Montgomery No. 17891, 2000 WL 966161, *8

2
Because State’s Exhibit A was omitted from the record by error or accident, the trial court ordered that a
supplemental record be certified, filed, and transmitted as provided by App.R. 9(E). As such, on June 13,
2018, the trial court filed an entry providing a statement of the case, which addresses the missing exhibit.

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(July 14, 2000). “Regardless of the standard used, ‘a conviction based on legally

insufficient evidence constitutes a denial of due process, and constitutes a manifest

injustice.’” Id., quoting Thompkins, 78 Ohio St.3d at 386-387. Accordingly, we

will proceed to determine whether the State presented sufficient evidence to support

Stuber’s conviction. See id. See also State v. Velez, 3d Dist. Putnam No. 12-13-10,

2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999

WL 355190, *1 (Mar. 26, 1999).

{¶30} The State introduced as evidence a copy of Stuber’s record of the

registrar of the OBMV indicating that Stuber’s license was suspended on February

23, 2017, and had not been reinstated by the date of the offense. (Aug. 10, 2017 Tr.

at 12-13). Trooper Schreiber stopped the vehicle that Stuber was operating on April

28, 2017. As such, the State presented prima-facie evidence that Stuber was under

suspension at the time of his violation of R.C. 4510.111(A). See R.C. 4510.111(B).

That record further indicates that notice of Stuber’s license suspension was mailed

to him on March 8, 2017.3 (Aug. 10, 2017 Tr. at 13). Stuber failed to offer any

evidence to rebut the State’s prima-facie evidence. See R.C. 4510.111(B). Rather,

Stuber denied receiving notice of his license suspension. (See Aug. 10, 2017 Tr. at

29, 31, 34-36). Stuber’s self-serving denials that he received notice of his license

3
Under Ohio Adm.Code 4501:1-10-01, “the registrar of motor vehicles shall give written notice of any order
revoking, canceling, or suspending a driver’s license * * * by regular mail sent to the person at the person’s
last known address * * *.” Ohio Adm.Code 4501:1-10-01(A). See also Ohio Adm.Code 4501:1-10-02.

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suspension are not sufficient to rebut R.C. 4510.111(A)’s statutory presumption.

Accordingly, we conclude that Stuber’s driving-under-suspension conviction under

R.C. 4510.111(A) is based on sufficient evidence.

{¶31} Stuber’s fourth assignment of error is overruled.

{¶32} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/jlr

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