[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
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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
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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
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{¶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.
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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.
State v. Justus
Combined Opinion