CITY OF BEDFORD v. LANCE D. McLEOD
No. 94649
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 7, 2011
2011-Ohio-3380
Criminal Appeal from the Bedford Municipal Court, Case No. 08TRC07283
Joseph A. Dubyak
Dubyak & Goldense
50 Public Square
Suite 920
Cleveland, Ohio 44113-2206
David M. King
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Ross S. Cirincione
Law Director, City of Bedford Hts.
Castleton Building
5306 Transportation Blvd.
Garfield Heights, Ohio 44125
Kenneth A. Schuman
Law Director, City of Bedford
5306 Transporation Blvd.
Garfield Heights, Ohio 44125
JOURNAL ENTRY AND OPINION
EILEEN A. GALLAGHER, J.:
{¶ 1} Lance McLeod appeals from the decision of the Bedford Municipal Court. McLeod argues the trial court erred when it denied his motion to suppress, erred when it failed to commence his trial in a timely fаshion, and that these errors resulted in an
{¶ 2} On October 11, 2008, Bedford Police Officer Ronald Niemann issued a citation charging McLeod with violating
{¶ 3} On December 4, 2008, McLeod filed a motion to suppress the results of the field sobriety and breathalyzer tests, any statements made by McLeod and any observations and opinions of the arresting officers concerning McLeod‘s intoxication. On December 29, 2008, the trial court conducted а hearing on the motion to suppress. On May 5, 2009, McLeod filed a motion to dismiss and a renewed motion to suppress, seeking a dismissal of the charges for the trial court‘s failure to rule on his December 4, 2008 motion to suppress. On September 30, 2009, the trial court issued a journal entry setting the case for a status review. On January 29, 2010, more than one year after McLeod filed his motion to suppress, the trial court summarily denied the motion.
{¶ 4} The trial court proceeded to a jury trial that same day. The city presented the testimony of Officer Niemann and Officer Paul Kellerman. Officer Niemann testified that on October 11, 2008, at approximately 11:30 p.m., he was on duty and driving westbound on Rockside Road. Officer Niemann noted that two cars were at the red light on Broadway Road and continued to sit at the light even though it turned green. Neither car moved until a motorcycle approached from behind and beeped. Then, the GMC pickup truck driven by appellant, “chirped” its tires as it proceeded through the intersection. Officer Niemann testified that although the driver of the truck only remained sitting at the intersection for a few seconds, he decided to initiate a traffic stop.
{¶ 5} Officer Niemann stated that McLeod was the driver of thе pickup truck and that he immediately smelled alcohol emanating from McLeod and that McLeod appeared dazed and lacked focus. Officer Niemann testified that upon questioning, McLeod admitted that he had consumed one drink. Believing McLeod to be intoxicated, Officer Niemann initiated field sobriety tests. The officer asked McLeod to count from forty-three to thirty-seven and McLeod counted from forty-three to thirty-three. Officer Niemann attempted the horizontal gaze nystagmus (HGN) test but McLeod lacked the ability to focus on the officer‘s pen so the officer then stopped the test.
{¶ 6} Officer Niemann asked McLeod to exit the vehicle for further field sobriety
{¶ 7} The defense presented no witnesses. The jury found McLeod guilty of both OVI charges,
{¶ 8} On February 10, 2010, McLeod filed the instant appeal, raising the three assignments of error contained in the aрpendix to this opinion. On March 15, 2010, this Court dismissed the appeal for failure to file the record. On August 2, 2010, this Court granted McLeod‘s motion to reconsider and vacated the dismissal. On September 21, 2010, the trial court granted McLeod‘s motion to assign a court reporter and prepare the transcript, which was thеn filed on October 21, 2010. Upon review of the transcript, McLeod‘s
{¶ 9} In his first assignment of error, McLeod argues the trial court erred when it denied his motion tо suppress. In his second assignment of error, McLeod argues the trial court‘s delay in ruling on his motion to suppress resulted in an inadequate record on appeal. More specifically, McLeod argues that the trial court‘s delay in ruling on his motion to dismiss caused the recording of the suppression hearing to be destroyed. Because these assignments of error involve the same facts, we shall address them contemporaneously.
{¶ 10} In arguing that his motion to suppress should have been granted, McLeod claims that Officer Niemann had no reasonable suspicion to believe that McLeod cоmmitted any traffic violation nor engaged in any illegal activity. In response, the City argues that the officer had probable cause to believe that a traffic violation had occurred and, therefore, had probable cause to make the stop.
{¶ 11} Although not mentioned by either party in their appellate briefs, we first look at whether the trial court erred in failing to make findings of fact and conclusions of law.
{¶ 12} Crim.R.12(F) mandates, by use of the word “shall,” that the trial court state its essential findings on the record when issues of fact are involved in determining a motion. But we have found that a trial court‘s failure to provide its “essential findings” on the record in a case may not be fatal to a review of the trial court‘s ruling on the motion when the record provides a sufficient basis to review appеllant‘s assignments of error. State v. Bennett, Cuyahoga App. No. 86962, 2006-Ohio-4274, appeal not allowed by 114 Ohio St.3d 1425, 2007-Ohio-2904, 868 N.E.2d 679; State v. Ogletree, Cuyahoga App. No. 86285, 2006-Ohio-448; State v. Martin, Cuyahoga App. No. 89030, 2007-Ohio-6062. In this case, as stated above, no transcript of the suppression hearing exists and accordingly, we have no basis upon which to review the trial court‘s ruling.
{¶ 13} Moreover, while we are presented with a transcript of McLeod‘s trial, the record is unclear as to the basis for MсLeod‘s motion to suppress and, therefore, it is equally
{¶ 14} We do nоte that McLeod failed to request findings of fact and historically this court has held that an appellant waives his right to challenge a violation of Crim.R. 12(F) if he or she does not make a timely request for the findings. See State v. Martin, Cuyahoga App. No. 89030, 2007-Ohio-6062, appeal not allowed by 117 Ohio St.3d 1441, 2008-Ohio-1279, 883 N.E.2d 458 (stating that “[i]t is well-settled in Ohio * * * that in order for a court to have a duty to issue findings of fact, there must be а request from the
{¶ 15} As further stated in Clark:
“Notably, in State v. Brown, 64 Ohio St.3d 476, 1992-Ohio-96, 597 N.E.2d 97, the Ohio Supreme Court held that ‘[w]hen a defendant makes no request to the trial court to state findings of fact in support of an order overruling a motion to dismiss on speedy trial grounds, and the trial court does not state its findings of fact, an appellate court errs in reversing a conviction on the ground that the defendant was denied a speedy trial if there is sufficient evidence demonstrating that the trial court‘s decision was legally justified and supported by the record.’ (Emphasis added.) Id. at syllabus. We extended the holding in Brown to include motions to suppress in State v. Burrell (Apr. 16, 1998), Cuyahoga App. No. 72113, appeal not allowed by (1998), 83 Ohio St.3d 1429, 699 N.E.2d 945 (holding that the trial court did not err in failing to comply with Crim.R. 12 because there was sufficient evidence in the record to support the trial court‘s ruling).”
{¶ 16} Thus, it does not appear to be a blanket rule that an appellant must request factual findings in order to invoke Crim.R.12(F). Clark. If, as in this case, there is insufficient evidence in the record demonstrating that the trial court‘s decision is justified, then a trial court may violate Crim.R. 12(F) even if the appellant fails to make a timely request. Clark.
{¶ 17} Crim.R. 12(F) does require, however, that there be factual issues in dispute before a trial court is required to make findings of fact. In the case at bar, McLeod challenged whether the police had probable cause to arrest him, the manner in which police аdministered the breathalyzer test, and the admissibility of statements he made to the police. Based on his motion, we find that there were factual issues for the trial court to determine. Although the trial court did conduct a hearing on McLeod‘s motion to suppress, it denied the motion more than one year lаter and without any findings of fact or conclusions of law. Moreover, the court‘s delay in ruling on McLeod‘s motion to suppress caused the recording of the suppression hearing to be destroyed. Thus, we cannot properly review whether the court erred in overruling the motions to suppress. Clark.
{¶ 18} In many instanсes we have presumed regularity in a trial court‘s actions in the absence of a transcript for review. “An appellant has the responsibility of providing the reviewing court with a record of the facts, testimony, and evidentiary matters that are necessary to support the appellant‘s assignments of error. In the absence of a complete record, an appellate court must presume regularity in the trial court‘s proceedings.” (Internal citations omitted.) State v. Smith, Cuyahoga App. No. 94063, 2010-Ohio-3512. In this instance, however, McLeod‘s failure to provide a transcript was not due to McLeod‘s or his counsel‘s failure to рrovide it. It no longer exists. Thus, we cannot presume regularity
{¶ 19} Further, we are not convinced that an App.R. 9(C) statement would have provided clarity. App.R. 9(C) provides in relevant part: “If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant‘s recollection * * *.” It would not have contained the trial court‘s findings of fact and conclusions of law in light of the assigned error in this case.
{¶ 20} Accordingly, for the reasons stated above, McLeod‘s first and second assignments of errоr are sustained.
{¶ 21} In his third and final assignment of error, McLeod argues that his rights to a speedy trial were violated. We find that the trial court did not comport with the speedy trial waiver that McLeod executed.
{¶ 22} McLeod‘s waiver, which he acknowledged signing, allowed the court to “set the matter at its earliest convenience for hearing or trial.” However, the court acknowledged its error in causing the delay in bringing McLeod to trial and stated as follows:
“I‘m perfectly willing to take my beating. Somehow the file did get put somewhere where I didn‘t rule on it, however, there is a time waiver in here and in addition to
whatever time. And I made it very clear in the previous status conferences that I wasn‘t (inaudible) that particular motion, and so your motion to dismiss is overruled.” Tr. 6.
{¶ 23} Accordingly, by the court‘s own admission, it did not rule on McLeod‘s motion to suppress or set McLeod‘s trial at the court‘s earliest convenience; the court simply neglected the case and allowed it to linger. More specifically, McLeod was arrested on October 11, 2008. The trial court did not hear McLeod‘s case until more than four hundred days later. We find such a delay, without any further explanation by the court, per se unreasonable and constitutes a violation of the waiver of McLeod‘s speedy trial rights.
{¶ 24} Accordingly, finding merit to McLeod‘s third assignment of error, we vacate McLeod‘s convictions. See State v. Benson (1985), 29 Ohio App.3d 321, 505 N.E.2d 987;
{¶ 25} This cause is vacated and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant reсover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
Appendix
Assignments of Error:
“I. The trial court erred in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the Ohio Constitution when it denied Mr. McLeod‘s motion to suppress because there was no reasonable suspicion to believe that Mr. McLeod had сommitted any traffic violation or was engaged in illegal activity at the time he was detained by the police.”
“II. Mr. McLeod was denied his constitutional right to appeal in violation of federal and state due process by the inadequacy of the record prepared in the instant case.”
“III. The trial court erred by not commencing trial in a timely fashion in violation of