State v. HollaenderState v. Hollaender
- Reporters:
- ,
- Before:
- Belfance Judge.
Dated: April 28, 2014
BELFANCE, Judge.
{¶1} Defendant-Appellant Robert Hollaender, III appeals from decisions of the Wayne County Municipal Court. For the reasons set forth below, we affirm in part and reverse in part.
I.
{¶2} A complaint was filed against Mr. Hollaender on May 19, 2012, asserting that he violated
{¶3} On June 19, 2012, Mr. Hollaender filed a motion to suppress, which the trial court scheduled for a hearing on July 23, 2012. Mr. Hollaender requested a continuance of the hearing and waived his right to a speedy trial during the period of the continuance. The trial court reset the matter for a hearing on July 30, 2012. On June 29, 2012, Mr. Hollaender filed a petition for limited driving privileges pursuant to
{¶4} Thereafter, on January 23, 2012, the trial court held a hearing on Mr. Hollaender’s motion to suppress. That same day Mr. Hollaender filed a motion to dismiss based upon a violation of his right to a speedy trial. The next day, the trial court denied Mr. Hollaender’s motion to suppress and, on January 28, 2013, denied his motion to dismiss. Subsequently, Mr. Hollaender entered a no contest plea to the charges and was sentenced on January 30, 2013.
{¶5} Mr. Hollaender’s appeal from the denial of his petition for driving privileges was reinstated February 1, 2013, and he appealed the judgment of conviction on February 8, 2013. This Court consolidated the appeals. Mr. Hollaender has raised a total of three assignments of error, two related to the criminal matter and one related to the denial of his petition for driving privileges in the ALS proceeding.
II.
Criminal Appeal
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING “MOTION OF DEFENDANT, ROBERT P. HOLLAENDER, TO DISMISS FOR VIOLATION OF SPEEDY TRIAL RIGHTS.”
{¶6} Mr. Hollaender asserts in his first assignment of error that the trial court erred in denying his motion to dismiss for violation of his speedy trial rights. Based upon the circumstances of this case, we agree.
{¶7} “The right of an accused to a speedy trial is recognized by the Constitutions of both the United States and the state of Ohio.” State v. Pachay, 64 Ohio St.2d 218, 219 (1980). “The statutory speedy trial provisions,
{¶8} As the highest degree of offense Mr. Hollaender was charged with was a first-degree misdemeanor, Mr. Hollaender was required to be brought to trial within 90 days after his arrest.
The time within which an accused must be brought to trial * * * may be extended only by the following:
(A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability;
(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial;
(C) Any period of delay necessitated by the accused’s lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;
(D) Any period of delay occasioned by the neglect or improper act of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
(F) Any period of delay necessitated by a removal or change of venue pursuant to law;
(G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order;
(H) The period of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted other than upon the accused’s own motion;
(I) Any period during which an appeal filed pursuant to section 2945.67 of the Revised Code is pending.
{¶10} Mr. Hollaender filed a motion for discovery on June 4, 2012, to which the State responded on June 5, 2012, thereby tolling the speedy trial time by one day. See
{¶11} At the time of the scheduled hearing on July 30, 2012, the trial court raised concerns related to Mr. Hollaender filing a notice of appeal on July 16, 2012, of the trial court’s denial of Mr. Hollaender’s motion for driving privileges. While the court questioned whether that denial of driving privileges was a final, appealable order, the court also indicated that it did not believe it had jurisdiction to proceed with the suppression hearing in light of the notice of appeal of the driving privileges issue. The State did not attempt to persuade the trial court
{¶12} Recently, this Court reiterated that
a motion to suppress tolls the speedy trial clock from the time the defendant files the motion until the trial court disposes of the motion, as long as the trial court’s disposition occurs within a reasonable time. The determination of whether a trial court disposed of a motion within a reasonable time necessarily involves a thorough examination of the circumstances. Moreover, a reviewing court must consider the complexity of the facts, the difficulty of the legal issues presented in the case at issue, and the demands placed on the time and schedules of trial court judges.
(Internal quotations and citations omitted.) State v. Miles, 9th Dist. Medina No. 12CA0102-M, 2013-Ohio-4272, ¶ 8.
{¶13} Given the significant amount of time that elapsed between when the motion to suppress was filed on June 19, 2012, and when it was ruled upon, on January 24, 2013, the focus of the parties’ arguments is on this block of time. From this Court’s calculation, that block of time amounts to 220 days. The State asserts that this amount of time was reasonable, while Mr. Hollaender contends that it was not. There does not appear to be any disagreement that time was reasonably tolled from June 19, 2012, when the motion was filed, until at least July 30, 2012,
{¶14} Pursuant to
{¶15} It is well established that “administrative-license-suspension proceedings under
{¶16} Typically, when a matter is appealed, “the trial court loses jurisdiction except to take action in aid of the appeal.” See In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, ¶ 9. Nonetheless, “[t]he trial court retains jurisdiction over issues not inconsistent with the appellate court’s jurisdiction to reverse, modify, or affirm the judgment appealed from.” Id. Given that the appeal of the denial of driving privileges and corresponding request for driving privileges was part of the civil ALS proceeding and that the motion to suppress was related to the criminal matter, there was no reasonable basis for the trial court to not proceed with the suppression hearing on July 30, 2012. We also note that Mr. Hollaender’s counsel pointed out the flaw in the trial court’s reasoning and, thus, the trial court was made aware of the distinction between a civil ALS matter and a criminal matter.3 Moreover, even if the two matters were not considered separate proceedings, we fail to see how any action the trial court would take in hearing the motion to suppress and ruling on it would be inconsistent with this Court’s jurisdiction over Mr. Hollaender’s appeal of the denial of his petition for driving privileges. See Wisby at ¶ 18-19 (noting that a probable cause finding at a suppression hearing would not necessarily require the trial court to find probable cause at an ALS appeal proceeding given that the proceedings “do not
{¶17} The question remains how much time would have been reasonable for the trial court to rule on the motion to suppress, as that time should also be tolled. See Miles, 2013-Ohio-4272, at ¶ 8. Given that the trial court only took one day to rule on the motion once it was heard in January 2013, there is an argument to be made that the trial court should have ruled upon Mr. Hollaender’s motion on July 31, 2012, thereby bringing the total tolling days for the suppression motion to 43. However, it is equally arguable that one day is insufficient to issue a judgment entry ruling on a motion to suppress. This Court in Miles noted that “[t]he Ohio Rules of Superintendence provide that ‘[a]ll motions shall be ruled upon within one hundred twenty days from the date the motion was filed * * *.’” Miles at ¶ 10, quoting
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING IN PART THE STATE’S MOTION TO DENY DEFENDANT’S MOTION TO SUPPRESS WITHOUT HEARING AND LIMITING THE SUPPRESSION HEARING TO ISSUES RELATED TO THE INITIAL STOP AND DETENTION OF MR. HOLLAENDER.
{¶18} Mr. Hollaender asserts in his second assignment of error that the trial court erred in denying his motion to suppress. However, our resolution of Mr. Hollaender’s first assignment of error has rendered this assignment of error moot, and we decline to address it. See App.R. 12(A)(1)(c).
Appeal from the Denial of Driving Privileges
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MR. HOLLAENDER’S PETITION FOR DRIVING PRIVILEGES.
{¶19} Mr. Hollaender asserts in his sole assignment of error related to his ALS that the trial court erred in denying his petition for driving privileges pursuant to
{¶20} As a preliminary matter, this Court is required to sua sponte raise questions related to our jurisdiction. State v. Harger, 9th Dist. Summit No. 26208, 2012-Ohio-2604, ¶ 4. This Court has jurisdiction only to hear an appeal taken from a judgment or final, appealable order. Ohio Constitution, Article IV, Section 3(B)(2). Pursuant to
[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * *
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
{¶21} A “‘[p]rovisional remedy’ means a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code.”
{¶22} However, even though we have determined that Mr. Hollaender has appealed from a final order, we still must determine whether we can address the merits of his argument. Mr. Hollaender’s ALS was only for 90 days, and so, it has long since expired. Thus, it would appear that Mr. Hollaender’s appeal from the denial of his petition for driving privileges would be moot. “A case is not moot if the issues are capable of repetition, yet evading review.” In re Huffer, 47 Ohio St.3d 12 (1989), paragraph one of the syllabus. “This exception applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” (Internal quotations and citation omitted.) State ex. rel. Cincinnati Enquirer v. Heath, 121 Ohio St.3d 165, 2009-Ohio-590, ¶ 11. “Likewise, if a case involves a matter of public or great general interest, the court is vested with the jurisdiction to hear the appeal, even though the case is moot.” In re Huffer at 14. Notably, in deciding it was appropriate to consider the constitutionality of former
{¶23}
[a]ny person whose driver’s or commercial driver’s license or permit or nonresident operating privilege has been suspended pursuant to section 4511.191
of the Revised Code may file a petition requesting limited driving privileges in the common pleas court, municipal court, county court, mayor’s court, or juvenile court with jurisdiction over the related criminal or delinquency case. The petition may be filed at any time subsequent to the date on which the arresting law enforcement officer serves the notice of suspension upon the arrested person but no later than thirty days after the arrested person’s initial appearance or arraignment. Upon the making of the request, limited driving privileges may be granted under sections 4510.021 and 4510.13 of the Revised Code, regardless of whether the person appeals the suspension under this section or appeals the decision of the court on the appeal, and, if the person has so appealed the suspension or decision, regardless of whether the matter has been heard or decided by the court. The person shall pay the costs of the proceeding, notify the registrar of the filing of the petition, and send the registrar a copy of the petition.
{¶24} Mr. Hollaender filed his petition on June 29, 2012. The trial court denied it on July 2, 2012, stating that “[t]he court does not grant driving privileges on pending cases.” Mr. Hollaender argues that this blanket policy constitutes an abuse of discretion. We agree.
{¶25} The policy of the trial court to not grant driving privileges evidences the trial court’s abdication of the exercise of its discretion, as exercising discretion would require the consideration of the facts and circumstances of the matter at issue. Such a policy ignores the clear intent of the statute, i.e. that, under some circumstances, to be determined by the trial court, it is appropriate to award driving privileges. Having a general rule of this kind is, thus, an abuse of discretion. See Smith v. Smith, 3d Dist. Wyandot No. 16-01-03, 2001 WL 929375, *1 (Aug. 16, 2001) (“To render a decision based upon a blanket court policy would rise, at least, to the level of an abuse of discretion.”); State v. Ritch, 4th Dist. Scioto No. 99 CA 2634, 1999 WL 787924, *2 (Sept. 21, 1999) (determining that such a policy to not grant privileges would be an abuse of discretion but finding the issue appealed moot); State v. Carter, 124 Ohio App.3d 423, 428 (2d Dist.1997) (“We find that the trial court’s policy of not accepting no-contest pleas constituted an abuse of discretion in that the trial court arbitrarily refused to consider the facts and circumstances presented, but instead relied on a fixed policy established at its whim.”); Bur.
{¶26} However, because Mr. Hollaender has not demonstrated he was prejudiced by the trial court’s action, we are required to affirm the decision of the trial court. The statute states that “[t]he petition may be filed at any time subsequent to the date on which the arresting law enforcement officer serves the notice of suspension upon the arrested person but no later than thirty days after the arrested person’s initial appearance or arraignment.”
III.
{¶27} In light of the foregoing, we conclude that Mr. Hollaender’s speedy trial rights were violated, and, thus, the Wayne County Municipal Court is required to discharge him. Therefore, we decline to address Mr. Hollaender’s argument concerning the denial of his motion to suppress. The denial of Mr. Hollaender’s petition for driving privileges is affirmed notwithstanding the trial court’s improper use of a blanket policy in this case.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
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 equally to both parties.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J. CONCURS.
CARR, J. DISSENTING.
{¶28} I respectfully dissent. The issue in this case is whether a judge should be held accountable for speedy trial purposes when he refuses to proceed with a criminal case after a party has appealed one issue arising out of a single case number. Notwithstanding established case law that the trial court has no authority to determine whether the jurisdiction of the appellate court has been invoked, In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, ¶ 10, should the trial judge be required to parse issues in the underlying case into a new category encompassing action not in aid of the appeal yet not so intertwined with the issue on appeal that consideration is
{¶29} I disagree with the majority’s conclusion that the trial court erred by denying Hollaender’s motion to dismiss on speedy trial grounds. The majority reasons that the trial court erred by refusing to proceed with the hearing on Hollaender’s motion to suppress notwithstanding his pending appeal from the trial court’s order denying his petition for driving privileges, because the pending appeal concerned a civil matter rather than the criminal matter. Specifically, the majority asserts that Hollaender’s pending appeal involved an administrative license suspension matter which is a civil matter, while the motion to suppress was relevant to the underlying criminal charge. The pending appeal, however, did not concern Hollaender’s administrative license suspension. Instead, he challenged the trial court’s denial of his petition for driving privileges pending the outcome of his criminal case.
{¶30} An administrative license suspension becomes effective upon the arresting officer’s completion of a sworn report of the driver’s violation of
{¶31} Moreover, even were I to construe Hollaender’s instant appeal as relevant solely to his civil administrative license suspension, I would still conclude that the trial court did not err by declining to proceed with the suppression hearing pending Hollaender’s appeal to this Court and by later denying his motion to dismiss for a speedy trial violation. The Ohio Supreme Court has thoughtfully considered and scrutinized the interplay between administrative license suspensions and criminal charges for operating a vehicle while under the influence. While recognizing that an administrative license suspension is a civil proceeding, and concluding that the civil suspension and criminal operating under the influence prosecution constitute separate proceedings for double jeopardy purposes, the high court nevertheless concluded that “an
{¶32} The Gustafson court distinguished the administrative license suspension from the criminal proceedings as follows:
By the express terms of
R.C. 4511.191 , an immediate and automatic license suspension is accomplished through “administrative proceedings” of a summary nature, i.e., the arresting officer, acting as the agent of the BMV, demands and confiscates the license “on the spot.” These proceedings are not conducted in the criminal court which thereafter determines matters of criminal guilt or innocence of the [OVI] charge. Rather, these proceedings are conducted initially by an
arresting officer at public roadsides or in police stations, and processed thereafter not in any judicial forum, but within the bureaucracy of the BMV. They are intended to remove from the highway those motorists who are a threat to themselves and to others, as determined by their refusal to expose themselves to a test for alcohol content, or as indicated by their tested alcohol level. By law, the suspension of the driver’s license becomes an administrative fait accompli at the time the license is physically seized by the officer. The fact that the General Assembly had provided an opportunity for a post-suspension administrative appeal of the ALS in the court in which the [OVI] charges are filed does not change this conclusion.
{¶33} Here, Hollaender filed a notice of appeal to this Court regarding the trial court’s denial of his petition for limited driving privileges, not from the presumed denial of his appeal from his administrative license suspension. The decision to grant limited driving privileges lies solely with the court, not the arresting officer or the administrative agency (BMV) that imposed the suspension. Accordingly, even more so than the administrative license suspension, I would conclude that the issue of limited driving privileges constitutes a matter inextricably intertwined with the underlying criminal OVI case.
{¶34} The legislature has provided that an appeal from an administrative license suspension be heard “in the court in which the person will appear on [the operating under the influence] charge.”
{¶35} The Ohio Supreme Court has held that the statutory appeal process “provide[s] an aggrieved licensee with an adequate means of obtaining prompt post-suspension review of an administrative license suspension.” State v. Hochhausler, 76 Ohio St.3d 455, 461 (1996). Accordingly, courts have rejected the argument that the administrative license suspension matter must be filed under its own civil case number, so that the aggrieved licensee might be able to seek immediate subsequent review of the suspension after the trial court rejects his initial appeal. See State v. Mallin, 6th Dist. Ottawa No. OT-06-040, 2007-Ohio-4476. In that case, the Sixth District concluded that the licensee’s
{¶36} There exists no mechanism in criminal cases to pursue piecemeal appeals. See Middletown v. Jackson, 8 Ohio App.3d 431, 432 (12th Dist.1983) (noting that “
{¶37} In this case, Hollaender appealed the trial court’s denial of his motion for limited driving privileges, rather than pursue his appeal of his administrative license suspension. I do not here determine whether his appeal to this Court would have properly been maintained for resolution. In any event, it was not for the trial court to determine whether Hollaender had properly perfected his appeal or whether it retained jurisdiction to consider matters relevant to the underlying case. In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, ¶ 10 (holding that “the
{¶38} Because Hollaender’s pending appeal implicated issues relevant to and inextricably intertwined with the criminal proceeding, I would conclude that the trial court properly refused to proceed with the suppression hearing during the pendency of Hollaender’s appeal to this Court. Moreover, I would conclude that speedy trial time was tolled.
{¶39} The legislature has expressly provided for circumstances that would extend the time in which a criminal defendant must be brought to trial. For example, the speedy trial time tolls when the State has secured leave to file an appeal pursuant to
{¶40} Based on my resolution of Hollaender’s first assignment of error, I would address the merits of his second assignment of error and conclude that the trial court properly denied his motion to suppress.
{¶41} Finally, I disagree with the majority’s invocation of law relevant solely to an administrative license suspension when addressing Hollaender’s sole assignment of error in case number 12CA0040. I would conclude that that assignment of error is moot as the trial court’s order merged with the conviction wherein the trial court suspended Hollaender’s license for twelve months.
APPEARANCES:
JON J. SAIA, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.