State v. SchulzState v. Schulz
CARR, Judge.
{¶1} Appellant Eric Schulz filed a notice of appeal from case number 2012 TRC 9708 in the Akron Municipal Court. Schulz purports to appeal a judgment that denied his purported motion to dismiss a charge of operating under the influence of marijuana pursuant to
{¶2} Although Schulz asserts that he filed a motion to dismiss on the above-mentioned grounds, there is no such motion either physically present in the record or docketed on the clerk‘s docket of entries. This Court has recognized that the “‘[f]ailure to raise at the trial court level the issue of constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on appeal.’” State v. Worrell, 9th Dist. Summit Nos. 23378, 23409, 2007-Ohio-7058, ¶ 7, quoting State v. Awan, 22 Ohio St.3d 120 (1986), syllabus. As there is no motion to dismiss in the record, and no hearing transcript evidencing
{¶3} Moreover, although Schulz appended to his appellate brief a copy of a judgment entry from the municipal court which ruled on a motion to suppress and motion to dismiss, that judgment entry is neither physically present in the record nor docketed on the clerk‘s docket of entries in the traffic case. As a trial court speaks only through its journal entries, State v. Aderhold, 9th Dist. Medina No. 07CA0047-M, 2008-Ohio-1772, ¶ 13, the absence of the judgment in the record leaves this Court with nothing to review. Although the document appended to Schulz’ brief bears the traffic case number relevant to this appeal, it also bears a criminal case number from which Schulz has not appealed. While we might speculate that the judgment from which Schulz has attempted to appeal was filed in the separate criminal case, neither Schulz’ notice of appeal nor his appellate docketing statement identified that case number for purposes of appeal. Accordingly, there is no judgment relevant to the issues raised by Schulz on appeal that this Court may properly consider.
{¶4} Under these circumstances, this Court affirms Schulz’ conviction.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron Municipal Court, County of Summit, 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.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
KIRK A. MIGDAL, Attorney at Law, for Appellant.
CHERI CUNNINGHAM, Law Director, GERTRUDE WILMS, Prosecuting Attorney, and THOMAS D. BOWN, Assistant Prosecuting Attorney, for Appellee.