Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Youngstown Municipal Court of Mahoning
County, Ohio Case No. 15 TRC 53
Plaintiff-Appellee: Atty. Dana Lantz Youngstown City
Prosecutor Atty. Jeffrey Moliterno Assistant City Prosecutor
Defendant-Appellant: Atty. A. Ross Douglass A. Ross Douglass
Law Firm, LLC
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary
Appellant Monique Sutton appeals a March 16, 2015 decision of
the Youngstown Municipal Court to deny her motion to
suppress. Appellant argues that her trial counsel was not
appointed until after the deadline to file a timely motion to
suppress had passed, thus the trial court erroneously denied
the motion as untimely. For the reasons that follow,
Appellant's argument is without merit and the judgment of
the trial court is affirmed.
and Procedural History
On January 3, 2015, a Mill Creek Metro Parks police officer
initiated a traffic stop of Appellant's car due to an
issue with her license plate. During the stop, the officer
asked Appellant to step out of her vehicle and he conducted a
field sobriety test. The officer also conducted a
breathalyzer test which revealed a BAC of .148. Appellant was
charged with tail light and illumination of rear license
plate violations, minor misdemeanors pursuant to R.C.
4513.05; driving while under the influence of alcohol or
drugs, a misdemeanor in the first degree in violation of R.C.
4511.19(A)(1)(a); and with having a prohibited concentration
of alcohol between 0.08 and 0.17, a misdemeanor of the first
degree in violation of R.C. 4511.19(A)(1)(d).
On January 5, 2015, Appellant was arraigned and pleaded not
guilty, but was not appointed counsel until February 11,
2015. On March 9, 2015, Appellant filed a motion to suppress.
The trial court denied the motion as untimely one week later.
On March 23, 2015, Appellant filed a motion of
reconsideration. The following day, the trial court denied
reconsideration, but specifically invited Appellant to file a
motion for leave to file a motion to suppress. Appellant
failed to file such motion. On June 30, 2015, Appellant
pleaded no contest pursuant to a Crim.R. 11 plea agreement to
having a prohibited concentration of alcohol between 0.08 and
0.17. The remaining charges were dismissed. The trial court
sentenced Appellant to one year of probation, fines and
costs, drug and alcohol assessment, a six month license
suspension retroactive to the date of the offense, and either
three days in jail or participation in the driver
intervention program. Appellant timely appealed. In addition,
Appellant filed a motion seeking a limited remand with this
Court. On October 23, 2015, we construed her motion as a
collateral attack on Appellant's conviction and sentence
and it was denied.
THE COURT ABUSED ITS DISCRETION WHEN IT FOUND THAT THE MOTION
TO SUPPRESS WAS UNTIMELY WHEN COUNSEL WAS NOT APPOINTED UNTIL
AFTER TIME HAD EXPIRED.
Pursuant to Crim.R. 12(D), "[a]ll pretrial motions
except as provided in Crim. R. 7(E) and 16(M) shall be made
within thirty-five days after arraignment or seven days
before trial, whichever is earlier." According to
Crim.R. 12(D), a trial court's decision denying an
untimely motion to suppress will not be disturbed on appeal
absent an abuse of the trial court's discretion.
State v. Alexander, 7th Dist. No. 03 CA 789,
2004-Ohio-5525, ¶ 91, citing State v. Karns, 80
Ohio App.3d 199, 204, 608 N.E.2d 1145 (1st Dist.1992).
"An abuse of discretion is more than an error of
judgment; it requires a finding that the trial court's
decision was unreasonable, arbitrary, or
unconscionable." State v. Nuby, 7th Dist. No.
16 MA 0036, 2016-Ohio-8157, ¶ 10, citing State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
Appellant argues that trial counsel was not appointed until
two days after the deadline to file a motion to suppress had
passed. Because she filed the motion to suppress twenty-six
days after her counsel had been appointed, Appellant contends
her counsel acted reasonably. She claims that the late
appointment of counsel provides good cause as to why her
motion should be considered timely and should have been
addressed by the trial court.
In response, the state argues that the motion to suppress was
clearly filed more than 35 days after arraignment and so, was
untimely filed. The state cites several cases where Ohio
appellate courts, including this Court, have upheld a trial
court's decision to deny a motion to suppress as
untimely. The state emphasizes that an untimely ...