State v. Stuber , 2018 Ohio 2809 ( 2018 )

[Cite as State v. Stuber, 2018-Ohio-2809.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-17-38
v.
MICHAEL W. STUBER, OPINION
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court
Trial Court No. 17TRD04526
Judgment Affirmed
Date of Decision: July 16, 2018
APPEARANCES:
Michael W. Stuber, Appellant
John R. Payne for Appellee
Case No. 1-17-38
PRESTON, J.
{¶1} Defendant-appellant, Michael W. Stuber (“Stuber”), pro se, appeals the
August 10, 2017 judgment entry of the Lima Municipal Court. We affirm.
{¶2} On May 1, 2017, Stuber was cited for driving under suspension in
violation of R.C. 4510.111(A), an unclassified misdemeanor. (Doc. No. 1). On
May 12, 2017, Stuber appeared for arraignment and entered a plea of not guilty.
(Doc. No. 4).
{¶3} On June 9, 2017, Stuber filed a motion to dismiss the charge arguing
that the trial court lacked “jurisdiction in this matter” for a number of reasons. (Doc.
No. 5). On June 14, 2017, the trial court denied Stuber’s motion to dismiss. (Doc.
No. 7).
{¶4} After a bench trial on August 10, 2017, the trial court found Stuber
guilty of the charge in the citation. (Doc. No. 9). The trial court imposed a $50 fine
plus court costs and assessed two points on his operator’s license. (Id.).
{¶5} On September 8, 2017, Stuber filed a notice of appeal. (Doc. No. 10).
He raises four assignments of error for our review. Because they raise jurisdictional
issues, we will begin by addressing Stuber’s first and third assignments of error,
followed by his second and fourth assignments of error.
Assignment of Error No. I
The Trial Court Judge, Without Justifiable Cause, Failed to Make
a Valid Final Appealable Order of Judgment and the State of
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Ohio/Appellee Failed to insure [sic] that the Judgment Rendered
Against the Defendant/Appellant, in Their Favor, was a Valid,
Final Appealable Order.
{¶6} In his first assignment of error, Stuber argues that the June 14 and
August 10, 2017 judgment entries of the trial court do not constitute final,
appealable orders because those entries do “not contain an entry on the journal by
the clerk.” (Appellant’s Brief at 5).
{¶7} Courts of appeal in Ohio have appellate jurisdiction over “final
appealable orders.” Ohio Constitution, Article IV, Section 3(B)(2). “A judgment
of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth
(1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the
time stamp indicating the entry upon the journal by the clerk.” State v. Lester, 130
Ohio St.3d 303, 2011-Ohio-5204, paragraph one of the syllabus. See also Crim.R.
32(C). Because it presents a question of law, we review de novo whether a judgment
constitutes a final, appealable order. State v. Robinson, 9th Dist. Summit No. 26365,
2012-Ohio-3669, ¶ 7. “De novo review is independent, without deference to the
lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-
647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145,
147 (1992).
{¶8} Stuber contends that the trial court’s June 14 and August 10, 2017
judgment entries do not constitute final, appealable orders because those entries
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were not entered on the journal by the clerk as required by Crim.R. 32(C). Stuber’s
argument is erroneous. The entries clearly reflect file stamps indicating
journalization. (Doc. Nos. 7, 9). See Niki D’Arti Ents. v. Hines, 7th Dist. Mahoning
No. 13MA57, 2014-Ohio-803, ¶ 4 (“The time-stamp is the indication that the entry
was entered in the clerk’s journal.”). Moreover, the trial court’s clerk’s docketing
statement reflects that the clerk journalized the entries. (Doc. No. 19).
{¶9} Although interlocutory during the pendency of the case, the trial court’s
June 14, 2017 entry denying Stuber’s motion to dismiss the charge merged into the
trial court’s August 10, 2017 judgment entry of sentence. See State v. Eberhardt,
56 Ohio App.2d 193, 198 (8th Dist.1978) (“Generally speaking, the overruling of a
motion to dismiss in a criminal case or a civil case is not considered a final
appealable order. Ordinarily, after a motion to dismiss is overruled, the case will
proceed to trial and in the event of judgment adverse to the moving party, the trial
court’s action overruling the motion may become one of the assignments of error
on appeal.”). See also State v. Shaffer, 8th Dist. Cuyahoga No. 87552, 2006-Ohio-
5563, ¶ 21 (noting “that it is well-established that an order overruling a motion to
dismiss an action is not a final order from which an appeal may be taken” because
“an order denying a motion to dismiss does not determine the action, nor does it
foreclose the possibility of relief in the future”); State v. Leece, 12th Dist. Butler
No. CA89-06-084, 1990 WL 49993, *2 (Apr. 23, 1990) (“The denial of a motion
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to dismiss an indictment is interlocutory and generally does not constitute a final
appealable order.”); App.R. 3. As such, the trial court’s June 14, 2017 entry is final
and subject to appeal with the August 10, 2017 judgment.
{¶10} Further, even though Stuber’s statement of his first assignment of error
does not state that he is presenting the issue for review, Stuber contends that the trial
court erred by notifying him that “‘[t]he clerk shall use license forfeiture and
registration block as a means to collect unpaid fines and cost[s].’” (Appellant’s
Brief at 6, quoting Doc. No. 9). Despite Stuber’s failure to comply with the rules of
appellate procedure, in the interest of justice, we will address his argument. See
State v. Thomas, 3d Dist. Mercer No. 10-10-17, 2011-Ohio-4337, ¶ 25; App.R. 12
and 16. There is no evidence that the trial court ordered Stuber’s operator’s license
forfeited in this case. Indeed, Stuber admits that his license was forfeited in a
previous case. (Appellant’s Brief at 3). Furthermore, there is no indication that the
trial court’s notification to the clerk regarding license forfeiture and registration
block have “actually been used as a means to collect fines and costs” in this case.
State v. Ellis, 3d Dist. Allen No. 1-17-37, 2018-Ohio-898, ¶ 29. Accordingly,
because there is no evidence of forfeiture in this case, Stuber’s argument is
meritless. Id.{¶11} Stuber’s first assignment of error is overruled.
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Assignment of Error No. III
The Trial Court Lacked Personal Jurisdiction, as well as Subject
Matter Jurisdiction in this Matter.
{¶12} In his third assignment of error, Stuber argues that the trial court
lacked subject-matter and personal jurisdiction in this matter because (1) the law
enforcement officer failed to sign the citation as required by Traf.R. 3(F)(2) and (E)
and (2) the Ohio Bureau of Motor Vehicles (“OBMV”) failed to notify him of his
license forfeiture.
{¶13} We review de novo the existence of a trial court’s subject-matter and
personal jurisdiction. State v. Williams, 12th Dist. Butler No. CA2014-06-144,
2015-Ohio-1090, ¶ 7; Columbus v. Ford, 10th Dist. Franklin No. 04AP-260, 2004-
Ohio-5715, ¶ 4. As we stated in Stuber’s first assignment of error, de novo review
is independent and without deference to the lower court’s determination. Hudson,
2013-Ohio-647, at ¶ 27, citing Ohio Bell Tel. Co., 64 Ohio St.3d at 147.
{¶14} “Subject-matter jurisdiction involves a court’s power to hear a case.”
Williams at ¶ 7. “As such, the issue can never be waived and may be raised at any
time.” Id., citing State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, ¶ 10. On
the other hand, “[p]ersonal jurisdiction goes to the court’s authority to render
judgment against a party to an action.” Cleveland v. Kutash, 8th Dist. Cuyahoga
No. 99509, 2013-Ohio-5124, ¶ 11. A court acquires personal jurisdiction over a
“defendant when: (1) service of process is completed over the defendant, (2) the
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defendant voluntarily appears and submits to the court’s jurisdiction, or (3) the
defendant involuntarily submits to the court’s jurisdiction.” Id., citing Maryhew v.
Yova, 11 Ohio St.3d 154, 156 (1984). “[A] challenge to personal jurisdiction is
waivable by the defendant’s voluntary submission at an appearance or by entering
a plea.” Id. at ¶ 12, citing State v. Holbert, 38 Ohio St.2d 113, 118 (1974).
{¶15} “Ohio municipal courts ‘are created by statute, R.C. 1901.01, and their
subject-matter jurisdiction is also set by statute.’” State v. Gunnell, 10th Dist.
Franklin No. 13AP-90, 2013-Ohio-3928, ¶ 8, quoting Mbodji at ¶ 11. “An Ohio
Municipal Court ‘has jurisdiction over misdemeanors occurring within its territorial
jurisdiction.’” Id., quoting Mbodji at ¶ 11, citing R.C.1901.20(A)(1). “The filing
of a complaint invokes the jurisdiction of a municipal court.” Id. at ¶ 12. “An Ohio
Uniform Traffic Ticket serves as the complaint and summons.” State v. Matthews,
2d Dist. Greene No. 2015-CA-73, 2016-Ohio-5055, ¶ 4, citing Traf.R. 3(A).
{¶16} Under Traf.R. 3, a municipal court may adopt rules permitting “the
use of a ticket that is produced by a computer or other electronic means.” Traf.R.
3(F)(1). See State v. Lyons, 6th Dist. Huron No. H-17-003, 2018-Ohio-526, ¶ 9.
Rule 4.1 of the Lima Municipal Court permits “[t]he use and filing of a
ticket/citation that is produced by computer or other electronic means” so long as
that electronically produced ticket conforms “in all substantive respects to the Ohio
Uniform Traffic Ticket.” When an electronically produced ticket is issued and a
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law enforcement officer “electronically affixes the officer’s signature” to the ticket,
that electronically produced signature “shall be considered to have certified the
ticket and shall have the same rights, responsibilities, and liabilities as with all other
tickets issued * * *.” Traf.R. 3(F)(2).
{¶17} The ticket issued against Stuber and filed with the trial court was
electronically produced and reflects the electronically produced signature of the
issuing law enforcement officer. As such, the ticket conforms with the Ohio
Uniform Traffic Ticket and is a valid complaint. See Lyons at ¶ 9. Moreover, the
electronically produced ticket cited Stuber for violating R.C. 4510.111(A)—a
misdemeanor offense—and alleged that the offense occurred in the city of Lima.
See Gunnell at ¶ 9. Therefore, the trial court had subject-matter jurisdiction over
the offense. See id.{¶18} Similarly, the trial court had personal jurisdiction over Stuber. Id. at
¶ 10, citing State v. Yoder, 6th Dist. Fulton No. F-94-020, 1995 WL 358545, *1
(June 16, 1995) and Traf.R. 3(A). However, as the State points out, Stuber failed to
raise the issue of personal jurisdiction prior to entering his initial plea. Compare id.(“Further, as noted by plaintiff-appellee, the State of Ohio, appellant did not raise
the issue of lack of personal jurisdiction until after he entered his initial plea (of not
guilty on December 7, 2012).”). As we noted above, “[u]nder Ohio law, ‘[a]
defendant in a traffic case must raise any defenses or objections based on defects in
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the institution of the proceedings before the entry of a plea.’” Id., quoting Ford,
2004-Ohio-5715, at ¶ 7, citing Traf.R. 11(B). Because Stuber failed to assert any
objection to the trial court’s personal jurisdiction over him prior to entering his plea,
Stuber waived any personal-jurisdiction argument. Id. (“Thus, ‘a defendant waives
any objections to the trial court’s exercise of personal jurisdiction by failing to assert
such objections at the time the defendant appears in the trial court and enters a not
guilty plea.’”), quoting Ford at ¶ 7. For these reasons, Stuber’s jurisdictional
arguments regarding the validity of the citation are without merit.
{¶19} Turning to Stuber’s jurisdictional argument that the trial court lacked
personal and subject-matter jurisdiction because the OBMV failed to notify him of
his license forfeiture, we reject Stuber’s argument. Whether Stuber was properly
notified that his license was suspended does not affect the personal or subject-matter
jurisdiction of the trial court. Stated another way, whether Stuber was properly
notified that his license was suspended goes to the merits of the case involving
Stuber, not whether the trial court had the ability to hear the merits of the case
against Stuber. Moreover, even if Stuber’s argument affected the personal
jurisdiction of the trial court, Stuber, as we determined above, waived any personal-
jurisdiction argument when he voluntarily appeared and entered a plea before
submitting any personal-jurisdiction objection.
{¶20} Stuber’s third assignment of error is overruled.
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Assignment of Error No. II
The Trial Court Judge and Counsel for the State of Ohio/Appellee
Erred as a Matter of Law and Abused it”s [sic] Discretion by Not
Avoiding Impropriety and the Appearance of Impropriety in
Their Respective Capacities in the Proceedings of the Court.
{¶21} In his second assignment of error, Stuber argues that he was prejudiced
by impropriety, or the appearance of impropriety, because counsel for the State and
the trial court judge share identical surnames—Smith. In presenting his argument,
Stuber alleges that counsel for the State and the trial court judge violated the Rules
of Professional Conduct.
{¶22} Not only is Smith a common surname, Judge Smith, who is from
outside of the area, was sitting by assignment in the Lima Municipal Court.
Notwithstanding, “[w]e have no authority to address claimed violations of the Rules
of Professional Conduct—that authority rests solely with the Ohio Supreme Court.”
State v. Montgomery, 8th Dist. Cuyahoga No. 99452, 2013-Ohio-4193, ¶ 36, citing
State ex rel. Buck v. Maloney, 102 Ohio St.3d 250, 2004-Ohio-2590.
{¶23} Accordingly, Stuber’s second assignment of error is overruled.
Assignment of Error No. IV
The Judgment of the Trial Court is Not Sustained by the
Evidence.
{¶24} In his fourth assignment of error, Stuber contends that his driving-
under-suspension conviction is based on insufficient evidence.
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{¶25} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶26} R.C. 4510.111 sets forth the offense of driving under suspension and
provides, in pertinent part, “No person shall operate any motor vehicle upon a
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highway * * * in this state whose driver’s * * * license has been suspended * * *
pursuant to section * * * 4510.22 * * * of the Revised Code.”1 R.C. 4510.111(A).
[A] copy of the law enforcement automated data system report or a
noncertified copy of a record of the registrar of motor vehicles that
shows the name, date of birth, and social security number of a person
charged with a violation of division (A) of this section may be
admitted into evidence as prima-facie evidence that the license of the
person was under suspension at the time of the alleged violation of
division (A) of this section.
R.C. 4510.111(B).
{¶27} At trial, the State offered the testimony of Ohio State Highway Patrol
Trooper Brandon Schreiber (“Trooper Schreiber”), who testified that he initiated a
stop of the vehicle operated by Stuber on April 28, 2017 for “traveling * * * with
only one working headlight.” (Aug. 10, 2017 Tr. at 8-10). Trooper Schreiber
identified Stuber in court as the person operating the vehicle that he stopped on April
28, 2017. (Id. at 11). Trooper Schreiber testified that, after he initiated the traffic
stop, he learned through a Law-Enforcement-Automated-Data-System (“LEADS”)
search that Stuber’s license was suspended. (Id. at 11-12). Trooper Schreiber
1
Under R.C. 4510.22, a trial court may declare the forfeiture of a person’s license when that person “is found
guilty of [a specified] violation and fails within the time allowed by the court to pay the fine imposed by the
court * * *.” R.C. 4510.22(A).
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identified State’s Exhibit A as a copy of Stuber’s OBMV certified driving record.2
(Id. at 12). State’s Exhibit A reflected that Stuber’s license was suspended on
February 23, 2017. (Aug. 10, 2017 Tr. at 13). That exhibit also reflected that a
letter was sent to Stuber on March 8, 2017 informing him that his license was
suspended on February 23, 2017. (Id.).
{¶28} At the conclusion of Trooper Schreiber’s testimony, the State moved
to admit its exhibit, which was admitted, and rested. At that time, Stuber did not
make a Crim.R. 29 motion for acquittal. He similarly did not make a Crim.R. 29
motion for acquittal at the close of evidence. Accordingly, Stuber waived his
challenge to the sufficiency of the evidence for purposes of appeal, absent plain
error. State v. Smith, 3d Dist. Hardin No. 6-14-14, 2015-Ohio-2977, ¶ 43, citing
State v. LeMasters, 11th Dist. Lake No. 2007-L-129, 2008-Ohio-2139, ¶ 17, citing
State v. McCrory, 11th Dist. Portage No. 2006-P-0017, 2006-Ohio-6348, ¶ 39.
{¶29} “However, ‘[w]hether a sufficiency of the evidence argument is
reviewed under a prejudicial error standard or under a plain error standard is
academic.’” State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 38,
citing Perrysburg v. Miller, 153 Ohio App.3d 665, 2003-Ohio-4221, ¶ 57 (6th Dist.),
quoting State v. Brown, 2d Dist. Montgomery No. 17891, 2000 WL 966161, *8
2
Because State’s Exhibit A was omitted from the record by error or accident, the trial court ordered that a
supplemental record be certified, filed, and transmitted as provided by App.R. 9(E). As such, on June 13,
2018, the trial court filed an entry providing a statement of the case, which addresses the missing exhibit.
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(July 14, 2000). “Regardless of the standard used, ‘a conviction based on legally
insufficient evidence constitutes a denial of due process, and constitutes a manifest
injustice.’” Id., quoting Thompkins, 78 Ohio St.3d at 386-387. Accordingly, we
will proceed to determine whether the State presented sufficient evidence to support
Stuber’s conviction. See id. See also State v. Velez, 3d Dist. Putnam No. 12-13-10,
2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999
WL 355190, *1 (Mar. 26, 1999).
{¶30} The State introduced as evidence a copy of Stuber’s record of the
registrar of the OBMV indicating that Stuber’s license was suspended on February
23, 2017, and had not been reinstated by the date of the offense. (Aug. 10, 2017 Tr.
at 12-13). Trooper Schreiber stopped the vehicle that Stuber was operating on April
28, 2017. As such, the State presented prima-facie evidence that Stuber was under
suspension at the time of his violation of R.C. 4510.111(A). See R.C. 4510.111(B).
That record further indicates that notice of Stuber’s license suspension was mailed
to him on March 8, 2017.3 (Aug. 10, 2017 Tr. at 13). Stuber failed to offer any
evidence to rebut the State’s prima-facie evidence. See R.C. 4510.111(B). Rather,
Stuber denied receiving notice of his license suspension. (See Aug. 10, 2017 Tr. at
29, 31, 34-36). Stuber’s self-serving denials that he received notice of his license
3
Under Ohio Adm.Code 4501:1-10-01, “the registrar of motor vehicles shall give written notice of any order
revoking, canceling, or suspending a driver’s license * * * by regular mail sent to the person at the person’s
last known address * * *.” Ohio Adm.Code 4501:1-10-01(A). See also Ohio Adm.Code 4501:1-10-02.
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suspension are not sufficient to rebut R.C. 4510.111(A)’s statutory presumption.
Accordingly, we conclude that Stuber’s driving-under-suspension conviction under
R.C. 4510.111(A) is based on sufficient evidence.
{¶31} Stuber’s fourth assignment of error is overruled.
{¶32} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/jlr
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