State v. Corrao ( 2015 )


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  • [Cite as State v. Corrao, 2015-Ohio-5052.]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    UNION COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLANT,                   CASE NO. 14-15-14
    v.
    JOSEPH CORRAO,                                 OPINION
    DEFENDANT-APPELLEE.
    STATE OF OHIO,
    PLAINTIFF-APPELLANT,                   CASE NO. 14-15-15
    v.
    JOSEPH CORRAO,                                 OPINION
    DEFENDANT-APPELLEE.
    STATE OF OHIO,
    PLAINTIFF-APPELLANT,                   CASE NO. 14-15-16
    v.
    JOSEPH CORRAO,                                 OPINION
    DEFENDANT-APPELLEE.
    Case No. 14-15-14, 15, 16, 17, 18
    STATE OF OHIO,
    PLAINTIFF-APPELLANT,                        CASE NO. 14-15-17
    v.
    JOSEPH CORRAO,                                    OPINION
    DEFENDANT-APPELLEE.
    STATE OF OHIO,
    PLAINTIFF-APPELLANT,                        CASE NO. 14-15-18
    v.
    JOSEPH CORRAO,                                    OPINION
    DEFENDANT-APPELLEE.
    Appeals from Marysville Municipal Court
    Trial Court Nos. CRB1500215A, CRB1500251B, TRD1502760,
    CRB-1500215A and TRD-1502760
    Judgments Reversed and Causes Remanded
    Date of Decision: December 7, 2015
    APPEARANCES:
    Rick Rodger for Appellant
    Joseph M. Corrao, Appellee
    -2-
    Case No. 14-15-14, 15, 16, 17, 18
    SHAW, J.
    {¶1} Appellant State of Ohio brings this appeal from the following
    judgments of the Marysville Municipal Court, which correspond to the
    parenthetical appellate case number:      the May 28, 2015 judgment granting
    defendant-appellee Joseph Corrao’s motion to suppress in trial court case number
    15CRB251(A) (appellate case number 14-15-14); the May 28, 2015 judgment
    granting Corrao’s motion to suppress in trial court case number 15CRB251(B)
    (appellate case number 14-15-15); the May 28, 2015 judgment granting Corrao’s
    motion to suppress in trial court case number TRD1502760 (appellate case
    number 14-15-16); the June 2, 2015 judgment granting Corrao’s motion to dismiss
    trial court case number 15CRB251(A) (appellate case number 14-15-17); and the
    June 2, 2015 judgment granting Corrao’s motion to dismiss trial court case
    number TRD1502760 (appellate case number 14-15-18). For the reasons that
    follow, we reverse the trial court’s judgments.
    {¶2} On May 7, 2015, Corrao was stopped by Trooper D.L. McIntyre of the
    Ohio State Highway Patrol for traveling 75 mph in a 65 mph zone. According to
    Trooper McIntyre’s statement, which is contained in the record, it was eventually
    uncovered that Corrao was hiding a “glass smoking pipe * * * under [his]
    -3-
    Case No. 14-15-14, 15, 16, 17, 18
    testicles” and that there was a “grinder and approximately 3 grams of a green leafy
    substance” suspected to be marijuana on the floor board of Corrao’s vehicle.1
    {¶3} Corrao was ultimately charged with Speeding in violation of R.C.
    4511.21(D)(3) in trial court case number TRD1502760. He was charged with
    Possession of Drug Paraphernalia in violation of R.C. 2925.141 in trial court case
    number 15CRB251(A), and he was charged with Possession of Marijuana in
    violation of R.C. 2925.11(C)(3) in trial court case number 15CRB251(B). On
    May 14, 2015, Corrao was arraigned and he pled not guilty to all the charges.
    Corrao also elected to proceed pro se during these case proceedings.
    {¶4} On May 27, 2015, in both the traffic case and criminal cases Corrao
    filed a motion to suppress seeking to suppress any statements he made to law
    enforcement. (Doc. No. 16); (Doc. No. 23): (Doc. No. 9).2 The suppression
    motions all contained certificates of service indicating that they were served by
    ordinary US mail upon the prosecuting attorney.
    {¶5} The very next day, on May 28, 2015, the trial court signed entries that
    Corrao had prepared granting Corrao’s suppression motions. (Doc. No. 17); (Doc.
    No. 24); (Doc. No. 10). The entries read, “Upon Motion of Defendant Joseph M.
    Corrao, and for good cause shown, Defendant’s Motion to Suppress Evidence is
    1
    The facts in this case have not been determined by the trial court and as such are narrated simply to
    provide context for the charges.
    2
    The order of documents cited begins with the traffic court case, followed by the “A” criminal case file,
    then the criminal “B” criminal case file.
    -4-
    Case No. 14-15-14, 15, 16, 17, 18
    well taken and GRANTED.                     It is hereby ORDERED, ADJUDGED AND
    DECREED that any evidence obtained by any law enforcement agency before,
    during and after their investigation be and hereby are suppressed.” (Id.); (Id.);
    (Id.)
    {¶6} On June 1, 2015, Corrao filed motions to dismiss the charges against
    him. (Doc. No. 21); (Doc. No. 28); (Doc. No. 13). The motions all contained
    certificates of service indicating that they were served upon the prosecuting
    attorney by ordinary US mail.
    {¶7} On June 2, 2015, the trial court signed entries that had been prepared
    by Corrao granting his motions to dismiss in the traffic case, TRD1502760, and in
    criminal case 15CRB251(A), but not in 15CRB251(B). (Doc. No. 22); (Doc. No.
    29); (Doc. No. 13). The entry in the (B) case was prepared by Corrao but not
    signed. (Doc. No. 13).
    {¶8} That same day, on June 2, 2015, the State filed notices of appeal from
    the trial court’s decisions on the suppression motions, which had been granted
    May 28, 2015.3            The appeal from the suppression motion in traffic case
    TRD1502760 was assigned appellate case number 14-15-16, whereas the appeal
    from the suppression judgments in criminal cases 15CRB251(A) and
    3
    The State certified in its notices of appeal that pursuant to Crim.R. 12(K) “the appeal is not for purposes
    of delay and that the ruling on the motion to suppress has rendered the State’s proof, with respect to the
    pending charge, so weak in [its] entirety that any reasonable possibility of effective prosecution has been
    destroyed.”
    -5-
    Case No. 14-15-14, 15, 16, 17, 18
    15CRB251(B) were assigned to separate appellate court case numbers: 14-15-14,
    and 14-15-15, respectively.
    {¶9} On June 4, 2015, the trial court filed a document called “Statement to
    Supplement the Record on Appeal,” which read as follows.
    Now comes Michael J. Grigsby, Judge of the Marysville
    Municipal Court in order to supplement the record on appeal
    and correct the same due to clerical errors.
    1. The judgment entries appealed from were submitted to the
    judge and signed in error, as were the judgment entries
    granting the defendant’s motions to suppress.
    2. No hearings on the motions were held, and trials in the above
    captioned cases were set for June 17, 2015 at which time the
    defendant’s motions to suppress would have been heard.
    Therefore there was no evidence or factual basis for any of
    such rulings.
    3. These clerical errors were brought to the court’s attention on
    June 4, 2015, two weeks prior to trial but the Prosecution had
    already filed its notice of appeal and the trial court is without
    authority to vacate those entries, and correct its own error.
    4. It should be noted that in the case State of Ohio vs. Joseph
    Corrao Case No. 15CRB251(B) charging defendant with
    possession of Marijuana on the motion sustaining the motion
    to suppress, not the dismissal entry, was signed and filed.
    (Doc. No. 30).4
    {¶10} Although notices of appeal had already been timely filed by the State
    related to all three suppression motions, the State also filed notices of appeal
    4
    Arguably this document should not be part of our record despite the fact that it is filed within the trial
    court’s docket and transmitted to this Court on appeal because it was filed after the State’s original notices
    of appeal. Regardless, it is not relied upon by this Court in rendering its decision in these matters.
    -6-
    Case No. 14-15-14, 15, 16, 17, 18
    related to both dismissals that had been granted by the trial court. The State
    appealed from the entry dismissing criminal case 15CRB251(A), which was
    assigned appellate number 14-15-17, and the State appealed from the entry
    dismissing traffic case TRD1502760, which was assigned appellate number 14-15-
    18.5 Thus there are five appellate case numbers before this Court, which spawn
    from five judgment entries:               the entry suppressing evidence and the entry
    dismissing the case in traffic case TRD1502760, the entry suppressing evidence
    and the entry dismissing the case in criminal case 15CRB251(A), and the entry
    suppressing evidence in 15CRB251(B). It is from these five judgments that the
    State has appealed, asserting the following assignment of error for our review.
    ASSIGNMENT OF ERROR
    THE TRIAL COURT ERRED WHEN GRANTING
    APPELLEE’S MOTIONS TO SUPPRESS AND MOTIONS TO
    DISMISS, UNDER THE RESPECTIVE CASE NUMBERS,
    WITHOUT HOLDING A HEARING ON THE MATTERS
    AND WITHOUT AFFORDING THE STATE OF OHIO THE
    OPPORTUNITY TO RESPOND AND BE HEARD ON THE
    MOTIONS.
    {¶11} In its sole assignment of error, the State argues that the trial court
    erred in not providing the State an opportunity to respond to Corrao’s suppression
    motions before granting them and ultimately dismissing two of the three charges,
    also without allowing the State a reasonable opportunity to respond. We agree.
    5
    In addition, the State filed motions for leave to appeal the dismissals. Pursuant to R.C. 2945.67(A), the
    State had a right to appeal the dismissals.
    -7-
    Case No. 14-15-14, 15, 16, 17, 18
    {¶12} Corrao filed his suppression motions on May 27, 2015, and they
    were granted the very next day, May 28, 2015. The single day did not give the
    State any meaningful opportunity to respond to the suppression motions. This
    Court has held previously that, “Until the other party has a reasonable opportunity
    to file a written response, there is no reasonable consideration by the court of the
    issues involved.” State v. Diehl, 3d Dist. Union No. 14-89-30, 
    1991 WL 44166
    ,
    *3 (Mar. 25, 1991) (holding trial court abused its discretion granting motion to
    dismiss the same day it was filed because State did not have a reasonable
    opportunity to respond). Similarly, the Eighth District Court of Appeals has found
    that where a trial court granted a motion to suppress two days after it was filed,
    before the prosecution was given an adequate opportunity to respond, the trial
    court abused its discretion. City of Cleveland v. Laylle, 8th Dist. Cuyahoga No.
    75196, 
    1999 WL 1068061
    , *1 (Nov. 24, 1999); see also State v. Dalchuk, 9th Dist.
    Summit No. 21422, 2003-Ohio-4268, ¶ 4 (finding that where trial court granted
    defendant’s motion before giving the State a reasonable opportunity to respond,
    trial court erred).
    {¶13} The same could be said of the motions to dismiss, which were filed
    June 1, 2015, and granted the next day June 2, 2015. The State was simply not
    permitted a reasonable opportunity to file a written response or be heard on those
    issues either. See State v. Palivoda, 11th Dist. Ashtabula No. 2006-A-0019, 2006-
    -8-
    Case No. 14-15-14, 15, 16, 17, 18
    Ohio-6494, ¶ 14 (“The trial court denied appellant the opportunity to submit any
    oppositional material by granting the motion less than twenty-four hours after it
    was filed. This constitutes reversible error.”).
    {¶14} Here the State was not presented any meaningful opportunity to
    respond to the various motions, and therefore the trial court erred in granting the
    suppression motions and the motions to dismiss.        Therefore the State’s sole
    assignment of error is sustained.
    {¶15} Having found error prejudicial to the State, these causes are reversed
    and remanded to the trial court for further proceedings consistent with this
    opinion.
    Judgments Reversed and
    Cause Remanded
    ROGERS, P.J. and WILLAMOWSKI, J., concur.
    /jlr
    -9-
    

Document Info

Docket Number: 14-15-14 14-15-15 14-15-16 14-15-17 14-15-18

Judges: Shaw

Filed Date: 12/7/2015

Precedential Status: Precedential

Modified Date: 12/7/2015