State v. Humphries , 2019 Ohio 2878 ( 2019 )

[Cite as State v. Humphries, 2019-Ohio-2878.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2018 CA 00157
SIERRA D. HUMPHRIES
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal
Court, Case No. 2018 TRC 5166
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 15, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KRISTEN BATES-AYLWARD KEVIN J. BREEN
CANTON LAW DIRECTOR KEVIN J. BREEN CO., LLC
BEAU D. WENGER 3500 West Market Street
ASSISTANT PROSECUTOR Suite 4
218 Cleveland Avenue SW Fairlawn, Ohio 44333
Canton, Ohio 44702
Stark County, Case No. 2018 CA 00157 2
Wise, J.
{¶1} Appellant Sierra D. Humphries appeals her conviction for operating a
vehicle while impaired, reckless operation, speeding, and no seat belt following a plea of
no contest in the Canton Municipal Court.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS
{¶3} On June 25, 2018, Appellant Sierra D. Humphries was charged with
violations of OVI, reckless operation, speeding and no seat belt.
{¶4} On July 13, 2018, Appellant Humphries filed a motion in limine to exclude a
previous OVI conviction which occurred on December 3, 2008. In her motion, Appellant
argued that her first OVI conviction was uncounseled and allegedly unconstitutional.
{¶5} At the hearing on the motion, Appellant did not introduce any evidence. The
State introduced Appellant’s written waiver form for her first OVI conviction.
{¶6} By Judgment Entry filed August 17, 2018, the trial court overruled
Appellant's motion stating she did not make a prima facie case that the prior conviction
was unconstitutional as is required under State v. Thompson, 121 Ohio St.3d 250, 2009-
Ohio-314.
{¶7} On August 21, 2018, Appellant filed a motion for reconsideration attaching
an affidavit in which she stated that she appeared pro se, was not counseled about her
right to an attorney, and she did not understand her written waiver as it related to
enhanceable offenses.
{¶8} By Judgment Entry filed September 19, 2018, the trial court overruled the
motion for reconsideration.
Stark County, Case No. 2018 CA 00157 3
{¶9} On October 10, 2018, Appellant entered a plea of No Contest.
{¶1} It is from this conviction Appellant now appeals, raising the following errors
for review:
ASSIGNMENTS OF ERROR
{¶2} “I. THE TRIAL COURT ERRED IN ITS AUGUST 17, 2018 JUDGMENT
ENTRY DENYING DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OF PRIOR OVI
CONVICTION.
{¶3} “II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION
FOR RECONSIDERATION OF THE AUGUST 17, 2018 JUDGMENT ENTRY BY ENTRY
FILED SEPTEMBER 19, 2018.”
I.
{¶4} Appellant herein argues the trial court erred in denying her motion in limine.
We disagree.
{¶5} A motion in limine is a tentative, interlocutory, precautionary ruling by the
trial court reflecting its anticipatory treatment of an evidentiary issue. State v. Grubb
(1986), 28 Ohio St.3d 199, 200–201, 503 N.E.2d 142.
{¶6} A plea of no contest, however, waives the offender's right to appeal a trial
court's ruling on a motion in limine. See State v. Pyro, 5th Dist. Delaware No.
04CAA01009, 2004-Ohio-4768, ¶19 (“a no contest plea generally waives any claim of
error with respect to an adverse ruling on a motion in limine”). “By entering a plea of no
contest * * *, the defendant voluntarily waives the right to appeal the ruling on the motion
[in limine].” State v. Engle, 74 Ohio St.3d 525, 529 (1996) (Resnick, J., concurring). See
also State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 15; State v.
Stark County, Case No. 2018 CA 00157 4
Felts, 4th Dist. Ross No. 13CA3407, 2014-Ohio-2378, ¶ 16, citing Engle at 528-529
(Resnick, J., concurring) and State v. Hershner, 4th Dist. Athens No. 99CA58, 2000 WL
781094, *3 (June 8, 2000); State v. Monticue, 2d Dist. Miami No. 06-CA-33, 2007-Ohio-
4615, ¶ 16, citing State v. Lewis, 164 Ohio App.3d 318, 2005-Ohio-5921, ¶ 6 (10th Dist.)
and Engle at 529 (Resnick, J., concurring); State v. Oshodin, 6th Dist. Lucas No. L-03-
1169, 2004-Ohio-1186, ¶ 5-6; State v. Lamb, 3d Dist. Hardin No. 6-02-03, 2002-Ohio-
4692, ¶ 6, citing State v. Kerr, 9th Dist. Medina No. 3205-M, 2002-Ohio-2095, ¶ 7-8 and
State v. Schubert, 3d Dist. Seneca No. 13-85-22, 1986 WL 14413, *1 (Dec. 22, 1986).
{¶7} Therefore, by entering pleas of no contest, Appellant waived her right to
appeal the trial court's ruling on her motion in limine.
{¶8} Appellant’s first assignment of error is overruled.
II.
{¶9} In her second assignment of error, Appellant argues the trial court erred in
denying her motion for reconsideration. We disagree.
{¶10} “The Ohio Rules of Civil Procedure do not provide for motions for
reconsideration, therefore such motions are considered a nullity.” McCullough v. Catholic
Diocese of Columbus, 5th Dist. Fairfield No. 99CA77, 2000 WL 329658, *1 (Mar. 13,
2000), citing Pitts v. Department of Transportation, 67 Ohio St.2d 378, 423 N.E.2d 1105(1981). Accord Merkle v. Merkle, 5th Dist. Licking No. 13-CA-31, 2014-Ohio-81; Primmer
v. Lipp, 5th Dist. Fairfield No. 02-CA-94, 2003-Ohio-3577. “It follows that a judgment
entered on a motion for reconsideration is also a nullity and a party cannot appeal from
such a judgment.” McCullough, citing Kauder v. Kauder, 38 Ohio St.2d 265, 313 N.E.2d
797 (1974); Primmer at ¶ 7.
Stark County, Case No. 2018 CA 00157 5
{¶11} As Appellant is attempting to appeal the trial court's denial of her motion for
reconsideration, which is a nullity, we lack jurisdiction to entertain Appellant's assigned
error.
{¶12} Accordingly, Appellant’s second assignment of error is overruled.
{¶13} For the reasons stated in the foregoing opinion, the judgment of the Canton
Municipal Court, Stark County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. PATRICIA A. DELANEY
JWW/d 0708