State v. Steers , 2013 Ohio 3266 ( 2013 )

[Cite as State v. Steers, 2013-Ohio-3266.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 11CA33
vs. :
ROBERT J. STEERS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
George J. Cosenza, 515 Market Street, P.O. Box 4, Parkersburg, West Virginia, Ohio 26102
James E. Schneider, Washington County Prosecuting Attorney, and Amy Graham, Washington
County Assistant Prosecuting Attorney, 205 Putnam Street, Marietta, Ohio 45750
CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 7-18-13
ABELE, J.
{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment of
conviction and sentence. The trial court found Robert J. Steers, defendant below and appellant
herein, guilty of the possession of marijuana in violation of R.C. 2925.11(A).
{¶ 2} Appellant assigns the following error for review:
“THE COMMON PLEAS COURT OF WASHINGTON
COUNTY ERRED WHEN IT DENIED THE APPELLANT’S
MOTION TO SUPPRESS ANY AND ALL EVIDENCE SEIZED
FROM THE APPELLANT’S PROPERTY AND HOME.”
WASHINGTON, 11CA33 2
{¶ 3} On June 30, 2011, the Washington County Grand Jury returned an indictment that
charged appellant with the possession of marijuana in violation of R.C. 2925.11(A) and
(C)(3)(d). Appellant pled not guilty.
{¶ 4} On July 12, 2011, the state filed a Crim.R. 13 joinder motion that requested the
trial court to try appellant’s marijuana possession case together with case number 10-CR-325.
Case number 10-CR-325 charged appellant with cultivating the same marijuana that he allegedly
possessed.1 The court granted the motion and joined the cases for trial.
{¶ 5} Appellant later agreed with the state to plead no contest to possession of
marijuana in return for a dismissal of case number 10-CR-325.
{¶ 6} On October 25, 2011, appellant entered a no contest plea to charge of the
possession of marijuana. The trial court found appellant guilty and sentenced him to serve
forty-five days in jail and three years of community control. This appeal followed.
{¶ 7} In his sole assignment of error, appellant asserts that the trial court erred by
overruling his motion to suppress evidence. However, before we can consider the merits of
appellant’s assignment of error, we first must ascertain whether we can review the trial court’s
decision that overruled appellant’s motion to suppress evidence.
{¶ 8} Appellant did not file a motion to suppress evidence, and the trial court did not
issue a decision regarding a motion to suppress evidence, in case number 11-CR-178. Case
number 11-CR-178 is the case that appellant has appealed. Instead, appellant filed a motion to
1
Appellant did not file a notice of appeal from case number 10-CR-325. Thus, none of those filings are before us
on appeal. We, however, have gathered these limited facts from the state’s motion to join the two cases for trial. Although
appellant has attached filings from 10-CR-325 to his supplemental brief, those attachments are not properly before us and will
not be considered.
WASHINGTON, 11CA33 3
suppress evidence in the cultivation of marijuana case (case number 10-CR-325), before the
possession of marijuana case (case number 11-CR-178) was filed.
{¶ 9} App.R. 4(A) requires a party to file a notice of appeal within thirty days of the
judgment or order appealed. App.R. 3(D) sets forth the required contents of a notice of appeal
and states: “[t]he notice of appeal shall specify the party or parties taking the appeal; shall
designate the judgment, order or part thereof appealed from; and shall name the court to which
the appeal is taken.”
{¶ 10} The timely filing of a notice of appeal is the only jurisdictional requirement for
perfecting an appeal. Transamerica v. Nolan, 72 Ohio St.3d 320, 649 N.E.2d 1229 (1995),
syllabus. An appellant’s failure “to take any other step other than the timely filing of a notice of
appeal does not affect the validity of the appeal, but is ground only for such action as the court
deems appropriate, which may include dismissal of the appeal.’” Id. at 322, quoting App.R. 3(D).
{¶ 11} When a trial court consolidates or joins cases for trial, a party ordinarily must file
a separate notice of appeal from each case in which error is alleged. See State v. Mansaray, 8th
Dist. No. 90647, 2009-Ohio-1237, ¶¶12-13; Marcum v. Colonial Ins. Co. of Wisconsin, 10th Dist.
No. 02AP-917, 2003-Ohio-4369, ¶20; Cleveland v. Prihoda, 8th Dist. No. 65778 (Mar. 24. 1994);
Shaw v. Shaw, 72 Ohio App.3d 546, 595 N.E.2d 500 (8th Dist. 1991). A notice of appeal that
lists only one of the consolidated or joined cases will be deemed to be an appeal of the specified
case only. See Mansaray; Marcum. To be effective as a notice of appeal of more than one
judgment, the notice must at least list all case numbers appealed. See Natl. Mut. Ins. Co. v.
Papenhagen, 30 Ohio St.3d 14, 16, 505 N.E.2d 980 (1987) (holding that “fail[ing] to file separate
notices of appeal for cases that had been consolidated in the trial court * * * is not a jurisdictional
WASHINGTON, 11CA33 4
defect” when the notice of appeal lists both case captions and case numbers and when the
appellant demonstrates that the error was inadvertent and in good faith; and noting that such a
notice of appeal “fulfilled its basic purpose of informing the parties and the court, in a timely
manner, of appellant’s intention of appealing a specified judgment”).
{¶ 12} For instance, in Mansaray the state filed two indictments against the defendant.
The trial court joined the indictments for trial. Appellant filed motions to suppress evidence in
both cases, and the trial court overruled the motions. On appeal, the defendant challenged both
trial court’s decisions overruling his motions to suppress. The appellate court, however,
observed that the defendant did not file a notice of appeal from both judgments. The court thus
determined that it lacked jurisdiction to consider appellant’s arguments that related to the court’s
judgment that he failed to separately appeal. The court explained:
“ * * * [W]e note that although Mansaray’s assigned errors include
arguments related to Case No. CR-491214, he failed to file an appeal from that
case. The notice of appeal filed only relates only to Case No. CR-486992. A
review of the lower court file indicates that although the cases were joined for
trial, two separate journal entries were entered for the convictions and sentences in
each case and separate files were maintained.
The filing of a timely notice of appeal is a prerequisite to establishing
jurisdiction in a court of appeals. Therefore, while in the general sense, this court
has jurisdiction to hear appeals in criminal cases, that jurisdiction must be invoked
by the timely filing of a notice of appeal. The failure to file a timely notice of
appeal is a jurisdictional requirement that cannot be ignored. Consequently, we
have no jurisdiction to consider Mansaray’s arguments that relate to Case No.
CR-491214.
Id. at ¶¶12-13 (footnotes and citations omitted).
{¶ 13} In Marcum, the appellant’s notice of appeal referenced only one case number. In
the body of the notice of appeal, the appellant stated she “hereby appeal[ed] the decision and
entry of July 22, 2002” with no references to the other consolidated cases. Id. at ¶20. The
WASHINGTON, 11CA33 5
appellate court thus concluded that because the appellant’s notice of appeal listed only one of the
consolidated cases, her notice of appeal was effective only to the specified case.
{¶ 14} In Shaw, the plaintiff filed a timely notice of appeal from one of two consolidated
cases. Her assignments of error, however, concerned issues that arose in the consolidated case
that she had failed to timely appeal. Moreover, the plaintiff failed to include the record from the
case in which the alleged errors occurred. The court of appeals determined that because the
plaintiff failed to timely appeal the case in which the alleged errors arose and failed to perfect the
record, it must presume the regularity of the proceedings. The court explained:
“‘A presumption of validity attends the trial court’s action. In the absence
of an adequate record, which is the appellant’s responsibility, see App.R. 9 and
Loc.R. 3 of the Ninth Appellate District, we are unable to evaluate the merits of
the assignments of error and must affirm the trial court’s decision. Knapp v.
Edwards Laboratories, (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 220, 400
N.E.2d 384, 385; Meinhard Commercial Corp. v. Spoke & Wheel, Inc., (1977), 52
Ohio App.2d 198, 201–202, 6 O.O.3d 180, 182, 368 N.E.2d 1275, 1277.’
Volodkevich v. Volodkevich, (1989), 48 Ohio App.3d 313, 314, 549 N.E.2d
1237, 1238.
In addition, the fact that two cases were consolidated by the trial court
does not relieve plaintiff of timely appealing each case and perfecting the record.”
Id. at 547-548.
{¶ 15} In the case at bar, appellant’s assigned error relates to the trial court’s decision to
overrule the motion to suppress that he filed in case number 10-CR-325. Appellant did not file a
motion to suppress in the case currently on appeal (Case number 11-CR-178). Consequently,
the trial court did not issue a decision that overruled a motion to suppress evidence in case
number 11-CR-178.
{¶ 16} In the case sub judice, the trial court joined the cases for trial, but maintained
separate files. Moreover, it issued its decision to overrule appellant’s motion to suppress
WASHINGTON, 11CA33 6
evidence in case number 1-CR-325, before the state filed the indictment in case number
11-CR-178. The trial court’s judgment of conviction and sentence in case number 11-CR-178
does not also bear case number 10-CR-325. Instead, the court issued separate judgment entries
to dispose of each case.
{¶ 17} Appellant timely appealed 11-CR-178. He did not, however, appeal case number
10-CR-325.2 Thus, our jurisdiction is limited to the issues raised in 11-CR-178 and we may not
consider the trial court’s decision in case number 10-CR-325 that overruled appellant’s motion to
suppress evidence. Accord Prihoda (declining to consider assignments of error relating to trial
court’s decision overruling motion to suppress in consolidated case when appellant failed to
appeal that case).
{¶ 18} We acknowledge that courts should strive to resolve cases on their merits, rather
than technicalities. E.g., State ex rel. Wilcox v. Seidner, 76 Ohio St.3d 412, 667 N.E.2d 1220(1996); Fisher v. Mayfield, 30 Ohio St.3d 8, 11, 505 N.E.2d 975 (1987), citing DeHart v. Aetna
Life Ins. Co., 69 Ohio St.2d 189, 23 O.O.3d 210, 431 N.E.2d 644 (1982). We believe, however,
that attempting to appeal a trial court’s decision to overrule a motion to suppress that was not
filed in the case being appealed is more than a mere technicality. Additionally, Crim.R. 12(C)
requires a defendant to file a motion to suppress illegally-obtained evidence before trial. If a
defendant does not file a motion to suppress evidence before trial, the defendant waives all but
plain error on appeal. E.g., State v. Wade, 53 Ohio St.2d 182, 373 N.E.2d 1244 (1978),
2
We observe that the parties agree that the trial court dismissed case number 10-CR-325. Thus, we are obviously
aware that appellant would have no reason to attempt to appeal that case. Appellant, however, could have filed a motion to
suppress that he filed in 10-CR-325 and part of the record in 11-CR-178.
WASHINGTON, 11CA33 7
paragraph three of the syllabus, vacated on other grounds Wade v. Ohio, 438 U.S. 911, 98 S.Ct.
3138, 57 N.E.2d 1157 (1978); State v. Wallace, 3rd Dist. No. 14–10–20, 2011–Ohio-1728, ¶8;
State v. Raber, 189 Ohio App.3d 396, 2010-Ohio-4066, 938 N.E.2d 1060, ¶26.
{¶ 19} Generally, we recognize plain error “‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” State v. Landrum, 53
Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978), paragraph three of the syllabus. For plain error to apply, the trial court must
have deviated from a legal rule, the error must have been an obvious defect in the proceeding,
and the error must have affected a substantial right. E.g., State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002).
{¶ 20} In the case at bar, appellant has not suggested that we review his assignment of
error using a plain error analysis. We therefore decline to do so sua sponte. State v. Suman, 4th
Dist. No. 10CA11, 2010-Ohio-6204, ¶43. Accord State v. Wright, 9th Dist. No. 25638,
2011-Ohio-5641, ¶5, quoting State v. Arnold, 9th Dist. No. 24400, 2009–Ohio–2108, at ¶8
(“‘[T]his Court will not construct a claim of plain error on a defendant’s behalf if the defendant
fails to argue plain error on appeal.’”).
{¶ 21} Additionally, appellant’s contention that case number 11-CR-178 was an
“amendment” to the indictment filed in 10-CR-325 is incorrect. Based upon the record before
this court, case number 11-CR-178 is an entirely separate criminal case, not an amendment to
10-CR-325. If it were an amendment to the indictment filed in 10-CR-325, then it would have
been filed as such. Instead, the state filed it as a new criminal matter.
WASHINGTON, 11CA33 8
{¶ 22} Accordingly, based upon the foregoing reasons, we have no jurisdiction to
consider appellant’s assignment of error to challenge the trial court’s decision to overrule his
motion to suppress evidence. Consequently, we hereby dismiss this appeal.
APPEAL DISMISSED.
[Cite as State v. Steers, 2013-Ohio-3266.]
JUDGMENT ENTRY
It is ordered that the appeal be dismissed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington
County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
WASHINGTON, 11CA33 10
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk.