State v. Lofton

[Cite as State v. Lofton, 2019-Ohio-2087.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J
Plaintiff – Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 18-CA-40
PRESTON LOFTON
Defendant – Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Fairfield County
Municipal Court, Case No. TRC1806154A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 24, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL E. COGLEY JAMES DYE
Lancaster City Prosecutor’s Office P.O. Box 161
120 East Main Street – Suite #200 Pickerington, Ohio 43147
Lancaster, Ohio 43130
Fairfield County, Case No. 18-CA-40 2
Hoffman, P.J.
{¶1} Appellant Preston W. Lofton appeals the judgment entered by the Fairfield
County Municipal Court overruling his motion to vacate his administrative license
suspension (hereinafter “ALS”). Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} A vehicle driven by Appellant was stopped by Sgt. Haroon of the
Pickerington Police Department at 10:20 p.m. on May 23, 2018, for speeding, traveling
outside marked lanes, and expired tags. Appellant submitted to a breath test which
showed his breath alcohol content to be .312, and he was therefore cited for violation of
R.C. 4511.19(A)(1)(h), a high-tier breath test. The citation was served on Appellant by
the officer on May 24, 2018. His license was suspended for a mandatory 90 days, with
the ability to receive driving privileges after 15 days.
{¶3} Appellant’s arraignment was set for June 7, 2018. On July 5, 2018, he filed
an appeal of his ALS. On August 2, 2018, the trial court filed an entry which stated,
“JUDICIAL NOTICE TAKEN REGARDING CASE # TRC1803527 (STATE V. MEGAN
BEASLEY); DEFENSE MOTION REGARDING ALS IS OVERRULED.”
{¶4} It is from the August 2, 2018 judgment Appellant prosecutes this appeal,
assigning as error:
THE TRIAL COURT ERRED BY FAILING TO VACATE THE
ADMINISTRATIVE LICENSE SUSPENSION WHEN THE COURT FAILED
TO COMPLY WITH THE MANDATORY REQUIREMENT CONTAINED IN
R.C. 4511.192 THEREBY VIOLATING APPELLANT’S DUE PROCESS
RIGHTS.
Fairfield County, Case No. 18-CA-40 3
{¶5} As a preliminary matter, we address the state of the record in the instant
case. As noted above, the trial court, in overruling Appellant’s appeal from his ALS, took
judicial notice of State v. Megan Beasley. A trial court may not take judicial notice of prior
proceedings in the court, but may only take judicial notice of prior proceedings in the
immediate case. E.g., In re M.C.H., 5th Dist. No. 12-CA-131, 2013-Ohio-2649, 994
N.E.2d 47, ¶ 11.
{¶6} Appellant has not provided this Court with a transcript of the proceedings in
the instant case, but only with a transcript of the proceedings in State v. Beasley.
Appellant’s praecipe filed August 30, 2018, provides, “The Appellant hereby states that
he intends to include in the record a complete transcript of the ALS Appeal proceeding,
including a transcript of State v. Beasley, 18 TRC 3527, Fairfield County Municipal Court
ALS Appeal.” Appellant filed a “Notice of Filing of Transcript” on October 10, 2018, which
gave notice only of the filing of the transcript in the Beasley case. Appellant did not file a
request with this Court to supplement the record.
{¶7} Appellant’s written appeal of the ALS suspension does not specify the
grounds on which he intends to appeal, stating only “The reasons for this request will be
set out more fully and specifically upon receipt and review of discovery, as provided by
the State of Ohio.” We have not been provided a transcript of Appellant’s hearing on his
ALS suspension from which we could determine the argument(s) raised in the trial court
in support of his ALS suspension appeal. We have only been provided the transcript of
the proceedings in an unrelated case, of which the trial court improperly took judicial
Fairfield County, Case No. 18-CA-40 4
notice.1 Accordingly, based on the record before us, or more accurately, the absence of
a record demonstrating the argument was preserved for review, we decline to draw an
inference the argument was raised and preserved by Appellant.
{¶8} The duty to provide a transcript falls upon the Appellant. App. R. 9(B).
“When portions of the transcript necessary for resolution of assigned errors are omitted
from the record, the reviewing court has nothing to pass upon and thus, as to those
assigned errors, the court has no choice but to presume the validity of the lower court's
proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400
N.E.2d 384, 385 (1980). In the absence of a transcript, we are unable to determine the
grounds for the appeal raised in the trial court, and have no choice but to affirm.
1Contrast State v. Carnes, 5th Dist. Perry No. 14-CA-00029, 2015-Ohio-1633, which addressed judicial
notice of adjudicative facts from a prior case, rather than judicial notice of the legal arguments and
proceedings in a prior case.
Fairfield County, Case No. 18-CA-40 5
{¶9} The assignment of error is overruled. The judgment of the Fairfield
Municipal Court is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur