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City of Bedford Heights v. Menefee11/10/1999
randa or its progeny.
Crim.R. 47 governs the filing of such motions and specifically provides in part as follows:
An application to the court for an order shall be by motion. A motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally. It shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be supported by a memorandum containing citations of authority, and may also be supported by an affidavit.
To expedite its business, the court may make provision by rule or order for the submission and determinationof motions without oral hearing upon brief written statements of reasons in support and opposition. (Emphasis added.)
Moreover, Crim.R. 12(E) governs the determination of pretrial motions to suppress and specifically provides in pertinent part as follows:
(E) Ruling on motion. The court may adjudicate a motion based upon briefs, affidavits, the proffer of testimony and exhibits, a hearing, or other appropriate means.
Under the circumstances, the trial court did not err or abuse its discretion by concluding that defendant's motion to suppress her statements to the officer failed to state with particularity the grounds upon which it was made or make any factual allegations to justify relief or warrant a hearing. Id.
Defendant also complains that the court failed to conduct an evidentiary hearing on her motion to suppress her breathalyzer test results. Her entire motion to suppress raised twenty-one arguments. Notably absent from the motion, however, was any request for the trial court to conduct an evidentiary hearing.
In City of University Heights v. Morris (Apr. 18, 1996), Cuyahoga App. No. 69493, unreported, this court specifically held that the failure to request an oral hearing on a pretrial motion to suppress waived any claim of error concerning the failure to conduct a hearing. The Morris court reasoned as follows:
* In State v. Feltner (1993), 87 Ohio App.3d 279, 283, the court held that the failure to request an oral hearing on a pretrial motion constituted a waiver of the right to assign as error the court's failure to conduct a hearing. Accord State v. Haddix (1994), 92 Ohio App.3d 221, 223 ( A trial court is not required to conduct an evidentiary hearing on a pretrial motion [to suppress] where no hearing is requested ). See, also, State v. McClure (June 14, 1985), Highland App. No. 537, unreported (defendant waived challenge to admissibility of tape as he failed to request a pretrial suppression hearing). Defendant failed to make a timely request for an oral hearing on her motion to suppress. We find that the trial court properly ruled on defendant's motion without conducting a hearing. Id. at p. 2. Accord State v. Hartley, supra at 48.
Defendant argues that State v. Schindler (1994), 70 Ohio St.3d 54, mandates a hearing in the case at bar contrary to this authority. However, neither the Supreme Court nor the court of appeals opinions in Shindler addressed this issue. Neither opinion states whether the defendant in that case requested a hearing. Although defendant's motion in the case at bar raised some of the same issues as the defendant in Schindler, the record shows that she failed to request an oral evidentiary hearing.
This court and others have consistently held that failure to request an oral hearing on a pretrial motion to suppress waives any claim of error concerning the failure to conduct a hearing. Our opinion in Morris was entered after the Supreme Court's opinion in Schindler. Moreover, we again recently adhered to Morr
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