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State v. McLemore9/25/1992
HADLEY, Presiding Judge.
This is an appeal from the December 10, 1991 judgment entry of the Crawford County Municipal Court setting forth a conviction of appellant Burnie McLemore after a plea of no contest to a charge of violating R.C. 4511.19(A)(1), driving under the influence of marijuana.
Prior to the change of plea, appellant had filed, on September 6, 1991, a motion to compel production of discovery materials pursuant to Crim.R. 16, including any scientific reports and physical evidence intended for introduction at hearing. on the same date, he filed a motion to suppress the results of "any and all tests performed in this case" and all statements made by him.
The motion was set for hearing on September 27, 1991, by notice dated September 9, 1991. Appellant also filed a "motion to dismiss as unconstitutional" and the hearing was continued to October 17, 1991, on the motion of the state. On September 26, 1991, the court also scheduled the trial date as October 17, 1991.
On September 30, 1991, appellant filed a motion for a ruling on the motion to compel, stating that some discovery had been received but that the rest of the items sought were necessary prior to the October 17 hearing. On October 1, 1991, appellant filed a motion for rulings on motions prior to commencemeant of trial and a motion to continue trial date because the prosecution had not supplied all discovery materials and pending motions had not been heard.
On October 16, 1991, appellant filed a motion for continuance of the hearing and trial scheduled for October 17 on the grounds of a scheduling conflict with federal court and because the prosecution had just advised counsel of the location in Columbus of the "voluminous discovery materials" requested by appellant. On October 17, 1991, appellant filed a motion for reconsideration of the motion for continuance. After being advised that the motion for continuance had been denied, trial counsel for appellant failed to appear on October 17, 1991, but did send an associate who, according to the entry of November 22, 1991, "had little or no knowledge of the case." The trial court denied the motion to suppress and/or dismiss for failure to prosecute and continued the trial date to December 16, 1991. The court further found that counsel had acknowledged receipt of the requested discovery on October 9s1991, but that counsel had not shared his knowledge of the case with his associate and, therefore, denied reconsideration of the motion to suppress and/or dismiss. on December 16, 1991, the appellant entered his no contest plea and was found guilty and sentenced accordingly. This appeal followed.
Appellant assigns the following as error:
"The trial court erred in not granting a necessary continuance and then denying the motion for failure to prosecute."
"The trial court erred in denying appellant's motion to suppress and/or dismiss where the State used improper methods of urinalysis."
"The trial court erred in denying appellant's motion to suppress and/or dismiss where the Director of Health for the State of Ohio has failed to approve any methods for analyzing the drug content in urine."
Appellant's first assignment of error involves the request for the continuance of the suppression hearing. Appellant states that the trial court erred in denying that continuance because appellant's attorney was scheduled to appear in federal court on another criminal case that same date. C.P.Sup.R. 7 states:
"(B) Conflict of Trial Assignment Dates. When a continuance is requested for the reason that c
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