State v. Weierman12/14/2001
OPINION Rendered on the 14th day of December, 2001.
In this case, Defendant, Simon Weierman, appeals from a conviction for driving under the influence of alcohol (DUI) and driving left of center. After a motion to suppress was overruled, Defendant pled no contest to the charges and was found guilty. He was then sentenced to a $1,000 fine, with $650 suspended, and 180 days in jail, with all but six days suspended. A timely appeal followed.
In support of the appeal, Defendant presents the following assignments of error:
I. The trial court erred in failing to sustain the suppression motion because the State failed to prove that the officer stopped the car based on a reasonable suspicion that the driver had committed a traffic offense.
II. The trial court erred when it refused to suppress the evidence because the State failed to meet its burden of proving that the officer had probable cause to believe that appellant was driving under the influence .
After considering the record and applicable law, we find the assignments of error without merit. Accordingly, the judgment of the trial court will be affirmed.
I.
Before we address the first assignment of error, some preliminary comments are in order. First, we note that the State failed to file a brief in this matter. Under App. R. 18(C), if an appellee fails to file a brief, "the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action." Unfortunately, these sanctions have little practical effect in the present case, since we have been unable to find a reasonable basis for reversing the judgment. Nonetheless, we must stress that we disapprove of the State's failure to file a brief. We are also disturbed by the State's failure to adequately respond to our show cause order. Specifically, we issued a show cause order on September 27, 2001 directed to the State.
Instead of filing a brief, the State filed a motion to dismiss the appeal. Apparently, the State mistakenly felt that Defendant was the recipient of the show cause order, when the State, in fact, was the subject of the order. Accordingly, the State's motion to dismiss will be overruled.
As a further matter, our review of the record reveals several procedural defects in the trial court proceedings. Although Defendant failed to object below or to raise these defects on appeal, at least one issue is potentially jurisdictional. Consequently, we may raise the matter on our own motion. See Haskins v. Haskins (1995), 104 Ohio App.3d 58, 60, and Seo v. Austintown Twp. (1998), 131 Ohio App.3d 521, 523.
The most glaring defect is the trial court's failure to adopt the magistrate's decision. According to the record, Defendant filed a motion to suppress on January 10, 2001. After hearing evidence, the magistrate filed a decision on March 16, 2001, overruling the motion. Subsequently, on March 29, 2001 (thirteen days later), Defendant pled no contest to the charges, was found guilty, and was sentenced by the trial court. However, the record is devoid of any indication that the trial court ever adopted the magistrate's decision before accepting the plea. The plea was also accepted even before the time for filing objections to the magistrate's decision had expired. See Crim. R. 19(E)(2)(a).
Effective July 1, 2000, Crim R. 19 was substantially amended to include procedures patterned after Civ. R. 53. Before the amendments, magistrates did not even have authority to preside over motions to suppress. State v. Smith (1996), 112 Ohio App.3d 413, 416, and State v. Chagaris (1995), 1
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