[Cite as Akron v. Turner,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO / CITY OF AKRON C.A. No. 26790

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE LORI A. TURNER AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 12TRC15490

DECISION AND JOURNAL ENTRY

Dated: October 16, 2013

WHITMORE, Judge.

{¶1} Defendant-Appellant, Lori Turner, appeals from the denial of her administrative

license suspension appeal in the Akron Municipal Court. This Court dismisses for lack of

jurisdiction.

I

{¶2} On October 20, 2012, Turner was issued a traffic citation for: (1) speeding, in

violation of R.C. 4511.21(C); (2) operating a vehicle while under the influence of alcohol

(“OVI”), in violation of R.C. 4511.19(A)(1)(a); and (3) failure to yield at a red light, in violation

of R.C. 4511.13(C)(1). Because she refused to submit to blood alcohol testing, Turner’s license

was confiscated and she was issued an administrative license suspension (“ALS”). Turner

signed the BMV 2255 form indicating the suspension at the time of her arrest.

{¶3} On November 26, 2012, Turner filed an ALS appeal along with a motion to

suppress. The trial court scheduled a “motion hearing” for December 6, 2012. That same day, 2

the trial court denied both Turner’s motion to suppress and her ALS appeal. The trial judge

denied the ALS appeal by stamping “motion denied” on the first page of Turner’s ALS appeal

filing, signing directly below the stamp, and time stamping the page “DEC 06 2012.”

Subsequently, the matter proceeded to trial.

{¶4} A jury found Turner not guilty of the OVI offense, but the trial court found her

guilty of speeding and failing to yield. On January 9, 2013, the trial court sentenced Turner to a

fine and court costs.

{¶5} On February 8, 2013, Turner filed her notice of appeal to challenge the trial

court’s denial of her ALS appeal. Turner raises a single assignment of error for our review.

II

Assignment of Error

THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT- APPELLANT’S ADMINISTRATIVE LICENSE SUSPENSION APPEAL WITHOUT AN EVIDENTIARY HEARING TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT ONE OR MORE OF THE CONDITIONS FOR LICENSE SUSPENSION SET FORTH IN RC 4511.197(C) WAS NOT MET.

{¶6} In her sole assignment of error, Turner argues that the court erred by denying her

ALS appeal in the absence of an evidentiary hearing. Because Turner’s appeal is untimely, we

do not address the merits of her argument.

{¶7} “An administrative license suspension and a criminal prosecution for [OVI] which

arise from the same arrest are separate proceedings.” State v. Willard, 9th Dist. Medina No.

04CA0045-M,

. “A trial court’s determination of an administrative-license-

suspension appeal is an order entered in a special proceeding and is final pursuant to R.C.

2505.02.” State v. Williams,

(1996), paragraph two of the syllabus.

Accordingly, to timely appeal from a court’s denial of an ALS appeal, a defendant must file his 3

or her notice of appeal within thirty days. Willard at ¶ 8. “Where an untimely appeal has been

filed, an appellate court lacks jurisdiction to consider the merits, and the appeal must be

dismissed.” State v. Myers, 9th Dist. Wayne No. 08CA0041,

, quoting

Metropolitan Bank & Trust Co. v. Roth, 9th Dist. Summit No. 21174,

, ¶ 15.

{¶8} The trial court denied Turner’s ALS appeal on December 6, 2012. At that point,

the ALS appeal determination was a final, appealable order and Turner had thirty days to file her

appeal from it. See Willard at ¶ 8. Turner, however, did not file her notice of appeal until

February 8, 2013, 64 days later. Consequently, Turner failed to file her appeal in a timely

manner, and this Court lacks jurisdiction to hear the appeal.

III

{¶9} Turner’s appeal is dismissed as untimely.

Appeal dismissed.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT 4

HENSAL, J. CONCURS.

BELFANCE, P.J. DISSENTING.

{¶10} I respectfully dissent from the judgment of the majority as I would conclude that

Ms. Turner’s appeal is timely.

{¶11} The Supreme Court of Ohio “has historically and repeatedly characterized

driver’s license suspensions imposed pursuant to Ohio’s implied consent statutes as being civil in

nature and remedial in purpose.” State v. Gustafson,

(1996); see also

Tallmadge v. Barker, 9th Dist. Summit No. 24414,

(“An appeal of an

administrative license suspension is a civil proceeding.”). App.R. 4(A) provides that “[a] party

shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the

judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if

service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of

Civil Procedure.” Thus, because an administrative license suspension appeal is a civil matter,

see

, the entirety of App.R. 4(A) applies to this case. See Jackson v. Rankin, 2d

Dist. Montgomery No. 23083,

. There is nothing in the record that suggests

the notice of judgment was ever served upon Ms. Turner. Accordingly, I would conclude her

appeal time has not begun to run, and her appeal is therefore not untimely. See

{¶12} In State v. Willard, 9th Dist. Medina No. 04CA0045-M,

, this

Court stated that that an appellant only has 30 days to file an appeal from an administrative

license suspension appeal; however, there are no facts indicating whether or not proper service of

the judgment was made in that case. Thus, that case does not stand for the proposition that the 5

second half of App.R. 4(A), which tolls the time when a civil judgment is not properly served

upon a party, would be inapplicable. Further, ignoring the applicability of Civ.R. 58(B) to

administrative license suspension appeals contradicts the well-settled precedent that such an

appeal is a civil matter that is separate and independent from the criminal case. See

; Hoban v. Rice,

(1971), paragraph one of the syllabus. The purpose of

App.R. 4(A) and Civ.R. 58(B) is to make clear the moment in time that the 30-day period for

appeal will actually begin running and to ensure that time for appeal does not begin to run unless

a party is properly served with notice that a final judgment has been entered. Compliance with

the rule is critical in ALS cases given that the civil case is typically embedded in the criminal

case. In this case, in denying her appeal from the ALS suspension, the trial court made a

notation on the side of Ms. Turner’s notice of appeal she filed with the court. There is no

indication in the record that the clerk served Ms. Turner with notice of the final judgment

denying her ALS appeal. I respectfully dissent.

APPEARANCES:

DANIEL R. BACHE, Attorney at Law, for Appellant.

CHERI CUNNINGHAM, Director of Law, GERTRUDE WILMS, Chief City Prosecutor, and MARY A. LOHR, Assistant City Prosecutor, for Appellee.