[Cite as State v. Rolf,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2020 CA 00077 TODD ROLF

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 19CR807

JUDGMENT: Affirmed in part; Vacated in part; and Remanded

DATE OF JUDGMENT ENTRY: July 19, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES WILLIAM T. CRAMER Licking County Prosecutor 470 Olde Worthington Road, Suite #200 Westerville, Ohio 43082 PAULA M. SAWYERS Assistant Prosecuting Attorney 65 E. Main Street Newark, Ohio 43055 Licking County, Case No. 2020 CA 00077 2

Hoffman, J. {¶1} Defendant-appellant Todd A. Rolf appeals his convictions and sentence

entered by the Licking County Court of Common Pleas on one count of aggravated

possession of controlled substances, two counts of operating a vehicle under the

influence of alcohol or drugs, and one count of driving under OVI suspension, after the

trial court found him guilty following its acceptance of his no contest plea. Plaintiff-

appellee is the state of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} On October 10, 2019, the Licking County Grand Jury indicted Appellant on

one count of aggravated possession of controlled substances (methamphetamine), in

violation of R.C. 2925.11(A)(C)(1)(c), a felony of the second degree; one count of

operating a vehicle under the influence of alcohol or drugs, in violation of R.C.

4511.19(A)(1)(a)(G)(1)(e), a felony of the third degree; one count of operating a vehicle

under the influence of alcohol or drugs, in violation of R.C. 4511.19(A)(1)(j)(i)(iii)/(v)(iii)(II),

a felony of the third degree; and one count of driving under suspension, in violation of

R.C. 4510.14(A), a misdemeanor of the first degree.

{¶3} The trial court appointed Attorney Kristin Burkett to represent Appellant.

Appellant appeared before the trial court for arraignment on December 3, 2019, and enter

a plea of not guilty to the Indictment. Following a pretrial conference on January 13, 2020,

the trial court issued a pretrial entry, which ordered all pretrial motions be filed on or before

February 17, 2020. Appellant filed a motion to suppress. Therein, Appellant argued “the

search and the seizure of the alleged contraband were illegally conducted in violation of

his Ohio and United States constitutional rights to be free from unreasonable searches

and seizures.” Licking County, Case No. 2020 CA 00077 3

{¶4} The trial court conducted a suppression hearing on March 2, 2020.

{¶5} Ohio State Highway Patrol Trooper Jordan Daniel testified he was working

on June 3, 2019, when he observed a vehicle, which was traveling north on Outville Road,

make several left-of-center violations. Trooper Daniel noted he was in uniform and

operating a marked cruiser with overhead lights at the time. As he continued to follow

the vehicle, Trooper Daniel also observed erratic braking, weaving within its lane, and

again crossing the double yellow line. Trooper Daniel initiated a traffic stop near the

intersection of Outville Road and State Route 16.

{¶6} The trooper approached the vehicle on the driver’s side and made contact

with the driver, who was subsequently identified as Appellant. Trooper Daniel detected

the odor of alcohol emanating from the vehicle, and noticed Appellant’s eyes were red

and glassy, his speech was slurred, and his movements were slow and lethargic. Trooper

Daniel added Appellant’s pupils remained dilated even after he moved his flashlight away

from Appellant’s face.

{¶7} Trooper Daniel asked Appellant for his license and registration. Appellant

advised the trooper he did not have his license. During this interaction, Appellant began

to look for the vehicle registration. Appellant had difficulty manipulating his fingers,

fumbling through papers as he searched in the glove compartment. When the trooper

asked Appellant if he had been drinking, Appellant responded he had had one beer six

hours earlier. While Appellant was looking for the registration, Trooper Daniel noticed a

styrofoam cup in the center console. When the trooper inquired as to the contents of the

cup, Appellant leaned forward to block Trooper Daniel’s view and asked several times,

“What cup?” Appellant finally stated there was alcohol in the cup. Trooper Daniel Licking County, Case No. 2020 CA 00077 4

instructed Appellant to step out of the vehicle, explaining he wanted to ensure Appellant

was safe to drive. The trooper noticed Appellant’s clothing was disheveled, his pants

were unbuckled and unzipped. When Appellant exited the vehicle, Trooper Daniel

noticed an odor of alcohol emanating from Appellant’s person.

{¶8} Trooper Daniel had to remind Appellant several times to follow his finger

during the horizontal gaze nystagmus test. The trooper did not observe any signs of

nystagmus in Appellant’s eyes. The signs Appellant exhibited during the HGN correlated

with alcohol or drug impairment. When asked what time he had his last drink, Appellant

stated he had just taken a sip from the styrofoam cup. Dispatch provided the trooper with

a LEADS check, which revealed Appellant’s license was suspended. Trooper Daniel

advised Appellant he could not drive because of the suspension and instructed him to

telephone the owner of the vehicle. Appellant indicated his phone was dead and he was

unable to contact the owner. As a result, the vehicle would be towed from the scene.

{¶9} Trooper Daniel placed Appellant in the back of his cruiser. The trooper then

conducted an inventory of the vehicle. Trooper Daniel removed the cup from the center

console and noticed it seemed heavier than the liquid he observed in it. He emptied the

contents onto the ground and saw not only purple liquid, but also what appeared to be

ice. Trooper Daniel continued to search the vehicle for additional alcoholic beverages.

Located next to the driver’s seat and the center console, he found a chunk of a white

crystalized substance, which was identical to the “ice” which he found in the styrofoam

cup. Trooper Daniel then had Appellant step out of the cruiser and read Appellant his

Miranda rights. Trooper Daniel continued the search, finding a clear, cloudy white Licking County, Case No. 2020 CA 00077 5

substance under the driver’s seat and a glass smoking pipe next to the door panel on the

driver’s side.

{¶10} Trooper Bell arrived at the scene to assist. Trooper Bell located a plastic

bag containing more of the white crystallized substance as well as multiple opened

containers of alcohol. Trooper Daniel noticed Appellant’s speech became more

deteriorated and lethargic. Appellant was also having a difficult time paying attention and

answering questions. Trooper Daniel could still detect an odor of alcohol on Appellant’s

person. He again had Appellant exit the cruiser and conducted additional standardized

field tests. Thereafter, Appellant was placed under arrest. The white crystallized

substance was tested and found determined to be methamphetamine.

{¶11} Via Judgment Entry filed May 4, 2020, the trial court denied Appellant’s

motion to suppress. The trial court found Trooper Daniel possessed sufficient reasonable

suspicion to stop Appellant for a traffic violation and developed sufficient probable cause

to place Appellant under arrest. The trial court further found the trooper possessed

sufficient probable cause to search the vehicle after finding the contraband in it. The trial

court added Trooper Daniel also possessed sufficient reason to conduct an inventory

search due to Appellant not being able to drive and not having a way to contact someone

who could drive the vehicle.

{¶12} On October 2, 2020, Attorney Burkett filed a motion for leave to withdraw

as attorney of record. The trial court granted the motion on October 5, 2020, and

appointed Attorney Zachuary Meranda as counsel for Appellant. On November 23, 2020,

Attorney Meranda filed a motion to suppress, arguing Trooper Daniel did not have

probable cause to stop Appellant’s vehicle for a marked lane violation. Via Judgment Licking County, Case No. 2020 CA 00077 6

Entry filed November 24, 2020, the trial court denied the motion, finding “[t]he exact same

motion was filed on behalf of [Appellant] on January 17, 2020, and was the subject of a

contested suppression hearing on March 2, 2020. A judgment entry denying the motion

was filed May 4, 2020.”

The trial court continued, “The same motion to suppress

having already been denied, as it is the law of the lase, and therefore this most recent

motion is DENIED.”

{¶13} Appellant appeared before the trial court on December 8, 2020, withdrew

his former pleas of not guilty, and entered pleas of no contest. The trial court accepted

Appellant’s no contest pleas and found him guilty as charged. The trial court sentenced

Appellant to an indeterminate prison term of three years to four and a half years on Count

1 (aggravated possession of a controlled substance); three years on Count 2 (operating

a vehicle under the influence of alcohol or drugs), and 180 days on Count 4 (driving under

OVI suspension).1 The trial court ordered the sentences on Counts 1 and 2 run

consecutively with each other and concurrently with the sentence on Count 4.

{¶14} It is from his convictions and sentence Appellant appeals, raising the

following assignments of error:

I. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS

RIGHT TO BE HEARD BY REFUSING TO CONSIDER THE MERITS OF

APPELLANT’S SECOND MOTION TO SUPPRESS, WHICH RAISED AN

ISSUED THAT WAS NO ARGUED IN APPELLANT’S FIRST MOTION TO

SUPPRESS.

1Count 2 and Count 3 (operating a vehicle under the influence of alcohol or drugs) were merged for purposes of sentencing. The state elected to have Appellant sentenced on Count 2. Licking County, Case No. 2020 CA 00077 7

II. THE TRIAL COURT ERRED BY FAILING TO MAKE THE

STATUTORY FINDINGS REQUIRED TO IMPOSE CONSECUTIVE

SENTENCES DURING THE SENTENCING HEARING.

III. THE TRIAL COURT ERRED BY FAILING TO SPECIFY THE

LENGTH OF THE DRIVER’S LICENSE SUSPENSION DURING THE

SENTENCING HEARING.

I

{¶15} In his first assignment of error, Appellant contends the trial court violated

his due process right to be heard by refusing to consider the merits of his second motion

to suppress as such raised issued not presented in his first motion to suppress.

{¶16} A trial court's decision denying an untimely motion to suppress will not be

disturbed absent an abuse of discretion. State v. Karns,

(1992);

Columbus v. Koczka, 10th Dist. No. 02AP–953, 2003–Ohio–1660, ¶ 9.

{¶17} In its November 24, 2020 Judgment Entry, the trial court stated:

The exact same motion was filed on behalf of [Appellant] on January

17, 2020, and was the subject of a contested suppression hearing on March

2, 2020. A judgment entry denying the motion was filed on May 4, 2020.

The same motion to suppress having already been denied, as it is

the law of the case, and therefore this most recent motion is DENIED. Licking County, Case No. 2020 CA 00077 8

{¶18} “[T]he law of the case applies only to final orders and not to interlocutory

orders that are subject to the trial court's reconsideration.” Denuit v. Ohio St. Bd. of

Pharmacy,

,

, ¶ 19, quoting Frazier v. Rodgers Builders,

8th Dist. Cuyahoga No. 91987,

,

, ¶ 64. “The

overruling of a motion to suppress is an interlocutory order until the judgment of conviction

and the judgment of sentence are filed. State v. Dubose,

, 2005-

Ohio-6602, ¶9. Accordingly, we find the trial court was incorrect in denying Appellant’s

second motion to suppress on this basis. However, appellate courts review judgments,

not reasons. Mizer v. Smith, 5th Dist. No. 09–CA–00026, 2009–Ohio–6820, at ¶ 20, citing

Agricultural Ins. Co. v. Constantine (1944),

,

. “A

reviewing court is not authorized to reverse a correct judgment merely because it was

reached for the wrong reason.” State v. Lozier,

,

,

. We find the trial court’s judgment was correct. Our reasons follow.

{¶19} Crim. R. 12(D) provides: “ All pretrial motions except as provided in Crim.

R. 7(E) and 16(M) shall be made within thirty-five days after arraignment or seven days

before trial, whichever is earlier. The court in the interest of justice may extend the time

for making pretrial motions.”

{¶20} Appellant filed his second motion to suppress on November 23, 2020, which

was well beyond thirty-five days after his arraignment on December 3, 2019. The

appointment of new counsel two months before the scheduled trial date of December 8,

2020, did not excuse Appellant from knowledge of the facts and circumstances

surrounding his case which existed well before the deadline for filing pretrial motions.

Moreover, the trial court conducted a hearing on Appellant’s original motion to suppress Licking County, Case No. 2020 CA 00077 9

during which the trial court fully considered the arguments asserted in his second motion

to suppress. Further, at the suppression hearing, counsel for Appellant conceded:

Your Honor, the initial seizure is probably okay. It’s more what

happens after the officer becomes involved with [Appellant].

Tr. March 2, 2020 Suppression Hearing at 4.

{¶21} Because the trial court had conducted a suppression hearing at which

Appellant conceded the validity of the stop and because the second motion was filed out

of rule, we find the trial court did not abuse its discretion in failing to conduct a second

hearing.2

{¶22} Appellant’s first assignment of error is overruled.

II

{¶23} In his second assignment of error, Appellant maintains the trial court erred

in failing to make the requisite findings to impose consecutive sentences under R.C.

2929.14(C)(4) at the sentencing hearing. We agree.

{¶24} R.C. 2929.14(C)(4) provides, in pertinent part:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

2 Appellant cites this Court’s decision in State v. Franklin, 5th Dist. Licking No. 11–CA–128, 2012–Ohio– 3089, in support of his position the officer lacked reasonable suspicion to stop Appellant because, as revealed in the cruiser video, the tires of his vehicle merely touched the center line, but did not actually cross over it. We find Franklin to be distinguishable. Unlike Franklin, Trooper Daniel testified he observed not only several left-of-center violations, but also erratic braking and weaving within the lane of travel. Licking County, Case No. 2020 CA 00077 10

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶25} In State v. Bonnell,

, 2014–Ohio–3177, the Ohio

Supreme Court held:

“In order to impose consecutive terms of imprisonment, a trial court

is required to make the findings mandated by R.C. 2929.14(C)(4) at the Licking County, Case No. 2020 CA 00077 11

sentencing hearing and incorporate its findings into its sentencing entry, but

it has no obligation to state reasons to support its findings.”

at syllabus

(Emphasis added.)

{¶26} We have reviewed the transcript of the December 8, 2020 Change of Plea

and Sentencing Hearing and find the trial court did not make the requisite findings

mandated by R.C. 2929.14(C)(4) and

Accordingly, we vacate the

sentence and remand the matter to the trial court for resentencing.

{¶27} Appellant’s second assignment of error is sustained.

III

{¶28} In his final assignment of error, Appellant asserts the trial court erred in

failing to specify the length of his driver’s license suspension at the sentencing hearing.

We agree.

{¶29} During the Crim. R. 11 colloquy with Appellant at the Change of Plea and

Sentencing Hearing on December 8, 2020, the trial court stated:

Do you understand, Mr. Rolf, that should the Court permit you to

change your plea here today, should the Court then enter guilty findings,

generally all that would remain to be done is to proceed with sentencing,

and the maximum sentence you could receive here would consist of a

sentence of 11 to 15 years at a state penitentiary, a fine of $26,000, a

suspension of your driver’s license, and three years of mandatory post- Licking County, Case No. 2020 CA 00077 12

release control? Do you understand that? Tr. Dec. 8, 2020 Change of Plea

and Sentencing Hearing.

{¶30} At the conclusion of the hearing, the trial court simply indicated, “I’ll impose

a driver’s license suspension.” Id. at 26. In its December 8, 2020 Judgment Entry, the

trial court imposed a lifetime driver’s license suspension.

{¶31} We find the trial court erred in imposing a lifetime driver's license

suspension in its December 8, Judgment Entry when the court did not specify the length

of the suspension during the sentencing hearing, but merely stated it would impose a

driver's license suspension. We further find the trial court violated Appellant's Crim.R.

43(A) right to be present for sentencing and abused its discretion by ordering a driver's

license suspension in its sentencing judgment without having informed Appellant of the

duration of said suspension at the sentencing hearing. See, State v. Wells, 6th Dist. Wood

No. WD-19-007,

.

{¶32} Accordingly, we vacate that portion of the trial court's December 8, 2020

Judgment Entry ordering the suspension of Appellant's driver's license and remand the

matter to the trial court for resentencing.

{¶33} Appellant's third assignment of error is sustained. Licking County, Case No. 2020 CA 00077 13

{¶34} The judgment of the Licking County Court of Common Pleas is affirmed in

part, vacated in part, and remanded for further proceedings consistent with this Opinion

and the law.

By: Hoffman, J. Baldwin, P.J. and Wise, John, J. concur