[Cite as Brecksville v. Bickerstaff, 2015-Ohio-5410.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102170
CITY OF BRECKSVILLE PLAINTIFF-APPELLEE
vs.
EDWARD E. BICKERSTAFF DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Garfield Heights Municipal Court Case No. TRD 1407405
BEFORE: E.T. Gallagher, J., Keough, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: December 24, 2015 FOR APPELLANT
Edward E. Bickerstaff, pro se 9909 Garfield Avenue Cleveland, Ohio 44108
ATTORNEY FOR APPELLEE
Sergio I. Digeronimo City of Brecksville Prosecutor 8748 Brecksville Road, Suite 216 Brecksville, Ohio 44141 EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Edward E. Bickerstaff (“Bickerstaff”), pro se, appeals
from the judgment of the Garfield Heights Municipal Court finding him guilty of
violating Brecksville Ordinances (“B.C.O.”) 331.27. While Bickerstaff’s brief does not
set forth specific assignments of error as required by App.R. 16, he generally argues the
trial court erred by failing to dismiss his case where his traffic ticket erroneously
referenced an incorrect ordinance section.
{¶2} After careful review of the record and relevant case law, we affirm the trial
court’s judgment.
I. Procedural and Factual History
{¶3} In July 2014, Bickerstaff was cited in the city of Brecksville (the “City”) for
failing to change lanes away from a stationary public safety vehicle in violation of B.C.O.
331.27.1 The traffic ticket issued to Bickerstaff contained a handwritten description that
indicated that he “failed to veer left or slow speed passing police cars w/ disabled
1 B.C.O. 331.27(b), which mirrors the language of R.C. 4511.213, states in relevant part:
(A) The driver of a motor vehicle, upon approaching a stationary public safety vehicle, an emergency vehicle, or a road service vehicle that is displaying the appropriate visual signals by means of flashing, oscillating, or rotating lights, as prescribed in section 4513.17 of the Revised Code, shall do either of the following:
(1) If the driver of the motor vehicle is traveling on a highway that consists of at least two lanes that carry traffic in the same direction of travel as that of the driver’s motor vehicle, the driver shall proceed with due caution and, if possible and with due regard to the road, weather, and traffic conditions, shall change lanes into a lane that is not adjacent to that of the stationary public safety vehicle, an emergency vehicle, or a road service vehicle. motorist.” However, the numerical citation of the offense was incorrectly written as
B.C.O. 337.27, as opposed to B.C.O. 331.27.
{¶4} On the day of the trial, the City notified the court that Bickerstaff’s traffic
ticket contained an incorrect numerical citation. Following a brief discussion, the court
permitted the City to proceed with its case against Bickerstaff for his alleged violation of
B.C.O. 331.27. Bickerstaff, who represented himself pro se at the trial, did not raise an
objection.
{¶5} At trial, Patrol Officer Paul Leigh (“Officer Leigh”) of the Brecksville Police
Department testified that while on patrol in his police cruiser he responded to a disabled
vehicle on Interstate 77. Officer Leigh stated that he pulled his patrol vehicle behind the
disabled vehicle and activated his overhead lights. As Officer Leigh was assisting the
disabled vehicle in the right-hand berm, Bickerstaff’s vehicle passed by “at a high rate of
speed.” According to Officer Leigh, Bickerstaff was traveling in the lane directly
adjacent to the right-hand berm and he did not attempt to “move over” or “slow down.”
{¶6} Based on these observations, Officer Leigh pursued Bickerstaff’s vehicle and
initiated a traffic stop. Officer Leigh testified that he cited Bickerstaff “for failing to
yield or move over passing a public safety vehicle.”
{¶7} At the conclusion of trial, Bickerstaff was found guilty of violating B.C.O.
331.27 and fined $100, plus court costs.
{¶8} Bickerstaff now appeals from the trial court’s judgment.
II. Law and Analysis {¶9} In his sole assignment of error, Bickerstaff argues the trial court erred by
permitting the City to amend the ordinance section cited on his traffic ticket.
{¶10} In traffic cases, the Ohio Uniform Traffic Ticket serves as the complaint and
summons. Traf.R. 3(A). This court has previously held that, although a traffic ticket
may contain sufficient language to apprise an offender of the nature of the charge, if it
does not contain a reference to the correct ordinance or statute violated, it is fatally
deficient, unless amended. Cleveland v. Austin, 55 Ohio App.2d 215, 380 N.E.2d 1357
(8th Dist.1978); Cleveland Hts. v. Perryman, 8 Ohio App.3d 443, 457 N.E.2d 926 (8th
Dist.1983); N. Olmsted v. Greiner, 9 Ohio App.3d 158, 458 N.E.2d 1284 (8th Dist.1983).
{¶11} The Ohio Traffic Rules make no specific provision for the amendment of a
ticket complaint. However, they do direct that “the Rules of Criminal Procedure and the
applicable law apply” whenever “no procedure is specifically prescribed by these [traffic]
rules.” Traf.R. 20.
{¶12} Crim.R. 7(D), provides in relevant part
The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.
{¶13} Pursuant to Crim.R. 7(D), any amendment resulting in a change in the name
or identity of the crime charged is prohibited, regardless of whether the accused can
demonstrate prejudice. Columbus v. Cordova, 10th Dist. Franklin No. 11AP-602,
2012-Ohio-1812, ¶ 9. Nevertheless, courts have distinguished between modifications that change the name or identity of the charge and those that correct certain administrative
errors, holding “[a] trial court may, pursuant to Crim.R. 7(D), amend an indictment to
correct typographical or clerical errors.” State v. Williams, 10th Dist. Franklin
No. 08AP-719, 2009-Ohio-3237, ¶ 12, citing State v. Alexander, 10th Dist. Franklin No.
06AP-647, 2007-Ohio-4177, ¶ 43-44. See also State v. Moore, 9th Dist. Summit No.
19544, 2000 Ohio App. LEXIS 1698 (Apr. 19, 2000); State v. Cooper, 4th Dist. Ross No.
97CA2326, 1998 Ohio App. LEXIS 2958 (June 25, 1998) (noting that “[w]here a traffic
ticket/complaint clearly sets forth the offense charged, but contains an error in the
numerical designation of the statute the defendant is alleged to have violated, so long as
the error does not prejudicially mislead the defendant, such error should be subject to
amendment under Crim.R. 7(D)”); Crim.R. 7(B).
{¶14} Because a traffic ticket “is designed to inform a defendant of the charge
against which he must defend,” a reviewing court must evaluate the information in the
complaint to ascertain whether the requested change would deprive defendant of a
fundamental due process right to be informed of the charge. Cordova at ¶ 13, citing
State v. Alley, 11th Dist. Portage No. 2006-P-0070, 2007-Ohio-4483, ¶ 21.
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[Cite as Brecksville v. Bickerstaff, 2015-Ohio-5410.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102170
CITY OF BRECKSVILLE PLAINTIFF-APPELLEE
vs.
EDWARD E. BICKERSTAFF DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Garfield Heights Municipal Court Case No. TRD 1407405
BEFORE: E.T. Gallagher, J., Keough, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: December 24, 2015 FOR APPELLANT
Edward E. Bickerstaff, pro se 9909 Garfield Avenue Cleveland, Ohio 44108
ATTORNEY FOR APPELLEE
Sergio I. Digeronimo City of Brecksville Prosecutor 8748 Brecksville Road, Suite 216 Brecksville, Ohio 44141 EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Edward E. Bickerstaff (“Bickerstaff”), pro se, appeals
from the judgment of the Garfield Heights Municipal Court finding him guilty of
violating Brecksville Ordinances (“B.C.O.”) 331.27. While Bickerstaff’s brief does not
set forth specific assignments of error as required by App.R. 16, he generally argues the
trial court erred by failing to dismiss his case where his traffic ticket erroneously
referenced an incorrect ordinance section.
{¶2} After careful review of the record and relevant case law, we affirm the trial
court’s judgment.
I. Procedural and Factual History
{¶3} In July 2014, Bickerstaff was cited in the city of Brecksville (the “City”) for
failing to change lanes away from a stationary public safety vehicle in violation of B.C.O.
331.27.1 The traffic ticket issued to Bickerstaff contained a handwritten description that
indicated that he “failed to veer left or slow speed passing police cars w/ disabled
1 B.C.O. 331.27(b), which mirrors the language of R.C. 4511.213, states in relevant part:
(A) The driver of a motor vehicle, upon approaching a stationary public safety vehicle, an emergency vehicle, or a road service vehicle that is displaying the appropriate visual signals by means of flashing, oscillating, or rotating lights, as prescribed in section 4513.17 of the Revised Code, shall do either of the following:
(1) If the driver of the motor vehicle is traveling on a highway that consists of at least two lanes that carry traffic in the same direction of travel as that of the driver’s motor vehicle, the driver shall proceed with due caution and, if possible and with due regard to the road, weather, and traffic conditions, shall change lanes into a lane that is not adjacent to that of the stationary public safety vehicle, an emergency vehicle, or a road service vehicle. motorist.” However, the numerical citation of the offense was incorrectly written as
B.C.O. 337.27, as opposed to B.C.O. 331.27.
{¶4} On the day of the trial, the City notified the court that Bickerstaff’s traffic
ticket contained an incorrect numerical citation. Following a brief discussion, the court
permitted the City to proceed with its case against Bickerstaff for his alleged violation of
B.C.O. 331.27. Bickerstaff, who represented himself pro se at the trial, did not raise an
objection.
{¶5} At trial, Patrol Officer Paul Leigh (“Officer Leigh”) of the Brecksville Police
Department testified that while on patrol in his police cruiser he responded to a disabled
vehicle on Interstate 77. Officer Leigh stated that he pulled his patrol vehicle behind the
disabled vehicle and activated his overhead lights. As Officer Leigh was assisting the
disabled vehicle in the right-hand berm, Bickerstaff’s vehicle passed by “at a high rate of
speed.” According to Officer Leigh, Bickerstaff was traveling in the lane directly
adjacent to the right-hand berm and he did not attempt to “move over” or “slow down.”
{¶6} Based on these observations, Officer Leigh pursued Bickerstaff’s vehicle and
initiated a traffic stop. Officer Leigh testified that he cited Bickerstaff “for failing to
yield or move over passing a public safety vehicle.”
{¶7} At the conclusion of trial, Bickerstaff was found guilty of violating B.C.O.
331.27 and fined $100, plus court costs.
{¶8} Bickerstaff now appeals from the trial court’s judgment.
II. Law and Analysis {¶9} In his sole assignment of error, Bickerstaff argues the trial court erred by
permitting the City to amend the ordinance section cited on his traffic ticket.
{¶10} In traffic cases, the Ohio Uniform Traffic Ticket serves as the complaint and
summons. Traf.R. 3(A). This court has previously held that, although a traffic ticket
may contain sufficient language to apprise an offender of the nature of the charge, if it
does not contain a reference to the correct ordinance or statute violated, it is fatally
deficient, unless amended. Cleveland v. Austin, 55 Ohio App.2d 215, 380 N.E.2d 1357
(8th Dist.1978); Cleveland Hts. v. Perryman, 8 Ohio App.3d 443, 457 N.E.2d 926 (8th
Dist.1983); N. Olmsted v. Greiner, 9 Ohio App.3d 158, 458 N.E.2d 1284 (8th Dist.1983).
{¶11} The Ohio Traffic Rules make no specific provision for the amendment of a
ticket complaint. However, they do direct that “the Rules of Criminal Procedure and the
applicable law apply” whenever “no procedure is specifically prescribed by these [traffic]
rules.” Traf.R. 20.
{¶12} Crim.R. 7(D), provides in relevant part
The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.
{¶13} Pursuant to Crim.R. 7(D), any amendment resulting in a change in the name
or identity of the crime charged is prohibited, regardless of whether the accused can
demonstrate prejudice. Columbus v. Cordova, 10th Dist. Franklin No. 11AP-602,
2012-Ohio-1812, ¶ 9. Nevertheless, courts have distinguished between modifications that change the name or identity of the charge and those that correct certain administrative
errors, holding “[a] trial court may, pursuant to Crim.R. 7(D), amend an indictment to
correct typographical or clerical errors.” State v. Williams, 10th Dist. Franklin
No. 08AP-719, 2009-Ohio-3237, ¶ 12, citing State v. Alexander, 10th Dist. Franklin No.
06AP-647, 2007-Ohio-4177, ¶ 43-44. See also State v. Moore, 9th Dist. Summit No.
19544, 2000 Ohio App. LEXIS 1698 (Apr. 19, 2000); State v. Cooper, 4th Dist. Ross No.
97CA2326, 1998 Ohio App. LEXIS 2958 (June 25, 1998) (noting that “[w]here a traffic
ticket/complaint clearly sets forth the offense charged, but contains an error in the
numerical designation of the statute the defendant is alleged to have violated, so long as
the error does not prejudicially mislead the defendant, such error should be subject to
amendment under Crim.R. 7(D)”); Crim.R. 7(B).
{¶14} Because a traffic ticket “is designed to inform a defendant of the charge
against which he must defend,” a reviewing court must evaluate the information in the
complaint to ascertain whether the requested change would deprive defendant of a
fundamental due process right to be informed of the charge. Cordova at ¶ 13, citing
State v. Alley, 11th Dist. Portage No. 2006-P-0070, 2007-Ohio-4483, ¶ 21.
{¶15} Thus, this court has held that a traffic ticket may be amended to correct a
clerical error so long as (1) the original traffic ticket gave the defendant notice of the true
nature of the offense; (2) the defendant was not deprived of a reasonable opportunity to
prepare a defense; and (3) the amendment merely clarifies or amplifies the information in the original ticket. Mayfield Hts. v. Parker, 8th Dist. Cuyahoga No. 80974,
2003-Ohio-1502, ¶ 40.
{¶16} Under the particular facts of this case, it is undeniable that the original
citation gave Bickerstaff notice of the true nature of the offense; to-wit, describing the
offense as the “failure to veer left or slow speed passing police cars w/ disabled motorist.”
Furthermore, there is nothing in the record to suggest Bickerstaff was deprived of the
opportunity to prepare a defense to the charge. Significantly, Bickerstaff did not object
to the correction of the clerical error, and his level of preparation for his pro se defense
demonstrated his awareness that he was cited for violating B.C.O. 331.27. Lastly, we
find the amendment simply clarified the information contained on the original traffic
ticket.
{¶17} Based on the foregoing, we find the amendment herein did not serve to
change the identity of the crime charged, but rather, served to amend the ticket so that it
correctly designated B.C.O. 331.27 as the statute violated by Bickerstaff’s “failure to veer
or slow speed” as he passed Officer Leigh’s stationary police vehicle.
{¶18} Accordingly, we find the court did not err by permitting the City to amend
Bickerstaff’s citation to correct a clerical error. Bickerstaff’s sole assignment of error is
overruled.
{¶19} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Garfield
Heights Municipal Court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and ANITA LASTER MAYS, J., CONCUR