[Cite as State v. Hernandez, 2023-Ohio-3836.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY
State of Ohio Court of Appeals No. F-22-008
Appellee Trial Court No. 21CR104
v.
Juan D. Hernandez DECISION AND JUDGMENT
Appellant Decided: October 13, 2023
*****
T. Luke Jones, Fulton County Prosecuting Attorney, and Stacey S. Stiriz, Assistant Prosecuting Attorney, for appellee.
Adam H. Houser, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from an April 6, 2022 judgment of the Fulton County
Court of Common Pleas, denying appellant’s motion to suppress in the underlying 2021
DUI case. The motion sought to exclude evidence of two of appellant’s three prior DUI
convictions, a 2013 DUI conviction from the Bryan Municipal Court, and a 2017 DUI
conviction in the Fulton County Western District Court. {¶ 2} For clarity on the scope of this appeal, we note that the appeal is confined to
challenging the admission of evidence related to the 2013 DUI conviction in the Bryan
Municipal Court. It does not encompass the 2017 DUI conviction in the Fulton County
Western District Court. In addition, the motion to suppress did not challenge evidence
related to appellant’s 2014 DUI conviction in the Defiance Municipal Court. For the
reasons set forth below, this court affirms the judgment of the trial court.
{¶ 3} Appellant, Juan D. Hernandez, sets forth the following sole assignment of
error:
{¶ 4} “1. It was a violation of appellant’s due process rights when the Bryan
Municipal Court destroyed [or misplaced] the [audio recording] transcript of appellant’s
plea and sentencing in the 2013 case.”
{¶ 5} The following undisputed facts are relevant to this appeal. On August 15,
2021, appellant crashed his motor vehicle into a tree in rural Fulton County. Emergency
responders who arrived at the scene observed that appellant smelled strongly of alcohol,
had bloodshot eyes, and conceded that he had consumed multiple beers prior to the
accident. In addition, a bag of marijuana was recovered from the vehicle’s center
console. Appellant was taken by ambulance to a Toledo-area hospital for emergency
medical treatment.
{¶ 6} In response to the above-described incident, appellant was indicted in
September of 2021 for operating a motor vehicle under the influence of alcohol and
2. drugs, in violation of R.C. 4511.19, a felony of the fourth degree, as enhanced based
upon an accompanying specification setting forth appellant’s three prior DUI convictions,
occurring in 2013, 2014, and 2017, respectively.
{¶ 7} On February 1, 2022, appellant filed a motion to suppress, challenging the
admission of evidence of the 2013 and 2017 DUI convictions. It did not challenge
evidence of the 2014 DUI conviction. On March 4, 2022, the motion to suppress hearing
was conducted.
{¶ 8} As pertains to the 2013 DUI conviction from the Bryan Municipal Court,
which underpins this appeal, counsel for appellant alleges that the failure of the Bryan
Municipal Court to retain the audio recording of appellant’s 2013 DUI change of plea
hearing should be construed as a breach of Sup.R. 26.05(G)(2) regarding the retention of
DUI case files by municipal courts, and in conjunction, the alleged records retention rule
breach should then be construed as a breach appellant’s due process rights based upon
speculation that the missing recording may have shown a due process breach not
otherwise reflected in the record of evidence.
{¶ 9} Although appellant maintains that the 2013 audio recording was destroyed,
the record is devoid of evidence showing whether the unavailability of the recording
resulted from misplacement or destruction. Regardless, all trial court case documents
memorializing the proceedings in the 2013 DUI case, and comprising the trial court case
file, were retained, available, and admitted into evidence.
3. {¶ 10} We note that appellant makes no specific allegation setting forth a claimed
constitutional defect occurring in the course of the 2013 DUI case. Consistently, the
record of evidence is devoid of any such evidence. In addition, appellant denies any
recollection of the relevant portions of the proceedings. Rather, counsel for appellant
asserts that the 2013 recording “would have been helpful” in potentially unveiling a
speculative constitutional due process breach against appellant.
{¶ 11} Contrary to appellant’s conjecture-based position upon appeal, appellee
submitted into evidence all of the trial court case file documents memorializing
appellant’s 2013 DUI change of plea and sentencing hearing. Appellee submitted into
evidence appellant’s initialed and executed acknowledgment and statement of rights,
waiver of rights, entry of guilty plea, and the corresponding final judgment entry of
conviction and sentence.
{¶ 12} The transcript of the suppression hearing reflects that appellant does not
deny that the trial court adhered to his constitutional rights during the course of the 2013
proceedings. The trial court inquired of appellant, “Don’t they [the Bryan Municipal
Court] play recording of the rights?” Appellant initially replied, “Yea.” Appellant then
modified his testimony, stating, “I can’t remember.” The trial court followed up by
asking, “So you had been in court when the rights were read, correct?” Appellant replied,
“Yes. I think.”
4. {¶ 13} Similarly, the trial court then inquired, “When you went in the first time to
court and they arraigned you, they informed you of the charges and the potential
penalties, am I correct?” Appellant replied, “I can’t remember.” However, the trial court
then noted, “This form says that you listened to a recording that advised you of all these
rights and you signed it * * * Is that correct?” Appellant replied, “I can’t remember.”
{¶ 14} Upon cross-examination, appellee inquired, “So you did put your initials on
the one that says waive the right to counsel of your own choice, correct? And you
waived your right to counsel * * * and you initialed those things.” Appellant ultimately
conceded, “Yes.”
{¶ 15} At the conclusion of the suppression hearing, appellant alleged that
constitutional impropriety was demonstrated by the unavailability of the 2013 DUI
change of plea audio recording, regardless of the admission of the case file documents of
the proceedings, all of which were demonstrative of constitutional compliance. In
response, appellee asserted that appellant failed to allege or demonstrate any specific
constitutional impropriety, and that the uncontroverted 2013 DUI trial court case file
reflected none. As such, appellee asserted that the motion to suppress should be denied.
{¶ 16} On April 5, 2022, the trial court’s motion to suppress decision was issued.
The trial court explained, “At issue in this case is the propriety of the state being allowed
to introduce two prior [DUI] convictions * * * the State introduced five exhibits * * *
5. from the Bryan Municipal Court * * *the tapes had either been destroyed or were
[otherwise] unavailable.”
{¶ 17} In denying appellant’s motion to suppress, the trial court held, “The only
credible evidence before the court is the defendant’s signature on the waiver of rights * *
* at no time during defendant’s testimony did the defendant indicate he did not
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[Cite as State v. Hernandez, 2023-Ohio-3836.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY
State of Ohio Court of Appeals No. F-22-008
Appellee Trial Court No. 21CR104
v.
Juan D. Hernandez DECISION AND JUDGMENT
Appellant Decided: October 13, 2023
*****
T. Luke Jones, Fulton County Prosecuting Attorney, and Stacey S. Stiriz, Assistant Prosecuting Attorney, for appellee.
Adam H. Houser, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from an April 6, 2022 judgment of the Fulton County
Court of Common Pleas, denying appellant’s motion to suppress in the underlying 2021
DUI case. The motion sought to exclude evidence of two of appellant’s three prior DUI
convictions, a 2013 DUI conviction from the Bryan Municipal Court, and a 2017 DUI
conviction in the Fulton County Western District Court. {¶ 2} For clarity on the scope of this appeal, we note that the appeal is confined to
challenging the admission of evidence related to the 2013 DUI conviction in the Bryan
Municipal Court. It does not encompass the 2017 DUI conviction in the Fulton County
Western District Court. In addition, the motion to suppress did not challenge evidence
related to appellant’s 2014 DUI conviction in the Defiance Municipal Court. For the
reasons set forth below, this court affirms the judgment of the trial court.
{¶ 3} Appellant, Juan D. Hernandez, sets forth the following sole assignment of
error:
{¶ 4} “1. It was a violation of appellant’s due process rights when the Bryan
Municipal Court destroyed [or misplaced] the [audio recording] transcript of appellant’s
plea and sentencing in the 2013 case.”
{¶ 5} The following undisputed facts are relevant to this appeal. On August 15,
2021, appellant crashed his motor vehicle into a tree in rural Fulton County. Emergency
responders who arrived at the scene observed that appellant smelled strongly of alcohol,
had bloodshot eyes, and conceded that he had consumed multiple beers prior to the
accident. In addition, a bag of marijuana was recovered from the vehicle’s center
console. Appellant was taken by ambulance to a Toledo-area hospital for emergency
medical treatment.
{¶ 6} In response to the above-described incident, appellant was indicted in
September of 2021 for operating a motor vehicle under the influence of alcohol and
2. drugs, in violation of R.C. 4511.19, a felony of the fourth degree, as enhanced based
upon an accompanying specification setting forth appellant’s three prior DUI convictions,
occurring in 2013, 2014, and 2017, respectively.
{¶ 7} On February 1, 2022, appellant filed a motion to suppress, challenging the
admission of evidence of the 2013 and 2017 DUI convictions. It did not challenge
evidence of the 2014 DUI conviction. On March 4, 2022, the motion to suppress hearing
was conducted.
{¶ 8} As pertains to the 2013 DUI conviction from the Bryan Municipal Court,
which underpins this appeal, counsel for appellant alleges that the failure of the Bryan
Municipal Court to retain the audio recording of appellant’s 2013 DUI change of plea
hearing should be construed as a breach of Sup.R. 26.05(G)(2) regarding the retention of
DUI case files by municipal courts, and in conjunction, the alleged records retention rule
breach should then be construed as a breach appellant’s due process rights based upon
speculation that the missing recording may have shown a due process breach not
otherwise reflected in the record of evidence.
{¶ 9} Although appellant maintains that the 2013 audio recording was destroyed,
the record is devoid of evidence showing whether the unavailability of the recording
resulted from misplacement or destruction. Regardless, all trial court case documents
memorializing the proceedings in the 2013 DUI case, and comprising the trial court case
file, were retained, available, and admitted into evidence.
3. {¶ 10} We note that appellant makes no specific allegation setting forth a claimed
constitutional defect occurring in the course of the 2013 DUI case. Consistently, the
record of evidence is devoid of any such evidence. In addition, appellant denies any
recollection of the relevant portions of the proceedings. Rather, counsel for appellant
asserts that the 2013 recording “would have been helpful” in potentially unveiling a
speculative constitutional due process breach against appellant.
{¶ 11} Contrary to appellant’s conjecture-based position upon appeal, appellee
submitted into evidence all of the trial court case file documents memorializing
appellant’s 2013 DUI change of plea and sentencing hearing. Appellee submitted into
evidence appellant’s initialed and executed acknowledgment and statement of rights,
waiver of rights, entry of guilty plea, and the corresponding final judgment entry of
conviction and sentence.
{¶ 12} The transcript of the suppression hearing reflects that appellant does not
deny that the trial court adhered to his constitutional rights during the course of the 2013
proceedings. The trial court inquired of appellant, “Don’t they [the Bryan Municipal
Court] play recording of the rights?” Appellant initially replied, “Yea.” Appellant then
modified his testimony, stating, “I can’t remember.” The trial court followed up by
asking, “So you had been in court when the rights were read, correct?” Appellant replied,
“Yes. I think.”
4. {¶ 13} Similarly, the trial court then inquired, “When you went in the first time to
court and they arraigned you, they informed you of the charges and the potential
penalties, am I correct?” Appellant replied, “I can’t remember.” However, the trial court
then noted, “This form says that you listened to a recording that advised you of all these
rights and you signed it * * * Is that correct?” Appellant replied, “I can’t remember.”
{¶ 14} Upon cross-examination, appellee inquired, “So you did put your initials on
the one that says waive the right to counsel of your own choice, correct? And you
waived your right to counsel * * * and you initialed those things.” Appellant ultimately
conceded, “Yes.”
{¶ 15} At the conclusion of the suppression hearing, appellant alleged that
constitutional impropriety was demonstrated by the unavailability of the 2013 DUI
change of plea audio recording, regardless of the admission of the case file documents of
the proceedings, all of which were demonstrative of constitutional compliance. In
response, appellee asserted that appellant failed to allege or demonstrate any specific
constitutional impropriety, and that the uncontroverted 2013 DUI trial court case file
reflected none. As such, appellee asserted that the motion to suppress should be denied.
{¶ 16} On April 5, 2022, the trial court’s motion to suppress decision was issued.
The trial court explained, “At issue in this case is the propriety of the state being allowed
to introduce two prior [DUI] convictions * * * the State introduced five exhibits * * *
5. from the Bryan Municipal Court * * *the tapes had either been destroyed or were
[otherwise] unavailable.”
{¶ 17} In denying appellant’s motion to suppress, the trial court held, “The only
credible evidence before the court is the defendant’s signature on the waiver of rights * *
* at no time during defendant’s testimony did the defendant indicate he did not
understand * * * the defendant had significant issues with recalling all of the events
surrounding his plea and is, therefore, not credible * * * the 2013 conviction from the
Bryan Municipal Court is admissible to show a prior conviction.” This appeal ensued.
{¶ 18} In the sole assignment of error, appellant alleges that the motion to
suppress denial was improper based upon the unavailability of his 2013 DUI change of
plea recording from the Bryan Municipal Court. We do not concur.
{¶ 19} As held by this court in State v. Patton, 6th Dist. Huron No. H-22-001, 2022-
Ohio-3856, ¶ 37-38,
It is well-established that appellate court review of a disputed motion
to suppress presents a mixed question of fact and law. As held by the Ohio
Supreme Court in State v. Codeluppi, 139 Ohio St.3d 165, 10 N.E.3d 691,
2014-Ohio-1574, ¶ 7, ‘When considering a motion to suppress, the trial
court assumes the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses. State v.
Mills, 62 Ohio St.3d 357, 582 N.E.2d 972 (1992). Consequently, an
6. appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Fanning, 1 Ohio St.3d
19, 437 N.E. 583 (1982). Accepting these facts as true, the appellate court
must then independently determine, without deference to the conclusion of
the trial court, whether the facts satisfy the applicable legal standard. State
v. McNamara, 124 Ohio App.3d 708, 707 N.E.2d 539 (1997).
{¶ 20} In principal support of this appeal, appellant maintains that the trial court’s
unavailability of the 2013 change of plea audio recording constituted a breach of Rule of
Superintendence (“Sup.R.”) 26.05(G)(2), and that the alleged administrative breach should
be construed as a violation of appellant’s constitutional due process rights based upon
corollary speculation that a constitutional breach could have been reflected by the audio
recording. We do not concur.
{¶ 21} We have consistently held that the Rules of Superintendence are not the
equivalent of rules of procedure and have no force equivalent to a statute. In re T.C., 6th
Dist. Lucas No. L-15-1106, 2015 Ohio 3665, ¶ 21, quoting State v. Gettys, 49 Ohio
App.2d 241, 243, 360 N.E.2d 735 (3d Dist.1976). They are internal housekeeping rules
which are of concern to the judges of the several courts but create no rights in
individuals. Id. See also In re M.N., 6th Dist. Ottawa Nos. OT-12-002, OT-12-003, OT-
12-004, OT-12-016, 2013-Ohio-836, at ¶ 23 and State v. Kennedy, 6th Dist. Wood No.
WD-81-19, 1981 WL 5849, *2 (Dec. 4, 1981).
7. {¶ 22} Therefore, appellant’s assertion that his conviction should be vacated based
upon the Ohio Rules of Superintendence is meritless. S.C. v. T.H., 9 Dist., Summit No.
29594, 154 N.E.3d 345, 2020-Ohio-2698, ¶ 8.
{¶ 23} Appellant further maintains that “evidence that Appellant waiver of his
right to counsel was unconstitutional was destroyed by the Bryan Municipal Court.”
{¶ 24} Recently, where remarkably similar claims have been made, we have again
held that where questions arise concerning a prior conviction, a reviewing court must
presume all underlying proceedings were conducted in accordance with the rules of law
and a defendant must introduce evidence to the contrary in order to establish a prima-
facie showing of constitutional infirmity. State v. Gerken, 6th Dist. Fulton No. F-22-007,
2023-Ohio-2244, ¶ 27-40, citing State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533,
863 N.E.2d 1024, ¶ 8.
{¶ 25} With respect to ‘uncounseled’ pleas, we presume that the trial court in the
prior convictions proceeded constitutionally until a defendant introduces evidence to the
contrary. State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314, 903 N.E.2d 618, ¶ 6.
{¶ 26} At the suppression hearing the following exchange took place with the trial
court:
Q: Okay and how was the written waiver of rights presented to you?
A: The bailiffs- yea the bailiffs just threw it in front of me on the
table and said initial here, here, here, here.
8. Q: Okay and all of those things that were initialed, did thew Judge
read those to you in open court?
A: Not that I recall.
{¶ 27} The trial court concluded that “defendant had significant issues with
recalling all of the events surrounding his plea and is therefore not credible.”
{¶ 28} It is undisputed that appellant executed the waiver form presented to him in
the 2013 case in the Bryan Municipal Court. The trial court further noted that “at no time
during Defendant’s testimony did the defendant indicate that he did not understand that
he was waiving his right to counsel–along with other significant rights–at the time he
entered his plea.”
{¶ 29} The record contains State’s Exhibit 1, captioned “STATEMENT OF
RIGHTS AND ACKNOWLEDGMENT,” signed and dated by appellant, in which
appellant expressly acknowledges being fully advised of the pending charges and all of
the accompanying consequences, as well as all implicated constitutional rights.
{¶ 30} The record also contains State’s Exhibit 2, which is a signed, dated, and
initialed waiver of all constitutional rights by appellant. The record further contains the
change of plea to guilty to DUI form, executed and dated by appellant, in which appellant
again expressly acknowledges his voluntary entry of the plea and his awareness and
waiver of all related constitutional rights. Lastly, the record contains the final judgment
entry, memorializing the change of plea and the sentence imposed by the trial court.
9. {¶ 31} Like appellant in Gerken, Hernandez had the burden to make a prima facie
showing of constitutional infirmity in this case. It was necessary that he present some
evidence that showed that he was not, in fact, afforded his right to counsel. Like Gerken,
Hernandez testified at the suppression hearing, but he could not recall any facts germane
to the issue of whether he was given an explanation or understood that he was waiving
his right to counsel in the 2013 conviction. Nevertheless, the evidence establishes that he
unmistakably signed his waiver of right to counsel. As such, Hernandez has not
presented the threshold evidence to establish his prima facie showing. Id. at ¶ 31.
{¶ 32} When reviewing a motion to suppress, an appellate court must defer to the
trial court’s credibility determinations and other factual findings if they are supported by
competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
797 N.E.2d 71, ¶ 8. We find that competent, credible evidence supports the trial court’s
credibility determination and “[a] bald allegation of constitutional infirmity is insufficient
to establish a prima facie showing with respect to an ‘uncounseled’ plea.” Thompson at ¶
7.
{¶ 33} Wherefore, we find that the submitted 2013 trial court case file documents
constitute competent, credible evidence in support of the trial court’s motion to suppress
decision. Thus, we find appellant’s assignment of error to be not well-taken.
10. {¶ 34} On consideration whereof, the judgment of the Fulton County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
11.