State v. Humphries

2019 Ohio 2878

Opinion

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:

Hon. W. Scott Gwin, P. J.

Plaintiff-Appellee Hon. John W. Wise, J.

Hon. Patricia A. Delaney, J.

-vs-

Case No. 2018 CA 00157

SIERRA D. HUMPHRIES

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal Court, Case No. 2018 TRC 5166

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 15, 2019

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

KRISTEN BATES-AYLWARD KEVIN J. BREEN CANTON LAW DIRECTOR KEVIN J. BREEN CO., LLC BEAU D. WENGER 3500 West Market Street ASSISTANT PROSECUTOR Suite 4 218 Cleveland Avenue SW Fairlawn, Ohio 44333 Canton, Ohio 44702

Wise, J.

{¶1} Appellant Sierra D. Humphries appeals her conviction for operating a vehicle while impaired, reckless operation, speeding, and no seat belt following a plea of no contest in the Canton Municipal Court.

{¶2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS

{¶3} On June 25, 2018, Appellant Sierra D. Humphries was charged with violations of OVI, reckless operation, speeding and no seat belt.

{¶4} On July 13, 2018, Appellant Humphries filed a motion in limine to exclude a previous OVI conviction which occurred on December 3, 2008. In her motion, Appellant argued that her first OVI conviction was uncounseled and allegedly unconstitutional.

{¶5} At the hearing on the motion, Appellant did not introduce any evidence. The State introduced Appellant’s written waiver form for her first OVI conviction.

{¶6} By Judgment Entry filed August 17, 2018, the trial court overruled Appellant's motion stating she did not make a prima facie case that the prior conviction was unconstitutional as is required under State v. Thompson, 121 Ohio St.3d 250, 2009- Ohio-314.

{¶7} On August 21, 2018, Appellant filed a motion for reconsideration attaching an affidavit in which she stated that she appeared pro se, was not counseled about her right to an attorney, and she did not understand her written waiver as it related to enhanceable offenses.

{¶8} By Judgment Entry filed September 19, 2018, the trial court overruled the motion for reconsideration.

Stark County, Case No. 2018 CA 00157 3

{¶9} On October 10, 2018, Appellant entered a plea of No Contest.

{¶1} It is from this conviction Appellant now appeals, raising the following errors for review:

ASSIGNMENTS OF ERROR

{¶2} “I. THE TRIAL COURT ERRED IN ITS AUGUST 17, 2018 JUDGMENT ENTRY DENYING DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OF PRIOR OVI CONVICTION.

{¶3} “II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OF THE AUGUST 17, 2018 JUDGMENT ENTRY BY ENTRY FILED SEPTEMBER 19, 2018.”

I.

{¶4} Appellant herein argues the trial court erred in denying her motion in limine.

We disagree.

{¶5} A motion in limine is a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of an evidentiary issue. State v. Grubb (1986), 28 Ohio St.3d 199, 200–201, 503 N.E.2d 142.

{¶6} A plea of no contest, however, waives the offender's right to appeal a trial court's ruling on a motion in limine. See State v. Pyro, 5th Dist. Delaware No. 04CAA01009, 2004-Ohio-4768, ¶19 (“a no contest plea generally waives any claim of error with respect to an adverse ruling on a motion in limine”). “By entering a plea of no contest * * *, the defendant voluntarily waives the right to appeal the ruling on the motion [in limine].” State v. Engle, 74 Ohio St.3d 525, 529 (1996) (Resnick, J., concurring). See also State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-Ohio-8221, ¶ 15; State v.

Felts, 4th Dist. Ross No. 13CA3407, 2014-Ohio-2378, ¶ 16, citing Engle at 528-529 (Resnick, J., concurring) and State v. Hershner, 4th Dist. Athens No. 99CA58, 2000 WL 781094, *3 (June 8, 2000); State v. Monticue, 2d Dist. Miami No. 06-CA-33, 2007-Ohio- 4615, ¶ 16, citing State v. Lewis, 164 Ohio App.3d 318, 2005-Ohio-5921, ¶ 6 (10th Dist.) and Engle at 529 (Resnick, J., concurring); State v. Oshodin, 6th Dist. Lucas No. L-03- 1169, 2004-Ohio-1186, ¶ 5-6; State v. Lamb, 3d Dist. Hardin No. 6-02-03, 2002-Ohio- 4692, ¶ 6, citing State v. Kerr, 9th Dist. Medina No. 3205-M, 2002-Ohio-2095, ¶ 7-8 and State v. Schubert, 3d Dist. Seneca No. 13-85-22, 1986 WL 14413, *1 (Dec. 22, 1986).

{¶7} Therefore, by entering pleas of no contest, Appellant waived her right to appeal the trial court's ruling on her motion in limine.

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

II.

{¶9} In her second assignment of error, Appellant argues the trial court erred in denying her motion for reconsideration. We disagree.

{¶10} “The Ohio Rules of Civil Procedure do not provide for motions for reconsideration, therefore such motions are considered a nullity.” McCullough v. Catholic Diocese of Columbus, 5th Dist. Fairfield No. 99CA77, 2000 WL 329658, *1 (Mar. 13, 2000), citing Pitts v. Department of Transportation, 67 Ohio St.2d 378, 423 N.E.2d 1105 (1981). Accord Merkle v. Merkle, 5th Dist. Licking No. 13-CA-31, 2014-Ohio-81; Primmer v. Lipp, 5th Dist. Fairfield No. 02-CA-94, 2003-Ohio-3577. “It follows that a judgment entered on a motion for reconsideration is also a nullity and a party cannot appeal from such a judgment.” McCullough, citing Kauder v. Kauder, 38 Ohio St.2d 265, 313 N.E.2d 797 (1974); Primmer at ¶ 7.

Stark County, Case No. 2018 CA 00157 5

{¶11} As Appellant is attempting to appeal the trial court's denial of her motion for reconsideration, which is a nullity, we lack jurisdiction to entertain Appellant's assigned error.

{¶12} Accordingly, Appellant’s second assignment of error is overruled.

{¶13} For the reasons stated in the foregoing opinion, the judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.

By: Wise, J. Gwin, P. J., and Delaney, J., concur.

___________________________________

HON. JOHN W. WISE

___________________________________

HON. W. SCOTT GWIN

___________________________________

HON. PATRICIA A. DELANEY

JWW/d 0708