State v. Lofton

2019 Ohio 2087

• Court: Ohio Court of Appeals
• Decided: May 24, 2019
• Docket: 18-CA-40
• Status: Published

Opinion

[Cite as State v. Lofton, 2019-Ohio-2087.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J Plaintiff – Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 18-CA-40 PRESTON LOFTON

Defendant – Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Fairfield County Municipal Court, Case No. TRC1806154A

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 24, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DANIEL E. COGLEY JAMES DYE Lancaster City Prosecutor’s Office P.O. Box 161 120 East Main Street – Suite #200 Pickerington, Ohio 43147 Lancaster, Ohio 43130 Fairfield County, Case No. 18-CA-40 2

Hoffman, P.J. {¶1} Appellant Preston W. Lofton appeals the judgment entered by the Fairfield

County Municipal Court overruling his motion to vacate his administrative license

suspension (hereinafter “ALS”). Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} A vehicle driven by Appellant was stopped by Sgt. Haroon of the

Pickerington Police Department at 10:20 p.m. on May 23, 2018, for speeding, traveling

outside marked lanes, and expired tags. Appellant submitted to a breath test which

showed his breath alcohol content to be .312, and he was therefore cited for violation of

R.C. 4511.19(A)(1)(h), a high-tier breath test. The citation was served on Appellant by

the officer on May 24, 2018. His license was suspended for a mandatory 90 days, with

the ability to receive driving privileges after 15 days.

{¶3} Appellant’s arraignment was set for June 7, 2018. On July 5, 2018, he filed

an appeal of his ALS. On August 2, 2018, the trial court filed an entry which stated,

“JUDICIAL NOTICE TAKEN REGARDING CASE # TRC1803527 (STATE V. MEGAN

BEASLEY); DEFENSE MOTION REGARDING ALS IS OVERRULED.”

{¶4} It is from the August 2, 2018 judgment Appellant prosecutes this appeal,

assigning as error:

THE TRIAL COURT ERRED BY FAILING TO VACATE THE

ADMINISTRATIVE LICENSE SUSPENSION WHEN THE COURT FAILED

TO COMPLY WITH THE MANDATORY REQUIREMENT CONTAINED IN

R.C. 4511.192 THEREBY VIOLATING APPELLANT’S DUE PROCESS

RIGHTS. Fairfield County, Case No. 18-CA-40 3

{¶5} As a preliminary matter, we address the state of the record in the instant

case. As noted above, the trial court, in overruling Appellant’s appeal from his ALS, took

judicial notice of State v. Megan Beasley. A trial court may not take judicial notice of prior

proceedings in the court, but may only take judicial notice of prior proceedings in the

immediate case. E.g., In re M.C.H., 5th Dist. No. 12-CA-131, 2013-Ohio-2649, 994

N.E.2d 47, ¶ 11.

{¶6} Appellant has not provided this Court with a transcript of the proceedings in

the instant case, but only with a transcript of the proceedings in State v. Beasley.

Appellant’s praecipe filed August 30, 2018, provides, “The Appellant hereby states that

he intends to include in the record a complete transcript of the ALS Appeal proceeding,

including a transcript of State v. Beasley, 18 TRC 3527, Fairfield County Municipal Court

ALS Appeal.” Appellant filed a “Notice of Filing of Transcript” on October 10, 2018, which

gave notice only of the filing of the transcript in the Beasley case. Appellant did not file a

request with this Court to supplement the record.

{¶7} Appellant’s written appeal of the ALS suspension does not specify the

grounds on which he intends to appeal, stating only “The reasons for this request will be

set out more fully and specifically upon receipt and review of discovery, as provided by

the State of Ohio.” We have not been provided a transcript of Appellant’s hearing on his

ALS suspension from which we could determine the argument(s) raised in the trial court

in support of his ALS suspension appeal. We have only been provided the transcript of

the proceedings in an unrelated case, of which the trial court improperly took judicial Fairfield County, Case No. 18-CA-40 4

notice.1 Accordingly, based on the record before us, or more accurately, the absence of

a record demonstrating the argument was preserved for review, we decline to draw an

inference the argument was raised and preserved by Appellant.

{¶8} The duty to provide a transcript falls upon the Appellant. App. R. 9(B).

“When portions of the transcript necessary for resolution of assigned errors are omitted

from the record, the reviewing court has nothing to pass upon and thus, as to those

assigned errors, the court has no choice but to presume the validity of the lower court's

proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400

N.E.2d 384, 385 (1980). In the absence of a transcript, we are unable to determine the

grounds for the appeal raised in the trial court, and have no choice but to affirm.

1Contrast State v. Carnes, 5th Dist. Perry No. 14-CA-00029, 2015-Ohio-1633, which addressed judicial notice of adjudicative facts from a prior case, rather than judicial notice of the legal arguments and proceedings in a prior case. Fairfield County, Case No. 18-CA-40 5

{¶9} The assignment of error is overruled. The judgment of the Fairfield

Municipal Court is affirmed.

By: Hoffman, P.J.

Wise, John, J. and

Baldwin, J. concur