[Cite as State v. Schertzer, 2016-Ohio-5181.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, : CASE NOS. CA2015-10-084 Plaintiff-Appellee, : CA2016-02-007
: OPINION - vs - 8/1/2016 :
RODNEY A. SCHERTZER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2015TRC08431
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Gary A. Rosenhoffer, 313 East Main Street, Batavia, Ohio 45103, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Rodney A. Schertzer, appeals from the administrative
license suspension imposed after his arrest for operating a vehicle while under the influence
of alcohol ("OVI"). Schertzer also appeals from the Clermont County Municipal Court's
decision denying his motion to suppress. For the reasons outlined below, we dismiss
Schertzer's appeal as it relates to the administrative license suspension and affirm the trial
court's judgment denying Schertzer's motion to suppress. Clermont CA2015-10-084 CA2016-02-007
{¶ 2} On June 6, 2015, Schertzer was arrested and charged with two counts of OVI
in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(H), both first-degree
misdemeanors, after he was observed speeding and committing a marked lane violation
while traveling westbound on US 52 in Franklin Township, Clermont County, Ohio. Schertzer
later submitted to a breath test that indicated he had a breath-alcohol-content measuring
.303. Due to his failed breath test, Schertzer was subject to a 90-day administrative license
suspension pursuant to R.C. 4511.191(C)(1)(a) and 4510.02(B)(5). Schertzer was then
arraigned on June 8, 2015 and entered a plea of not guilty.
{¶ 3} On September 2, 2015, two days before his administrative license suspension
was set to expire, and 86 days after making his initial appearance, Schertzer filed an appeal
from his administrative license suspension under R.C. 4511.197(A). After holding a hearing
on the matter, the trial court upheld the suspension and further denied Schertzer's motion to
suppress after his trial counsel refused to proceed on the motion. Schertzer then entered a
no contest plea to one count of OVI in violation of R.C. 4511.19(A)(1)(a) and was sentenced
to 180 days in jail, with 170 of those days suspended, placed on three years of community
control, and ordered to pay a $500 fine. The trial court also suspended Schertzer's driver's
license for two years, noting that the suspension would be credited back to the day of his
arrest.
{¶ 4} Schertzer now appeals, raising two assignments of error for review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR OF FACT AND
LAW WHEN IT DENIED SCHERTZER'S [ADMINISTRATIVE LICENSE SUSPENSION]
APPEAL.
{¶ 7} In his first assignment of error, Schertzer argues his administrative license
-2- Clermont CA2015-10-084 CA2016-02-007
suspension was improper and should have been terminated by the trial court.
{¶ 8} Pursuant to R.C. 4511.197(A), a person may appeal from an administrative
license suspension "at the person's initial appearance on the charge resulting from the arrest
or within the period ending thirty days after the person's initial appearance on that charge, in
the court in which the person will appear on that charge." "Failure to file a petition for
reinstatement within 30 days of the initial appearance on the charge renders the appeal
untimely." State v. Andrews, 11th Dist. Lake No. 2015-L-042, 2015-Ohio-4638, ¶ 19. "If an
administrative license suspension is not timely appealed, the court has no jurisdiction to
consider the appeal." Westlake v. Pesta, 8th Dist. Cuyahoga No. 92150, 2009-Ohio-4713, ¶
5.
{¶ 9} In this case, Schertzer did not appeal his suspension at his initial appearance
on June 8, 2015, nor did he appeal his suspension within 30 days thereafter. Rather,
Schertzer filed his appeal from his administrative license suspension some 86 days later on
September 2, 2015, a mere two days before the suspension was set to expire. The trial
court, therefore, did not have jurisdiction to rule upon Schertzer's appeal, thus rendering any
decision issued by the trial court on that issue null and void. State v. Derov, 7th Dist.
Mahoning No. 08MA189, 2009-Ohio-4810, ¶ 14. Accordingly, as it relates to Shertzer's
appeal from his administrative license suspension, that portion of his appeal is hereby
dismissed for this court does not have jurisdiction to consider that matter.
{¶ 10} Assignment of Error No. 2:
{¶ 11} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT SUA
SPONTE DENIED (WAIVED) SCHERTZER'S MOTION TO SUPPRESS.
{¶ 12} In his second assignment of error, Schertzer argues the trial court erred by "sua
sponte" denying his motion to suppress. We disagree.
-3- Clermont CA2015-10-084 CA2016-02-007
{¶ 13} After a simple review of the record, it is clear that Schertzer has misconstrued
the proceedings before the trial court. Contrary to Schertzer's claims otherwise, the trial court
did not "sua sponte" deny his motion to suppress. Rather, after twice setting the matter for a
hearing, Schertzer's trial counsel refused to proceed, claiming the trial court lacked
jurisdiction over the matter since he had since filed a notice of appeal with this court
regarding Schertzer's administrative license suspension, as well as a writ of prohibition in a
similar case wherein Schertzer's trial counsel argued a trial court lacks jurisdiction to proceed
once a notice of appeal from an administrative license suspension has been filed. The trial
court, however, had already denied these arguments, a decision with which this court
subsequently agreed. See, State, ex rel. Miller v. Pattison, 12th Dist. Clermont No. CA2015-
10-081 (Entry Dismissing Original Action in Prohibition).
{¶ 14} Thereafter, when the trial court asked Schertzer's trial counsel if he was ready
to proceed on Schertzer's motion to suppress, Schertzer's trial counsel specifically stated that
he was not. The following discussion then occurred:
[SCHERTZER'S TRIAL COUNSEL]: * * * We believe the Court is without jurisdiction. I simply civilly and respectfully suggest to the Court * * * that the Court should simply back down and let the Court of Appeals decide the motion for the TRO which will determine whether the Court has jurisdiction. * * * If you just back off and be patient perhaps the Twelfth District will give us an answer.
THE COURT: Okay, I understand what your position is, I believe your position is wrong, I've told you that –
[SCHERTZER'S TRIAL COUNSEL]: I understand but it's not your decision.
THE COURT: Wait a minute, I am talking. I've told you that on the other case and I told you that I was going to set both cases. If you wanted to get a TRO or anything else you could have got it quite some time ago. The research as far as I'm concerned does not support your position. You either have to go forward today or I'm going to consider the fact that you didn't go forward. -4- Clermont CA2015-10-084 CA2016-02-007
[SCHERTZER'S TRIAL COUNSEL]: Well, we're not going to go forward today.
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[Cite as State v. Schertzer, 2016-Ohio-5181.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, : CASE NOS. CA2015-10-084 Plaintiff-Appellee, : CA2016-02-007
: OPINION - vs - 8/1/2016 :
RODNEY A. SCHERTZER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2015TRC08431
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Gary A. Rosenhoffer, 313 East Main Street, Batavia, Ohio 45103, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Rodney A. Schertzer, appeals from the administrative
license suspension imposed after his arrest for operating a vehicle while under the influence
of alcohol ("OVI"). Schertzer also appeals from the Clermont County Municipal Court's
decision denying his motion to suppress. For the reasons outlined below, we dismiss
Schertzer's appeal as it relates to the administrative license suspension and affirm the trial
court's judgment denying Schertzer's motion to suppress. Clermont CA2015-10-084 CA2016-02-007
{¶ 2} On June 6, 2015, Schertzer was arrested and charged with two counts of OVI
in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(H), both first-degree
misdemeanors, after he was observed speeding and committing a marked lane violation
while traveling westbound on US 52 in Franklin Township, Clermont County, Ohio. Schertzer
later submitted to a breath test that indicated he had a breath-alcohol-content measuring
.303. Due to his failed breath test, Schertzer was subject to a 90-day administrative license
suspension pursuant to R.C. 4511.191(C)(1)(a) and 4510.02(B)(5). Schertzer was then
arraigned on June 8, 2015 and entered a plea of not guilty.
{¶ 3} On September 2, 2015, two days before his administrative license suspension
was set to expire, and 86 days after making his initial appearance, Schertzer filed an appeal
from his administrative license suspension under R.C. 4511.197(A). After holding a hearing
on the matter, the trial court upheld the suspension and further denied Schertzer's motion to
suppress after his trial counsel refused to proceed on the motion. Schertzer then entered a
no contest plea to one count of OVI in violation of R.C. 4511.19(A)(1)(a) and was sentenced
to 180 days in jail, with 170 of those days suspended, placed on three years of community
control, and ordered to pay a $500 fine. The trial court also suspended Schertzer's driver's
license for two years, noting that the suspension would be credited back to the day of his
arrest.
{¶ 4} Schertzer now appeals, raising two assignments of error for review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR OF FACT AND
LAW WHEN IT DENIED SCHERTZER'S [ADMINISTRATIVE LICENSE SUSPENSION]
APPEAL.
{¶ 7} In his first assignment of error, Schertzer argues his administrative license
-2- Clermont CA2015-10-084 CA2016-02-007
suspension was improper and should have been terminated by the trial court.
{¶ 8} Pursuant to R.C. 4511.197(A), a person may appeal from an administrative
license suspension "at the person's initial appearance on the charge resulting from the arrest
or within the period ending thirty days after the person's initial appearance on that charge, in
the court in which the person will appear on that charge." "Failure to file a petition for
reinstatement within 30 days of the initial appearance on the charge renders the appeal
untimely." State v. Andrews, 11th Dist. Lake No. 2015-L-042, 2015-Ohio-4638, ¶ 19. "If an
administrative license suspension is not timely appealed, the court has no jurisdiction to
consider the appeal." Westlake v. Pesta, 8th Dist. Cuyahoga No. 92150, 2009-Ohio-4713, ¶
5.
{¶ 9} In this case, Schertzer did not appeal his suspension at his initial appearance
on June 8, 2015, nor did he appeal his suspension within 30 days thereafter. Rather,
Schertzer filed his appeal from his administrative license suspension some 86 days later on
September 2, 2015, a mere two days before the suspension was set to expire. The trial
court, therefore, did not have jurisdiction to rule upon Schertzer's appeal, thus rendering any
decision issued by the trial court on that issue null and void. State v. Derov, 7th Dist.
Mahoning No. 08MA189, 2009-Ohio-4810, ¶ 14. Accordingly, as it relates to Shertzer's
appeal from his administrative license suspension, that portion of his appeal is hereby
dismissed for this court does not have jurisdiction to consider that matter.
{¶ 10} Assignment of Error No. 2:
{¶ 11} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT SUA
SPONTE DENIED (WAIVED) SCHERTZER'S MOTION TO SUPPRESS.
{¶ 12} In his second assignment of error, Schertzer argues the trial court erred by "sua
sponte" denying his motion to suppress. We disagree.
-3- Clermont CA2015-10-084 CA2016-02-007
{¶ 13} After a simple review of the record, it is clear that Schertzer has misconstrued
the proceedings before the trial court. Contrary to Schertzer's claims otherwise, the trial court
did not "sua sponte" deny his motion to suppress. Rather, after twice setting the matter for a
hearing, Schertzer's trial counsel refused to proceed, claiming the trial court lacked
jurisdiction over the matter since he had since filed a notice of appeal with this court
regarding Schertzer's administrative license suspension, as well as a writ of prohibition in a
similar case wherein Schertzer's trial counsel argued a trial court lacks jurisdiction to proceed
once a notice of appeal from an administrative license suspension has been filed. The trial
court, however, had already denied these arguments, a decision with which this court
subsequently agreed. See, State, ex rel. Miller v. Pattison, 12th Dist. Clermont No. CA2015-
10-081 (Entry Dismissing Original Action in Prohibition).
{¶ 14} Thereafter, when the trial court asked Schertzer's trial counsel if he was ready
to proceed on Schertzer's motion to suppress, Schertzer's trial counsel specifically stated that
he was not. The following discussion then occurred:
[SCHERTZER'S TRIAL COUNSEL]: * * * We believe the Court is without jurisdiction. I simply civilly and respectfully suggest to the Court * * * that the Court should simply back down and let the Court of Appeals decide the motion for the TRO which will determine whether the Court has jurisdiction. * * * If you just back off and be patient perhaps the Twelfth District will give us an answer.
THE COURT: Okay, I understand what your position is, I believe your position is wrong, I've told you that –
[SCHERTZER'S TRIAL COUNSEL]: I understand but it's not your decision.
THE COURT: Wait a minute, I am talking. I've told you that on the other case and I told you that I was going to set both cases. If you wanted to get a TRO or anything else you could have got it quite some time ago. The research as far as I'm concerned does not support your position. You either have to go forward today or I'm going to consider the fact that you didn't go forward. -4- Clermont CA2015-10-084 CA2016-02-007
[SCHERTZER'S TRIAL COUNSEL]: Well, we're not going to go forward today.
THE COURT: All right, I'll consider that a withdrawal of the motion.
[SCHERTZER'S TRIAL COUNSEL]: You can't consider a withdrawal of the motion, I'm not going forward on the motion.
THE COURT: All right, if you want to go forward on the motion you'll have to go forward on it today.
[SCHERTZER'S TRIAL COUNSEL]: I'd suggest that the Court set this matter with [a similar case] on Wednesday, November 25th at 2:00, that's the other case that has a prohibition action pending.
THE COURT: This case is set when it is set. You've had plenty of notice.
[SCHERTZER'S TRIAL COUNSEL]: Over our objection.
THE COURT: It's set. Okay, are you going to go forward or not?
[SCHERTZER'S TRIAL COUNSEL]: I don't intend to proceed on the motion to suppress, not today.
THE COURT: All right, your motion is going to be denied then.
{¶ 15} It is well-established that the trial court possesses the inherent power to control
its own docket and the progression of its proceedings. In turn, when Schertzer's trial counsel
refused to proceed on the motion when specifically instructed by the trial court to do so, the
trial court was left with no other option than to treat Schertzer's motion as withdrawn and to
deny the same. We find no error in the trial court's decision. A defendant may appeal when
he or she feels that a reversible error has occurred, not attempt to hijack the trial court
proceedings and demand the matter be set for a later date. Therefore, as it relates to
Schertzer's arguments regarding the trial court's treatment of his motion to suppress,
Schertzer's assignment of error lacks merit and is overruled.
-5- Clermont CA2015-10-084 CA2016-02-007
{¶ 16} Appeal dismissed in Case No. CA2015-10-084 and judgment affirmed in Case
No. CA2016-02-007.
M. POWELL, P.J., and PIPER, J., concur.
-6-