[Cite as State v. Codeluppi , 2012-Ohio-5812.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v.

CORRINE CODELUPPI Appellant C.A. No. 11CA010133

APPEAL FROM JUDGMENT ENTERED IN THE ELYRIA MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. 2011TRD05695

DECISION AND JOURNAL ENTRY Dated: December 10, 2012

MOORE, Judge. {¶1} Defendant-Appellant, Corri ne Codeluppi, appeals from the November 14, 2011 order of the Elyria Municipal Court denying her motion to suppress. For the following reasons,

we affirm.

I. {¶2} In August of 2011, Officer Ryan M. Young of the North Ridgeville Police Department stopped Ms. Codeluppi on Lorain Road for driving 53 m.p.h. in a 35 m.p.h. zone. When Officer Young walked to the driver’s window of Ms. Codeluppi’s car, he smelled a strong odor of alcohol coming from the interior of the car. He confronted Ms. Codeluppi about the odor, and she admitted to being at two bars and ha ving two drinks. At that time, Officer Young requested that Ms. Codeluppi exit the car to perform Field Sobriety Tests.2

{¶3} Officer Young attempted to administer three Field Sobriety Tests on Ms. Codeluppi: (1) the Horizontal Gaze Nystagmu s (“HGN”), (2) the Walk and Turn, and (3) the One Leg Stand. {¶4} During the instruction phase of the H GN test, Officer Young reported that Ms. Codeluppi swayed toward and away from him. He observed that her eyes were red and glassy. He also observed lack of smooth pursuit, dis tinct nystagmus at maximum deviation, and the onset of nystagmus prior to 45 degrees in both eyes. {¶5} Prior to the Walk and Turn test, Officer Young gave Ms. Codeluppi the option of taking off her high heeled shoes and performing th e test in her bare feet . Ms. Codeluppi refused and testing commenced. During the instruction ph ase of the Walk and Turn test, Ms. Codeluppi could not stand in the start position, thus causing her to reposition her feet throughout the test. She also used her arms to maintain balance and repeatedly interrupted the officer while he explained the test. Further, Officer Young reported that she started the test three times prior to being instructed to do so. Finally, when Ms. Codeluppi was instructed to begin, she began the test on the wrong foot and did not touch “heel to toe on steps 3, 6, 8, and 9.” Officer Young reexplained the test and during her second attemp t, Ms. Codeluppi used her arms for balance, walked casually, completely failing to touch heel to toe. {¶6} Again, prior to the One Leg Stand test, Ms. Codeluppi declined the offer to remove her high heeled shoes. During the in struction phase of the One Leg Stand test, she prematurely started the test twice. Then, after three attempts where she either lost her balance or failed to count, Officer Young terminated the test for Ms. Codeluppi’s own safety. {¶7} At that time, Officer Young arrested Ms. Codeluppi for operating a vehicle while intoxicated (“OVI”). Ms. Codeluppi was charged with OVI, in violation of R.C.3

4511.19(A)(1)(a), and speeding, in violation of R.C. 4511.21. Ms. Codeluppi pleaded not guilty to all charges and filed a moti on to suppress wherein she challenged the constitutionality of her

arrest. {¶8} In her motion to suppress, Ms. Codeluppi asserted that: (1) the officer lacked sufficient reasonable grounds to e ffectuate a traffic stop and/or pr obable cause to arrest her, (2) the Field Sobriety Tests were not conducted in substantial co mpliance with National Highway Traffic Safety Administration (“NHTSA”) Guidelines, and (3) statements she made during the traffic stop were obtained in violation of her Fifth, Sixth, and Fourteenth Amendment rights. Ms. Codeluppi also requested a hearing. {¶9} One day prior to the hearing scheduled on November 15, 2011, the State filed its response to Ms. Codeluppi’s motion to suppress. In its response, the State argued that Ms. Codeluppi’s motion should be denied because, pur suant to Crim.R. 47, it failed to state with particularity the respects in which Officer Youn g failed to conduct the Field Sobriety Tests in substantial compliance with NHTSA guidelines. As such, the State contended that Ms. Codeluppi did not put it on notice by setting fort h any factual basis for her challenge to the constitutionality of the traffic stop and arrest. {¶10} On November 14, 2011, after reviewing both parties’ arguments, the trial court denied Ms. Codeluppi’s motion to suppress wi thout conducting the scheduled hearing, and, instead, set the matter for a pre-trial. In its order, the trial court stated: [Ms. Codeluppi’s] Motion to Suppress is de nied, at the [S]tate’s request, due to the fact it fails to state legal and factual bases with sufficient particularity to * * * place the prosecutor and the court on notice of the issues to be decided. * * * Case remains set for pretrial on 11/15/11 at 1:30 P.M. {¶11} On November 15, 2011, Ms. Codeluppi filed a motion for leave to file a supplemental brief in support of her motion to suppress, along with an affidavit from her4

attorney, Joseph T. Burke. In addition, she s imultaneously filed a supp lemental brief and a motion for reconsideration. That same day, Ms. Codeluppi pleaded no contest to OVI and speeding. Based upon her plea, the trial court found Ms. Codeluppi guilty of OVI, and the State dismissed the speeding violation. {¶12} Ms. Codeluppi timely appealed, and raised five assignments of error for our consideration. For purposes of facilitating our discussion, we will address Ms. Codeluppi’s related assignments of error together. {¶13} Prior to addressing Ms. Codeluppi’s assign ments of error, we will briefly address the State’s contention that there is no final appealable order in this case because the trial court never ruled upon Ms. Codeluppi’s motions for leave to file a supplemental brief in support of her motion to suppress and for reconsideration. “Typical ly, if a trial court fails to rule on a pending motion prior to entering judgment, it will be presumed on appeal that the motion in question was implicitly denied.” George Ford Constr., Inc. v. Hissong , 9th Dist. No. 22756, 2006-Ohio-919, ¶ 12, citing Lorence v. Goeller, 9th Dist. No. 04CA008556, 2005-Ohio-2678, ¶ 47. In the present matter, Ms. Codeluppi filed the above-stated motions on November 15, 2011, and then, subsequent to filing the motions, entered a plea of no contest as to OVI and speeding. The record indicates that the trial court accepted Ms. Codeluppi’s plea and j ournalized a sentencing order wherein she was found guilty of OVI and the charge for speeding was dismissed. The record is devoid of any evidence indicating that the trial court was unaware of the motions filed prior to Ms. Codeluppi’s plea, or that the trial court intentionally left certain motions pending. Therefore, this Court cannot conclude that the trial court failed to consid er Ms. Codeluppi’s motions. Rather, we conclude that the trial court implicitly overruled the motions a nd a final appealable order exists. See Lorence at ¶ 48.5

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ISSUED AN ORDER DENYING [MS.] CODELUPPI’S MOTION TO SUPPRESS EVIDENCE WITHOUT ALLOWING [MS.] CODELUPPI AN OPPORTUNITY TO REPLY IN VIOLATION OF RULE[S] 47 AND 12(F) OF THE OHIO RULES OF CRIMINAL PROCEDURE. {¶14} In her first assignment of error, Ms. Code luppi argues that the trial court abused its discretion by denying her motion to suppress w ithout allowing her time to file a reply to the State’s response in violation of Crim.R. 47 and 12(F). An abuse of discretion “ implies that the [trial] court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). We disagree with Ms. Codeluppi’s contention. {¶15} Motions in criminal proceedings are governed by Crim.R. 47, which states: An application to the court for an order shall be by motion. A motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally. It shall state with pa rticularity the grounds upon which it is made and shall set forth the re lief or order sought. It shall be supported by a memorandum containing citati ons of authority, and may also be supported by an affidavit. To expedite its business, the court may make provision by rule or order for the submission and deter mination of motions without oral hearing upon brief written statements of reasons in support and opposition. (Emphasis added.) However, this is a traffic cas e, and Traf.R. 11(E) sets forth the procedure for ruling on motions. Therefore, Ms. Codeluppi ’s reliance upon Crim.R. 12(F) is misplaced. Traf.R.11(E) does not provide for the filing of a re ply to the response to a motion, but states, in relevant part, that “[a] motion ma de before trial, other than a motion for change of venue, shall be timely determined before trial.” {¶16} In the present matter, Ms. Codeluppi f iled her motion to suppress and the State filed its response. Upon reviewing the argume nts made by both par ties, the trial court6

adjudicated the matter in favor of the State. Ba sed upon the record before us, we cannot say that

the trial court abused its disc retion in ruling on Ms. Codeluppi’s motion to suppress without allowing Ms. Codeluppi time to file a reply to the State’s responsive memorandum. First, Ms. Codeluppi had the opportunity to make all argu ments in her original motion to suppress. Second, Ms. Codeluppi does not cite any authority where a trial court abused its discretion by ruling on a motion to suppress, prior to allowing ti me for the filing of a reply, where both parties submitted their arguments to the trial court via written memoranda. Finally, the record does not demonstrate that Ms. Codeluppi requested to fi le a reply brief when she pleaded to the OVI charge. {¶17} Ms. Codeluppi relies upon our decision in State v. Dalchuk , 9th Dist. No. 21422, 2003-Ohio-4268, to support her argument. However, Dalchuk is clearly distinguishable from the present matter. In Dalchuk at ¶ 5, we held that the trial court abused its discretion by granting the appellee’s petition to vacate his administrative license suspension (“ALS” ), the same date it was filed, without giving the State notice or time to respond. We stated that “‘[u]ntil the other party has a reasonable opportunity to file a writte n response, there is no reasonable consideration by the court of the issues involved.’” Id ., quoting State v. Diehl , 3d Dist. No. 14-89-30, 1991 WL 44166, *3 (Mar. 25, 1991). {¶18} Here, unlike Dalchuk , both parties filed written memoranda setting forth their positions regarding the issue of whether evid ence derived from the traffic stop should be suppressed. The trial court agreed with the Stat e’s position and denied Ms. Codeluppi’s motion. Because both parties had an opportunity to make their respective arguments, we cannot say that

the trial court’s denial of Ms. Codeluppi’s motion to suppress, w ithout allowing time for her to file a reply, was arbitrary, unr easonable, or unconscionable.7

{¶19} Accordingly, Ms. Codeluppi’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED [MS.] CODELUPPI’S MOTION TO SUPPRESS WITHOUT CONDUCTING THE PREVIOUSLY SCHEDULED ORAL HEARING IN VIOLATION OF RULE [11(B)(3)(b)] OF THE LOCAL RULES OF ELYRIA MUNICIPAL COURT; [AND] RULE[S] 47 AND 12(F) OF THE OHIO RULES OF CRIMINAL PROCEDURE.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED [MS.] CODELUPPI’S MOTION TO SUPPRESS FOR FAILURE TO STATE WITH SUFFICIENT PARTICULARITY THE GROUNDS UPON WHICH THE MOTION WAS MADE IN VIOLATION OF RULE[S] 47 AND 12(F) OF THE OHIO RULES OF CRIMINAL PROCEDURE. {¶20} In her second and third assignments of erro r, Ms. Codeluppi argues that the trial court abused its discretion by denying her moti on to suppress (1) without conducting a hearing, in violation of Loc.R. 11(B)(3)(b) 1 of the Elyria Municipal Cour t and Crim.R. 47 and 12(F), and, (2) for failure to state with sufficient partic ularity the grounds upon which the motion was made

in violation of Crim. R. 47 and 12(F). {¶21} Loc.R. 11(B)(3)(b) of the Elyria Municipa l Court states, in relevant part that, aside from continuances, “[a]ll other motions shall be in conformance with applicable Rules of Criminal Procedure. Motions shall be set for oral hearing, unless otherwise ordered by the

Court.” {¶22} In the present matter, the trial court set the suppression hearing on November 15, 2011. However, after reviewing the parties’ su bmitted motions and memo randa, the trial court

1 We note that Ms. Codeluppi misstates the lo cal rule in her brief as “11(A)(3)” and “11(B)(3).”8

denied Ms. Codeluppi’s motion and converted the suppression hearing into a pretrial. Pursuant to Loc.R. 11(B)(3)(b), “[m]otions shall be set for oral hearing, unless otherwise ordered by the Court.” (Emphasis added.) Although the trial c ourt originally set a suppression hearing, in compliance with the local rule, it later denied Ms. Codeluppi’s motion prior to the hearing because it determined that the motion failed “to state legal and factual bases with sufficient particularity to place the prosecuto r and the court on notice of the i ssues to be decided.” As such, the trial court did not violate Loc.R. 11(B)(3 )(b) by setting a suppression hearing and later converting it to a pretrial throug h an order of the court. {¶23} Traf.R. 11(E) does not mandate a heari ng on every suppression motion. Thus, the trial court is required to hold a hearing only when the claims are supported by factual allegations which would justify relief. ( See State v. Jefferson , 9th Dist. No. 20156, 2001 WL 276343, *3 (Mar. 21, 2001), quoting State v. Hartley , 51 Ohio App.3d 47, 48 (9th Dist.1988), for a similar proposition of law set forth in Crim.R. 12(F)). As such, “we review a trial court’s decision not to hold an evidentiary hearing under an abuse of discretion standard.” Westerville v. Sagraves , 10th Dist. No. 04AP-1126, 2005-Ohio-5078, ¶ 10. Further, as stated above, Crim.R. 47 provides that

a motion “shall state with particularity the grounds upon which it is ma de and shall set forth the relief or order sought.” (Emphasis added.) {¶24} Here, the trial court’s order stated that Ms. Codeluppi’s motion failed to state any legal and factual bases to place the prosecutor and trial court on notice regarding the issues to be decided. Upon review of the motion, we agree that it generally sets forth numerous legal issues regarding probable cause, substantial compliance with NHTSA guidelines in field sobriety testing, and possible constitutional violations. However, the motion fails to state with particularity any factual allegations as to (1) how O fficer Young allegedly lacked probable cause9

to further detain Ms. Codeluppi after initiating the traffic stop, and (2) the respects in which Officer Young allegedly violated provisions of th e NHTSA guidelines in administering the Field Sobriety Tests. {¶25} In State v. Zink , 9th Dist. No. 17484, 1996 WL 502317, *1 (Sept. 4, 1996), we

examined the issue of whether Ms. Zink’s moti on to suppress complied w ith the particularity requirement set forth in Crim.R. 47, thus mandating an evidentiary hearing on suppressing the results of her breath alcohol test. Ms. Zink argued that, pursuant to the Supreme Court of Ohio’s

decision State v. Shindler , 70 Ohio St.3d 54 (1994), her motion to suppress complied with Crim.R. 47 by providing “adequate information to identify the issues to be decided through a combination of general factual allegations and citations to relevant legal authority.” Id . In affirming the trial court’s decision not to hold an evidentiary hearing, we stated: The State cannot be expected to anticipate and prepare to address every possible violation of Ohio Revised Code 4511.19( D), 4511.19(A) through (D) and Ohio Department of Health Regulations unde r O.A.C. 3701-53-01 et seq., without any clue as to which violation was alleged to have oc curred. In addition, there must be some factual basis in the motion to indicate that there is some substance to the motion and not just a shotgun approach achieved by merely “wrapping the administrative code in a folder and filing it.” State v. Hensley , 75 Ohio App.3d 822, 829 (3d Dist.1992). (Emphasis sic.) Shindler at *2. Further, we distinguished Zink from Shindler by noting that, although Ms. Shindler’s motion wa s “quite broad,” it “set forth seven separate paragraphs, each specifically stating exactly which particular statute, regula tion, subsection and constitutional right she alleged was violated.” Id . Additionally, we mentione d that Ms. Shindler’s motion “also included many specific factual allegations pe rtaining to each purported infraction * * * .”

Id

. {¶26} Here, based upon the record before us, we conclude Ms. Codeluppi’s motion to suppress is more akin to Ms. Zink’s, rather th an Ms. Shindler’s, motion. We acknowledge that10

Ms. Codeluppi sets forth many legal issues a nd supporting authorities, however, when discussing the actual traffic stop, she merely states that “the testing la w enforcement officer failed to instruct, conduct, evaluate, adminis ter, and/or record the standardiz ed field sobriety tests used in the within matter in substantial compliance with th e NHTSA Guidelines.” This statement is very broad and it does not adequa tely put the State or trial court on notice of the issues to be decided. Therefore, pursuant to Crim.R. 47, the trial cour t did not abuse its discretion in denying Ms. Codeluppi’s motion to suppress without a hearing for lack of particularity. {¶27} Accordingly, Ms. Codeluppi’s second and third assignments of error are

overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED [MS.] CODELUPPI’S MOTION TO SUPPRESS THEREBY ALLOWING EVIDENCE DERIVED FROM AN ILLEGALLY EXTENDED INVESTIGATIVE DETENTION TO BE USED TO ESTABLISH PROBABLE CAUSE FOR THE ARREST AND CONVICTION OF [MS.] CODELUPPI, ALL IN VIOLATION OF [MS.] CODELUPPI’S RIGHT TO BE FREE FROM ANUNREASONABLE SEARCH AND SEIZURE, RIGHT AGAINST SELFINCRIMINATION, RIGHT TO BE REPRESENTED BY AN ATTORNEY, AND RIGHT TO DUE PROCESS OF LAW PURSUANT TO THE FOURTH, FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED [MS.] CODELUPPI’S MOTION TO SUPPRESS THEREBY ALLOWING EVIDENCE DERIVED FROM FIELD SOBRIETY TESTS ADMINISTERED IN CONTRAVENTION OF THE NHTSA GUIDELINES TO BE USED TO ESTABLISH PROBABLE CAUSE FOR THE ARREST AND CONVICTION OF [MS.] CODELUPPI, ALL IN VIOLATION OF [MS.] CODELUPPI’S RIGHT TO BE FREE FROM AN UNREASONABLE SEARCH AND SEIZURE, RIGHT AGAINST SELF-INCRIMINATION, RIGHT TO BE REPRESENTED BY AN ATTORNEY, AND RIGHT TO DUE PROCESS OF LAW PURUSANT TO THE FOURTH, FIFTH, SIXTH, AND FOURTEENTH11

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION. {¶28} In her fourth and fifth assignments of er ror, Ms. Codeluppi argues that the trial

court abused its discretion in denying her motion to suppress because (1) Officer Young illegally

extended her detention after th e initial traffic stop, and (2) the Field Sobriety Tests were administered in contravention to NHTSA guidelines . Thus, she argues that Officer Young lacked probable cause to arrest her for OVI. {¶29} In its resolution of Ms. Codeluppi’s th ird assignment of error, this Court

concluded that the trial court did not err in denying her mo tion to suppress. Therefore, Ms. Codeluppi’s fourth and fifth assi gnments of error are moot, and we decline to address the issue of probable cause.

III. {¶30} In overruling Ms. Codeluppi’s first, sec ond, and third assignments of error, and deeming her fourth and fifth assignments of erro r moot, we affirm the judgment of the Elyria Municipal Court. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Elyria Municipal Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the12

period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

CARLA MOORE FOR THE COURT

DICKINSON, J. CONCURS IN JUDGMENT ONLY. BELFANCE, J. DISSENTING. {¶35} I respectfully dissent because I believe th at the trial court was required to give Ms. Codeluppi the opportunity to actually respond to the State’s responsive filing rather than rule merely six hours after its filing. Furthermore, I believe that Ms. Codeluppi’s motion to suppress was sufficient to put the prosecution on noti ce of the grounds upon which it was made, and, therefore, the trial court erred when it denied her motion without a hearing. Opportunity to Respond {¶36} The record indicates that Ms. Codeluppi filed her suppression motion on October 4, 2011. That same day, the trial court issu ed a notice setting the suppression hearing for November 15, 2011, as well as a third pretrial. Notw ithstanding the trial c ourt’s issuance of the notice of hearing, the State did not protest that it did not have sufficient notice of the grounds for the suppression motion or the nature of the alle ged constitutional violati ons to enable it to proceed with the hearing. In anticipation of the hearing, a subpoena was issued for an officer’s13

attendance. For over one month, the State di d not oppose the suppression motion. Then, one day prior to the scheduled suppression hearing, the State filed a “R esponse to Defendant’s Motion to Suppress” in which it “move[d] the Court to deny the Defendant’s Motion to Suppress[,]” and also was “seeking * * * sufficien t particularity on the i ssue of alleged improper administration of field sobriety tests[.]” Notably, the infirmity identified by the State related to only one of the grounds set forth in the suppression motion, and the State did not address the remaining alternative grounds. In substance, the State’s “Response” was actually a motion to dismiss Ms. Codeluppi’s motion to suppress, ac ting for all practical purposes as a collateral attack on the motion. Thus, Ms. Codeluppi was entitled to an opportunity to respond to the State’s procedural argument just as the Stat e had been entitled to respond to her substantive

arguments. See State v. Dalchuck , 9th Dist. No. 21422, 2003-Ohio-4268, ¶ 5 (“Until the other party has a reasonable opportunity to file a writte n response, there is no reasonable consideration by the court of the issues involved.”) (Internal quotations and citation omitted.). However, the trial court acted upon the State’s filing just hours after it was filed. Given the circumstances, I disagree with the majority’s assertion that this was a situation where “both parties had an opportunity to make their respective arguments[.]” {¶37} Ironically, although the State claimed that Ms. Codeluppi’s motion was not specific enough, the State’s responsive filing coul d be said to suffer from the same deficiency given its broad and nonspecific assertion that the suppression motion was deficient. In its response, the State did not truly explain why it could not discern Ms. Codeluppi’s grounds for the motion. The State merely asserted that her “Motion to Suppress states only that the field sobriety tests were not administered in strict compliance NHTSA guidelines[]” and that “specific alleged violations were not noted giving no factual basis for th e overly broad allegation.” The14

remainder of the State’s respons e contains a lengthy discussion of legal precedent regarding “‘shotgun’ motion[s.]” 2 The vague nature of the State’s filing makes the trial court’s immediate ruling even more problematic given that Ms. C odeluppi should have, at the very least, been afforded the opportunity to point out the need for clarification of the State’s reasoning, not to mention challenge the fact that the State never addressed or recognized the multiple grounds in

her motion. {¶38} Our system of justice is founded upon th e principle of due process, which includes notice, an opportunity to be heard, and fair play among litigants. See, e.g., Cleveland Bd. of Edn. v. Loudermill , 470 U.S. 532, 542 (1985) (“An essen tial principle of due process is that a deprivation of life, liber ty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.”) (Internal quotations and citations omitted.). Ms. Codeluppi’s motion sat unopposed for over thirty days and was not met with opposition until the day before the scheduled suppression hearing. When the State responded, the trial court acted upon the State’s filing within hours, thus depriv ing Ms. Codeluppi of an y reasonable opportunity to provide a response to the issues raised by the State. Under the circumst ances of this case, Ms. Codeluppi should have been afforded the opport unity to respond to the State’s filing, and, therefore, I would sustain her first assignment of error. Sufficiency of Motion to Suppress {¶39} However, even assuming the trial court did not commit reversible error by depriving Ms. Codeluppi of the opportunity to respond to the State’s filing, I believe its

determination that her motion wa s not stated with sufficient pa rticularity is also erroneous.

2 In fact, it could be said that the State’s motion closely resembles a boilerplate response as it contains no facts concerning the case and do es not even address three of the four grounds upon which Ms. Codeluppi’s moti on to suppress was based.15

Standard of Review {¶40} Before addressing whether Ms. Code luppi provided the prosecution with sufficient notice of the grounds upon which she s ought to suppress in accordance with Crim.R. 47 and the principles enunciated in State v. Shindler , 70 Ohio St.3d 54 (1994), I question the majority’s employment of an abuse of discretion standard of review with respect to the initial determination of the sufficiency of th e motion under Crim.R. 47. Notably, the Shindler Court did not review the sufficiency of the motion under an abuse of discretion standard, rather, the court appeared to review the sufficiency of the motion de novo. 3 {¶41} The majority relies in part upon Westerville v. Sagraves , 10th Dist. No. 04AP1126, 2005-Ohio-5078, which reasoned that, because Crim. R. 12 does not require a hearing on every motion to suppress, the court’s decision not to hold a hearing is reviewed under an abuse

of discretion standard. However, many of the cases relied upon in Sagraves only apply the

abuse of discretion standard wh ere the motion does not contain any factual allegations at all. See Sagraves at ¶ 10. See, e.g., State v. Hensley , 75 Ohio App.3d 822, 830 (3d Dist.1992) (“Where the motion does not contain factual allegations justifying relief , the trial court has discretion to deny the motion without hearing.”) (Empahsis added.); Solon v. Mallion , 10 Ohio App.3d 130, 132 (8th Dist.1983) (“The defense motion here did not contain any such factual allegation, so the court had di scretion to deny the motion without any further hearing.”). 4 In

3 Shindler expressly recognizes that, if a moti on to suppress is sufficient under Crim.R. 47, the trial court is required to hold a hearing. See id. at syllabus. Thus, any discretion regarding the decision to hold a hearing arises only after a court makes the threshold legal determination that the motion is not su fficiently particular under Crim.R. 47. 4 Sagraves also relies upon State v. Gozdan , 7th Dist. No. 03 CA 792, 2004–Ohio–3209, and State v. Miller , 1st Dist. Nos. C-930290, C-930291, 1994 WL 79590 (Mar. 16, 1994). However, Gozdan , like Sagraves , misstates Mallion. Gozdan at ¶ 6. Miller similarly misapplies State v. Kuzma , 11th Dist. No. 93-P-0019, 1993 WL 545129 (Dec. 3, 1993 because Kuzma16

contrast to those cases, in this case, the mo tion did contain factual allegations. However, irrespective of which standard of review is a pplied, I would find that the trial court committed reversible error because Ms. Codeluppi’s motion was sufficient under Crim.R. 47. Sufficiency of Motion {¶42} In Shindler , the motion to suppress “challenged the admission of [the defendant’s] breathalyzer test results on the basis of specific regulations and constitutional amendments she

believed were violated.” Shindler , 70 Ohio St.3d at 57. Nothing in Shindler indicates that the defendant provided any additional factual support for her allegations regarding violations of the

administrative code. 5 Nevertheless, the Supreme Court a ffirmed the decision of the court of appeals that the defendant’s motion to suppress sa tisfied the particularity requirement of Crim.R.

47. Id. at 58. {¶43} In this case, Ms. Codeluppi filed a 10-page motion and memorandum in support of her motion setting forth the specific grounds she sought to suppress evidence. In her motion to suppress, she alleged, in pertinent part for purposes of this appeal, as follows: The law enforcement officer lacked probable cause to arrest the Defendant and thus any evidence obtained as a result thereof is the fruit of an unconstitutional search and seizure in violation of the rights guaranteed the Defendant by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the Ohio Constitution. []The standardized Field Sobriety Te sts were not conducted in substantial compliance with NHTSA guidelines.

provides that “[a] trial cour t has discretion to deny a s uppression motion without hearing where the motion fails to comply with the dictates of Crim.R. 47 .” (Emphasis added.) Kuzma at *3. 5 The discussion of factual support in Shindler is limited to the memorandum giving support to the defendant’s allegation that the offi cer lacked reasonable suspicion to initiate the traffic stop. Id . at 57. Of course, an allegation that an officer “was not licensed to operate the instrument analyzing the Defendant’s alcohol level nor was he supervised by a senior operator in accordance with O.A.C. 3701–53–07” is itself both a factual and legal assertion. Id . at 55, 57.17

In her memorandum in support of her motion to s uppress, Ms. Codeluppi asserted that Officer Ryan Young requested that she perform the hor izontal-gaze-nystagmus test, the walk-and-turn test, and the one-legged-stand test . Ms. Codeluppi argued that the officer lacked probable cause to arrest her because he failed to perform the field sobriety test in compliance with NHTSA as required by R.C. 4511.19(D)(b)(4) and asserted that her arrest was “[b]ased on her performance[]” in the field sobriety tests. T hus, Ms. Codeluppi’s motion contained both factual assertions and legal author ity in support of her motion. {¶44} This case is clearly distinguishable from State v. Zink , 9th Dist. No. 17484, 1996 WL 502317 (Sept. 4, 1996), upon which the majority relies. 6 In that case, this Court stated, “T he State cannot be expected to anticipate and pr epare to address every possible violation of Ohio Revised Code 4511.19(D), 4511.191(A) through (D) and Ohio Department of Health Regulations under O.A.C. 3701-53-01 et seq., without any clue as to which violation was alleged to have occurred.” (Footnotes omitted.) (Emphasis sic.) Id . at *2. Far from the motion to suppress in Zink , which broadly alleged violations of R.C. 4511.19(D), R.C. 4511.191(A)-(D), and OAC 3701-53-01 et seq, Ms. Code luppi narrowly alleged that the officer had not conducted the horizontal-gaze-nystagmus test, the walk-and-turn test, or the one-legged-stand test in substantial compliance with NHTSA as required by R.C. 4511.19(D)(b)(4). In other words, as in

Shindler , she specifically asserted the code secti on (R.C. 4511.19(D)(b)(4)), the standards that had not been met (NHTSA), and even the specific tests she was challenging. The State could

6 Notably, the trial court in Zink conducted a hearing on the portion of the defendant’s suppression motion challenging the grounds fo r the traffic stop and probable cause. Id . at *1. It denied a hearing only on the portion of the mo tion concerning lack of compliance with the entirety of various provisions of the Ohio Revised Code and the administrative code. Id

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have had no doubt what the basis for Ms. Codeluppi’s motion to suppress was. 7 However, even assuming that the portions of Ms. Codeluppi’s motion to suppress referenced above did not satisfy the particularity requireme nt of Crim.R. 47, she also specifically argued that the tests

were invalid because 1) The tests were administered under du ress resulting in the Defendant’s emotional and/or physical condition (i ndependent of alcohol) affecting the Defendant’s ability to perform the field sobriety tests; 2) The tests were administered under di fficult environmental conditions; 3) The officer’s analysis of the Defendant’s performance on these tests was biased[,] resulting in inaccurate recording at the police station. In other words, Ms. Codeluppi’s motion to suppress at the very least specifically alleged that Officer Young failed to properly conduct the field sobriety tests because they were administered under improper conditions, both e nvironmental and due to her own mental and physical

condition. {¶45} It is important to remember that [a] defendant has a short wi ndow of time in which to file the motion or face a waiver. Until discovery is complete, counsel will likely not have sufficient information to fully explore potential grounds. Even after it is concluded, the defense may still lack some informati on necessary to explore and pursue all potential grounds. As [an] example, in th e case of field sobriety tests, few defendants will be conv ersant enough to inform counsel of the exact details in which the tests were administered so as to expose any defects. Unless a video has been made, and preserved, of the test ad ministration, the attorney will likely not be in a position to learn the deficiencies in the administration of the test until there is an opportunity to question the officer on the stand. Weiler and Weiler, Ohio Driving Under the Influence Law , Section 9:13 (2012-2013 Ed.). In light of the constraints for the filing of a motion to suppress, to require a defendant to file an

7 Upon stating the grounds upon which suppression is sought, the State is then in a position to investigate the matter prior to hearin g. Unlike defense counsel, it has easy access to law enforcement and can quickly obtain information concerning the circumstances of the traffic stop as well as the administration of field sobriety tests.19

even more detailed motion to suppress than Ms. Codeluppi’s places an improper burden upon defendants who are essentially at the start of the case and may have very little information. See

Shindler , 70 Ohio St.3d at 58 (recognizing time constr aints attendant to suppression motions as well as potential waiver of constitutional issues ). Crim.R. 47 sets forth a basic requirement that all motions, including suppression motions, generall y contain the basis for which they are being pursued—a concept that is consistent with th e notice pleading requirements inherent in our justice system. See State v. Slates , 9th Dist. No. 25019, 2011-Ohio-295, ¶ 74 (Belfance, P.J., dissenting) (“The holding in Shindler is consistent with the ge neralized pleading requirements that are basic to our jurisprudence.”). In my view, it is evident that Shindler stands for the proposition that the Crim.R. 47 sufficiency requirem ent is met where the basic factual and legal contours of the challenge are set out. Accordingly, I would find that Ms. Codeluppi’s motion satisfied the requirements of Crim.R. 47 and sustain her third assignment of error.

APPEARANCES: JOSEPH T. BURKE, Attorney at Law, for Appellant. TONI L. MORGAN, Prosecuting Attorney, for Appellee.