[Cite as State v. Minor , 2022-Ohio-327.]

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

STATE OF OHIO Appellee

v. DAVID MINOR Appellant C.A. No. 21CA0022-M

APPEAL FROM JUDGMENT ENTERED IN THE MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 20-TRC-05800

DECISION AND JOURNAL ENTRY Dated: February 7, 2022

CARR, Presiding Judge. {¶1} Defendant-Appellant David Minor appeals the judgment of the Med ina Municipal

Court. This Court reverses and r emands the matter for further proceedings.

I. {¶2} Following a November 20, 2020 tra ffic stop, a complaint was fil ed charging Minor with violating R.C. 4511.19(A)(1)(a), 4511.33, and 4511.9 91. Minor was arraigned on November 23, 2020. On November 24, 2020, Minor filed a demand for discovery and a motion to preserve physical, audio, and video evidence. On December 1 4, 2020, Minor filed a motion to continue the December 16, 2020 pret rial because he had not yet received the video flash drive from the prosecutor’s office. Minor noted that, due to the pro secutor’s office’s COVID-19 protocols, counsel could not pick up the video and instead had to mail a flash drive to the prosecutor’s office with a self-addressed return envelope to re ceive the video evidence. Minor informed the trial court that online tracking reflected that th e parcel was still in transit to the2

prosecutor’s office and that the website indicated that the pos t office was impacted by package increases and limited employee av ailability. The motion to con tinue was granted. {¶3} The pretrial was held December 30, 2020, and the related filing indicates that a motion to suppress was anticip ated. On January 20, 2021, Minor filed a motion to suppress and motion for leave to file a motion to suppress pursuant to Crim. R. 12(D) and (H). On January 19, 2021, the day before Minor’s motions were docketed, the State f iled an objection to Minor’s untimely motion to suppress. In that filing the State argued t hat the motion was untimely, that

Minor failed to file a motion fo r an extension of time prior to the expiration of the deadline, and

that Minor failed to demonstrat e good cause for the untimely fi ling. It can be implied from the State’s filing that it had alr eady received the motion to suppr ess, and that Minor had argued that there was good cause for the untimely filing. {¶4} In the motion for leave, Minor noted that more than 35 days had passed since Minor’s arraignment. Minor asserted that he had not filed the motion earlier because he was waiting for receipt of all the evidence, including the videos, which were not received until after the 35-day mark. In addition, de fense counsel stated that he w as waiting until the December 30, 2020 pretrial conference to attempt to resolve the case with th e prosecutor. Finally, Minor alleged that the motion involve d fundamental constitutional rig hts. Minor maintained that the foregoing points demonstrated good c ause for the untimely filin g. {¶5} In the motion to suppress, which accompanied the motion for lea ve, Minor argued that the officer lacked a proper basis to stop Minor’s vehicle, to arrest him for operating a vehicle under the influence of alcohol, and to request Minor to exit th e vehicle to perform field sobriety testing. Minor specifically pointed to the dashcam video in su pport of his assertion that there was no marked lanes violation to support the stop.3

{¶6} That same day, the trial court issued an order denying Minor’s motion for leave to file the motion to suppress. The trial court pointed out that Minor did not seek leave to extend the filing time prior to the expi ration of the deadline and ult imately concluded that Minor had failed to demonstrate good cause. The trial court also indicat ed that the motion for leave was filed in response to the State’s objection. {¶7} On February 2, 2021, Minor filed a motion asking the trial cour t to reconsider the denial of the motion for leave to file the motion to suppress. Therein, Minor explained that the

motion for leave was not filed i n response to the State’s objec tion but was instead filed because it was more than 35 days after Mi nor’s arraignment. Minor clarifi ed that he sent the motion and motion for leave via fax on January 19, 2021 and also emailed i t to the prosecutor’s office. However, he experienced difficulties in the fax transmission. He was finally successful late in the day on January 19, 2021, but the filings were not docketed by the clerk’s office until the next day. As to the motion to suppress itself, Minor maintained tha t the motion was based solely on the evidence from the dashcam video, which he did not receive f rom the prosecutor’s office until December 29, 2020, which was outside the time for filing the mo tion to suppress. Minor submitted documents in support of hi s claims, including his att orney’s affidavit. {¶8} The trial court denied the moti on for reconsideration that same day. Thereafter, Minor pleaded no contest and was sentenced. The trial court st ayed execution of his sentence. Minor has appealed, raising a si ngle assignment of error for ou r review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT DAVID MINOR’S MOTION FOR LEAVE TO FILE A MOTION TO SUPPRESS AND MR. MINOR’S MOTION FOR RECONSIDERATION.4

{¶9} Minor argues in his sole assignment of error that the trial cou rt abused its discretion in denying his motion for leave to file a motion to suppress and denyi ng the motion for

reconsideration. {¶10} Traf.R. 11(C), which is substantially similar to Crim.R. 11(D), states that “[p]replea motions shall be made before or at arraignment. All pretr ial motions, except as provided in [Crim.R.] 16(M), shall be made within thirty-five days after ar raignment or seven days before trial, whichever is earlier. The court, in the interest of jus tice, may extend the time for making pre-plea or pretrial motions.” T raf.R. 11(F), which is substan tially similar to Crim.R. 12(H) court, provides that the “[f]ailu re by the defendant to raise d efenses or objections or to make motions and requests which must be made prior to plea, trial, o r at the time set by the court pursuant to subdivision (C), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for good cause shown may grant re lief from the waiver.” Thus, the stated time period must be followed “unless a trial court exten ds that time period in the interest of justice or grants relief from it for good cause shown.” State v. Woodson , 9th Dist. Wayne No. 07CA0044, 2008-Ohio-1469, ¶ 10. While this Court has sometimes used these two standards interchangeably, today we clarify that, prior to the expiration of the time period provided for in Traf.R. 11(C), a defendant may move to extend that time period in the interest of justice. See Traf.R. 11(C) and Crim.R. 11(D). If, however, the time period has already expired, the defendant has waived the opportun ity to file the motion absent demonstrating good cause for the untimely filing. See Traf.R. 11(F); Crim.R. 12(H). This Court has concluded that t he fact that the defendant had full knowledge o f the facts and circumstances pertaining to the case within the time requirements weighed against a finding of good cause. See State v. Hoover , 9th Wayne No. 02CA0056, 2003-Ohio-2344, ¶ 6. More over, at least one appellat e district has noted the5

importance of allowing defendants to use discovery “to find out whether and how the State’s procedures failed before they file a motion to suppr ess.” (Emphasis added.) State v. Sargent , 2d Dist. Clark No. 3042, 1994 WL 450079, *3 (Aug. 17, 1994); see State v. King , 9th Dist. Lorain No. 95CA006173, 1996 WL 525852, *5 (Sept . 18, 1996) (citing to Sargent ). {¶11} Minor argues that he demonstrat ed good cause for the untimely f iling of a motion to suppress and therefore should have been granted leave. “Whe ther to allow leave to file an untimely motion to suppress is within the discretion of the tri al court, which this Court will not

reverse absent an abuse of discretion.” State v. Beal , 9th Dist. Medina No. 18CA0069-M, 2019- Ohio-2479, ¶ 4. {¶12} After a review of the record, we conclude that Minor’s argument has merit.

While Minor’s initial motion for leave did not detail the diffi culties his attorney had in obtaining discovery, it did indicate that M inor’s attorney had not receiv ed all of the discove ry, particularly the videos of the stop - which were delayed in the mail, at the time pretrial motions were due. In addition, Minor stated that the m otion was untimely because his attorney wanted to attempt to resolve the matter with the prosecutor at the pretrial on Decem ber 30, 2020. While a resolution was not reached at that time, Minor did inform the prosecutor o f his intention to file a motion to suppress. Finally, Minor assert ed that the motion to suppress would raise constitutional issues which would further support good cause. In the motion to suppr ess Minor pointed out that the video of the stop faile d to evidence a marked lanes violation. {¶13} While it is true that the State’s objection to Minor’s untimely motion to suppress was filed the day before Minor’s motions, the notion that Minor ’s motion for leave was filed in response to the State’s objecti on is not supported by the recor d. The State’s objection mentions both Minor’s motion to suppress and his motion for leave, and i t explains why the State believes6

Minor failed to demonstrate good cause. Further, while the tri al court faulted Minor for not detailing in his motion his effo rts to obtain the discovery, Mi nor did previously explain those

difficulties. {¶14} Prior to the first pretrial, Minor filed a motion for a continu ance of the pretrial stating that he had not received all of the discovery, particul arly the videos. Therein, Minor indicated that, due to COVID-19 precautions, Minor could not go into the prosecutor’s office to retrieve the video, and instead, had to mail an empty flash dri ve to the prosecutor’s office, which

would be mailed back to him with the video transferred to the f lash drive. Minor mailed a flash drive on December 4, 2020, but as of December 14, 2020 the parc el was still in transit to the prosecutor’s office. {¶15} Even if this Court were to concl ude that the trial court did no t abuse its discretion in denying Minor’s initial motion for leave, we cannot say the same with respect to Minor’s motion for reconsideration, which included more details and doc umentation. In the motion for reconsideration, Minor explained that he faxed the motions and emailed them to the prosecutor’s office on January 19, 2021. He had to resend the faxes multipl e times; because of that, the motions were not received by the clerk’s office until close to 5:00 p.m. and were not filed until the next day. Thus, Minor clarified that his motion for leave was not made in response to the State’s objection, it was submitted because the motion to suppr ess was untimely. Minor also detailed that he mailed the flash drive to the prosecutor’s off ice on December 4, 2020, but did not receive it back until December 29, 2020, the day after the deadline for filing pretrial motions. Minor explained that the video was the source of the issues rai sed in the motion to suppress; thus, he could not have known prior to December 29, 2020 that t here would be a basis to file the motion to suppress. See Sargent , 1994 WL 450079, at *3

. Minor then indicated that he7

discussed the video with the prosecutor at the December 30, 202 0 pretrial and, when a resolution was not reached, Minor’s counsel informed the prosecutor a moti on to suppress would be forthcoming. The trial court’s en try related to that pretrial also reflects a motion to suppress was expected. Minor attempted to have the motions filed January 19 , 2021, but they were not

docketed until th e next day. {¶16} Considering the totality of the circumstances, we conclude the trial court abused

its discretion. Minor demonstr ated good cause for the untimely filing. He did not receive the video evidence, which was delayed due to COVID-19 precautions, until after the deadline for filing pretrial motions. Nothi ng in the record suggests that M inor’s counsel was derelict in his efforts to obtain the discovery i n a timely manner. Minor’s co unsel’s affidavit accompanying the

motion for reconsideration furthe r clarified that the video pro vided the source for the issues raised in the motion to suppress, which Minor’s counsel was not aware of until December 29, 2020. Given the foregoing, includi ng the added challenges crea ted by the COVID-19 pandemic, we cannot say that the timing of the filing of Minor’s counsel’ s motion for leave was

unreasonable. {¶17} Minor’s argument has merit, and hi s assignment of error is sust ained.

III. {¶18} Minor’s assignment of error is sustained. The judgment of the Medina Municipal Court is reversed, a nd the matter is remanded for proceedings c onsistent with this decision. Judgement reversed, and cause remanded.

There were reasonable grounds for this appeal.8

We order that a special mandate issue out of this Court, direc ting the Medina Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the 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 pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

TEODOSIO, J. SUTTON, J. CONCUR.

APPEARANCES: JOHN T. FORRISTAL, Attorne y at Law, for Appellant. GREGORY HUBER, J. MATTHEW LANIER, MEGAN A. PHILBIN, and ROBERT CAMPBELL, Prosecuting Attorneys, for Appellee.