[Cite as State v. Gard , 2014-Ohio-531.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 25727 Plaintiff-Appellee : : Trial Court Ca se No. JC 2012-7203 v. : : DUSTIN GARD : (Juvenile Appeal from Common Pleas : ( Court, Juvenile Division) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 14th day of February, 2014.

. . . . . . . . . . . MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorneys for Plaintiff-Appellee WILLIAM O. CASS, JR., Atty. Reg. #0034517, 135 West Dorothy Lane, Suite 209, Kettering, Ohio 45429 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, J. {¶ 1} Defendant-appellant Dustin Gard a ppeals from his conviction, following a no-contest plea, for Child Endangering, in violation of R.C. 2919.22(A), a first-degree 2

 misdemeanor. Gard contends that the trial cour t erred when it accepted his no-contest plea to the charge without first deciding his pending moti on to suppress statements he had made to an investigating police officer. {¶ 2} We conclude that the trial court did not err when it failed to rule on Gard’s motion to suppress before accepting his no-contest pl ea. The issue of the admissibility of this evidence became moot, sin ce the no-contest plea obviated the n eed to take any evidence on the issue of guilt. Crim.R. 12(I) only permits, as an exception to this general rule, the assertion on an appeal from a conviction based on a no-contest plea of error in a ruling on a pretrial motion to suppress. Accordingly, the judgment of the trial court is Affirmed. I. The Course of Proceedings {¶ 3} On Wednesday, June 27, 2012, Gard’s tw o-month old infant son, who was in Gard’s care at the time, was rushed to the hosp ital after he had appare ntly stopped breathing. Two days later, Gard was interviewed by Dayton Police Detectives Theresa Lawson and William Swisher. Lawson primarily conduc ted the interview, although Swis her also participated, asking some questions. An audiovisual recording of this interview, on two digital video disks, is in our record. When we reviewed the second of these tw o disks, the computer program used to play it consistently stopped responding about ten minutes before the end of the hour-and-twenty-seven-minute recording, so we have been unable to play the last ten minutes. In view of our disposition of this appeal, that inability is immaterial. An audiovisual recording of a subsequent interview, two days after the first, is also in our record. These recordings were admitted in evidence at the suppression hearing. No testimony was ta ken at the suppression hearing.[Cite as State v. Gard , 2014-Ohio-531.] {¶ 4} Gard was charged with Endangering Ch ildren, in violation of R.C. 2919.22(A), a misdemeanor of the first degree. He moved to suppress all the statements he made to police officers during his two interviews at the police station, contending that the statements were obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). {¶ 5} Gard’s motion to suppress came on for a hearing. No testimony was taken, but the audiovisual recordings of the interviews, and the signed pre-interview forms, were admitted in evidence by stipulation of the parties. Th e trial court heard argume nt, but did not render a decision. {¶ 6} While his motion to suppress remained pending, Gard pled no contest to the charge. For its part, the State agreed not to ch arge Gard with a homicide offense in connection with the death of his son, unless additional evidence should come to light. {¶ 7} The trial court accepted Gard’s plea, f ound him guilty as charged, and sentenced him to 90 days imprisonment in jail, ordered “both a Mental Health and AoD Assessment,” a psychiatric evaluation, complian ce with the recommendations of the assessments and evaluation, no contact between Gard and tw o named individuals, and Gard’s submission “to random urine tests no less than every fifteen days upon release fro m jail.” It appears from the transcript of the sentencing hearing that the tria l court intended to sentence Gard to 180 days in jail, with 90 of those days conditionally suspended, but the trial court’s judgment entry specifies imprisonment in jail for 90 days. {¶ 8} Gard appeals from his conviction and sent ence. He raises three assignments of

error:[Cite as State v. Gard , 2014-Ohio-531.] THE COURT ERRED WHEN IT DID NOT SUPPRESS THE STATEMENTS THE APPELLANT MADE PRIOR TO BEING ADVISED OF HIS MIRANDA RIGHTS. THE APPELLANT DID NOT MAKE A VOLUNTARY, KNOWING AND INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS DURING THE FIRST INTERVIEW. ALL STATEMENTS THE APPELLANT MADE AFTER HE REQUESTED AN ATTORNEY SHOULD HAVE BEEN SUPPRESSED.

II. Gard’s Suppression Issues Have Not Been Preserved for Appellate Review {¶ 9} In general any errors by a trial court concerning the admission or exclusion of evidence are necessarily harmless when a criminal defendant subsequently pleads guilty or no contest, since the defendant’s c onviction, being derived from the pl ea, has not been affected by the trial court’s error. Crim.R. 12(I) creates an exception to this general rule: The plea of no contest does not precl ude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppr ess evidence. (Emphasis added.) {¶ 10} One might suppose that a ruling on an evidentiary motion could not be prejudicial error when a defenda nt subsequently pleads no contes t, since the conviction does not depend upon the evidence, but the rule, at least as it specifically refers to a pretrial motion to suppress evidence, would be meaningless if a defe ndant had to show prej udicial error in that sense. Therefore, it is generally accepted that the trial court’s error in overruling a motion to suppress evidence will survive a plea of no contest if the error would have b een prejudicial if the 5

 defendant had gone to trial rather than plead no contest. {¶ 11} But the exception to the general rule created by Crim.R. 12(I) is expressly limited to erroneous rulings on pre-tria l motions; an unruled-upon motion does not create error that can be preserved for a ppellate review. State v. Mendell , 191 Ohio App.3d 325, 2010-Ohio-6107, 945 N.E.2d 1130, ¶ 22 (2d Dist.). In the case before us, the trial court never ruled upon Gard’s motion to suppress. It would be presumptuous of us to assume that the trial court would have committed error if it had ruled on the motion. Th e trial court had no need to rule upon the motion once Gard pled no contest, because Ga rd’s conviction was based upon the plea, not upon any evidence. The unruled-upon motion to suppr ess became moot, because there was not going to be any evidentiary hearing on the issue of Ga rd’s guilt or innocence of the offense with which he was charged. {¶ 12} The situation of a no-contest plea accepte d with a motion to suppress pending is different from a situation in which a trial court’s proceeding to trial and judgment is inconsistent with granting relief on a pending motion. Wher e, for example, a de fendant moves for the disclosure to him of the allege d victim’s diaries, but the tria l court proceeds to trial and a judgment of conviction without ever ruling on th e defendant’s motion, it ma y safely be presumed that the trial court found the motion to be w ithout merit, and effec tively overruled it; the defendant was forced to proceed to trial without the diaries havi ng been disclosed to him. State v. Hebdon , 12th Dist. Butler Nos. CA2012-03- 052, and CA2012-03-62, 2013-Ohio-1729, ¶ 4. {¶ 13} There is nothing in the record of the case before us to indicate that Gard objected to the trial court’s accepting his no-contest plea without first ruling on the suppression motion. And if Gard had withheld tendering his plea until after the trial court had ruled on his motion to 6

 suppress, he would have run the risk that the trial court would overrule his motion to suppress, and the State would then offer less considerati on, or no consideration at all, for his plea. {¶ 14} All of Gard’s assignme nts of error are overruled.

III. Conclusion {¶ 15} All of Gard’s assignments of error ha ving been overruled, the judgment of the trial court is Affirmed.

. . . . . . . . . . . . . HALL and WELBAUM, JJ., concur.

Copies mailed to: Mathis H. Heck, Jr. Michele D. Phipps William O. Cass, Jr. Hon. Nick Kuntz