[Cite as State v. Justus, 2016-Ohio-7078.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF WAYNE ) 

STATE OF OHIO 

 Appellee 

 v. 

ZACHARY G. JUSTUS 

 Appellant 

C.A. No. 15AP0044 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

WAYNE COUNTY MUNICIPAL COURT 

COUNTY OF WAYNE, OHIO 

CASE No. 2015 TRC 6670 

DECISION AND JOURNAL ENTRY 

Dated: September 30, 2016 

 

MOORE, Presiding Judge. 

{¶1} Defendant, Zachary G. Justus, appeals from his conviction in the Wayne County 

Municipal Court. We reverse and remand this matter for further proceedings consistent with this 

decision. 

I. 

{¶2} In the early morning hours of July 5, 2015, Officer Laskowski of the Wooster 

Police Department effectuated a traffic stop of Mr. Justus after the officer purportedly witnessed 

Mr. Justus commit marked lane violations. In an affidavit of probable cause prepared by the 

officer, he maintained that, during the stop, Mr. Justus was slurring his speech, was 

uncooperative, and blew smoke from a cigarette into the officer’s face. The officer maintained 

that Mr. Justus would not listen to his instructions and smiled at him. He then observed Mr. 

Justus use his arms for balance while exiting the car, and he staggered while walking. When Mr. 

Justus refused to submit to field sobriety tests, the officer placed him under arrest. The officer 
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cited Mr. Justus with OVI in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2) along 

with failure to travel within marked lanes in violation of Wooster Codified Ordinance 331.08. 

{¶3} On July 7, 2015, Mr. Justus pleaded not guilty to the charges at his arraignment. 

On July 8, 2015, Mr. Justus requested discovery from the State. The State responded on August 

7, 2015, setting forth in part that a link to view video had been sent to defense counsel via email. 

{¶4} On August 12, 2015, another traffic citation was filed in the trial court relative to 

the July 5, 2015 stop. This citation charged Mr. Justus with OVI in violation of R.C. 

4511.19(A)(1)(f). Mr. Justus pleaded not guilty to this charge on August 18, 2015.1 

{¶5} On August 25, 2015, Mr. Justus filed a motion to suppress evidence in which he 

alleged that the police lacked a reasonable suspicion to justify the officer’s continued detention 

of Mr. Justus to request him to perform field sobriety tests.2

 In the motion, Mr. Justus requested 

that, although the motion was not filed within the required time limits, the court accept the 

motion outside of the time limits and hold a hearing on the matter. In support of permitting the 

time for filing the motion to be extended, defense counsel maintained that he had only recently 

met with Mr. Justus on August 12, 2015, that counsel did not receive discovery for this case until 

August 7, 2015, and that counsel had not yet received the video from the police cruiser. 

{¶6} The trial court construed Mr. Justus’ motion as a combined motion for leave to 

file a motion to suppress and a motion to suppress. The trial court denied Mr. Justus’ motion for 

 1

 It appears that the trial court recorded the charge as a violation of R.C. 4511.19(A)(1)(h) 

on the journal entry reciting Mr. Justus’ plea. However, it appears that the charged offense as set 

forth on the traffic ticket was a violation of R.C. 4511.19(A)(1)(f), and this is the offense to 

which Mr. Justus ultimately pleaded no contest. 

2

 Once within his motion, Mr. Justus refers to the officer requesting “Mr. Fulmer” to exit 

the vehicle to perform field sobriety tests. The reference to “Mr. Fulmer” appears to be a clerical 

error, as the motion is filed in Mr. Justus’ case and refers to the driver throughout the remainder 

of the motion as Mr. Justus. 
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leave. In its journal entry, the trial court referenced the affidavit of probable cause of Officer 

Laskowski, and it noted the conflicts between the affidavit and Mr. Justus’ factual allegations 

surrounding the stop set forth in the motion to suppress. The trial court concluded that the 

argument presented on behalf of Mr. Justus did not, in the interest of justice, merit extending the 

time to file the motion to suppress. The trial court did not reference any of the reasons for delay 

cited by Mr. Justus. 

{¶7} Thereafter, upon the State’s motion, the Court dismissed all of the original 

charges in exchange for Mr. Justus’ plea to OVI in violation of R.C. 4511.19(A)(1)(f). Mr. 

Justus pleaded no contest to this charge. The trial court found Mr. Justus guilty and imposed 

sentence. 

{¶8} Mr. Justus timely appealed from the sentencing entry, and he now presents one 

assignment of error for our review. 

II. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING [MR.] 

JUSTUS’ REQUEST TO FILE A MOTION TO SUPPRESS OUTSIDE OF THE 

TIME ALLOTTED IN EVID.R. 12(C) AND SET A HEARING ON THE 

MATTER BECAUSE [MR.] JUSTUS OFFERED BOTH GOOD CAUSE FOR 

THE DELAY AND STATED FACTS WHICH, IF FOUND TO BE TRUE AT A 

HEARING, WOULD SUPPORT SUPPRESSION. 

{¶9} In his sole assignment of error, Mr. Justus maintains that the trial court abused its 

discretion in denying his request to file his motion to suppress outside of the prescribed time 

limitations, and by failing to hold a hearing on the motion to suppress.3

 3

 Although Mr. Justus refers to “Evid.R. 12(C)” in his stated assignment of error, it is 

clear from the argument that his assignment of error pertains to Crim.R. 12(C), which is 

substantially similar to Traf.R. 11(C), which governs pretrial motions in traffic cases, such as 
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{¶10} Traf.R. 11(C) provides that “[a]ll pretrial motions, except as provided in Criminal 

Rule 16(M), shall be made within thirty-five days after arraignment or seven days before trial, 

whichever is earlier. The court, in the interest of justice, may extend the time for making preplea or pretrial motions.” “Failure by the defendant to raise defenses or objections or to make 

motions and requests which must be made prior to plea, trial, or 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 relief from the waiver.” Traf.R. 

11(F). “[W]hen a motion to suppress is filed out of the rule timelines, the movant must ‘offer a 

convincing reason to warrant relief.’” State v. Robson, 165 Ohio App.3d 621, 2006-Ohio-628, ¶ 

14 (4th Dist.) (discussing Crim.R. 12(D) and (H) which are substantially similar to Traf.R. 11(C) 

and (F)), quoting State v. Phillips, 74 Ohio St.3d 72 (1995). 

{¶11} “The decision as to whether to permit leave to file an untimely motion to suppress 

is within the sound discretion of the trial court.” State v. Skorvanek, 9th Dist. Lorain No. 

07CA009229, 2008-Ohio-4937, ¶ 55, citing Akron v. Milewski, 21 Ohio App.3d 140, 142 (9th 

Dist.1985). An abuse of discretion implies that the trial court was unreasonable, arbitrary, or 

unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The trial 

court has no obligation to hold a hearing on an untimely motion to suppress. State v. Rucci, 7th 

Dist. Mahoning No. 13 MA 34, 2015-Ohio-1882, ¶ 49. Where a motion to suppress is properly 

before the court, “in order to require a hearing on [the] motion [], the accused must state the 

motion’s legal and factual bases with sufficient particularity to place the prosecutor and the court 

 

this. See State v. Armes, 9th Dist. Medina No. 15CA0022-M, 2016-Ohio-5087, ¶ 5, fn. 1; 

Traf.R. 2. 
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on notice of the issues to be decided.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 

¶ 10, quoting State v. Shindler, 70 Ohio St.3d 54, 1994-Ohio-452, syllabus. 

{¶12} Here, our review of the trial court’s judgment is hindered because the trial court 

specifically stated that it was denying “leave” to file the motion. However, it did not reference 

whether there existed good cause for the delay in filing. Instead, the trial court considered at 

length the persuasiveness of the merits of Mr. Justus’ motion to suppress. Although the basis of 

the suppression motion may affect the trial court’s decision as to whether the reasons advanced 

for the delayed filing constitute good cause for the delay, here the trial court engaged in what 

amounted to a discussion of the merits of the suppression motion itself by indicating that the 

facts alleged in support of suppression conflicted with the officer’s affidavit. See Traf.R. 11(F); 

see also State v. Ross, 9th Dist. Lorain No. 09CA009742, 2012-Ohio-536, ¶ 15 (rejecting 

defendant’s argument that the “good cause shown” requirement of Crim.R. 12(H) pertains to the 

persuasiveness of a motion to dismiss on its merits without respect to whether leave is filed or an 

explanation for the delay provided). 

{¶13} Because the court purported to deny leave to file the motion but focused on the 

factual inconsistencies between the allegations contained in the motion to suppress and the 

officer’s probable cause affidavit, we are unable to discern whether the trial court found a 

convincing reason for the delay in filing the motion. We remand this matter to the trial court to 

clarify its holding with respect to leave to file the motion. We do not reach the issue of whether 

the motion to suppress itself warranted a hearing on its merits, as such a discussion would be 

premature prior to the trial court clarifying its decision as to whether to permit the filing of the 

motion out of time. 
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{¶14} Lastly, it appears that neither Mr. Justus nor the trial court differentiated between 

the timeliness of the motion with respect to the original charges and with respect to the August 8, 

2015 OVI charge. Because this issue is not before us, we emphasize that we make no judgment 

as to whether the time for filing the motion to suppress was subject to tolling. 

II. 

{¶15} Mr. Justus’ sole assignment of error is sustained for the reasons set forth above. 

The judgment of the trial court is reversed and this matter is remanded for further proceedings 

consistent with this decision. 

Judgment reversed, 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Wayne County 

Municipal Court, County of Wayne, 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 constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court 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 parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellee. 

 

 CARLA MOORE 

 FOR THE COURT 
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WHITMORE, J. 

SCHAFER, J. 

CONCUR. 

APPEARANCES: 

CHRISTINA I. REIHELD, Attorney at Law, for Appellant. 

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting 

Attorney, for Appellee.