[Cite as State v. Diersing, 2012-Ohio-4673.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsRONALD J. DIERSING, JR. 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. Sheila G. Farmer, J. 

: 

: 

: Case No. 2012-CA-26 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County 

Court of Common Pleas, Case No. 11-CRI-08-0427 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: October 8, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CAROL HAMILTON O’BRIEN DAVID BIRCH 

PETER B. RUFFING 2 West Winter 

Delaware County Prosecutor’s Office Delaware, OH 43015 

140 North Sandusky Street 

Delaware, OH 43015
[Cite as State v. Diersing, 2012-Ohio-4673.]

Gwin, P.J. 

{¶1} Appellant Ronald J. Diersing, Jr. [“Diersing’] appeals the November 17, 

2011 Judgment Entry of the Delaware County Court of Common Pleas dismissing his 

motion to suppress as not having been timely filed in accordance with Crim.R. 12(D). 

Appellee is the State of Ohio. 

Facts and Procedural History

{¶2} On August 12, 2011, Diersing was indicted on one charge of criminal drug 

possession in violation of R.C. 2925.11(A), a felony of the third degree. Diersing was 

charged with knowingly obtaining, possessing or using Oxycodone, a Schedule II 

controlled substance, in an amount equaling or exceeding bulk but less than five times 

bulk.1

{¶3} On October 7, 2011, Diersing was arraigned in Delaware County, Ohio. 

The Judgment Entry of arraignment was dated October 7, 2011; however, it was not 

filed in the Delaware County Court of Common Pleas until October 10, 2011. 

{¶4} On November 14, 2011, Diersing filed a motion to suppress evidence and 

statements pursuant to Crim.R. 12(C)(3). The trial court denied this motion on 

November 17, 2011 without a hearing as being untimely filed. 

{¶5} On January 5, 2012, Diersing entered a written plea of no contest to the 

indictment. On February 13, 2012, the Court sentenced Diersing to four (4) years of 

Community Control sanctions to be monitored by the Delaware County Office of Adult 

Court Services. 

 1

 A Statement of the Facts underlying Diersing’s original stop are unnecessary to our disposition 

of this appeal. Any facts needed to clarify the issues addressed in appellant’s assignment of error shall be 

contained therein 
Delaware County, Case No. 2012-CA-26 3 

Assignment of Error 

{¶6} Diersing raises one assignment of error, 

{¶7} “I. THE TRIAL COURT ERRED BY FINDING THAT APPELLANTS 

MOTION TO SUPPRESS WAS NOT TIMELY FILED.” 

Analysis 

{¶8} Diersing contends that his motion to suppress was filed within the thirtyfive day period set forth in Crim.R. 12(D). 

{¶9} The time for filing a motion to suppress is governed by Crim.R. 12(D), 

which requires that the motion be made within 35 days after arraignment or seven days 

before trial, whichever is earlier. The court may exercise its discretion to extend the time 

for making a motion to suppress where it is “in the interest of justice” to do so. 

{¶10} The failure to comply with the time requirement of Crim.R. 12(D) 

constitutes a waiver of the defense or objections, “but the court for good cause shown 

may grant relief from the waiver.” Crim.R. 12(H). See State v. F.O.E. Aerie 2295, 38 

Ohio St.3d 53, 526 N.E. 2d 66(1988), paragraph two of the syllabus; State v. Wade, 53 

Ohio St.2d 182, 373 N.E.2d 1244(1978), paragraph three of the syllabus, vacated in 

part on other grounds 438 U.S. 911, 98 S.Ct. 3138(1978); State v. Moody, 55 Ohio 

St.2d 54, 66, 377 N.E.2d 1008(1978). 

{¶11} Diersing appeared in the trial court on October 7, 2011 for arraignment. 

The trial court entry of that arraignment was filed on October 10, 2011. Diersing’s 

motion to suppress was filed November 14, 2011. 

{¶12} Thirty-five days from October 7, 2011 is Friday, November 12, 2011. That 

day was Veteran’s Day, a legal holiday. Crim. R. 45(A) provides that if the last day of a 
Delaware County, Case No. 2012-CA-26 4 

specified time period ends on a weekend or a legal holiday, the period runs until the end 

of the next day that is not a Saturday, Sunday or legal holiday. In the case at bar, that 

would be Monday, November 14, 2011. Thus, Diersing’s motion to suppress was timely 

filed within thirty-five days of his arraignment. 

{¶13} The state argues that the trial court correctly dismissed the motion 

because Diersing failed to comply with Delaware County Court of Common Pleas, Local 

Rule 7.07, which state in relevant part, 

If an oral hearing on the motion is desired, the motion shall contain 

a request for an oral hearing, with the anticipated length of the hearing in 

the caption. 

{¶14} The state submits that Diersing failed to request an oral hearing on his 

motion to suppress and failed to set forth the anticipated length of the hearing. 

According to the state, the trial court was correct to dismiss the motion for failure to 

comply with the local rule. 

{¶15} We begin by noting that our own Local Appellate Rules clearly and 

unequivocally inform a party that failure to comply with the rules can result in dismissal. 

5th Dist.Loc.R. 5 provides, 

Rule 5 Dismissals for failure to prosecute the appeal 

Unless the appellant demonstrates that no undue delay and no 

prejudice to appellee has been caused by the failure to comply with the 

rules, the following shall be deemed good cause for dismissal of an 

appeal, sua sponte, for failure to prosecute: 
Delaware County, Case No. 2012-CA-26 5 

(A) Failure to cause the record on appeal to be timely transmitted to 

the clerk of this Court; 

(B) Failure to timely file the brief or otherwise fail to comply with all 

the provisions of App.R. 16 or Loc.App.R. 9; 

(C) Failure to timely file a fully completed docketing statement 

pursuant to Loc.App.R. 6. 

{¶16} Emphasis added. Delaware County recognizes that due process prefers 

notice to a litigant of the potential for dismissal as a sanction for failure to comply with a 

local rule. Local Rule 7.03 provides, 

7.03 Upon filing and where appropriate, complaints shall have 

attached proof of assignment from the original creditor or original party in 

interest to the plaintiff establishing standing and jurisdiction of the court. 

The court may dismiss the complaint without prejudice if the proof of 

assignment is not attached to the complaint upon filing. 

{¶17} Emphasis added. Local Rule 7.05 likewise provides notice of a 

possible dismissal for failure to comply with the rule, 

7.05 Except as otherwise ordered by the trial judge, all motions 

(except dispositive motions) shall be accompanied by a proposed entry. 

Failure to submit a proposed entry may delay consideration of the motion 

or result in the court denying the motion for failure to comply with this rule.

Emphasis added. In Webster v. Timken Co., 5th Dist. No. 2004CA00260, 2005-Ohio1759, this Court observed, 
Delaware County, Case No. 2012-CA-26 6 

It is a fundamental tenet of judicial review in Ohio that courts should 

decide cases on the merits. See, e.g., Cobb v. Cobb (1980), 62 Ohio St.2d 

124, 403 N.E.2d 991. Judicial discretion must be carefully-and cautiouslyexercised before this court will uphold an outright dismissal of a case on 

purely procedural grounds. 

“Judicial discretion” was defined by the Ohio Supreme Court as: “* * 

* the option which a judge may exercise between the doing and not doing 

of a thing which cannot be demanded as an absolute legal right, guided by 

the spirit, principles and analogies of the law, and founded upon the 

reason and conscience of the judge, to a just result in the light of the 

particular circumstances of the case.” Krupp v. Poor (1970), 24 Ohio St.2d 

123, 265 N.E.2d 268, paragraph two of the syllabus. 

Upon review, we find the facts of this case to be substantially 

similar to those in Dehart v. Aetna Life Insurance Co., (1982) 69 Ohio St. 

2d 189, 431 N.E. 2d 644. In Dehart, counsel for Appellant had 

inadvertently placed a checkmark on the Praecipe indicating the need for 

a transcript in his appeal to the Court of Appeals, when in fact there was 

no transcript because the trial court had disposed of the matter pursuant 

to summary judgment. Based on the failure of Appellant to file a transcript, 

the Court of Appeals dismissed the matter sua sponte pursuant to its local 

rules. Appellant filed a motion for reconsideration and for leave to amend 

the Praecipe, which the Court of Appeals denied. 
Delaware County, Case No. 2012-CA-26 7 

Upon review, the Supreme Court reversed the lower court, finding: 

“The particular circumstances of the case sub judice include: (1) 

appellant's counsel's mistake was inadvertent, correctable and made in 

good faith, not as part of a continuing course of conduct for the purpose of 

delay, (2) appellee suffered no prejudice from this error, (3) the Court of 

Appeals suffered no prejudice from this error since the entire record was 

before the court at the time the case was dismissed, (4) the sanction of 

dismissal for a hyper-technical, clerical error is disproportionately harsh in 

view of the nature of the mistake, and (5) appellant should not be 

punished for a highly technical error of his counsel.” 

The Supreme Court went on to hold: 

“Only a flagrant, substantial disregard for the court rules can justify 

a dismissal on procedural grounds. Local rules, at any level of our state 

court system, should not be used as a judicial mine field, with disaster 

lurking at every step along the way. Since appellant's counsel's error was 

a minor, technical, correctable, inadvertent oversight, we find no 

conceivable justification for a disposition, by the Court of Appeals, other 

than on the merits.” 

Webster at ¶¶ 15-22. 

{¶18} Applying the five-prong Dehart test herein, it is clear that the trial court 

abused its discretion in dismissing Diersing's motion to suppress. There is no evidence 

in the record that Diersing’s failure to comply with the local rule was part of a continuing 

course of conduct designed to delay the proceedings. Rather, it appears to be based 
Delaware County, Case No. 2012-CA-26 8 

upon a common sense belief that virtually every motion to suppress requires an 

evidentiary hearing that requires the state to go forward to establish the actions were in 

fact constitutional. Moreover, we feel that the dismissal of the motion to suppress is a 

sanction that is greatly disproportionate to the procedural error. In addition, no 

conceivable prejudice to the opposing party or to the court could result from this minor, 

technical error. National Mut. Ins. Co. v. Papenhagen, 30 Ohio St.3d 14, 16, 505 N.E.2d 

980. 

{¶19} Accordingly, we hold the trial court abused its discretion in denying 

Diersing’s timely motion to suppress for failing to request for an oral hearing with the 

anticipated length in the caption of the motion per Local Rule 7.07. 

{¶20} Accordingly, Diersing’s sole assignment of error is sustained. 

{¶21} The judgment of the Delaware County Court of Common Pleas is reversed 

and this case is remanded for further proceedings consistent with this opinion. 

By Gwin, P.J., 

Hoffman, J., and 

Farmer, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. SHEILA G. FARMER 

 

WSG:clw 0910 
[Cite as State v. Diersing, 2012-Ohio-4673.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

RONALD J. DIERSING, JR. : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2012-CA-26 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Delaware County Court of Common Pleas is reversed and this case is remanded for 

further proceedings consistent with this opinion. Costs to appellee. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. SHEILA G. FARMER