CLERK (^^= COURT ..; IN THE SUPREME COURT OF OHIO STATE OF OHIO. Appellee NEILL T. MULLETT

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO Appellee V. NEILL T. MULLETT Defendant-Appellant On Appeal from the Champaign County Court of Appeals, Second Appellate District APPELLATE CASE NO CA Trial Court Case No TRD MEMORANDUM IN RESPONSE TO APPELLANT BY APPELLEE STATE OF OHIO Gil S. Weithman ( ) Breanne N. Parcels ( ) counsel of record Champaign Municipal Prosecutor 205 S. Main St. Urbana, Ohio Telephone: (937) Fax: (937) Attorneys for State of Ohio, Appellee Halli Brownfield Watson ( ) Subashi & Wildermuth Greene Towne Center 50 Chestnut St,, Suite 230 Dayton, Ohio Telephone: (937) Fax: (937) hwatsonr,&swohiola:w.com Attorney for Appellant..; ^!r^.. `f....., CLERK (^^= COURT "'s..., F - ^^ f ; ri^ #.,^ 4.^"f.UPs'^'s^t^^l^^"^0d^F''3

2 TABLE OF CONTENTS 'TABLE OF C;ONTENTS ii EXPLANATION OF WHY THIS CASE INVOLVF,S A QUESTION OF GREAT PUBLIC INTEREST STATEMENT OF THE CASE AND FACTS ARGUMENT IN SLJPPORT OF PROPOSITIONS OF LAiV Proposition of Law I: THE TRIA:L COURT DID NOT ERR IN REQUIRING A COURT APPEARANCE FOR A SPEED OFFENSE OF MORE THAN 80 MPH... 5 A. R.C and Traf. R. 13 do not create a right to allow a defendant to dispose of all minor misdemeanor tickets through a traffic violations bureau, as the authority of a bureau is limited by judicial discretio.n > B. The Champaign County Municipal Court has established a fine schedule for all minor misdemeanors and identified offenses which may be handled by the traffic violations bureau C. Appellant waived his objection to personal appearance II. PROPOSITION OF LAW II: APPELLANT'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY THE TRIAL COURT'S FINDING OF RECKLESSNESS AND LICENSE SUSPENSION PERMITTED BY R.C A. The Appellant was given notice of the nature of his offense and the statutory penalties, as well as the potential for license suspension, and his court appearance served as his opportunity to be heard B. The U.S. Supreme Court stated the Apprendi rule regarding sentencing factors is inapplicable to a petty, non-jailable offense I 1 C. Appellant's license suspension was a collateral consequence of the finding of recklessness III. Proposition of Law III: THE TRIAL COURT DID NOT ABUSE DISCRETION IN FINDING APPELLANT RECKLESS AS T'HE COURT CONSIDERED ALL APPROPRIATE FACTORS, NOT JUST THREAT TO OTIIERS IV. Proposition of Law IV: THE TRIAL COURT PROPERLY ADVISED APPELLANT OF HIS RIGHTS BEFORE ARRAIGNMENT...> CONCLUSION CERTIFICATE OF SERVICE......> ii

3 EXPLANATION OF WHY 7":EIIS CASE INVOLVES A QUESTION OF GREAT PUBLIC INTEREST The State of Ohio agrees with Appellant's assertion that speeding tickets are probably the most common form of court interaction experienced by most Americans and Ohioans, and that a relatively small percentage of tickets are contested in court.l-iowever, while Appellant cites recent speeding ticket statistics, he ignores data compiled by the Ohio State Highway Patrol about the consequences of speeding. In 2011, speed-related crashes killed 479 people and injured 72,536 on Ohio roadways.' About 30 percent of fatal crashes, 47 percent of injury crashes and 42 percent of all crashes were attributed to speed-related factors, making speed one of the leading causes of fatal crashes in Ohio.2 Appellant's belief that he should have been able to pay his speeding ticket without a court appearance undermines the concept of judicial discretion, particularly given the circumstances of his offense. While the Ohio Revised Code and Ohio Traffic Rules require each court of record to establish a traffic violations bureau for payment of tickets without court appearances, certain offenses are expressly excluded from the traffic bureau's jurisdiction. The State of Ohio argues that the statute and the rule do not, as Appellant contends, give defendants a right to dispose of all tickets without a court appearance. Rather, the combined effect of Traf. R. 13 and R.C gives defendants the option to pay tickets for offenses that do not require a court appearance. The language of the law is permissive to allow courts judicial discretion. Just as individual courts have discretion to establish fines based on the offense, up to a statutory maxunum amount, the State of Ohio argues each court has the authority and discretion to 1 Trooper Shield Traffic Bulletin, "Speed-Related Crashes and Arrests," Jan. 2013, OHIO STATE HzGHWAY PATROL, available at: 2 id -

4 designate "must appear" offenses, particularly those which may relate to recklessness, such as grossly excessive speed. The State of Ohio agrees the issue of mandatory appearances for certain minor misdemeanors is an issue of public and great general interest previously unaddressed by Ohio case law, as almost all cited cases involving R.C primarily focus on the right to be free of arrest for minor misdemeanor offenses, rather than any court appearance subsequent to issuance of a citation. With respect to Appellant's other propositions of law, however, the State of Ohio disagrees that the circumstances of his case merit consideration by the Supreme Court of Ohio. Appellant urges an overthrow of a half-century of precedence on the issue of whether a trial court may find a traffic defendant reckless for any offense not charged as reckless operation, given the facts and circumstances of a particular offense. The general provisions of R.C were upheld as far back as 1957 in Akron v. Willingham, 166 Ohio St. 337, 338 (be.fore the statute was renumbered in 2004). Based on the state of the law at the time the trial court made the determination that Appellant's grossly excessive speed was reckless, and that the trial court identified the reasons Appellant's speed was reckless, the finding of recklessness was not error and certainly was not plain error. Moreover, Appellant's argument that suspension of his driver's license was unconstitutional fails, as suspension of driving privileges does not impact a substantial right. Suspension of a driver's license is a civil, collateral consequence and a trial court need not inform a defendant of every single collateral consequence imaginable, including driver's license suspension. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1488 (2010). Whi1e the Ohio 2

5 Supreme Court's Commission on Crinxinal Sentencing "frowns on the practice" 3 of finding traffic defendants reckless for any offense other than reckless operation, a commission report does not have the effect of a statute or case law and therefore it does not prohibit judges from invoking R.C in minor misdemeanor cases. The appropriate channel to resolve a challenge to the language of this particular statute is legislative lobbying, as the Ohio Supreme Court must generally presume statutes to be constitutional. State v. Collier, 62 Ohio St. 3d 267, 269 (1991). "It is well established that all legislative enactments must be afforded a strong presumption of constitutionality." Id. Appellant ignores the general principle that "reasonable doubt regarding the constitutionality of a legislative enactment must be resolved in favor of the General Assembly's power to enact the law," State v. McDonald, 31 Ohio App. 3d 47, 48 (1987). Because Appellant's second and third propositions of law involve plain error and the discretion of the trial court, and such general issues are not matters of public interest, great general interest or substantial constitutional questions, the Ohio Supreme Court should not consider those issues, STATEMENT OF THE C'ASF. AND FACTS The facts are undisputed. Appellant was convicted of speeding after he admitted driving 82 mph in a 55 mph zone by pleading guilty during his arraignment on November 15, 2012 in Champaign County Municipal Court. His citation, issued by a sheriff's deputy, noted the mandatory court appearance in accordance with local court rules, which require appearances for all speeding violations of greater than 80 mph, and/or more than 20 miles above the posted speed 3 Ohio Criminal Sentencing Commission, A Plan f'or ^1l^isdemeanor Sentencing irol. II (traffic) at p. 36, misdemeanor_vol2.pdf. The document is undated, but prominently notes the role of Chie1`Justice Thomas Moyer (who passed away in 2010). The plan puts forth a proposal to completely overhaul Title 45 of the Ohio Revised Code.

6 limit. Appellant's speeding offense fit both categories. Appellant did not object to the court appearance before or at any time during his arraignment. Appellant acknowledged that the court advised him of his rights and consequences of each possible plea by video (as were all other defendants prior to entering the courtroom) and refused the opportunity to view the video again. Appellant indicated to the court he understood the consequences of a guilty plea and made no attempt to withdraw his plea or request a continuance to seek legal counsel prior to entering his plea. The trial court found that the offense was reckless given the circumstances observed by the deputy (high speed, passing a tractor trailer on a two-lane road with heavy traffic). 'The trial court fined Appellant $150 and imposed a license suspension of six months, and offered him the opportunity to stay half of the suspension term upon completion of a brief report on the connection between speeding and fatal crashes. After Appellant appealed to the Second District, the suspension was stayed. On July 16, 2013, the Second District reversed and remanded the case, concluding Appellant's guilty plea was not knowing, voluntary and intelligent even though he acknowledged he was advised of his rights by video, and that he waived any challenge to a mandatory court appearance for his ticket by failing to object at his arraignment. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW The trial court properly required the Appellant to appear in court to be arr.aigned for his speeding offense. Appellant had no right to pay an established fine for an offense designated by the court as a "must appear" violation. Moreover, the application of R.C to Appellant's speeding offense was not unconstitutional, because the court enumerated the factors that led to the finding of recklessness. Likewise, the trial court did not abuse discretion in imposing a license suspension based on the finding of recklessness. Although the Second District Court of 4

7 Appeals remanded to the trial court based on an incomplete transcript of proceedings, the complete record clearly shows Appellant was informed as to the effect of his plea by general pronouncement prior to his court appearance. 1. Proposition of Law I: THE TRIAL COURT DII? NOT ERR IN REQUIRTNG A COURT APPEARANCE FOR A SPEED OFFENSE OF MORE THAN 80 MPH. The trial court did not err in requiring a personal appearance for Appellant's case, as the offense was not under the purview of the traffic violations bureau. A. R.C and Traf. R. 13 do not create a right to allow a defendant to dispose of all minor misdemeanor tickets through a traffic violations bureau, as the authority of a bureau is limited by judicial discretion. The Ohio Trafizc Rules encourage "simplicity and uniformity in procedure" and are promulgated under statutory authority. Traf. R. 1. Traf R. 13 requires courts to establish traffic violations bureaus to "accept appearance, waiver of trial, plea of guilty, and payment of fine and costs for offenses within its authority." While Traf R. 13 expressly lists nine offenses that traffic violations bureaus are prohibited from processing, the language of the rule specifies: "All traffic offenses except those listed in this division may be disposed of by a traffic violations bureau." Traf. R. 13 (emphasis added). The statutory use of the word "may" is generally construed to make the provision in which it is contained optional, permissive, or discretionary.l7ennison v. Dennison, 165 Ohio St. 146 (1956). Because a bureau "may" dispose of certain offenses, it is designed to promote efficiency for both the court and the public. "Considering the alternative system without a Traffic Violations Bureau, that is, a mandatory court appearance for all, the establishment of the bureau as a permissive alternative benefits the people and the city." Columbus v. Skagg.s, No. 84AP-485 (10'h Dist.) Oct. 17, 1985, 1985 WL The Second District recognized Traf. R. 13 as a procedural rule for administrative convenience in Vandalia v. Walters, 43 Ohio App. 3d 35

8 (1988) (noting "offenses enumerated in TrafR. 13(B) are indicative of the types of behavior which lend themselves to motor vehicle accidents"). A rule for administrative convenience does not create a substantive right, unlike a statute designed to protect such. rights. Appellant also cites R.C in arguing that he should not have been required to make a personal appearance. The statute he cites outlines the right to be free from. arrest for minor misdemeanors absent special circumstances. Appellant asserts that in conjunction with Traf. R. 13, the statute supersedes a local court's discretion to determine which offenses are within the purview of the traffic violations bureau. On the contrary, the rule gives local courts flexibility to determine "mandatory appearance" offenses based on community standards, not to mention the facts of each offense. See State v. Slatter, 66 Ohio St. 2d 452 (I981). Tra R. 13 does not, as Appellant suggests, give defendants a right to pay a ticket to avoid a court appearance for all minor misdemeanor traffic offenses. The emphasized word, "may," in Traf. R. 131eaves no doubt that processing of a traffic ticket by a violations bureau is permissive, not mandatory, at the discretion of the court. Because the bureau's authority is established and limited by the Ohio Traffic Rules, neither the b-ureau nor a defendant may expand the bureau's power and authority, because it is not a court. Only the judges of a court have the power to decide which types of offenses the bureau "may" dispose of without a court appearance. Courts can reasonably conclude that grossly excessive speed is a behavior which leads to motor vehicle accidents, just as the nine offenses enumerated in Tra R. 13(B) do. Moreover, courts consider the characteristics of their communities when establishing fine schedules for each offense. Therefore, Appellant's first proposition of law should be rejected. B. The Champaign County Municipal Court has established af'ine schedule for all minor misdemeanors and identified offenses which may be handled by the trafric violations bureau. 6

9 Equal protection of the law guarantees all persons subject to legal proceedings shall be treated alike under like circumstances and conditions. Steele, HHopkins & Meredith Co. v. Miller, 92 Ohio St. 115 (1915). The Champaign County Municipal Court ensures this equal protection by establishing a fee schedule specifying which offenses require a mandatory court appearance based on circumstances of the offense, and a fme schedule for offenses that may be processed by the traffic violations bureau. The trial court did not, as Appellant suggests, fail to establish a proper fee and cost schedule, as the schedule had been in effect since Appellant attacks the Champaign County Municipal Court's fine schedule because it mandates a personal appearance for any speeding violation of more than 80 mph or more than 20 mph over a posted speed limit. Traffi'c ticket fines are not uniform throughout Ohio. Individual courts have discretion to establish fines based on the offense. Likewise, each court has the authority and discretion to designate "must appear" offenses, and many do. An ovei view of bond schedules for courts in the Second District and other Ohio Appellate Districts is illustrative with regard to speeding offenses for which defendants must appear. The following sample of municipal and county courts is representative of a wide geographic range, from heavily-populated metropolitan cities to suburban communities, small towns, and rural areas ticket- 6 Schedule pdf 7 Fine Schedule.pdf 7

10 I "Any speed 25 MPH or more over limit in speed zone 55 and Fairbom Municipal Court over Any speed 20 MPH or more over limit in speed zone less than 55 MPH'"g Jackson County Municipal Court -- 4}' Appellate District "> 30 MPH REQUIRED APPEARANCE"9 Kettering Municipal Court "36 or more miles per hour over Mandatory Court Appearance" 10 Mason Municipal Court -12` `31-40 MPH over maximum liznit", ^ Appellate District 1Vliamisbur Municipal Court "36 & over- Mandatory appearance Montgomery County Court, «26 and over the speed limit: Appearance Required" 13 Eastern and Westeril Divisions "If you are charged with an offense that has a possible Oberlin Municipal Court - 9t^' suspension of your driving privileges you cannot pay a waiver Appellate District [...] [or] If the officer has written Mandatory Court Appearance on your ticket."14 Portage County Municipal "30 miles per hour or over the speed limit must appear in Court- 11Ih Appellate District court, is not waiverable"i5 rtuscawaras County Court Southern District- 5th "26+ must appear"16 Appellate District Wayne County Municipal "A speed violation in excess of the speed litnit by more than Court - 9`h Appellate District 30 mph requires your appearance. A speed violation of 90 mph or more requires your appearance."17 The Supreme Court of Ohio should reject Appellant's first proposition of law as it would, if adopted, create an absurd result. Many courts throughout Ohio recognize some minor misdemeanors, including excessive speed, require court appearances. Appellant argues Champaign County and other municipal courts have no discretion to treat speeding offenses more seriously based on the degree of excess speed over the posted limit O.pdf iz 42&ltemid= pdfs/bond%20schedule.pdf

11 Appellant's speed of 82 mph in a 55 mph zone was not a trivial speeding offense in the eyes of the trial court. In 2011, traffic crashes injured 245 people in Champaign County. 18 Of those crashes, six were fatal in 2011, followed by six more in 2012 and five to date in At Appellant's arraignfnent, the court expressed concern about the link of high speed to fatalities. The trial court considers such concerns in creating the fine schedule, as do other courts. Given the same fact pattern, Appellant would have been required to appear before courts in Bellefontaine, Cleveland, Fairborn, Montgomery County or Tuscawaras County. Therefore, for Appellant to argue that the Champaign County Municipal Court treated him unfairly by requiring a personal appearance for his speeding violation is simply ludicrous. As a question of general public interest to motorists as well as judges, the Ohio Supreme Court should settle this issue in favor of judicial discretion to designate "must appear" offenses on each court's fine schedule. C. Appellant waived his objection to personal appearance. The State of Ohio agrees with the conclusion reached by the Second District. But because the State of Ohio maintains that Appellant had no right to waive a court appearance by paying his ticket through a violations bureau, Appellant also had no grounds for objection. II. PROPOSITION OF LAW IL APPELLANTgS CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY THE TRIAL COURT'S FINDING OF RECKLESSNESS AND LICENSE SUSPENSION PERMITTED BY R.C The trial court did not violate Appellant's constitutional rights of due process. Appellant was informed of the nature of his offense and the possible penalties. He was presumed to know the state of the law in Ohio with regar.d to speeding and recklessness. While he argues 18 "Ohio Traffic Crash Facts 01 /01 / /31/2011 All Counties," Oxto DEpAR7'MENT OF Pt,TBLre SAFETY, July 3, 2012, Table 7.01 at 93 available at CrashFacts.pdf. Ig "Champaign County Fatal Traffic Crashes 2011 to 2013 YTD," OHIO STATE HtoHwAy PATROL, 13/ChampaignFatalsl3.pdf 9

12 application of R.C was unconstitutional in his case, Appellant fails to present a credible challenge to the constitutionality of the statute and its application in his case. Ohio courts have long held that driving is a privilege, not a right. Doyle v. Ohio Bur, of Motor Vehicles, 51 Ohio St.3d 46, 554 N.E.2d 97 (1990). This privilege is regulated by the state, and although subject to due process requirements, not a substantial private interest. Maumee v. Gabriel, 35 Ohio St.3d 60, 63 (1988). To drive in Ohio, a driver "must conform to the requirements of law which establish that privilege." Mt. Vernon v. Young, No CA 45, 2006-(?hio (5^' Dist. 2006). Appellant did not conform his conduct to the law when he was speeding in the manner that resulted in his citation. The citation advised Appellant of the offense with which he was cllarged. The citation's requirement of a personal appearance served as notice of the case against him and the opportunity to be heard at his arraignment. Therefore, he was given due process. A. The Appellant was given notice of the nature of his offense and the statutory penalties, as well as the potential for license suspension, and his court appearance served as his opportunity to be heard. Appellant argues that he was deprived of notice and an opportunity to be heard with regard to the fmding of recklessness. Actual notice of potential penalties for traffic violations may be imputed to a defendant from the state of the law in Ohio. Columbus v. Skaggs. The state of the law in Ohio permits courts to suspend driving privileges for certain traffic offense convictions "relating to reckless operation" under R.C ln Akron v. LVillingharn, 166 Ohio St. 337 (1957), the Ohio Supreme Court held the legislature clearly intended the license suspension provision to apply not just to the statutory offense of reckless operation under R.C , but to offenses "relating to reckless operation" as well, including speed. "As a practical matter, many different types of conduct can be reckless in connection with operation of a 10

13 vehicle. Excess speed is just one example.' State v. Culver, 160 Ohio App.3d 172, 2005-Ohio at 67 (2005). The Ohio Supreme Court's Commission on Criminal Sentencing may disagree with findings of recklessness in speeding cases, but the statute permitting the practice remains unchanged. While the State recognizes the Commission's stance regarding separate charges for speeding and reckless operation, that stance does not have the effect of the statute. If Appellant desires to attack R.C , he should do so in the legislative realm, because statutes enacted by the General Assembly are entitled to a strong presumption of constitutionality. Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N. E.2d 163 (1993). Appellant does not present clear and convincing evidence of a presently existing set of facts that make the statute unconstitutional when applied to the facts of his case, nor does he establish that R.C is unconstitutional beyond a reasonable doubt. As a driver, he was presumed to know the state of the law. The requirement for a personal appearance for a speeding offense of more than 80 inph served as notice that his violation was a minor misdemeanor with potentially serious consequences, such as a finding of recklessness and a license suspension. B. The U.S. Supreme Court stated the Apprencli rule regarding sentencing factors is inapplicable to a petty, non-jailable offense. Appellant relies on a convoluted interpretation of federal case law to support his argument that the finding of recklessness and his license suspension were unconstitutional. Appellant claims that the rule of,flpprendi v.llrew Jersey, 530 U.S. 466, 20 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) must be applied to his case. Apprendi fully permits courts to impose ` judgment within the range prescribed by statute." Id. at 481 (emphasis in original). However, when "the underlying offense is considered `petty,' the Sixth Amendment right of jury trial is not triggered, and no Apprendi issue arises." 11

14 Southern ZTnion Co. v. United States, 567 U.S. _, 132 S. Ct. 2344, 2351, 183 L. Ed. 2d 318 (2012) (citing Muniz v. Hoffman, 422 U.S. 454, 477 (1975) and Blanton v. North Las Vegas, 489 U. S. 538, 541 (1989)). Appellant's sentence was within the range prescribed by Ohio statute. As a practical matter, speeding is a non-jailable, petty offense. Because his right to jury trial was not triggered, his proposition of law on the basis of Apprendi is unfounded. C. Appellant's license suspension was a collateral consequence of the finding of recklessness. Suspension of a driver's license is a civil, collateral consequence and a trial court need not inform a defendant of every single collateral consequence imaginable. State v. Wilkinson, 2005-Ohio-314 att9 (2"d District 2005); Parma v. Benedict, 2013-Ohio-1990 at 22 (8th District 2013). Furthermore, a defendant's failure to consider collateral consequences of a guilty plea is not grounds for relief from judgment. State v. Winne, No , 2010-Ohio-2269, (2na Dist. 2010). Appellant apparently failed to consider the collateral consequences a guilty plea would carry, but the court was under no obligation to advise him of difficulties he may endure due to license suspension outside the legal framework. Regardless of the hardship created by the loss of his driving privileges, the license suspension did not violate Appellant's constitutional rights. III. Proposition of Law III: 'I'IIE TRIAL COURT DID NOT ABUSE DISCRETION IN FINDING APPELLANT RECKLESS AS THE COURT CONSIDERED ALL APPROP'ItIATE FACTORS, NOT JUST THREAT TO OTHERS. The trial court considered all appropriate factors in imposing a license suspension, including finding Appellant's conduct posed a threat to himself and others on the road. Moreover, the court exercised appropriate discretion as the suspension was not the maximum allowable by law. Therefore, the trial court did not abuse discretion. 12

15 Abuse of discretion requires a finding that the trial court's decision was "unreasonable, arbitrary and unconscionable." Blakemore v..d3lakemore, 5 Ohio St.3d 217, 219, 450 N.E. 2d 1140 (1983). A trial court has full discretion to impose any sentence within the authorized statutory range. State v. Foster, 109 Ohio St.3d 1, 30, 2006-Ohio-856, 845 N.E.2d 470 (2006). Under R.O , the maximum suspension for a finding of recklessness is up to one year. If a driver "cannot demean himself as a careful user, considerate of the right of others to do likewise, he becomes a public nuisance and should be excluded temporarily or pemianently" from the use of public roadways. Mt. Vernon v. Young at 62. Appellant incorrectly asserts that he must pose a risk to others on the road to be found reckless. Recklessness may be inferred from a combination of excessive speed and other circumstances. State v. Skaggs, 185 Ohio App.3d 752, 2010-Ohio-302. "Grossly excessive speed which presents a clear safety hazard to other users of the road is one of the factors to consider along with all other evidence regarding all of the circumstances of the event." Id. at 43. Appellant argues that his conviction was based upon speed alone and that there were no other facts or circumstances to support a finding of recklessness. However, the sheriff's deputy noted that when he activated radar, Appellant was passing a tractor-trailer on a two-lane road, therefore he was in the deputy's lane of travel. As such, Appellant's conduct posed a risk to the driver of the vehicle lie was passing, and potentially the deputy as well. A court may also consider the threat speeding poses to not just others on the roadway, but the driver as well. E.g. State v. Pessefall, 87 Ohio App. 3d 222, 226, 621 N.E.2d 1371 (4`' Dist. 1993). Passing other vehicles in the wrong lane of travel is one such threat. State v. Short, No CA 42, 2004-Ohio-5985 (2nd Dist. 2004) at 7. A court can properly take into consideration 13

16 the statement of a law enforcement officer, in making a determination of the threat posed by defendant's conduct, even when the citation itself does not include such detail. Id. at 1{3, S. The trial court's decision to impose a six-month suspension of Mr. Nlullett's license was not unreasonable, arbitrary or unconscionable. The trial court weighed the circumstances of the offense in finding him reckless, and imposed a suspension of less than the maximum one year permitted under R.C The state interest served by allowing trial courts to impose license suspension is both obvious and compelling, in view of the number of crashes, particularly fatalities, caused by drivers speeding on public roads and highways. Appellant was driving on a two lane rural road, more than 20 miles per hour over the posted limit while overtaking another vehicle, on a Sunday afternoon with heavy traffic. To argue that Appellant's conduct was a "common place speedin.g violation" or a "legal pass" ignores the fact that his grossly excessive speed created a threat to himself and the driver he passed, as well as all oncoming traffic, including the deputy. The license suspension was not an abt.ise of discretion, as the court fully weighed the circumstances of the offense and factors in mitigation before imposing the sentence. Therefore, Appellant's third proposition of law should be rejected. IV. Proposition of Law IV: THE TRIAL COURT PROPERLY ADVISED APPELLANT OF HIS RIGHTS BEFORE ARRAIGNMENT. 1^Yie Second District Court of Appeals found that Appellant's guilty plea was invalid, because it was the product of the trial court's failure to advise him of his rights. However, the trial court substantially complied with all the requirements of Traf. R. 8(D) and Traf. R. 10, as the trial court advises all defendants of their rights and the effect of pleas prior to arraignment by video, a "general pronouncement" permitted by Traf. R. 10(D). The Second District did not exercise its ability to consider that video as part of the record in accordance with App. R. 9(E). 14

17 Consequently, the State of Ohio has filed a motion with the trial court to correct the record. The Supreme Court of Ohio may also order the correction of an omission in the record sua sponte pursuant to S.Ct.Prac.R (E). Appellant admitted that he watched the video advisement of his rights before his personal appearance in the courtroom, and refused an opportunity to review it again. Although the Second District did not exercise its ability to include the video as part of the record, the Supreme Court of Ohio should review the record and decide accordingly. 1. CONCLUSION For the foregoing reasons, Appellee, State of Ohio, respectfully submits that this case does involve a matter of public interest or question of great general interest. Appellee requests the Ohio Supreme Court accept jurisdiction of this case. Respect ly sub ^^ reazine N. rce s ). Champaign Co. Asst. Municipal Prosecutor 205 S. Main St. Urbana, Ohio Telephone: (937) Fax: (937) breanne.parcels@ci.urbana.oh.us Attorney for State of Ohio, Appellee CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum was served by regular U.S. mail and electronic mail on this 23th day of September, 2013, upon: Halli Brownfield Watson Subashi & Wildermuth 50 Chestnut St., Suite 230 Dayton, Ohio hwatsona,swohiolaw> com Attorney for Appellant 15