COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60348, 60349 CITY OF CLEVELAND : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DONALD SMITH : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CLEVELAND MUNICIPAL COURT CASE NOS. 90-TRC-14395 AC and 90-TRC-14423 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARK McCLAIN CLEVELAND CITY PROSECUTOR JEANNETTE M. WEAVER (#0039697) CHIEF TRIAL COUNSEL JUSTICE CENTER - 8TH FLOOR 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: JOHN W. HICKEY (#20327) THERESA A. HICKEY (#36842) 3794 PEARL ROAD CLEVELAND, OHIO 44109 -2- SPELLACY, J.: On March 24, 1990, defendant-appellant Donald Smith ("appellant") was cited for operating a vehicle while under the influence of alcohol, in violation of Cleveland Codified Ordinances Section 433.01(a)(1); operating a vehicle with a concentration of fourteen-hundredths of one gram or more by weight of alcohol per 100 milliliters of his urine, in violation of Cleveland Codified Ordinances Section 433.01(a)(4); and making an improper left turn, in violation of Cleveland Codified Ordinances Section 413.01. Trial commenced June 7, 1990. After the City's opening statement, the trial court granted appellant's motion for a mistrial on the grounds that the City had improperly used the results of an independent analysis of appellant's urine. On July 9, 1990, appellant filed motions to dismiss based on his right to a speedy trial and the double jeopardy clause. On July 12, 1990, the trial court denied these motions. On July 24, 1990, the trial court accepted a no-contest plea to all three charges. On August 14, 1990, the trial court fined appellant $1,000.00, sentenced him to a term of ninety days, and suspended his license for ninety days for operating a vehicle while under the influence of alcohol. The trial court then suspended $500.00 of the fine and eighty days of incarceration, placing appellant on probation for one year. The trial court also fined appellant $50.00 for making an improper left turn. The trial court further dismissed the charge against appellant -3- for operating a vehicle with an impermissible concentration of alcohol in his urine. Appellant filed separate notices of appeal. These have been consolidated on appeal. Appellant raises the following assignments of error: I. WHETHER THE COURT (JASPER) ERRED IN OVERRULING THE DEFENDANT'S MOTION TO DISMISS BASED UPON LACK OF SPEEDY TRIAL AND THEREBY, VIOLATED THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL AS GUARANTEED HIM BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THE OHIO CONSTITUTION AND THE OHIO REVISED CODE SECTION 2945.71. II. WHETHER THE COURT (JASPER) ERRED BY OVERRULING THE DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY, AND THEREBY, VIOLATED THE DEFENDANT'S FIFTH AND FOURTEENTH AMENDMENT PROTECTION AGAINST DOUBLE JEOPARDY, AS WELL AS SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. III. WHETHER THE COURT (JASPER) ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR A NEW HEARING ON HIS PRETRIAL MOTIONS AFTER THE FIRST TRIAL BEFORE A SEPARATE COURT (SAFFOLD) ENDED IN A MISTRIAL, AND THE CASE WAS REASSIGNED TO THE NEW COURT (JASPER) FOR A NEW TRIAL, ESPECIALLY IN LIGHT OF THE FACT THAT THE FIRST COURT (SAFFOLD) FAILED TO JOURNALIZE ITS MOTION RULINGS AND FURTHER DENIED THE DEFENDANT'S NUMEROUS REQUESTS FOR FINDING OF FACTS AND CONCLUSIONS OF LAW IN REGARD TO THE MOTION RULINGS. IV. WHETHER THE COURT (SAFFOLD) ERRED IN ORDERING THE DEFENDANT TO DISCLOSE TO THE CITY CONFI- DENTIAL RECORDS OBTAINED AT THE DEFENDANT'S COST AND AS PART OF HIS TRIAL PREPARATION, WHERE THE DEFENDANT ADVISED THE COURT THAT HE DID NOT INTEND TO USE THE RESULTS AT TRIAL, AND THEREFORE, THEY WERE NOT SUBJECT TO DISCOVERY PURSUANT TO CRIMINAL RULE 16. V. WHETHER THE COURT (JASPER) ERRED IN OVERRULING THE DEFENDANT'S MOTION TO DISMISS PURSUANT TO CLEVELAND CODIFIED ORDINANCE -4- SECTION 413.01, AFTER DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON THIS MATTER SPECIFICALLY FOR THE PURPOSE OF PRESENTING FACTS TO SUPPORT HIS MOTION AND IN SUBSEQUENTLY OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED WITHOUT PROBABLE CAUSE AND IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION. VI. WHETHER THE COURT (SAFFOLD) ERRED IN OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS THE CHEMICAL TEST WHEN THE CITY FAILED TO LAY THE PROPER AND NECESSARY FOUNDATION FOR THE ADMISSION OF THE TEST INTO EVIDENCE. VII. WHETHER THE COURT (JASPER) ERRED IN ACCEPTING THE DEFENDANT'S PLEA OF NO CONTEST WITHOUT FIRST ADVISING THE DEFENDANT OF THE EFFECT OF THE PLEA PURSUANT TO CRIMINAL RULE 11 AND TRAFFIC RULE 10, AND FURTHER WHETHER THE COURT ERRED IN FINDING THE DEFENDANT GUILTY OF EACH CHARGE FOLLOWING HIS PLEA OF NO CONTEST WHERE THE EVIDENCE OR STATEMENT OF FACTS OFFERED TO THE COURT PURSUANT TO OHIO REVISED CODE SECTION 2937.07 DID NOT ESTABLISH OR SUPPORT THE ESSENTIAL ELEMENTS OF EACH CHARGE. VIII. WHETHER THE COURT (JASPER) ERRED BY RECALLING THE CASE WITHOUT NOTICE TO THE DEFENDANT AND RESENTENCING THE DEFENDANT WITHOUT HIS PRESENCE. I. In his first assignment of error, appellant contends the trial court erred when it denied his motion to dismiss based on R.C. 2945.71 and his constitutional guarantee to a speedy trial. Appellant's assignment of error lacks merit. When a trial is timely commenced and a mistrial declared, the time limit for the second trial is that provided by the constitutional guarantees for a speedy trial, not R.C. 2945.71 et seq. State v. Workman (1977), 60 Ohio App. 2d 204, 210. -5- Appellant's trial commenced within the time constraints set forth in R.C. 2945.71 et seq. As a result, the time limit for determining whether appellant's right to a speedy trial was violated is that provided by his constitutional guarantees. In determining whether appellant's constitutional speedy trial right was violated, the trial court had to apply the balancing test set forth in Barker v. Wingo (1972), 407 U.S. 514. The Barker court set forth four factors a court should consider: the length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Id. at 530. Barker emphasized that none of these factors are "*** either a necessary or sufficient condition to the finding of a deprivation to the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Id., at 533. After the June 7, 1990, mistrial, this case was sent to the administrative judge for reassignment. On June 15, 1990, the case was continued until July 10, 1990. Appellant waived his right to trial on July 19, 1990. After a review of the reason for delay, the length of delay, and the fact that appellant has neither demonstrated nor alleged any prejudice, we find that the trial court could properly deny appellant's motion. Accordingly, appellant's first assignment of error is not well taken. II. -6- In his second assignment of error, appellant contends the trial court erred when it denied his motion to dismiss based on the double jeopardy clause of the Fifth Amendment. Appellant's assignment of error lacks merit. The double jeopardy clause does not bar a retrial when a trial court grants a criminal defendant's request for a mistrial unless the prosecutor intentionally caused or invited the mistrial. Oregon v. Kennedy (1982), 456 U.S. 667; Tallmadge v. Ritchie (1986), 34 Ohio App. 3d 342; State v. Doherty (1984), 20 Ohio App. 3d 275. In this case, although the City precipitated the mistrial by its use of the results from the independent analysis of appellant's urine, we find no indication that the City intentionally attempted to cause a mistrial. Accordingly, appellant's second assignment of error is not well taken. III. In his third assignment of error, appellant contends the trial court erred when it refused to rehear his pretrial motions after ordering a mistrial. Appellant's assignment of error lacks merit. A mistrial does not affect pretrial motions and the ordering of a mistrial does not allow a trial court to rehear these motions. State v. Harris (May 11, 1984), Lucas App. No. C-83- 223, unreported, page 5. The trial court, therefore, properly refused to rehear appellant's pretrial motions. -7- Accordingly, appellant's third assignment of error is not well taken. IV. In his fourth assignment of error, appellant contends the trial court erred when it ordered him to disclose the results of an independent analysis of his urine to the City. Appellant's assignment of error has some merit. Appellant obtained an independent analysis of his urine which indicated that his urine contained a concentration of fifteen-hundredths of one gram by weight of alcohol per 100 milliliters. At a pretrial hearing, the trial court ordered appellant to disclose these results to the City. Appellant argues that these results were not subject to discovery under Crim. R. 16 because he did not intend to use them at trial. Crim. R. 16(C)(1)(b) provides: If on request or motion the defendant obtains discovery under subsection (B)(1)(d), the court shall, upon motion of the prosecuting attorney, order the defendant to permit the prosecuting attorney to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, available to or within the possession or control of the defendant, and which the defendant intends to introduce in evidence at the trial, or which were prepared by a witness whom the defendant intends to call at the trial, when such results or reports relate to his testimony. (Emphasis added). -8- We agree with appellant and find that the trial court should not have ordered him to disclose the results to the City. We further find, however, that the trial court's error was harmless. The results of the independent analysis indicated that appellant had an impermissible concentration of alcohol in his blood. Also, the mere disclosure of the results to the City did not give the City unbridled discretion in the use of that infor- mation at trial, as the trial court's ordering of a mistrial demonstrates. Accordingly, appellant's fourth assignment of error is not well taken. V. In his fifth assignment of error, appellant contends the trial court erred when it denied his motion to dismiss pursuant to Cleveland Codified Ordinances Section 413.01 and his motion to suppress evidence based on the Fourth Amendment. Appellant supports his contention that the trial court erred when it denied his motion to dismiss, which alleged that the no left turn sign did not conform with the requirements set forth in Cleveland Codified Ordinances Section 413.01, by arguing, among other things, that the trial court failed to state its essential findings on the record as he had requested. Crim. R. 12(E) requires a trial court to state its essential findings on the record when factual issues are involved in determining a motion. When a request is made by the defendant, this requirement is mandatory. Bryan v. Knapp (1986), 21 Ohio -9- St. 3d 64, syllabus; State v. Almalik (1986), 31 Ohio St. 3d 33, 34. Appellant's motion to dismiss presents questions of fact. We find, therefore, that the trial court's failure to state its essential findings on the record constitute error. Appellant supports his contention that the trial court erred when it dismissed his motion to suppress by arguing that he was improperly stopped and that the police officer lacked probable cause to arrest him. The arresting police officer testified that he stopped appellant after observing him disobey a no left turn sign. Based on this testimony, we find that the officer was clearly justified in stopping appellant. See State v. Bobo (1988), 37 Ohio St. 3d 177. The officer went on to testify that, after noticing the odor of alcohol coming from within appellant's car, he asked appellant to exit the car and perform three field sobriety tests. The officer stated that although appellant satisfactorily performed one test, he failed the other two tests. After detecting the odor of alcohol coming from appellant, the officer placed him under arrest. Probable cause to make an arrest exists when a police officer has facts and circumstances within his or her knowledge which are sufficient to warrant a reasonable person to believe that an offense has been committed. Beck v. Ohio (1964), 379 U.S. 89, 91; State v. Pavco (1987), 38 Ohio App. 3d 178. Whether probable cause to arrest exists is a factual issue for the trial court. Pavco, supra. -10- After a review of the record, we conclude that the trial court could properly find that the officer had probable cause to arrest appellant. Accordingly, appellant's fifth assignment of error is well taken to the extent that the trial court erred when it failed to state its essential findings of fact on the record. VI. In his sixth assignment of error, appellant contends the trial court erred when it denied his motion to suppress the results of the City's analysis of his urine. Appellant's assignment of error lacks merit. On a pretrial motion to suppress, the City must demonstrate that an alcohol test was done in accordance with established law to the extent appellant takes issue with the legality of the test. State v. Gasser (1980), 5 Ohio App. 3d 217, 220. Unless appellant demonstrates prejudice, the City must merely demonstrate that it substantially complied with Ohio Adm. Code 3701-53, which addresses alcohol testing. State v. Plummer (1986), 22 Ohio St. 3d 292, syllabus. Appellant makes several arguments concerning the legality of the test performed by the City. We address these in turn. First, appellant argues the City failed to demonstrate that a "Cambridge Chemical Products Sodium Fluoride-Thymol" tablet was added to his urine sample as required by Ohio Adm. Code 3701-53- 05(D). The arresting officer testified that he placed the "*** preservatory pill that is required by the State of Ohio inside -11- the container." (Tr. June 7, 1990, p. 24). The officer also testified that he obtained the pill from within the sealed container. We find this testimony to be sufficient to demonstrate compliance with Ohio Adm. Code. 3701-53-05(D). Second, appellant argues the City failed to demonstrate that his urine sample was refrigerated in compliance with Ohio Adm. Code 3701-53-05((F), which provides that "[w]hile not in transit to a laboratory or under examination, all urine *** shall be refrigerated at a temperature of forty-two degrees Fahrenheit or below." The arresting police officer testified that he kept the urine sample on his desk for fifteen or twenty minutes, while he completed paper work, before he placed it in the refrigerator. The arresting police officer further testified that the refrigerator is kept at a constant forty-two degrees. In Plummer, supra, the court found that a one hour and twenty-five minutes delay between collection and mailing of a urine sample and then a possible three to four hour time period at the laboratory during which the urine may not have been refrigerated substantially complied with Ohio Adm. Code 3701-53- 05(F). In this case, we find that the City substantially complied with Ohio Adm. Code 3701-53-05(F). Third, appellant argues the City failed to demonstrate that the scientist who performed the test was properly qualified as required by Ohio Adm. Code 3701-53-07(A), which provides in pertinent part that: "*** urine *** tests shall be performed in a laboratory by a person who has a laboratory director's permit -12- or, under his or her general direction, by a person who has a laboratory technician's permit." The scientist who performed the test, however, testified that he holds a lab director's permit. Finally, appellant contends the City failed to demonstrate that the instrument and method used by the scientist performing the test complied with the Ohio Adm. Code 3701-53 et seq. The scientist who performed the test, however, testified that he used the Gas Chromatograph, which is allowed under Ohio Adm. Code 3701-53-03(B). He also stated that he used a known concentration of ethyl alcohol, required under Ohio Adm. Code 3701-53-05(B), to calibrate the gas chromatograph. Accordingly, appellant's sixth assignment of error is not well taken. VII. In his seventh assignment of error, appellant contends the trial court erred when it found him guilty as the result of a no contest plea. Appellant's assignment of error has merit. Appellant supports his assignment of error by arguing the trial court failed to comply with Crim. R. 11(E). Crim. R. 11(E) provides in pertinent part: "In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty. -13- The record must demonstrate that the trial court complied with Crim. R. 11(E). Chagrin Falls v. Katelanos (1988), 54 Ohio App. 3d 157, 158-159; State v. Joseph (1988), 44 Ohio App. 3d 212, 213. A reviewing court may not presume that a defendant entered a no contest plea or that the trial court advised the defendant of the effect of the plea. Katelanos, supra. In this case, a review of the record reveals that the trial court made absolutely no attempt to advise appellant of the consequences of a no contest plea. In addition, appellant, himself, did not enter a plea. Accordingly, appellant's seventh assignment of error is well taken. VIII. In his eighth assignment of error, appellant contends the trial court erred by recalling his case without notifying him and then resentencing him without his presence. We find that it is unnecessary for us to address this assignment of error based on our conclusion that the trial court erred when it found appellant guilty. See In re Palmer (1984), 12 Ohio St. 3d 194, 197; App. R. 12(A). Judgment reversed and remanded. -14- This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOHN F. CORRIGAN, P.J., CONCURS KRUPANSKY, J., CONCURS IN JUDGMENT ONLY. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .