Dayton v. Murph

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[Cite as Dayton v. Murph, 2003-Ohio-3243.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO CITY OF DAYTON : Plaintiff-Appellee vs. : : C.A. CASE NO. 19612 T.C. CASE NO. 01TRD14865 THOMAS MURPH : (Criminal Appeal from Municipal Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the __________ day of June, 2003. . . . . . . . . . Patrick J. Bonfield, Director of Law; Deirdre Logan, Chief Prosecutor; Addie J. King, Asst. City Prosecutor; Mary E. Welsh, Asst. City Prosecutor, 335 W. Third Street, Rm. 372, Dayton, Ohio 45402, Atty. Reg. No. 0067542 Attorney for Plaintiff-Appellee James R. Kirkland, 111 West First Street, Suite 518, Dayton, Ohio 45402, Atty. Reg. No. 0009731 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} judgment Defendant, of the Thomas Dayton D. Municipal Murph, Court, appeals which from a convicted Murph on an alleged speeding violation and imposed a fine of thirty-five dollars and costs. {¶2} The court s judgment adopted the decision of its magistrate and overruled objections decision Murph had filed. magistrate s rulings his before hearing magistrate s finding evidence Murph magistrate and guilt of 2 magistrate s the Those objections challenged the excluding the to against was offered at that the argued the manifest weight of the evidence. {¶3} 2002. The magistrate s decision was filed on July 1, Murph filed timely objections to the magistrate s decision ten days later on July 11, 2002. bears a request that a transcript His objections of the proceedings before the magistrate be prepared and filed. {¶4} The City of Dayton objections on July 24, 2002. that Murph s evidentiary filed responses to Murph s The City argued, inter alia, objections should be overruled because he failed to file a transcript of the proceedings before the magistrate from which the alleged error could be determined. {¶5} objections On October 1, 2002, the court overruled Murph s and adopted its magistrate s decision. The court rejected those objections, primarily, because Murph had not filed a transcript of the magistrate s proceedings. {¶6} municipal Murph filed a timely notice of appeal from the court s judgment on October 28, 2002. He 3 We will address the presents two assignments of error. second of those first to facilitate our determination of the issues the appeal presents. SECOND ASSIGNMENT OF ERROR {¶7} THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE S DECISION WITHOUT CONSIDERING THE TRANSCRIPT OF THE JUNE 13, 2002 HEARING THAT APPELLANT HAD PROPERLY ORDERED. {¶8} A transcript of the proceedings before magistrate was filed in this court on November 4, 2002. the It was not a part of the record when Murph s October 28, 2002 notice of appeal was filed, so it is not properly before us. More to the point of the issue presented, the transcript was not a part of the trial court s record when, on October 1, 2002, the court overruled Murph s objections and entered judgment on the magistrate s decision. {¶9} R.C.G.O. Murph was 71.50, charged which with prohibits a violation driving excess of the posted speed limit. at a of Dayton speed in The magistrate found that, at the time and place charged, Murph had operated a motor vehicle at a speed of forty-seven miles per hour in a district where the posted speed limit is thirty-five miles per hour. that finding. The magistrate entered a guilty verdict on The trial court entered judgment on the magistrate s decision by adopting it, over 4 Murph s objections. {¶10} Murph was charged in a traffic case, as that is defined by Traf.R.2(A). misdemeanor. The alleged offense is a minor Per Traf.R. 14(B), the court may refer the trial of such cases to a magistrate for a determination of guilt or innocence. Paragraph (C) of Traf.R. 14 provides: Proceedings before the magistrate shall be conducted as provided in Crim.R. 19(D) and (E). Crim.R. 19(D)(2) states that all proceedings before a magistrate shall be recorded in accordance with procedures established by the court. {¶11} Paragraph (E)(2)(b) of Crim.R. 19 provides that [o]bjections (to a magistrate s decision) shall be specific and state with particularity the grounds for the objections. However, and unlike Civ.R. 53(E)(3)(b), Crim.R. 19 imposes no express duty on a party who files an objection to a magistrate s finding of fact to support the objection with either a transcript of the evidence or an affidavit available. of that evidence if a transcript is not Nevertheless, as the proponent of the motion, it is the burden of a party who files objections to also file a transcript of the proceedings grounds on which the motion relies. which portrays the 5 Therefore, it {¶12} Transcripts take time to prepare. has become the practice in civil cases to file objections to a magistrate s decision in some form within fourteen days thereafter, requesting additional obtain and file a transcript. ask for more time to file time within to Alternatively, a party may objections, transcript is prepared and filed. until after the Authority to do either is conferred on the court by Civ.R. 6(B), upon the request of a party comparable Crim.R. or the court s in provision 57(B) extension own Criminal permits that the the Civ.R. motion. court 6(B) Rules. to would There no However, grant allow is a in form the of same circumstance. {¶13} Murph appeared pro se. law While he is charged by with practice notice promulgated by unaware of how reason, of the perhaps, the rules Supreme they that are of Court, he implemented. Murph did not and was It ask procedure most was the likely for that court for additional time in which to file objections or to present his arguments concerning them, until after a transcript was filed. Instead, Murph appears to have relied on the request in the objections he timely filed on July 11, 2002, in which he asked the court to prepare a transcript of the proceedings before its magistrate. Clearly, the court had not fulfilled that request when it 6 Murph s overruled objections for lack of a transcript. {¶14} When it overruled Murph s objections for lack of a transcript, the trial court reasoned that Murph was required by App.R. 9 to obtain and file a transcript of the proceedings before the magistrate. The Rules of Appellate Procedure of govern the Ohio Courts Appeals when they exercise the jurisdiction conferred on them by Article IV, Section 3(B)(2) of the Ohio Constitution to review the final orders and judgments of inferior courts, which are invested by law with a jurisdiction separate from the jurisdiction conferred on the courts of appeals. {¶15} A magistrate appointed pursuant to any of the rules of procedure, including the traffic rules, is not independent of the court that makes the appointment. The magistrate is an arm of the court, exercising the very same jurisdiction conferred by law on the court, and governed in doing that by the particular rule of procedure applicable to magistrates in that instance. of Appellate Procedure do not In consequence, the Rules apply to a trial court s determination of its magistrate s decision or any timely objections to it. {¶16} R.C. 1901.21(A) provides that in the municipal court the practice and procedure in criminal cases and the 7 mode of bringing and conducting prosecutions for offenses shall be as provided in the Criminal Rules. As we have noted, Crim.R. 19(D)(2) requires all proceedings before a magistrate established to be by recorded the court, in accordance and Traf.R. with 14(C) procedures adopts the criminal rules for cases of this kind. The effect of these provisions court is to also require the to cause a transcript of its recorded proceedings to be made available to a defendant in a traffic case who requests one, upon payment of the reasonable cost of preparation. {¶17} Murph requested a copy of the transcript in the objections that he filed on July 11, 2002. None was prepared and filed when the trial court overruled those objections on October 1, 2002, for lack of a transcript. Murph argues that it was the duty of the Clerk of the Dayton Municipal Court to prepare and file the requested transcript. clerk. We are unaware of any such duty imposed on the The duty might be provided by local rule, but we are unaware of any such local rule. {¶18} Attached to the brief filed by the City of Dayton is an affidavit of Kelly Weinert, who states that she is the person responsible for preparing transcripts of proceedings in cases of this kind, that Murph requested a transcript and was advised that as a pro se defendant he 8 must first pay a deposit, which Murph never paid, and that Weinert later prepared and filed the transcript at the request of an attorney whom Murph subsequently retained. Weinert also states that she was unaware of any other request by Murph and was not served with a copy of his objections. {¶19} Weinert s affidavit before the trial court. was not evidence that was New evidence may not be added to the record during or for purposes of an appellate court s proceedings. Therefore, we cannot rely on the averments in Weinert s affidavit to decide the issues which this appeal presents. Even so, Weinert relates the substance of practices which the trial courts generally follow, and of which we are aware, concerning preparation of transcripts. {¶20} There are sound reasons for requiring agreements concerning payment prepared and filed. before a requested transcript is A reporter may even impose a deposit requirement when the reporter has had no prior dealings with the person making the request reporter that payment will be made. which assure the We assume that Kelly Weinert performs the duties she describes as an employee of the Dayton Municipal Court or by agreement with it. Therefore, we must look to the court for compliance with the obligations imposed on it by Crim.R. 19(D)(2) and by 9 any reasonable extension of its provisions. {¶21} Notice and opportunity to be fundamental tenets of due process of law. (1952), 157 Ohio St. 175. guaranteed by Constitution. due process Article heard are State v. Edwards The right to due process is I, Section 16 of the Ohio States are barred from denying the right to by the Fourteenth States Constitution. Amendment to the United As a general rule, due process in each particular case means such an exertion of powers of government as the settled maximum of the law permit and sanction and under such safeguards for the protection of the individual s rights as those maximums prescribe for the class of cases to which the one in question belongs. 17 Ohio Jurisprudence 3d, Constitutional Law, Section 509, at p. 96. {¶22} Except cases in which in a criminal party cases whose and in certain fundamental civil rights are affected cannot afford to pay for a transcript of trial proceedings, which is not involved in the matter before us, no duty is expressly imposed on the courts transcript prepared when one is requested. to order a However, as custodian of the record of its proceedings which Crim.R. 19(D)(2) requires necessarily charged the court with a to duty make, to the court cooperate with is a 10 That defendant s proper request to prepare a transcript. may be done by the court s own employee, or by a reporter whose services are secured by contract. Performance of those services may be conditioned on payment of a fee or prior deposit, or upon other reasonable condition attached to the request. {¶23} None of the foregoing requirements deprive criminal defendant of his due process rights. when a defendant who has requested a a However, transcript of the court is subject to an adverse determination of his rights if no transcript is prepared, the defendant is entitled to some form regarding of the notice lack and of proceeds to judgment. an a opportunity transcript to before be heard the court A formal order to show cause is not required, at least so long as the record before the court demonstrates that some effective form of notice was given. Neither is a hearing required, so long as the notice offers the defendant requirement an might opportunity have transcript the defendant {¶24} The record prevented to satisfy preparation whatever of the when it requested. before the trial court proceeded to judgment and overruled Murph s objections for lack of a transcript of the proceedings before the court s magistrate fails to demonstrate that Murph had notice that the court might transcript do was that, after filed. One a stated might time, surmise if that 11 no the difficulty here was Murph s failure to pay a fee for the transcript or a deposit for the service involved in preparing it, as Kelly Weinert s affidavit suggests. cannot rely on those assertions, as we have said. We More importantly, however, neither could the trial court proceed to judgment against Murph in reliance on the court s knowledge or understanding of the same matters absent some minimal form of notice to Murph that it would do that, giving him at the same time a reasonable opportunity to avoid that consequence. {¶25} In objections, addition Murph had to his objected specific that the evidentiary magistrate s decision is against the manifest weight of the evidence. The Court of Appeals of Wayne County has held: {¶26} While the burden is on the objecting party to provide a transcript of the proceedings before the referee, the court s request of refusal the to objecting order the party transcript constitutes an upon abuse the of discretion where that party s objections are based on the manifest weight of the evidence. Easch v. Easch (1984), 14 Ohio App.3d 298, Syllabus by the Court. {¶27} The holding in Easch stands for the proposition 12 The objecting party who has requested a we have discussed. transcript must be given notice when no transcript will be prepared for the court s consideration, transcript will not be prepared. told how to correct the and why a The party should also be impediment to preparation, given a reasonable opportunity to do that. and Otherwise, if the court then proceeds to judgment adverse to the party because it has no transcript before it, the party is denied his right of due process. This requirement is, of course, contingent on the party s having filed a proper and timely request for a transcript, as Murph did here. application Then, and when no timely after the time and for proper It has no request objections, the is made. court may proceed to judgment without a transcript before it. {¶28} The judgment from which Murph took this appeal will be reversed and the matter proceedings on his objections. file the transcript that municipal court as well. he remanded for further Murph has the burden to filed in our case in the The transcript is not before that court unless it is timely filed, and the trial court may set reasonable time requirements for filing it. {¶29} The second assignment of error is sustained. FIRST ASSIGNMENT OF ERROR {¶30} THE TRIAL COURT ERRED ON ITS EVIDENTIARY RULINGS THAT PREVENTED WITNESS AND APPELLANT FROM FROM PRESENTING TESTIFYING AS AN 13 EXPERT SEVERAL EXHIBITS THAT WERE second assignment of error RELEVANT TO THIS CASE. {¶31} Our renders this ruling in the assignment moot. Therefore, per App.R. 12(A)(1)(c), we decline to rule on the first assignment of error. Conclusion {¶32} Having sustained the second assignment of error, we will reverse the judgment from which the appeal is taken and remand the case for further proceedings consistent with this opinion. WOLFF, J. and YOUNG, J., concur. Copies mailed to: Mary E. Welsh, Esq. James R. Kirkland, Esq. Hon. Risa McCray

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