State v. Bertram - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE OF OHIO, APPELLANT, V. BERTRAM, APPELLEE.
[Cite as State v. Bertram (1997), ___ Ohio St.3d ___.]
Criminal procedure -- State's appeal of a motion to suppress, made pursuant to
Crim.R. 12(J), is an appeal as of right -- Appellate court is without
authority to review a prosecutor's Crim.R. 12(J) certification of an appeal.
1.
The state's appeal of a motion to suppress, made pursuant to Crim.R. 12(J),
is an appeal as of right.
2.
An appellate court is without authority to review a prosecutor's Crim.R.
12(J) certification that the granting of a motion to suppress has rendered the
state's proof with respect to the pending charge so weak in its entirety that
any reasonable possibility of effective prosecution has been destroyed.

(No. 96-1792 -- Submitted September 9, 1997 -- Decided November 19,
1997.)

APPEAL from the Court of Appeals for Hamilton County, Nos. C-960005
and C-960006.

On October 1, 1995, Corporal Clayton David of the Hamilton County
Sheriff's Department Traffic Safety Section arrested appellee Robert J. Bertram
for a violation of R.C. 4511.19(A)(1), operating a vehicle while under the
influence of alcohol. On October 18, 1995, appellee moved to suppress any
evidence obtained as a result of the traffic stop, including any statements he had
made. On November 17, 1995, appellee further moved to suppress "any
statements of a refusal to give a breath sample," asserting that the arresting officer
did not properly inform appellee of the consequences of a refusal to submit to
chemical testing. The trial court, on December 21, 1995, granted the motion to
suppress, thus denying admission of any statements concerning the refusal.

The prosecutor appealed the trial court's decision to the Hamilton County
Court of Appeals and certified, pursuant to Crim.R. 12(J), that (1) the appeal was
not taken for purposes of delay, and (2) the granting of the motion to suppress
rendered the state's proof so weak that any reasonable possibility of effective
prosecution had been destroyed. Appellee filed a motion to dismiss the appeal,
asserting that there was indeed enough other evidence to prosecute the case and
thus the granting of the motion to suppress was not a final appealable order. The
court of appeals dismissed the appeal, finding that "there was probative evidence
adduced during the hearing, which was not subject to the court's suppression
order, that was supportive of the state's case against Bertram" and thus the
prosecutor unreasonably certified the case for appeal.

The cause is now before this court pursuant to the allowance of a
discretionary appeal.
__________________

Joseph T. Deters, Hamilton County Prosecuting Attorney, William E.
Breyer and Steven W. Rakow, Assistant Prosecuting Attorneys, for appellant.

Hal R. Arenstein, for appellee.
__________________

Alice Robie Resnick, J. This case presents the issue of whether a court of
appeals has authority to review the reasonableness of a prosecutor's certification
of an appeal pursuant to R.C. 2945.67 and Crim.R. 12(J).

R.C. 2945.67(A) states:

"A prosecuting attorney * * * may appeal as a matter of right any decision
of a trial court in a criminal case, * * * which decision grants * * * a motion to
suppress evidence, * * * and may appeal by leave of the court to which the appeal
2

is taken any other decision, except the final verdict, of the trial court in a criminal
case * * * ."

Crim.R. 12(J) sets forth the proper procedure a prosecutor must follow in
order to initiate an appeal pursuant to R.C. 2945.67(A):

"When the state takes an appeal as provided by law, the prosecuting
attorney shall certify that: (1) the appeal is not taken for the purpose of delay; and
(2) the ruling on the motion or motions has rendered the state's proof with respect
to the pending charge so weak in its entirety that any reasonable possibility of
effective prosecution has been destroyed.

"* * *

"If an appeal pursuant to this division results in an affirmance of the trial
court, the state shall be barred from prosecuting the defendant for the same offense
or offenses except upon a showing of newly discovered evidence that the state
could not, with reasonable diligence, have discovered before filing of the notice of
appeal."

R.C. 2945.67 and Crim.R. 12(J) establish the state's right to appeal an
adverse ruling on a motion to suppress and the procedure for such appeals. The
General Assembly, in R.C. 2945.67(A), plainly drew a distinction between an
"appeal as a matter of right" from a ruling granting a motion to suppress and an
appeal "by leave of the court" from any other trial court ruling except the final
verdict. The words "by leave of the court" necessarily mean that the court of
appeals has the discretion to allow or refuse the appeal. By contrast, "appeal as a
matter of right" means that the court of appeals has no discretion to decide
whether to allow such an appeal. If the General Assembly intended to give the
courts of appeals the right to review the reasonableness of a prosecutor's Crim.R.
12(J) certification, it certainly knew the language to include in the statute to grant
3

that power, and it could have provided procedures and standards for courts of
appeals to follow in making their determination. The state's appeal of the motion
to suppress, made pursuant to R.C. 2945.67, is not a discretionary appeal but
rather an appeal as of right. See State v. Fraternal Order of Eagles Aerie 0337
Buckeye (1991), 58 Ohio St.3d 166, 168, 569 N.E.2d 478, 481 (construing former
Crim.R. 12[J]).

Notably, Crim.R. 12(J) uses the term "certify," meaning "to attest esp.
authoritatively or formally: * * * to confirm or attest often by a document under
hand as being true, meeting a standard, or being as represented." Webster's Third
New International Dictionary (1986) 367. Accordingly, by analogy to Civ.R. 11,
the prosecutor, by signing the certification, attests that he or she "has read the
document; that to the best of the [prosecutor's] knowledge, information, and belief
there is good ground to support it; and that it is not interposed for delay." Civ.R.
11. The use of the word "certify" is significant. "Certify" places an obligation on
the prosecution to comply with the requirements of the rule.

The trial court and the court of appeals do not possess adequate or complete
prosecutorial information and, therefore, are unable to make an informed judgment
as to whether sufficient evidence remains to prosecute after the controverted
evidence has been suppressed. Only the prosecutor possesses the complete work
product files and is in an informed position to make this determination for
purposes of certification. Before the trial has taken place it is, generally, solely
within the prosecutor's province to know the exact and complete quantity,
credibility, and sufficiency of the evidence against the defendant.

Crim.R. 12(J) includes a sanction if the prosecutor appeals without
sufficient basis. If the court of appeals affirms the trial court's granting of the
motion to suppress, the state is prohibited from "prosecuting the defendant for the
4

same offense or offenses except upon a showing of newly discovered evidence
that the state could not, with reasonable diligence, have discovered before filing of
the notice of appeal." Accordingly, it is the prosecutor who incurs the risk of
dismissal of the charges. It is not for the courts to review the sufficiency of the
evidence until after the evidence has been properly submitted to the factfinder in a
trial. Because the state certifies that the trial court's ruling has destroyed its case,
the ruling is, in essence, a final order. See State v. French (1995), 72 Ohio St.3d
446, 449, 650 N.E.2d 887, 890; State v. Davidson (1985), 17 Ohio St.3d 132, 17
OBR 277, 477 N.E.2d 1141, syllabus.
Finally,
in
State v. Fraternal Order of Eagles, supra, 58 Ohio St.3d 166,
569 N.E.2d 478, syllabus, we held that "[w]here a motion to suppress is made and
granted after the commencement of trial, a trial court shall not proceed to enter a
judgment of acquittal so as to defeat the state's right of appeal pursuant to Crim.R.
12(J)." In Fraternal Order of Eagles, the defendant filed a pretrial motion to
suppress certain prosecution evidence. The trial court granted the motion to sup-
press and simultaneously entered a judgment of acquittal, thus negating the need
for a trial. In its "Final Judgment of Acquittal," the trial court stated that " `[t]he
Court finding that the motion to suppress should be granted must necessarily find
that the remaining evidence of the State is insufficient to sustain a criminal
conviction. The Court therefore finds the defendant * * * not guilty. * * *' " Id.
at 167, 569 N.E.2d at 479.

This court subsequently held that it is not for the trial court to determine the
sufficiency of the state's evidence to proceed with the prosecution. This court
went on to hold that "the state must be permitted to determine whether it will seek
a stay of proceedings in order to exercise its right of appeal pursuant to Crim.R.
12(J), or alternatively to proceed to a final verdict or judgment. The choice is that
5

of the prosecution." Id. at 169, 569 N.E.2d at 481. This same reasoning can be
applied to an appellate court. An appellate court is without authority to review a
prosecutor's Crim.R. 12(J) certification that the granting of a motion to suppress
has rendered the state's proof with respect to the pending charge so weak in its
entirety that any reasonable possibility of effective prosecution has been
destroyed. The court of appeals may not therefore dismiss the prosecutor's appeal
for want of a final appealable order based on the merits of the prosecutor's
certification.

Accordingly, we reverse the judgment of the court of appeals and remand
this cause to that court for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.

MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
6