IN THE SUPREME COURT OF OHIO O$ °` 0542

STATE OF OI3IO, EX REL

PLAINTIFF-APPELLEE,

VS.

SEAN MAGA, Pro Per

DEFENDANT-APPALLANT

On Appeal from the MontgomeryCounty Court of Appeals,Second Appellate District

Court of AppealsCase No. 21998

APPELLANT BRIEF

HEEDMAR 17 Zoo8

Cl.ERK OF COURTSUPREME CO^FOHIO

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, EX REL

PLAINTIFF-APPELLEE,

vs.

SEAN MAGA, Pro Per

DEFENDANT-APPALLANT

On Appeal from the MontgomeryCounty Court of Appeals,Second Appellate District

Court of AppealsCase No. 21998

MORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT SEAN MAGA

APPALLANT SEAN MAGA, PRO SE,

Sean M. Maga4320 Corydale Ct.Dayton, OH 45414(937) 890-4555

COUNSEL FOR APPELLEE,

Ellen Casper Weprin, ProsecutorCity of Vandalia, Ohio

TABLE OF CONTENTS

Page

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION ..................................................................... 1

STATEMENT OF THE CASE AND FACTS ........................................................ 3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ..................................... 3

CONCLUSION ............................................................................................ 5

CERTIFICATE OF SERVICE ......... ................................................................6

APPENDIXAppx. Page

Opinion of the Montgomery County Court of Appeals(Feb. 1, 2008) .................................................................................................. 1

Judgment Entry of the Montgomery County Court of Appeals(Feb. 1, 2008) .................................................................................................. 14

EXPLANATION OF WI3Y THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This cause presents one critical issue for the future of all Ohio citizens:

(1) whether Defendants upon objection and moves the court to dismiss for lack of

prosecution when Counsel for the Plaintiff fails to appear at Arrangement violates their

Constitutional rights as well as the clear mandate of ORC 309.08.

In this case, the court of appeals ignored the Ohio Statutes (ORC 309.08) and declared, in

effect, that the Ohio Traffic Rules supersedes the Ohio Statutes (ORC). The appeals court stated

that:

The Ohio Traffic Rules, as set forth in the Ohio Revised Code, "prescribe theprocedure to be followed * * * in traffic cases." Traf.R.1(A).An "[a]rraignment shall be conducted in open court and shall consist of readingthe complaint to the defendant, or stating to him the substance of the charge, andcalling on him to plead thereto." Traf.R. 8(B). " * * * If a defendant refuses toplead, the court shall enter a plea of not guilty on behalf of the defendant."Traf.R. 10(A). There is no requirement in the "Ohio Traffic Rules" that theprosecuting attorney be present in the courtroom during arraignment. Further, thetrial transcript makes clear that the State prosecuted Maga in a timely mannerfollowing the arraignment. There being no merit to Maga's first assignment oferror, it is overruled.

In essence, what the appeals court has said is that if the Traffic Rules do not mandate that a

prosecutor prosecute then the judge may stand in the prosecutors place. If allowed to stand, the

decision of the court of appeals would ravage the Public confidence in our system of justice.

This Court in Disciplinary Counsel v. Medley, 104 Ohio St.3d 251, 2004-Ohio-6402,

disciplined Judge William S. Medley for proceeding with an arraigmnent when counsel for the

defendant and the prosecutor where not present. This Court found that the conduct violated the

judicial Canons.

1

It is well understood that the Traffic Rules are statutory in origin, as the Supreme Court

promulgated them pursuant to the authority granted by R.C. 2935.17 and R.C. 2927.26. Traf.R.

1(B); Toledo v. Fogel (1985), 20 Ohio App.3d 146, 148. All of the rules promulgated pursuant to

R.C. 2937.46 "shall be binding on all courts inferior to the court of common pleas." R.C.

2937.46(B). However, because the rules are derived from statutory authority, they do not

supersede statutes with which they conflict. Fogel at 148; see also, Kroger Co. v. Stover (1987),

31 Ohio St.3d 229, 235; Kelly v. Accountancy Bd. of Ohio (1993), 88 Ohio App.3d 453, 458

(holding that an administrative rule created pursuant to statutory authority is valid and

enforceable unless it conflicts with an existing statute). Also see Linden v. Bates Truck Lines,

Inc. (1982), 4 Ohio App.3d 178, 446 N.E.2d 1139 and State v. Osborne, 2005-Ohio-6610.

Ohio Revised Code §309.08 states in pertinent part: "The prosecuting attorney shall

[mandatory duty] prosecute, on behalf of the state, all complaints, suits, and controversies in

which the state is a party." See State Ex Rel. Finley v. Lodwich 29 NE 2d. 959 and State v.

Richardson, 2005-Ohio-2865. ("The prosecuting attorney may inquire into the commission of

crimes within the county. The prosecuting attorney shall prosecute, on behalf of the state, all

complaints, suits, and controversies in which the state is a party.")

In sum, this case puts in issue the essence that state court proceedings must measure up to

essentials of fair treatment guaranteed by the Due Process clause of the Fifth and Fourteenth

Amendments of the U.S. Constitution and Article 1, Section 10 of the Ohio Constitution. The

State served a summons on the Appellant and then willfully failed to appear on the date specified

therein, without tendering a written motion for continuance. See Traffic Rule 18 and State v.

Osborne, 2005-Ohio-6610. The court proceeding over the valid objection of Appellant is a clear

2

abuse of desecration. When the Prosecutor fails to appear, the State fails to appear and the

Plaintiffs suit must therefore fail.

Therefore, this Court must grant jurisdiction to hear this case and review the erroneous

and dangerous decision of the court of appeals.

STATEMENT OF THE CASE AND FACTS

A ticket/citation was created on May 20, 2006 claiming that Appellant violated ORC

4511.34, Space between moving vehicles.

On May 30, 2006 the Alleged Accused specially appeared before Magistrate Fred

Izenson, for a purported arraignment hearing. The Alleged Accused inquired of the court as to

the whereabouts of the Prosecutor. The Magistrate informed the Alleged Accused that the

Prosecutor was not required to appear. The Alleged Accused moved the court to dismiss the case

for lack of prosecution [ORC 309.08]. The Magistrate denied the motion but failed to state

findings of fact and conclusions of law. The Magistrate proceeded over the objection of the

Alleged Accused and inquired as to the Alleged Accused's plea. The Magistrate proceeded to

enter a not guilty plea. The Alleged Accused again objected and withdrew the plea.

ARGi1N1FNT IN SUPPORT OF PROPOSITIONS OF LAW

It appears the Magistrate was not concerned with the Accused's rights wishing only to

convey a false impression that the Alleged Accused knowingly waived his right to counsel and

entered a Not Guilty plea in an attempt to cover up his malfeasance.

Only the law has merit before the bar and the Magistrate's sworn duty demands that he

comply with the law as written and interpreted by the standing decisions of bona fide judicial

branch courts. Ohio Revised Code §309.08 states in pertinent part: "The prosecuting attorney

3

shall [mandatory duty] prosecute, on behalf of the state, all complaints, suits, and controversies

in which the state is a party." See State Ex Rel. Finley v. Lodwich 29 NE 2d. 959 and State v.

Richardson, 2005-Ohio-2865. ("The prosecuting attorney may inquire into the commission of

crimes within the county. The prosecuting attorney shall prosecute, on behalf of the state, all

complaints, suits, and controversies in which the state is a party.") Accordingly, state court

proceedings must measure up to essentials of fair treatment guaranteed by the Due Process

clause of the Fifth and Fourteenth Amendments of the U.S. Constitution and Article 1, Section 10

of the Ohio Constitution. For the State to serve a summons on the Alleged Accused and then

willfully fail to appear on the date specified therein, without tendering a written motion for

continuance, is a clear and notorious dereliction of duty. See Traffic Rule 18 and State v.

Osborne, 2005-Ohio-6610. The court proceeding over the valid objection of Alleged Accused is

a clear and notorious abuse of desecration. When the Prosecutor fails to appear, the State fails to

appear and the Plaintiffs suit must therefore fail. Dismissal is the court's only non-biased option.

In the case at bar, the court not only failed in its duty to dismiss, but even more oddly, the court

did not set a date for a show cause hearing as to why the prosecutor should not be held in indirect

civil contempt for knowingly causing a hearing to be held and then willfully failing to appear.

It is well understood that the Traffic Rules are statutory in origin, as the Supreme Court

promulgated them pursuant to the authority granted by R.C. 2935.17 and R.C. 2927.26. Traf.R.

1(B); Toledo v. Fogel (1985), 20 Ohio App.3d 146, 148. All of the rules promulgated pursuant to

R.C. 2937.46 "shall be binding on all courts inferior to the court of common pleas." R.C.

2937.46(B). However, because the rules are derived from statutory authority, they do not

supersede statutes with which they conflict. Fogel at 148; see also, Kroger Co. v. Stover (1987),

4

31 Ohio St.3d 229, 235; Kelly v. Accountancy Bd. of Ohio (1993), 88 Ohio App.3d 453, 458

(holding that an administrative rule created pursuant to statutory authority is valid and

enforceable unless it conflicts with an existing statute). Also see Linden v. Bates Truck Lines,

Inc. (1982), 4 Ohio App.3d 178, 446 N.E.2d 1139 and State v. Osborne, 2005-Ohio-6610.

The Magistrate, knowing full well that the Statutes controlled and were superior to the

Traffic Rules and the Magistrate knowing the court lacked subject matter jurisdiction and

personal jurisdiction absent a plaintiff, elected to prosecute from the bench. See Disciplinary

Counsel v. Medley, 104 Ohio St.3d 251, 2004-Ohio-6402. Without allowing the Accused

assistance of counsel, the Magistrate, in an unlawful attempt, attempted to force the Alleged

Accused to enter an issuable plea. It is clear that Magistrate attempted to prosecute and practice

law from the bench in derogation of his oath of office, and since the State through its Prosecutor

knowingly failed to appear and prosecute, the Magistrate knew that the case should have been

dismissed.

CONCLUSION

For the reasons discussed above, this case involves matters of public and great general

interest and a substantial constitutional question. The appellant requests that this court accept

jurisdiction in this case so that the important issues presented will be reviewed on the merits.

Respectfully submitted,

5

Certificate of Service

I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinaryU.S. mail to the VANDALIA MUNICIPAL COURT, MONTGOMERY COUNTY andProsecutor Ellen Casper Weprin this 17 Day of March, 2008.

Sean M. Maga

6

APPENDIX

[Cite as State v. Maga, 2008-Oh1o-423.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appeliee C.A. CASE NO. 21998

V.

SEAN M. MAGA

Defendant-Appellant

OPINION

T.C.NO. 06 TRD 05360

(Criminal Appeal fromVandalia Municipal Court)

Rendered on the ls` day of Februarv , 2008.

JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, Ohio 45432Attorney for Plaintiff-Appellee

SEAN M. MAGA, P. O. Box 5849, Dayton, Ohio 45405Defendant-Appellant

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Sean M. Maga, filed

December 29, 2006. On May 20, 2006, at approximately 7:19 p.m., Maga was cited for

following another vehicle too closely, in violation ofR.C. 4511.34, a minor misdemeanor. On

that date, Officer Kevin Sink of the Butler Township Police Department was on duty, in

uniform, in a stationary, marked cruiser located at the back of Cricket Hollow Camp in Butler

2

Township, Montgomery County, Ohio. Officer Sink observed Maga's vehicle behind another

vehicle at a distance of approximately 10 to 12 feet. Both vehicles appeared to be traveling at

about 40 to 45 miles per hour in a 45 miles per hour zone. Sink initiated a traffic stop, and he

issued Maga a traffic ticket, citing a violation of R.C. 4511.34.

1121 The Complaint section of the traffic ticket Maga received indicated that at the

time of the offense the pavement was dry, visibility was clear, there was no adverse weather,

traffic was light, the area was rural/residential, a crash did not occur, and that Maga accelerated

rapidly. The Officer's Statement of Facts provided, "While sitting at the Gatehouse of Cricket

Holler Camp, I observed the Defendant accelerate rapidly from the light at Philadelphia and

Frederick heading East. When it passed my location, it was tail-gating the car in front of it and

continued in this manner. When I stopped the vehicle for the violation, the Defendant

complained that `the driver ahead of him was traveling way under the speed limit."'

{¶ 3} The Complaint section of the traffic ticket also provided that the offense

occurred on May 20, 2006, but the Summons section of the traffic ticket erroneously

indicateded that the Summons was served on Maga on May 22, 2006. At trial, Maga learned

that Officer Sink altered the date on the court's copy of the Summons section, so that the

Summons section provided that the Summons was served on Maga on May 20, 2006, the same

date the offense occurred.

114) Pursuant to the Summons, Maga appeared at Vandalia Municipal Court on May

30, 2006, for an arraignment. At that time, the bailiff informed Maga that he was charged with

Following too Close, a minor misdemeanor, and the Magistrate asked Maga how he wished to

plead. Maga responded by asking the Magistrate if the prosecutor was present. The Magistrate

3

indicated that the prosecutor was in the building. Due to the absence of the prosecutor in the

courtroom, Maga orally moved for dismissal for lack of prosecution. The Magistrate then

entered a plea of not guilty on Maga's behal£ Maga then responded, "I object and withdraw

that plea." The transcript of the arraignment ends with the Magistrate instructing Maga to take a

seat and stating, "We'll have the prosecutor talk to you."

{¶ 5} On June 6, 2006, Maga filed a "Notice of Fiduciary Duty," a "Notice of

Misprison of Felony," a "Motion to Dismiss," and a`miotice of Alibi Defense." In his "Notice

of Alibi Defense," Maga asserted that he was at his home on May 20, 2006, between the hours

of 5:00 p.m. and 9:00 p.m., "[i]n that the colorable charging instrument states that it was served

May 22, 2006, two days after the alleged occurrence." Although Maga argues that the docket

herein "clearly lacks an entry" denying his Motion to Dismiss, in fact on June 14, 2006, the

municipal court issued an Order and Entry providing that it had reviewed the file and charges

and found the "Motions" to be unfounded.

116) A trial was held before the Magistrate on June 15, 2006. Officer Sink testified

regarding the traffic stop. Although Maga's "Notice of Alibi Defense" provided that Maga was

at home on May 20, 2006, Lisa Marie Maga, Maga's mother, along with Kevin Charles

Czekalski, testified that they were with Maga on May 22, 2006, at Maga's home. The

Magistrate issued a Decision on June 20, 2006, finding Maga guilty and imposing a $40.00 fine

plus court costs. The Magistrate determined, since the date of the offense was May 20, 2006,

Maga's whereabouts on May 22, 2006, were irrelevant to his guilt or innocence.

{¶ 71 On July 5, 2006, Maga filed "Objections to Referee's Report and

Recommendation," and on December 5, 2006, the municipal court adoped the Magistrate's

4

Decision.

{¶ 81 Maga asserts three assignments of error. Maga's first assignment of error is as

follows:

{¶ 91 "THE COURT DID ERR BY NOT DISMISSING THE CASE WHEN THE

PLAINTIFF (APPELLEE) AND COUNSEL FOR TIE PLAINTIFF FAILED TO APPEAR AT

ARRANGEMENT (sic) AND THE DEFENDANT (APPELLANT) OBJECTED AND

MOVED THE COURT TO DISMISS FOR LACK OF PROSECUTION."

{1[ 10} "Litigants who choose to proceed pro se are presumed to know the law and

correct procedure, and are held to the same standard as other litigants." Yocum v. Means,

Darke App. No. 1576, 2002-Ohio-3803. A litigant proceeding prose "cannot expect or demand

special treatment from the judge, who is to sit as an impartial arbiter." Id. (Internal citations

omitted).

{J[ 11) In support of this assignment of error, Maga relies upon R.C. 309.08,

which provides, " * * * The prosecuting attorney shall prosecute, on behalf of the state,

all complaints, suits, and controversies in which the state is a party, ***."

{¶ 121 The Ohio Traffic Rules, as set forth in the Ohio Revised Code, "prescribe

the procedure to be followed * * * in traffic cases." Traf.R.1 (A).

{¶ 13} An "[a]rraignment shall be conducted in open court and shall consist of

reading the complaint to the defendant, or stating to him the substance of the charge,

and calling on him to plead thereto." Traf.R. 8(6). " * * * If a defendant refuses to

plead, the court shall enter a plea of not guilty on behalf of the defendant." Traf.R.

10(A). There is no requirement in the "Ohio Traffic Rules" that the prosecuting attorney

be present in the courtroom during arraignment. Further, the trial transcript makes

5

clear that the State prosecuted Maga in a timely manner following the arraignment.

There being no merit to Maga's first assignment of error, it is overruled.

(11141 Maga's second assignment of error is as follows:

{¶ 151 "THE COURT DID ERR BY ALLOWING THE DATE TO BE CHANGED

ON COURT'S COPY OF THE SUMMONS PORTION OF THE TICKET AND THEN

NOT SERVICING SAID TICKET ON THE DEFENDANT. AND, IN EFFECT, ALLOW

THE OFFICER TO COMMIT PERJURY BY CHANGING THE DATE."

{¶ 16) Pursuant to the Ohio Traffic Rules, "'Traffic ticket' means the traffic

complaint and summons described in Traffic R. 3." Traf.R. 2(B).

{¶ 171 "The function of a complaint is to inform the accused of the crime of

which he is charged." State v. aames, Hamilton App. No. C-050174, 2006-Ohio-1748.

"The purpose of a summons is to bring a party into court." Norr.`hland Village Apts. v.

Hamp (June 20, 1991), Montgomery App. No. 12407.

{¶ 181 Traf. R. 3(E) provides, "A law enforcement officer who issues a ticket shall

complete and sign the ticket, serve a copy of the completed copy on the defendant,

and, without unnecessary delay, file the court copy with the court. If the issuing officer

personally serves a copy of the completed ticket on the defendant, the issuing officer

shall note the date of personal service on the ticket in the space provided."

(119) "The state may amend a traffic ticket that omits necessary information or

includes a clerical error as long as (1) the original traffic ticket has given the defendant

notice of the true nature of the offense; (2) the defendant has not been deprived of a

reasonable opportunity to prepare a defense; and (3) the amendment merely clarifies

or amplifies the information in the original ticket. And a complaint prepared under

6

Traf. R. 3 simply needs to advise the defendant of the offense with which he is charged

in a manner that can be readily understood by a person making a reasonable attempt

to understand." State v. Wiest, Hamilton App. No. C-030674, 2004-Ohio-2577.

11201 In Wiest, the defendant struck a vehicle in front of him and received a

traffic ticket for an assured-clear-distance-ahead violation. The citation indicated a

violation of R.C. 506-8, but there is no such section in the Revised Code. Id. There is,

however, a Cincinnati Municipal Code 506-8, and the officer later altered the citation

by checking the "CMC" box before filing the citation with the t(al court. Id. In affirming

the defendant's conviction, the court determined that the traffic ticket could be readily

understood by a person making a reasonable attempt to understand it, since it

adequately advised the defendant of the charge against him, and any error in failing to

serve an amended copy of the traffic ticket upon the defendant as soon as possible

was harmless. Id.

{¶ 21) The Revised Code defines perjury as follows: "No person, in any official

proceeding, shall knowingly make a false statement under oath or affirmation, or

knowingly swear or affirm the truth of a false statement previously made, when either

statement is material." R.C. 2921.11(A).

{¶ 22) "A falsification is material, regardless of its admissibility in evidence, if it

can affect the course or outcome of the proceeding. ***." R.C. 2921.11(B).

{¶23} At trial, the following exchange occurred regarding the altered traffic

ticket:

{¶ 24} "MAGISTRATE: Okay. I do have one question. As you know Mr. Maga's

filed a Notice of Alibi and has called witnesses indicating he was with them on May 22.

7

And, Officer, you're still under oath. I note here that it looks like the date was written

over on the ticket. Can, on the original ticket, and it looks like it may have originally

said May 22. Can you explain that?

{¶ 25} * w *

{¶ 261 [Maga then approached the bench and showed the Magistrate Maga's

unaltered traffic ticket indicating he was served on May 22, 2006.]

{127} "OFF. SINK: Yeah, yeah, I changed it, yeah.

1128} "MAGISTRATE: Okay.

(¶ 29) "OFF. SINK: The only reason I wrote 22 down here and it's supposed to

be 20.

1130) * *

11311 "OFF. SINK: So I wrote right over it, yes.

{¶ 32) "MAGISTRATE: And I see that up at the top you wrote May 20 ...

{133} "OFF. SINK: Correct.

{¶ 34} * *

11[351 "MAGISTRATE: Okay. Now, Officer, what, did you change that after you

had given to the copy to Mr. Maga because his says the 22"d

{¶ 36) "OFF. SINK: I must, I must have the only thing I can assume.

{¶ 37} * *

{¶ 38) "MAGISTRATE: '** Based on the evidence before me the Court is

convinced beyond a reasonable doubt of the truth of the charge. And, Mr. Maga, the

date given on the Complaint itself which shows the location and the pertinent time and

date is May 20 at the top of the ticket and the bottom date refers to the time you were

9

oath to the truth of the information in the Complaint, and not the Summons. Even if

Officer Sink attested under oath to the erroneous statement in the Summons regarding

the date of service, the course or outcome of the proceeding would not be affected;

the date Officer Sink served the summons upon Maga is immate(al, and Officer Sink

did not commit perjury.

1142) We finally note that, in "Appellant's Response to Appellee's Brief," Maga

argues for the first time that the Magistrate failed to comply with Traf. R. 8(D). Traf.R.

8(D) requires the Magistrate, at arraignment, to explain certain rights to defendants

prior to calling for a plea. Traf. R. 8(E) provides, "If there are multiple defendants to be

arraigned, the judge may advise, or cause them to be advised, of their rights by

general announcement." This argument lacks merit as appellant's citation was tried on

its merits. Thus, any error is harmless.

{¶ 43} There being no abuse of discretion, Maga's second assignment of error

is overruled.

{¶ 44} Maga's third assignment of error is as follows:

{¶ 45} "THE TRIAL COURT DID ERR BY FINDING THE DEFENDANT GUILTY

OF FOLLOWING TO (sic) CLOSE WHEN THE OFFICER COULD NOT ARTICULATE

AS TO WHAT IS ASSURED CLEAR DISTANCE."

1146) Maga was charged with a violation of R.C. 4511.34, which provides,

"The operator of a motor vehicle, streetcar, or trackless trolley shall not follow another

vehicle * * * more closely than is reasonable and prudent, having due regard for the

speed of such vehicle * * * and the traffic upon and the condition of the highway."

Maga argues that R.C. 4511.34 is void for vagueness. He further argues, "for this

10

particular code provision to have any legal footing O.R.C. 4511.34 would require an

accident or at least a near accident."

{¶ 471 At trial, Officer Sink testified that Maga was "anywhere from ten to twelve

feet" behind the vehicle ahead of him at a speed of "40 to 45 mph which is well within

the limits of that, that stretch of road."

1148) "The 'void for vagueness' doctrine is premised on the due process

provision of the Fourteenth Amendment, and bars enforcement of, 'a statute which

either forbids or requires the doing of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and differ as to its application.'

United States v. Lanier (1997), 520 U.S. 259, 266,117 S.Ct. 1219, 137 L.Ed.2d 432.

{¶ 49) "'It is a basic principle of due process that an enactment is void for

vagueness if its prohibitions are not clearly defined. Vague laws offend several

important values. First, because we assume that man is free to steer between lawful

and unlawful conduct, we insist that laws give the person of ordinary intelligence a

reasonable opportunity to know what is prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not providing a fairwarning. Second, if arbitrary

and discriminatory enforcement is to be prevented, laws must provide explicit

standards for those who apply them. A vague law impermissibly delegates basic

policy matters to policemen, judges, and juries for resolution on an ad hoc and

subjective basis, with the attendant dangers of arbitrary and discriminatory application.'

Grayned v. Rockford (1972), 408 U.S. 104, 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222."

State v. Quinones, Mahoning App. No. 02 CA 243, 2003-Ohio-6727 (holding R.C.

4511.34 is not void for vagueness).

11

{¶ 50) "`The Constitution requires only that the challenged statute or ordinance

"** conveys [a] sufficiently definite warning as to the proscribed conduct when

measured by common understanding and practices.' United States v. Petrillo (1947),

332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877.

{¶ 51} "`Absolute or mathematical certainty is not required in the framing of a

statute. Reasonable certainty of the nature and cause of the offense is all that is

required. Some offenses admit of much greater precision and definiteness than

others, but it is quite obvious that in the case at bar the statute must be sufficiently

elastic and adaptable to meet all the dangerous situations presented, in order to

adequately safeguard the travelling [sic] public. State v. Schaeffer (1917), 96

Ohio St. 215, 236, 117 N.E. 220,226.

11521 "` *' * the statue is merely a traffic regulation which has for its standard

the rule of reason. Traffic circumstances vary greatly. A more specific regulation

would not adequately safeguard the public.' [quoting State v. Hinson (Feb. 5, 1982), 4'"

Dist. No. 385].' Id. at 60-61, 117 N.E. 220, 43 Ohio App.3d 59, 539, N.E.2d 641."

Quinones (quoting State v. Gonzalez (1987), 43 Ohio App.3d 59, 539 N.E.2d 641.

{¶ 53) The Quinones court further relied upon our decision in State v. Rankin

(Jan. 19, 1994), Greene App. No. 93-CA-30, as follows: "'Ten feet is less than the

length of the average car. To be following a car that closely when both cars are

traveling at 37 miles per hour is inherently unsafe, and under those circumstances a

police officer has a reasonable and articulable suspicion that the driver of the following

car is following too closely.' Id. at 2, 539 N.E.2d 641." Quinones.

{¶ 54} Finally, in determining that R.C. 4511.34 meets constitutional

12

requirements, the Quinones court noted, "AII legislative enactments enjoy a strong

presumption of constitutionality. ( Internal citation omitted).'[T]he party asserting that a

statute is unconstitutional must prove this assertion beyond a reasonable doubt in

order to prevail.' ( Intemal citation omitted). When considering a party's assertion that

a statute is void for vagueness, any doubts will be resolved in favor of upholding the

constitutionally valid." (Internal citation omitted).

{¶ 55} Applying the above principles, and presuming the constitutional validity of

R.C. 4511.34, we conclude that the "reasonable and prudenY' standard, while not

precise, clearly sets forth a reasonable standard for drivers and authorities to apply

when estimating the distance between two moving vehicles. That an officer cannot

precisely measure the distance between the vehicles he observes does not render his

enforcement of R.C. 4511.34 arbitrary and discriminatory. Traffic conditions vary

considerably, and at issue is whether a driver is able to stop his vehicle in time to avoid

striking the vehicle ahead of him. A reasonable driver understands that following the

vehicle ahead of him too closely renders an accident nearly inevitable if the lead

vehicle suddenly comes to a stop. Maga's argument that an accident or near accident

is required defies logic. There being no merit to Maga's third assignment of error, it is

overruled.

Judgment affirmed.

BROGAN, J. and FAIN, J., concur.

Copies mailed to:

Joe Cloud

13

Sean M. MagaHon. Cynthia M. Heck

CA 021998

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CA 021998STATE OF OHIO VS. MAGA, SEAN M

To vicw ar image cQick an a calnta°na

THE DOCKETBegin Date: 12/28/06 End Date: 3/16/08 [v Descending

IMAGES DATE/DOCKET ENTRY

12/28/2006 NON BARCODE ENTRY

Go

JOE CLOUD 3973 DAYTON-XENIA ROAD BEAVERCREEK, OH 45432 ATTORNEY FORPLAITNIFF/APPELLEE SEAN M MAGA 4320 CORYDALE CT DAYTON, OH 45414DEFENDANT/APPELLANT - PRO SE12/29/2006 NOTICE OF APPEAL FILED CA

NOTICE OF APPEAL FILED CA Receipt: 518537 Date: 01/26/200712/29/2006 CIVIL DEPOSITCIVIL DEPOSIT Receipt: 518537 Date: 01/26/2007

12/29/2006 CIVIL DOCKET STATEMENT FILEDCIVIL DOCKET STATEMENT FILED - TR TO BE FILED

01/26/2007 SUMMARY OF DOCKET FILEDSUMMARY OF DOCKET FILED (SUMMARY HAS 2 VOLS OF TRANSCRIPT)02/09/2007 RULE 11B NOTICE FILEDRULE 11B NOTICE FILED COA - RULE 1I(B) NOTICE Sent on: 02/09/2007 13:31:4502/13/2007 CERTIFICATE OF MAILINGCERTIFICATE OF MAILING - PROSECUTOR'S OFFICE CITY OF VANDALIA AND SEANMAGA - 02/09/0704/06/2007 MOTION FILEDMOTION OF APPELLANT FOR EXT TO FILE BRIEF FILED Attorney: PRO SE (0000000)04/17/2007 MAGISTRATES ORDER FILEDMAGISTRATES ORDER FILED. APPELLANT'S BRIEF IS DUE MAY 7, 2007.

05/07/2007 BRIEF OF APPELLANT FILEDBRIEF OF APPELLANT FILED Attorney: PRO SE (0000000)05/22/2007 ENTRY FILEDSUBSTITUTION OF COUNSEL FILED. JOE CLOUD APPEARS FOR APPELLEE.05/22/2007 MOTION FILEDMOTION OF APPELLEE FOR EXT TO FILE BRIEF FILED Attorney: CLOUD, JOE (0040301)

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http:/lwww.clerk.co.montgomery.oh.us/pro/printable_docket.cfm7ocid...

06/01/2007 MAGISTRATES ORDER FILEDMAGISTRATES ORDER FILED. APPELLEE'S BRIEF IS DUE JUNE 18,2007.06/18/2007 MOTION FILEDMOTION OF APPELLEE FOR EXT TO FILE BRIEF FILED Attorney: CLOUD, JOE (0040301)06/22/2007 MAGISTRATES ORDER FILEDMAGISTRATES ORDER FILED. APPELLEE'S BRIEF IS DUE JULY 10, 2007.07/10/2007 BRIEF OF APPELLEE FILEDBRIEF OF APPELLEE FILED Attomey: CLOUD, JOE (0040301)

07/24/2007 BRIEF OF APPELLANT FILEDAPPELLANT'S RESONSE TO APPELLEE'S BRIEF FILED Attomey: PRO SE (0000000)02/01/2008 OPINION FILED

OPINION FILED AFFIRMING JUDGMENT.02/01/2008 FINAL ENTRY FILED

F1NAL ENTRY FILEDADDITIONAL NOTES

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