State v. MustardState v. Mustard
DECISION AND JUDGMENT ENTRY
{¶ 1} Hеath Mustard appeals the judgment of the Pike County Court of Common Pleas that convicted him of felonious assault and domestic violence. First, he contends that the court violated his statutory right to a speedy trial when it allowed his trial counsel to withdraw just prior to trial and then continued the matter so that appellant could acquire new counsel. Second, appellant argues that the trial court erred by sentencing him to the maximum prison term without complying with appropriate statutory procedures.
{¶ 2} Because the continuance to afford appellant the opportunity to acquire new counsel was reasonable, and because appellant agreed that he wanted to have counsel represent him at trial, no violation of his statutory speedy trial rights occurred. Moreovеr, the trial court‘s sentencing entry and its subsequent nunc pro tunc entry adequately show that the trial court followed the appropriate sentencing guidelines. Therefore, we affirm the court‘s judgment.
{¶ 3} In July of 2003, the Pike County Grand Jury returned an indictment charging appellant with felonious assault and two counts of domestic violence. On August 18, 2003, the court set the matter for trial beginning on Monday, August 25, 2003. On August 22, 2003, defense counsel filed a motion to withdraw. In it, she asserted that she had “just received” the notice setting the matter for an August 25 jury trial, and that she had already been scheduled to be out of town.
{¶ 4} At an August 22, 2003 hearing regarding counsel‘s motion to withdraw, the following colloquy occurred: “By the Court: * * * [W]e have you set for a jury trial on Monday. You are without counsel at this point. Are you representing yourself or are you requesting a continuance and another attorney? [Apрellant]: Well if I‘d represent myself I‘d have a fool for a lawyer. Uh, yeah, I need counsel. By the court: Okay. Are you requesting that your case be continued? [Appellant]: No, I don‘t want my case continued. By the Court: Well then we have to have a jury come in on Monday and you‘ll have to have a trial. [Appellant]: Huh. Yeah, continue it.”
{¶ 5} On August 26, 2003, the court, by written entry, permitted defense counsel to withdraw. On that same date, the сourt appointed new counsel.
{¶ 6} On August 27, 2003, the court re-set the trial for September 15, 2003. In that entry, the court noted that: (1) it held a hearing on August 22, 2003; (2) it permitted defense counsel to withdraw on August 21, 2003; (3) appellant first refused to consent to a continuance of his jury trial; and (4) appellant did not wish to go to trial without an attorney and thus agreed to continue the trial.
{¶ 7} After a trial on the September date, the jury found appellant guilty оf one count of domestic violence and one count felonious assault.1 The court sentenced appellant to concurrent terms of imprisonment of eight years for the felonious assault offense and one year for the domestic violence offense. At the sentencing hearing, the court found that appellant “has failed to overcome presumption of imprisonment, under 2929.13(D), that he hаs previously served 2 prior sentences in prison.” On December 10, 2003, the court filed a nunc pro tunc entry in which it also found that appellant poses the greatest likelihood of committing future crimes, based on his criminal record which included two prior prison sentences for domestic violence related felonies.
{¶ 8} Appellant timely appealed the trial court‘s judgment and assigns the following errors: ”First Assignment of Error: The triаl court erred when it denied the appellant-defendant‘s motion to dismiss based on a violation of Ohio Rev. Code Sections
I
{¶ 9} In his first assignment of error, appellant asserts that the trial court erred by overruling his motion to dismiss on speedy trial grounds. He contends that the court “forced [him] to choose between having counsel represent him or to go forward with a jury trial without counsel.” Appellant further argues that the court should not have allowed his trial counsel to withdraw so close to the trial date. He claims that by allowing counsel to withdraw, the trial court exhibited a lack of diligence in providing him with counsel.
{¶ 10} Our review of a trial court‘s decision regarding a motion to dismiss based upon a violation of the speedy trial provisions involves a mixed question of law and fact. State v. Brown (1998), 131 Ohio App.3d 387, 391, 722 N.E.2d 594; State v. Kuhn (June 10, 1998), Ross App. No. 97CA2307. We accord due deference to the trial court‘s findings of fact if supported by competent, credible evidence. However, we indeрendently determine whether the trial court properly applied the law to the facts of the case. Id. Furthermore, when reviewing the legal issues presented in a speedy trial claim, we must strictly construe the relevant statutes against the state. Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57, 661 N.E.2d 706.
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{¶ 12} Here, neither the state nor appellant apparently disputes that the state failed to try appellant within ninety days, as he remained in jail in lieu of bail. Thus, appellant has presented a prima facie case for discharge. State v. Butcher (1986), 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368. Therefore, the state must show that the
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{¶ 14} In this case, the state has met its burden of showing that either
{¶ 15} Moreover, it is well-settled that a trial counsel‘s withdrawal motion is committed to the sound discretion of the trial court. State v. Miller, Ross App. No. 01CA2607, 2001-Ohio-2635, citing State v. Cowans (1999), 87 Ohio St.3d 68, 73, 717 N.E.2d 298. Thus, an appellate court will not reverse the trial court‘s decision absent an abusе of that discretion. State v. Murphy (2001), 91 Ohio St.3d 516, 523, 747 N.E.2d 765. The term “abuse of discretion” implies that the court‘s decision was “unreasonable, arbitrary, or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. When applying the abuse of discretion standard, a reviewing court is not free merely to substitute its judgment for that of the trial court. See In re Jane Doe I (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181.
{¶ 16} Thus, to the extent appellant asserts that the trial court should not have allowed counsel to withdraw, we find the argument meritless. Furthermore, we are unwilling to state that a trial court lacks diligence in providing an accused with counsel, as
{¶ 17} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
II
{¶ 18} In his second assignment of error, appellant asserts that the trial court erred when it sentenced him to the maximum prison term without complying with proper statutory procedures. Specifically, he contends that the court failed to consider the
{¶ 19} We may not reverse a sentence unless we find by clear and convincing evidence that the sentence is not supported by the record or that it is contrary to law.
{¶ 20} A trial court imposing a felony sentence “must consider the overriding purposes of felony sentenсing, which are to protect the public from future crime and to punish the offender.” State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, at ¶ 11, citing
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{¶ 22}
{¶ 23} While the trial court must consider the
{¶ 24} Here, although the trial court did not make we specific findings regarding each
{¶ 25} Appellant additiоnally asserts that the court‘s sentence is contrary to law because the court failed to comply with
{¶ 26} In Edmonson, the Ohio Supreme Court determined that in order to lawfully impose the maximum term, the record must reflect that the trial court imposed the maximum sentence after having first found that the offender satisfied one of the criteria set forth in
{¶ 27} In this case, the trial court‘s sentencing entry reflects that it considered
{¶ 28} Accordingly, we overrule appellant‘s second assignment of error and affirm the court‘s judgment.
Judgment Affirmed.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike County Common Pleаs Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J.: Concurs in Judgment and Opinion as to Assignment of Error I; Dissents as to Assignment of Error II.
Abele, J.: Concurs in Judgment and Opinion.
Notes
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