2004 Ohio 4917 | Ohio Ct. App. | 2004
{¶ 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. Moreover, 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? [Appellant]: 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 court 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 of 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 has 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 trial court erred when it denied the appellant-defendant's motion to dismiss based on a violation of Ohio Rev. Code Sections
{¶ 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),
{¶ 11} R.C.
{¶ 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),
{¶ 13} R.C.
{¶ 14} In this case, the state has met its burden of showing that either R.C.
{¶ 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),
{¶ 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 R.C.
{¶ 17} Accordingly, based upon the foregoing reasons, we overrule appellant's first assignment of error.
{¶ 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. R.C.
{¶ 20} A trial court imposing a felony sentence "must consider the overriding purposes of felony sentencing, which are to protect the public from future crime and to punish the offender." State v. Comer,
{¶ 21} R.C.
{¶ 22} R.C.
{¶ 23} While the trial court must consider the R.C.
{¶ 24} Here, although the trial court did not make we specific findings regarding each R.C.
{¶ 25} Appellant additionally asserts that the court's sentence is contrary to law because the court failed to comply with R.C.
{¶ 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 R.C.
{¶ 27} In this case, the trial court's sentencing entry reflects that it considered R.C.
{¶ 28} Accordingly, we overrule appellant's second assignment of error and affirm the court's judgment.
Judgment Affirmed.
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 Pleas 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.
R.C.
R.C.
R.C.