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The State of Ohio v. George H. Swogger

October 28, 2011

THE STATE OF OHIO, APPELLEE,
v.
GEORGE H. SWOGGER, APPELLANT.



Criminal appeal from the Holmes County Court of Common Pleas, Case No. 10-CR-107

The opinion of the court was delivered by: Gwin, P.J.

Cite as

State v. Swogger,

JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. Julie A. Edwards, J. : Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING:

JUDGMENT: Affirmed

[Cite as State v. Swogger, 2011-Ohio-5607.]

{¶1} Defendant-appellant George H. Swogger appeals his conviction and sentence after a no contest plea to one count of Complicity to Breaking and Entering and one count of Complicity to Commit Theft. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On November 23, 2010 appellant was indicted by a Grand Jury of Holmes County for Complicity to Breaking and Entering in violation of R.C. 2923.03(A)(1) and (2); R.C. 2911.13(A), a felony of the fifth degree and Complicity to Theft in violation of R.C. 2923.03(A)(1) and (2), a misdemeanor of the first degree. Both offenses occurred on October 6, 2010.

{¶3} Appellant was arraigned in this case on January 3, 2011. Appellant was incarcerated at the Lorain Correctional Institute on an unrelated felony. The trial court released appellant on his own recognizance in this case on February 28, 2011.

{¶4} Appellant was removed from Lorain Correctional Institute for his pretrial in the case at bar set for March 21, 2011. Prior to the pretrial appellant wrote a letter to his attorney which was filed with the Court. The Court adopted appellant's letter as a Motion requesting a continuance and the removal of appellant's court appointed attorney. At the hearing on the Motion, appellant requested a continuance for six months to retain new counsel. The Court heard statements from the appellant and his appointed counsel. Appellant's appointed counsel told the trial court that, "he just does not have any faith or trust in me that I can do anything to represent him. Ah, there, I've never bothered to try to explain his grievance against me.... in fact the jail ended our meeting when it got sort o loud today...I don't know that's it's possible to work with Mr. Swogger as strong as his feelings are against me."

{¶5} The Court then asked the State for its position. The State indicated "Your Honor the State is prepared to go forward Monday with the trial. Um, we have our witnesses subpoenaed..." The Court denied the Motion stating, "I'm going to deny the Motion Mr. Hyde. He's got his subpoenas out. They're ready to go... " . The Court then directed appellant to cooperate with his attorney and vice versa.

{¶6} On March 23, 2011 appellant entered a plea of no contest with a joint sentencing recommendation. Appellant was sentenced to a term of six months on each count, with the misdemeanor time to run concurrently with the time for the felony count. The trial court ordered the sentence in the case at bar to run consecutive to the sentence appellant had already begun to serve on the unrelated felony conviction.

{¶7} It is from the trial court's March 23, 2011 Judgment Entry that appellant has timely appealed raising the following three Assignments of Error:

{¶8} "I. THE DEFENDANT WAS DENIED HIS DUE PROCESS RIGHTS WHEN THE TRIAL COURT DENIED HIS REQUEST FOR A CONTINUANCE TO SEEK NEW COUNSEL? [Sic.]

{ΒΆ9} "II. THE DEFENDANT'S CONSTITUTIONAL RIGHT TO COUNSEL WAS VIOLATED WHEN THE TRIAL COURT DENIED HIS ...


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