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State v. Glowka

Court of Appeals of Ohio, Twelfth District

July 15, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
ADAM M. GLOWKA, Defendant-Appellant.

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-12-2056

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, for plaintiff-appellee

Neal D. Schuett, for defendant-appellant

OPINION

M. POWELL, J.

{¶ 1} Defendant-appellant, Adam M. Glowka, appeals a decision of the Butler County Common Pleas Court sentencing him to 12 months incarceration for the unauthorized use of a motor vehicle in violation of R.C. 2913.03, .

{¶ 2} On February 22, 2012, appellant was indicted on three counts, including one count of grand theft of a motor vehicle, one count of receiving stolen property, and one count of driving under suspension. On August 21, 2012, pursuant to a plea bargain agreement, appellant pleaded guilty to a reduced charge of unauthorized use of a motor vehicle, a felony of the fifth degree, in violation of R.C. 2913.03. The charges of receiving stolen property and driving under suspension were merged into the unauthorized use charge.

{¶ 3} On September 25, 2012, appellant appeared for sentencing and requested a continuance until October 23, 2012. Appellant argued that a continuance should be granted because (1) he had federal criminal charges pending against him and that case was continued for disposition, not at appellant's request, until October 11, 2012; (2) he requested his trial counsel do research on the topic of jail-time credit; and (3) trial counsel needed to investigate potential mitigation evidence. The trial court denied appellant's motion for continuance and sentenced appellant to 12 months in prison, the maximum sentence possible for a fifth-degree felony. Appellant was credited with serving 14 days of the 12-month sentence.

{¶ 4} From the trial court's sentence, appellant appeals, raising two assignments of error.

{¶ 5} Assignment of Error No. 1:

{¶ 6} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION FOR A CONTINUANCE.

{¶ 7} In his first assignment of error, appellant argues the trial court abused its discretion in denying his motion for continuance, as such denial violated his federal and state constitutional rights to due process and effective assistance of counsel.

{¶ 8} "A trial court has broad discretion in determining whether to grant or deny a continuance." State v. Bullock, 12th Dist. No. CA2005-04-031, 2006-Ohio-598, ¶ 12, citing State v. Unger, 67 Ohio St.2d 65, 67 (1981). "An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion." Unger at 66; Bullock at ¶ 12. An abuse of discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. Bullock at ¶ 12. "In ruling upon a motion for a continuance, 'the trial court balances the court's interest in controlling its docket and the public's interest in an efficient judicial system with the possibility of prejudice to the defendant.'" U.S. Bank v. Fitzgerrel, 12th Dist. No. CA2011-09-063, 2012-Ohio-4522, ¶18, quoting In re R.S., 12th Dist. No. CA2011-03-053, 2011-Ohio-4247, ¶ 16. In its evaluation of the motion, the court may consider "the length of the delay requested, prior continuances, inconvenience, the reason for the delay, whether the defendant contributed to the delay, and any other relevant factors." Bullock at ¶ 12, citing Unger at 67-68.

{¶ 9} Here, appellant contends the trial court erred in denying the motion for continuance where (1) appellant provided three "legitimate reasons" for delay; (2) the delay requested was for four weeks; (3) only one prior continuance had been requested by appellant; (4) the state did not object to the motion or argue that a continuance would be inconvenient; and (5) appellant did not contribute to the delay.

{¶ 10} From our review of the record, we find that the trial court did not abuse its discretion in denying appellant's motion for continuance. Although the motion was only the second continuance requested by appellant, the state did not object, and the period of time requested was four weeks, appellant failed to demonstrate how he would be prejudiced if the ...


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