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State v. Oliver

Court of Appeals of Ohio, Tenth District

February 15, 2018

State of Ohio, Plaintiff-Appellee,
v.
Charles Oliver, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 16CR-4067)

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.

         On brief:

          Barnhart Law Office, LLC, and Robert B. Barnhart, for appellant.

          DECISION

          BROWN, P.J.

         {¶ 1} Charles Oliver, defendant-appellant, appeals the judgment of the Franklin County Court of Common Pleas, in which the court found him guilty of kidnapping with a firearm specification, a violation of R.C. 2905.01 and a first-degree felony, and felonious assault with a firearm specification, a violation of R.C. 2903.11 and a second-degree felony.

         {¶ 2} The facts underlying the crimes in this case are not relevant to the issues on appeal. Generally, on July 28, 2016, appellant was indicted on one count of kidnapping and one count of felonious assault, each carrying a three-year firearm specification. The victim was his ex-girlfriend ("the victim").

         {¶ 3} On August 1, 2016, appellant retained his first attorney. On January 18, 2017, that attorney moved to withdraw as counsel based on an accusation by the victim that he had given her money not to testify against appellant. The court granted the motion and appointed Robert Krapenc to represent appellant.

         {¶ 4} On February 13, 2017, the case was scheduled for a jury trial. Appellant requested a continuance, asserting he wanted to hire his own attorney. A conversation regarding appellant's request ensued between appellant and the trial judge, which we will detail in our discussion of appellant's assignment of error. In the end, the trial court denied appellant's request, believing appellant was delaying his trial hoping that the victim, who was in jail at that time, would be released by the next trial date and become "lost" and unavailable to testify. Subsequently, a jury convicted appellant of the charged offenses, and the trial court sentenced appellant to a total of 12 years in prison. Appellant appeals the judgment of the trial court, asserting the following assignment of error:

         THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR A CONTINUANCE TO SECURE HIS OWN COUNSEL.

         {¶ 5} Appellant argues in his sole assignment of error the trial court erred when it denied his request for a continuance in order to obtain trial counsel of his own choosing. In general, "[t]he right to counsel of one's choice is an essential element of the Sixth Amendment right to have the assistance of counsel for one's defense." State v. Frazier, 8th Dist. No. 97178, 2012-Ohio-1198, ¶ 26, citing State v. Keenan, 8th Dist. No. 89554, 2008-Ohio-807. This includes the right, when a defendant has the ability to retain his own attorney, to be represented by counsel of choice. United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). However, the right to retained counsel of choice "is not absolute, * * * and courts have 'wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar.' " Frazier at ¶ 26, quoting Gonzalez-Lopez at 152. In this respect, a trial court's "difficult responsibility of assembling witnesses, lawyers and jurors for trial 'counsels against continuances except for compelling reasons.' " State v. Howard, 5th Dist. No. 2012CA00061, 2013-Ohio-2884, ¶ 40, quoting Morris v. Slappy, 461 U.S. 1, 11 (1983). Accordingly, "decisions relating to the substitution of counsel are within the sound discretion of the trial court." Frazier at ¶ 26, citing Wheat v. United States, 486 U.S. 153, 159 (1988).

         {¶ 6} "The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion." State v. Unger, 67 Ohio St.2d 65, 67 (1981). In assessing whether the trial court abused its discretion in denying appellant's request for a continuance, we consider: (1) the length of the delay requested, (2) whether other continuances have been requested and received, (3) the inconvenience to litigants, witnesses, opposing counsel, and the court, (4) whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived, (5) whether appellant contributed to the circumstance which gives rise to the request for a continuance, and (6) other relevant factors, depending on the unique facts of each case. Id. at 67-68.

         {¶ 7} The United States Supreme Court has stated "[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge ...


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