[Cite as State v. Danon, 2018-Ohio-419.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                       MIAMI COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2017-CA-14
                                                 :
 v.                                              :   Trial Court Case No. 17-CR-52A
                                                 :
 BENJAMIN R. DANON                               :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                           Rendered on the 2nd day of February, 2018.

                                            ...........

JANNA L. PARKER, Atty. Reg. No. 0075261, Miami County Prosecutor’s Office, 201 W.
Main Street, Safety Building, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
     Attorney for Defendant-Appellant

                                           .............
                                                                                        -2-


FROELICH, J.

       {¶ 1} Benjamin R. Danon was found guilty by the Miami County Court of Common

Pleas on his no contest plea to aggravated robbery. The trial court sentenced him to six

years in prison and ordered him to pay court costs of $519.33. Danon appeals from his

conviction, claiming that his plea was not made knowingly, intelligently, and voluntarily,

and that the trial court abused its discretion in overruling his motion to continue the

sentencing hearing. For the following reasons, the trial court’s judgment will be affirmed.

                        I. Background and Procedural History

       {¶ 2} According to the prosecutor’s statements at the sentencing hearing, on

November 13, 2016, Danon and three others went to a residence to steal back drugs that

had been stolen from him (Danon) or to take compensation for those drugs; several

individuals were present in the residence.     The prosecutor described Danon as the

“ringleader” of the co-defendants and indicated that all witnesses reported that Danon

had taken out a handgun and threatened the victims with it. Danon denied that he had

a weapon, but told police he had punched someone in the face.            Danon stated at

sentencing that he was “trying to help somebody” when he participated in the robbery.

       {¶ 3} On January 26, 2017, Danon and three co-defendants were each indicted for

one count of aggravated robbery, a first-degree felony. On February 2, 2017, Danon

appeared before the court by video for his arraignment. The trial court noted that Danon

had retained counsel, but counsel had not yet entered an appearance. Upon inquiry,

Danon indicated that he would like to speak with his attorney before being arraigned and

requested a continuance. The court rescheduled the matter for Tuesday, February 14,

2017. (A written entry granting the continuance was not filed until March 24, 2017.)
                                                                                              -3-


       {¶ 4} Defense counsel formally entered his appearance during the afternoon of

February 2, 2017, and requested that Danon’s bond be modified to electronic home

detention due to Danon’s “medical condition;” Danon remained incarcerated.                 (The

motion did not specify Danon’s medical condition, but the record reflects that Danon has

Crohn’s Disease.) At the same time, counsel also filed a motion for a continuance of the

scheduled February 14 arraignment.          Counsel indicated that he is a magistrate in

municipal court on Tuesdays, creating a conflict with the February 14 arraignment date.

The trial court granted the motion to continue and rescheduled the arraignment for March

6, 2017.

       {¶ 5} Danon was arraigned, as scheduled, on March 6, 2017. At that time, the

court scheduled a pretrial conference for March 13, 2017.             Defense counsel orally

requested a continuance of the pretrial conference, and the conference was rescheduled

for March 20, 2017.       (A written motion for a continuance of the March 13 pretrial

conference and a written decision granting that motion were subsequently filed on March

23, 2017 and March 24, 2017, respectively.) The March 20, 2017 pretrial conference

was held, and on March 22, 2017, the trial court filed a pretrial order that set a final pretrial

conference for May 15 and trial dates of May 31, June 1, and June 2, 2017.

       {¶ 6} On April 10, 2017, Danon moved for a continuance of the May 31, 2017 trial.

In his supporting memorandum, counsel stated that he would be out of the office on May

31, June 1, and June 2, 2017, and would be unavailable for trial. The trial court denied

the motion, reasoning that the trial had been scheduled at a pretrial conference where

defense counsel was present, the motion was filed three weeks after that pretrial

conference, counsel offered no explanation for why he would be out of the office on the
                                                                                             -4-


scheduled trial dates, and the court had previously granted continuances of Danon’s

arraignment (twice) and a pretrial conference, all at Danon’s request.

       {¶ 7} On May 17, 2017, Danon pled no contest to aggravated robbery. Danon

had no plea agreement with the State. The trial court found him guilty and ordered a

presentence investigation. The court scheduled a sentencing hearing for July 5, 2017.

On May 24, 2017, the trial court filed an amended hearing notice, which vacated the July

5, 2017 sentencing hearing date and rescheduled it for June 22, 2017.

       {¶ 8} Following Danon’s plea, defense counsel sought to have Danon

psychologically evaluated by Dr. Mary Melton of the Ohio Intervention Center. Initially,

Dr. Melton was unable to gain access to Danon at the jail, due to the jail’s requirement

that Dr. Melton first undergo a background check. This prompted Danon to file a “motion

for permission to conduct assessment,” which sought an order permitting Dr. Melton to

have access to Danon; the court denied the motion, stating that it would not second-guess

the jail’s security requirements. Dr. Melton subsequently underwent a background check

and was able to meet with Danon.

       {¶ 9} On June 9, 2017, defense counsel filed a motion for continuance of the

sentencing hearing and for an order granting Dr. Melton a professional visit with Danon.

Counsel indicated that Dr. Melton had met with Danon at the jail, but she was unable to

complete her forensic evaluation due to the inability to have Danon complete certain tests.

The trial court denied the motion for a continuance on June 16, 2017. The court’s entry

stated that, “[t]o expedite a resolution, the court contacted the jail and learned that the jail

had already arranged with Dr. Melton to make the defendant available to complete the

evaluation.   It is anticipated that counsel will have the evaluation in time for the
                                                                                          -5-


sentencing hearing.”

       {¶ 10} On June 21, 2017, Danon filed a sentencing memorandum, which consisted

of a six-page memorandum from counsel and approximately 150 pages of exhibits. In

his memorandum, counsel argued that Danon did not cause physical harm to anyone

during the offense and did not possess a weapon, although he led the victims to believe

he had a weapon. Counsel also emphasized that Danon does not have a violent past,

that he cooperated with the police regarding this offense, and that he has significant

physical and mental health issues, including a need for imminent surgery. Counsel

requested a minimum sentence of 17 months in prison and that Danon’s sentence not be

more than his co-defendants’ sentences.

       {¶ 11} The exhibits attached to the sentencing memorandum included: (1) a voice

evaluation that allegedly supported Danon’s assertion that he did not have a weapon

during the offense; (2) Dr. Melton’s report; (3) 32 pages of records from Samaritan

Behavioral Health; (4) numerous pages of medical records related to Danon’s Crohn’s

disease; (5) copies of filings by defense counsel; (6) three reports of medical studies

concerning inflammatory bowel disease and mental health issues, particularly

depression; (7) letters in support of Danon by family and friends; and (8) copies of some

family photographs.

       {¶ 12} At the June 22 sentencing hearing, defense counsel told the court that he

had filed a sentencing memorandum that incorporated all of his arguments. The court

responded that it had not received it, although it had been filed with the clerk. The parties

and the court discussed whether they were available for sentencing later that day. When

defense counsel indicated that he had obligations in other courts that day and all that
                                                                                        -6-


afternoon in Xenia, the court ordered a recess and indicated that “[w]e will reconvene as

soon as I finish reviewing all of this [the sentencing memorandum].”

       {¶ 13} Upon reconvening, the trial court stated that it had “an opportunity over the

last hour to review [the sentencing memorandum] and I’m ready to proceed.” Danon and

his attorney spoke on Danon’s behalf. Danon expressed regret for what he did and that

he “didn’t mean for anybody to get hurt in this whole situation.”

       {¶ 14} The prosecutor spoke in favor of a harsh sentence. She described the

circumstances of the offense, as related by witnesses, and Danon’s leadership in

planning the offense.     The prosecutor further told the trial court that Danon had

threatened his co-defendants to induce them not to cooperate with law enforcement

regarding this case. The prosecutor refuted that Danon had accepted responsibility for

his actions and/or cooperated with the police. In addition, the prosecutor indicated that

she had “forty pages of write-ups of the defendant and his behavior in the jail.”

       {¶ 15} The trial court sentenced Danon to six years in prison.

       {¶ 16} Danon appeals from his conviction, raising two assignments of error. We

will address them in reverse order.

                        II. Danon’s Plea to Aggravated Robbery

       {¶ 17} Danon’s second assignment of error states:

       The trial court erred in accepting Appellant’s no contest plea because

       Appellant’s plea was not entered voluntarily.

       {¶ 18} Crim.R. 11(C)(2) requires the court to address the defendant personally and

(a) determine that the defendant is making the plea voluntarily, with an understanding of

the nature of the charges and the maximum penalty, and, if applicable, that the defendant
                                                                                            -7-


is not eligible for probation or for the imposition of community control sanctions; (b) inform

the defendant of and determine that the defendant understands the effect of the plea and

that the court, upon acceptance of the plea, may proceed with judgment and sentencing;

and (c) inform the defendant and determine that he or she understands that, by entering

the plea, the defendant is waiving the rights to a jury trial, to confront witnesses against

him or her, to have compulsory process for obtaining witnesses, and to require the State

to prove guilt beyond a reasonable doubt at a trial at which he or she cannot be compelled

to testify against himself or herself. State v. Brown, 2d Dist. Montgomery No. 21896,

2007-Ohio-6675, ¶ 3.

       {¶ 19} The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.

However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial

court need only substantially comply with those requirements. E.g., State v. Nero, 56

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance means that under

the totality of the circumstances the defendant subjectively understands the implications

of his plea and the rights he is waiving.” Id. In contrast, the trial court must strictly

comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights.

Clark at ¶ 31.

       {¶ 20} Furthermore, when non-constitutional rights are at issue, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that

the plea would otherwise not have been entered. Id. at ¶ 15.
                                                                                        -8-


      {¶ 21} Danon argues that his no contest plea to aggravated robbery was not

voluntary, because he felt pressured to enter a plea that day. Danon emphasizes that

the trial court had denied a continuance of the trial date, and he references statements

that he made at the plea hearing to support his claim that he did not voluntarily enter his

plea. Danon does not claim that the trial court failed to comply with Crim.R. 11.

      {¶ 22} The plea hearing was held on May 17, 2017, prior to the scheduled trial date

of May 31, 2017. There is nothing in the record to indicate that Danon elected to enter

a plea because his counsel’s request for a continuance of the trial date was denied.

      {¶ 23} During the plea hearing, the trial court asked Danon several questions

related to whether Danon was satisfied with his attorney and was comfortable with

entering a plea. Toward the beginning of the plea hearing, the trial court asked:

      THE COURT: Do you feel you’ve had enough time to talk to your attorney

      about going ahead with this no contest plea today?

      MR. DANON: I do.

      THE COURT: Has your lawyer talked to you about this case and has he

      answered all your questions?

      MR. DANON: Yes.

      THE COURT: Has your lawyer gone over this Aggravated Robbery charge

      with you and discussed that with you?

      MR. DANON: Yes, Your Honor.

      THE COURT: Are you satisfied with the advice your attorney has given you?

      MR. DANON: Yes.

      THE COURT: Do you feel your attorney has done a competent job on your
                                                                                       -9-


      behalf?

      MR. DANON: Yes.

And toward the end of the hearing -- after the court had reviewed the effect of Danon’s

plea, Danon’s constitutional rights, the possible sentences, post-release control, and

Danon’s appeal rights, and after Danon had affirmed that he had signed the plea form --

the trial court and Danon had the following exchange:

      THE COURT: Okay. And again, do you feel you’ve had enough time to

      think about the very important decision that you’re making this afternoon?

      MR. DANON: I feel like I could use more time, but I’ve had – I’ve had a lot

      of time to think about it.

      THE COURT: Well, I will tell you if you want more time to think about it, I’ll

      give it to you.

      (DEFENDANT AND COUNSEL HAVE PRIVATE CONVERSATION)

      MR. DANON: I think I’d like to proceed.

      THE COURT: You sure?

      MR. DANON: Yes, Your Honor.

      THE COURT: Okay. And with that, Mr. Danon, I will ask you if you wish to

      enter a plea of no contest to Count 1 in the indictment, which charges you

      with Aggravated Robbery, a felony of the first degree, do you wish to plead

      no contest to this offense?

      MR. DANON: Yes, Your Honor.

      THE COURT: Are you pleading no contest to this offense voluntarily and of

      your own free will?
                                                                                         -10-


       MR. DANON: Yes, Your Honor.

       {¶ 24} Danon argues that his statements to the court at the plea hearing reflect

that he “was not very confident with his decision” to enter a plea. However, Danon

indicated that he had had a lot of time to consider what he wanted to do, and after

speaking with his attorney, he expressed that he had decided to proceed with the plea.

The trial court did not pressure Danon to enter a plea. To the contrary, it expressed that

Danon could have more time to consider his options. Danon stated that he was entering

his plea voluntarily, and we find nothing in the record to refute this. Moreover, upon

review of the entire plea hearing, the trial court complied with the requirements of Crim.R.

11.

       {¶ 25} Danon’s second assignment of error is overruled.

                         III. Denial of Motion for Continuance

       {¶ 26} Danon’s first assignment of error states:

       The trial court abused its discretion when it overruled Appellant’s motion to

       continue the sentencing hearing.

       {¶ 27} In his first assignment of error, Danon argues that the trial court should

have granted his request to continue the sentencing hearing. He argues that “there was

not enough time to adequately prepare for the sentencing hearing, and that the

proceedings were rushed in order to transfer him out of the county prior to his scheduled

surgery.”

       {¶ 28} The trial court has broad discretion to grant or deny a motion for a

continuance. State v. Bones, 2d Dist. Montgomery No. 26017, 2015-Ohio-784, ¶ 61. In

exercising its discretion, a trial court should consider “the length of the delay requested;
                                                                                        -11-


whether other continuances have been requested and received; the inconvenience to

litigants, witnesses, opposing counsel and the court; whether the requested delay is for

legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the

defendant contributed to the circumstance which give [sic] rise to the request for a

continuance; and other relevant factors, depending on the unique facts of each case.”

(Citation omitted.) State v. Bocock, 2d Dist. Montgomery No. 22481, 2008-Ohio-5641, ¶

23.

      {¶ 29} Danon’s plea hearing was held on May 17, 2017, and the sentencing

hearing was originally scheduled for July 5, 2017. One week after the plea hearing, the

trial court rescheduled the sentencing for June 22, 2017. When, on June 9, defense

counsel filed his motion for a continuance of the sentencing hearing, the basis for his

motion was that Dr. Melton had been unable to complete her forensic evaluation due to

the inability to have Danon complete certain tests. The trial court denied the motion after

learning that the jail had already arranged with Dr. Melton to make the defendant available

to complete the evaluation.     In other words, the basis for counsel’s motion for a

continuance had been resolved.       The trial court thus reasonably concluded that a

continuance was no longer necessary.

       {¶ 30} Moreover, there is no evidence in the record that Danon was prejudiced by

the denial of that motion for a continuance. Notably, Dr. Melton’s report was included in

the sentencing memorandum filed by counsel on June 21, 2017. And, at the sentencing

hearing, defense counsel made no assertion that he did not have time to adequately

prepare for the hearing. At the beginning of the sentencing hearing, counsel reminded

the court that he “had asked for a continuance before and [the court] had overruled that
                                                                                       -12-


request, so we’re here ready for sentencing.” Counsel did not tell the trial court that he

needed additional time, and his comprehensive sentencing memorandum and his

arguments to the court belie such a claim.

      {¶ 31} Danon further argues that the sentencing hearing was “rushed.” He claims

that the reason for “rushing” the hearing was so that the State, rather than the county,

would be responsible for Danon when Danon had his impending surgery.               Danon

appears to argue that, for this reason, the court did not continue the sentencing hearing

to a later date to allow it time to consider defense counsel’s sentencing memorandum.

      {¶ 32} We will not speculate on the reasons for the change in the date of Danon’s

sentencing hearing from July 5 to June 22. And we note that, when the trial court

indicated that it had not received a copy of the defense counsel’s sentencing

memorandum, counsel made no motion for a continuance. Regardless, the sentencing

hearing transcript reveals that the trial court took a recess to review defense counsel’s

sentencing memorandum before imposing sentence, and defense counsel did not object

to this procedure. Although the transcript does not indicate the times that the recess was

taken and court resumed, the court’s statements upon resuming the hearing reflect that

the court took approximately one hour to review the memorandum. Having reviewed the

record, including the sentencing memorandum, we cannot conclude that the trial court

abused its discretion in taking a recess rather than continuing the sentencing hearing to

another date.

      {¶ 33} Danon’s first assignment of error is overruled.

                                    IV. Conclusion

      {¶ 34} The trial court’s judgment will be affirmed.
                                               -13-


                               .............



WELBAUM, P. J. and DONOVAN, J., concur.


Copies mailed to:

Janna L. Parker
Thomas M. Kollin
Hon. Christopher Gee
