[Cite as State v. Lacey, 2016-Ohio-1375.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102812



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.


                                  ANTONIO M. LACEY
                                                    DEFENDANT-APPELLANT




                                      JUDGMENT:
                                   VACATED; REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-591059-A

        BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                   March 31, 2016
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Ryan J. Bokoch
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, Antonio Lacey (“Lacey”), appeals from his guilty plea

to felonious assault. For the reasons set forth below, we vacate Lacey’s conviction and

sentence and remand for further proceedings.

       {¶2} In November 2014, Lacey and codefendants Michael Hoston and Delontae

Phillips were charged in a four-count indictment.1 Counts 1 and 2 charged each of them

with felonious assault and carried a one-and-three year firearm specification. Counts 1

and 2 also charged Lacey with a notice of prior conviction and a repeat violent offender

specification.   Count 3 charged each of them with discharge of firearm on or near

prohibited premises.    Count 4 charged Lacey with having a weapon while under

disability.

       {¶3} The matter proceeded with discovery and was set for trial on Thursday,

February 19, 2015. Lacey appeared in court on that day with counsel. The case was

called for trial and a plea offer from the state was placed on the record. The state offered

a package deal in which both Lacey and Hoston would plead guilty to one count of

felonious assault in exchange for a dismissal of the remaining specifications and charges.

During the discussion of the plea offer, the court advised the parties that the matter would

be continued to Monday, February 23, 2015, because the court would be closed on Friday,




       1Michael Hoston appealed his conviction, which was affirmed by this court in
State v. Hoston, 8th Dist. Cuyahoga No. 102730, 2015-Ohio-5422.
February 20, 2015, for severe weather, at which point the defendants could inform the

court if they want to proceed with trial or accept the state’s plea offer.

       {¶4} When Lacey and Hoston reconvened before the trial court on Monday,

February 23, both defendants advised the court that they wished to proceed with a jury

trial. However, the trial court continued the matter to March 2, 2015, because the state

was engaged in trial in a different courtroom. On February 26, 2015, Lacey retained a

different attorney, who filed a notice of appearance and a motion for continuance with the

trial court. Newly retained counsel requested a continuance because of the fact that he

was retained on February 26th and would be out of town “on a prepaid preplanned

vacation until March 2, 2015, which will not allow adequate time for counsel to prepare

for trial.” The trial court denied Lacey’s motion for continuance, causing newly retained

counsel to file a motion to withdraw as counsel the next day, on February 27, 2015. In

the motion, counsel stated that he was unable to prepare to defend Lacey with the

schedule as set forth by the trial court. The trial court granted the motion to withdraw

that same day.

       {¶5} The matter then proceeded to trial on the morning of March 2, 2015. Prior

to trial, Lacey indicated that he would accept the previous plea offer from the state.

Pursuant to that offer, Lacey pled guilty to one count of felonious assault in exchange for

the state deleting the accompanying specifications and remaining charges. The matter

proceeded to sentencing that afternoon.
       {¶6} At sentencing, the state acknowledged that the state’s evidence would not

be able to show who actually shot the victim. Instead, the facts would have shown that

Lacey was involved in a gunfight from which a shot struck the victim. The bullet struck

through the right side of the victim’s skull, causing the loss of her right eye and serious

sight impairment to the left eye. As a result, the state was operating on a transferred

intent theory. In sentencing Lacey to seven years in prison, the trial court stated:

       I have considered the factors set forth in 2929.11 and .12 of the Revised
       Code as it pertains to the purposes and principles of felony sentencing and
       to recidivism and seriousness. You took responsibility; you pled guilty;
       you said you were sorry. That’s why you’re not going to get eight. I’ll
       give you seven years in the penitentiary.

       {¶7} Lacey now appeals, raising the following two assignments of error for

review.

                                Assignments of Error One

       The trial court erred in failing to grant a continuance once [Lacey] retained
       new counsel.

                                Assignments of Error Two

       The trial court abused its discretion by imposing a seven year term of
       imprisonment on [Lacey].

                                  Motion for Continuance

       {¶8} In the first assignment of error, Lacey argues that the trial court erred when

it did not grant his motion for continuance so that his newly retained attorney could

represent him at trial.
       {¶9} A determination of whether to grant or to deny a continuance is a matter left

to the discretion of the trial judge, and an appellate court may not disturb the trial court’s

ruling absent an abuse of discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d

1078 (1981). “The term ‘abuse of discretion’ connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144

(1980).

       {¶10} A reviewing court determines on a case-by-case basis whether the trial

court’s denial of a continuance motion was so arbitrary as to deprive the defendant of due

process, paying particular attention to the reasons presented to the trial judge at the time

the request was denied. Unger at 67, citing Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct.

841, 11 L.Ed.2d 921 (1964).

       {¶11} In determining whether the trial court abused its discretion, an appellate

court “weighs * * * any potential prejudice to a defendant [against] concerns such as a

court’s right to control its own docket and the public’s interest in the prompt and efficient

dispatch of justice.” Id.

       {¶12} The Unger court stated that in evaluating a motion for a continuance, a court

should 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 the defendant contributed to the

circumstance that gives rise to the request for a continuance; (6) and other relevant

factors, depending on the unique facts of each case. Id. at 67-68, citing United States

v.Burton, 584 F.2d 485 (D.C.Cir.1978); Giacalone v. Lucas, 445 F.2d 1238 (6th

Cir.1971).

       {¶13} In the instant case, the court continued trial on two occasions, with neither

continuance being at Lacey’s request. Trial had originally been set on February 19,

2015, but the court continued this date to February 23, 2015, because of the closure of the

common pleas court for severe winter weather conditions. On February 23, 2015, Lacey

advised the trial court that he wished to proceed to trial and declined the state’s plea offer.

 However, the matter did not proceed to trial on this date. Trial was continued again

because the prosecutor was in trial in another matter. The trial court then set a trial date

for March 2, 2015.

       {¶14} On February 26, 2015, Lacey retained a different attorney, who filed a

notice of appearance and a motion for continuance with the trial court. Newly retained

counsel requested a continuance because he was retained on February 26th and was going

to be out of town “on a prepaid, preplanned vacation until March 2, 2015, which [would]

not allow adequate time for counsel to prepare for trial.” The trial court denied Lacey’s

motion for continuance, causing newly retained counsel to file a motion to withdraw the

next day, on February 27, 2015. In this motion, counsel stated that he is unable to

prepare to defend Lacey with the schedule as set forth by the trial court. The trial court
granted the motion to withdraw that same day. It was only then that Lacey pled guilty to

the amended count of felonious assault.

       {¶15} It is well established that the 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. Keenan, 8th Dist. Cuyahoga No. 89554, 2008-Ohio-807, ¶ 30. The right to

specific counsel of one’s choice stems from “the conviction that a defendant has the right

to decide, within limits, the type of defense he wishes to mount.” United States v. Laura,

607 F.2d 52, 56 (3d Cir.1979), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,

45 L.Ed.2d 562 (1975); Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d

358 (1972). While the right to counsel of one’s choice is embedded in our jurisprudence,

we recognize that this right is not absolute. State v. Hanson, 8th Dist. Cuyahoga No.

99362, 2013-Ohio-3916, ¶ 24.

       {¶16} Here, Lacey sought a continuance so that he may have the counsel of his

choice to represent him at trial because he lacked confidence in current counsel. This

was Lacey’s first and only request for a continuance after the court set the original

February 19, 2015 trial date. The trial court continued the matter because of the weather,

and continued the matter for a second time at the state’s request.          Lacey sought a

continuance because his newly retained counsel was going to be out of town on a prepaid,

preplanned vacation until March 2, 2015, which would not have allowed counsel

adequate time to prepare for trial.     Only after the trial court denied his motion for

continuance, did Lacey accept the state’s plea offer.
       {¶17} Given the circumstances of this case, we find that the Unger factors

weighed strongly toward granting Lacey’s motion for a continuance.            There is no

evidence in the record to establish that Lacey’s request was dilatory, purposeful, or

contrived. There is no pattern of hiring and firing counsel as a dilatory tactic or in

requesting previous continuances upon contrived grounds. Furthermore, the potential

prejudice to Lacey outweighed the trial court’s desire to control its docket or the benefit

of an earlier resolution.

       {¶18} Accordingly, the first assignment of error is sustained.

                                          Sentence

       {¶19} In the second assignment of error, Lacey argues the trial court abused its

discretion in sentencing him to seven years in prison.

       {¶20} However, our disposition of the first assignment of error renders this

assigned error moot. App.R. 12(A)(1)(c).

       {¶21} Accordingly, we vacate Lacey’s conviction and sentence and remand so

Lacey can proceed with counsel of his choosing.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR
