[Cite as State v. Lauer, 2016-Ohio-505.]

                              IN THE COURT OF APPEALS OF OHIO
                                   TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                    No. 15AP-405
v.                                               :             (C.P.C. No. 13CR-4950)

Mary Lauer,                                      :           (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                           D E C I S I O N

                                    Rendered on February 11, 2016



                 Yeura R. Venters, Franklin County Public Defender, and
                 George M. Schumann, for appellant.

                 Michael DeWine, Attorney General, Kristin S. Pe, and Nathan
                 T. Smith, for appellee.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Mary Lauer, appeals from a decision of the Franklin
County Court of Common Pleas filed on March 12, 2015 in which the trial court denied
her post-sentencing motion to withdraw her guilty plea. Specifically, she challenges the
trial court's exercise of discretion in denying her counsel's request for a continuance to
prepare for the hearing on her motion. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On September 17, 2013, Mary Lauer, DDS was indicted for one count of
theft and one count of Medicaid fraud. Following negotiations, a number of continuances,
and a change of counsel, on August 28, 2014, Lauer pled guilty to theft as a second degree
felony, and the Medicaid fraud count was dismissed.
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No. 15AP-405


        {¶ 3} On November 10, 2014, the trial court held a sentencing hearing at which it
also took evidence on restitution.            At the start of the sentencing hearing, Lauer's
appointed counsel indicated for the first time that Lauer was dissatisfied with his services
and explained that she had informed him the day before the hearing that he was no longer
her attorney. The trial court, however, indicated that it had not permitted counsel to
withdraw and pressed forward with the hearing. A single witness testified in the hearing,
an investigator with the Ohio Attorney General's Healthcare Fraud Section. He testified
that his attention was drawn to Lauer by the Ohio State Dental Board when it had noted
that Lauer appeared to be billing Medicaid for services during a period of time in which
her license to practice dentistry was temporarily suspended and that her billing totals for
Medicaid were high as compared to those of her peers. The investigator for the state
discovered that Lauer billed for approximately $12,000 in services while her license was
suspended, and she was billing for several root canals per day for very elderly patients.
Forty-four of Lauer's 583 patients apparently entered nursing care edentulous (without
teeth) and yet, Lauer billed $217,000 for services such as fillings and root canals for those
patients. According to the investigator, such services can only be performed on persons
having teeth. Lauer billed $11,000 for 45 root canals on a single patient who had no
teeth.1 In an interview with the investigators, Lauer admitted that she probably had
incorrectly billed for services like root canals that she had not in fact performed, but she
maintained that she had provided dental services to her patients.
        {¶ 4} The investigator calculated the total amount billed for services Lauer did not
perform to be more than one million dollars.                  The investigator also testified that
calculation was conservative because he did not include in that amount billed amounts for
services for which there were no corroborating dental records.                       According to the
investigator, only services that could not have been feasibly performed or services Lauer
admitted to incorrectly billing were included. For example, the investigator did not




1We take judicial notice of the fact that the normal adult human has 32 teeth at maturity (including wisdom
teeth).
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No. 15AP-405


include x-ray services in the total of unperformed but billed services, even though there
was no evidence (films or prints) that they had been performed.
       {¶ 5} Lauer also testified at the hearing. She explained that most of her patients
needed dentures and denture-related services and adjustments. Some denture services
were not covered by Medicaid and others needed preauthorization that she testified took
too long and in some cases were not approved. She stated that the lab bills associated
with casting her patients' dentures were expensive and she was meeting those costs
herself. So when she did not receive a preauthorization or when she could not get
reimbursement for lab costs through Medicaid she would instead bill it as a root canal or
as a similar, less-closely examined service. For instance, she testified that five root canals
are comparable in price to one set of dentures, so she would bill it that way. Also, a
limited oral exam was comparable to a dentures adjustment in price so she would bill that
instead of the uncovered adjustment. The investigator also testified regarding Lauer's
explanation and admitted that it could explain the billing anomalies he uncovered.
       {¶ 6} The trial court credited Lauer's explanation to an extent and granted her a
setoff of the restitution amount based on services rendered. Thus, instead of more than
one million dollars in restitution, the trial court ordered Lauer to pay $700,000 in
restitution. Ultimately the trial court entered judgment on November 17, 2014, imposing
5 years of community control and 180 days of jail with 150 days suspended on the
condition that Lauer make a payment of $10,000 of restitution during the early period of
community control.
       {¶ 7} On November 24, 2014, Lauer's counsel was permitted to withdraw because
Lauer had discharged him. Thus, at a hearing on December 18, 2014, to determine if
Lauer had yet paid at least $10,000 in restitution, Lauer was not represented by counsel.
At the hearing Lauer attempted to present evidence of other dental work she had done
and alleged that her attorney had told her that if she could present evidence to the court
showing that she had actually performed services, that the offense to which she had pled
guilty would no longer have been a second-degree felony, because the amount stolen
would have been less. She also alleged she had pled guilty under duress. The trial court
explained that she had already pled guilty and been afforded the advice and assistance of
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No. 15AP-405


counsel and that if she had issues to raise, she should obtain a lawyer and file a motion or
appeal.
       {¶ 8} On December 27, 2014, Lauer filed a letter with accompanying records
seeking to withdraw her guilty plea and other relief. On January 6, 2015, the trial court
set a hearing on the matter for January 20, 2015, and it stated that if Lauer had not paid
$10,000 in restitution by the date of hearing it would order her to serve jail time. In
addition, the trial court ordered Lauer's former counsel to appear as a witness to give
testimony regarding Lauer's motion to withdraw her guilty plea.
       {¶ 9} On January 20, 2015, the parties appeared for the scheduled hearing and
Lauer was represented by a public defender. Lauer's newly appointed counsel moved for
a continuance to permit her to review Lauer's records and obtain a copy of the change of
plea transcript before conducting the hearing. The trial court heard the arguments of
parties on the motion for continuance and denied the motion, reasoning that the issue
was narrow, the court conducts plea hearings in a uniform manner with the same
colloquy, and there was a witness already present for the scheduled hearing. The trial
court further determined the motion to be a delaying tactic on Lauer's part.
       {¶ 10} Lauer's former counsel testified to his opinion that Lauer entered her plea
voluntarily and intelligently and that he did not believe the case was triable. He explained
Lauer's view of the case as being essentially a contract dispute where she was entitled to
money and had simply billed the services under the wrong codes; Lauer did not perceive
her actions as theft. Lauer's former counsel testified that even if Lauer's perceptions were
true, her explanation was not a legally effective defense to the crimes for which she had
been indicted. He also explained that two possible deals were proposed to Lauer: first,
that she could plead guilty to a second-degree felony theft and then argue the amount of
restitution or, second, that she could plead guilty to a third-degree felony Medicaid fraud
and stipulate or remain silent on the matter of restitution.
       {¶ 11} Lauer also testified. She stated that she attempted to show her previous
attorney copies of records, including photographs, showing how and why it was possible
and sometimes necessary to do a root canal on a patient appearing to be edentulous but
who in fact still has nubs or roots of teeth. However, she said her attorney refused to
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No. 15AP-405


examine the records of those instances. She explained that she pled guilty to the second-
degree felony theft thinking that she could then argue about the amount of restitution
and, if she satisfied the court that the amount was little or nothing, the conviction would
no longer amount to a second-degree felony. In addition she testified that she did not
read or see the entire plea form, that it was just briefly placed on an electronic display and
that she signed electronically. Finally, she explained that she suffers from post traumatic
stress disorder, has also experienced a number of concussions as a result of passing out
and falling, and was on medications at the time of the plea hearing that may have affected
her judgment.    However, she admitted that she brought none of these concerns to
anyone's attention at the time of her plea hearing.
       {¶ 12} The trial court expressed its opinion from the bench following the hearing.
It found Lauer not to be credible and decided to credit the testimony of her former
counsel. However, the trial court expressed sympathy for Lauer, recognizing that she had
performed services for her patients. The trial court offered to Lauer the opportunity to
provide evidence of her health problems to support a further suspension of the 30 days of
jail that had been suspended pending an early $10,000 restitution payment.
       {¶ 13} On March 12, 2015, the trial court held a final hearing at which it decided
not to order Lauer to spend any actual time in jail and thereby suspended the entire 180-
day jail term. The same day the trial court filed an entry denying Lauer's request to
withdraw her plea.
       {¶ 14} Lauer now appeals.
II. ASSIGNMENT OF ERROR
       {¶ 15} Lauer presents a single assignment of error for review:
              ASSIGNMENT OF ERROR: The trial court erred by denying
              new substitute defense counsel's request for a continuance of
              the hearing of the defendant's pro se motion to withdraw her
              guilty plea.

III. DISCUSSION
       {¶ 16} "The grant or denial of a continuance is a matter which is entrusted to the
broad, sound discretion of the trial judge." State v. Unger, 67 Ohio St. 2d 65, 67 (1981).
" There are no mechanical tests for deciding when a denial of a continuance is so arbitrary
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No. 15AP-405


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 at the time the request is
denied." Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
             In evaluating a motion for a continuance, a court should note,
             inter alia: [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 which
             gives rise to the request for a continuance; and [6] other
             relevant factors, depending on the unique facts of each case.

Unger at 67-68.
      {¶ 17} In this case, Lauer submitted a letter pro se to the court "asking for a ***
Motion to withdraw of guilty plea" in which she alleged various problems with her
counsel's performance and the way her case was handled by the trial court. (Dec. 27, 2014
Motion, 1). This followed her oral complaints about counsel made during the hearing on
December 18, 2014. The trial court set a hearing and ordered Lauer's former counsel to
appear and give testimony. On the day of the hearing at which her pro se letter/motion
was to be handled, the trial court appointed a public defender (who had met once with
Lauer before the hearing) to represent her. That attorney made a motion on Lauer's
behalf for a continuance so that she could become familiar with the case in order to argue
the underlying motion. Specifically, counsel argued:
             I would like to formally request a continuation on the hearing,
             which is based on Ms. Lauer's motion that she filed before I
             began my representation of her, Your Honor. The reason I'm
             asking for that continuance, Your Honor, is, I met with Ms.
             Lauer for the first time last Tuesday for an hour. She came to
             my office.

             She came with this much information out of her own file. I
             have not had time to consult with the State to formally request
             discovery or to conduct my own investigation, Your Honor. At
             this time, proceeding with this hearing would be in violation
             of Ms. Lauer's Sixth Amendment right as interpreted by the
             case of State versus -- sorry, Gideon versus Wainwright.
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No. 15AP-405


              We would just ask for a brief continuance just to give me time
              to request the transcript of the sentencing, of the restitution
              hearing and of the plea hearing, Your Honor.
(Emphasis deleted.) (Jan. 20, 2015 Tr. 5-6.)
       {¶ 18} The trial court then gave the prosecution an opportunity to respond. The
prosecutor ultimately deferred to the court but added some remarks suggesting that the
continuance motion should be denied.
              Your Honor, we believe this is a post-sentence motion to
              withdraw that. You know, the standard is manifest injustice.
              Certainly, that doesn't involve looking at the hundreds or
              thousands of pages that Ms. Lauer has turned over. I think
              that the issue is more narrow than the restitution and all the
              paperwork that Ms. Lauer has related to that.

              I believe the Court's made its decision on the restitution. I
              believe the issues are sufficiently narrow that we could move
              forward today on the motion to withdraw, but we defer to the
              Court.
(Jan. 20, 2015 Tr. 6-7.)
       {¶ 19} Having heard from both sides, the trial court ruled:
              [Lauer's former counsel] is here today, so we have a witness
              here. The prosecution is here. This case has been pending -- I
              don't know how long it's been pending, but I know that we
              took a plea on August 28, 2014.

              We specifically held a restitution hearing. The motion was
              filed December 27th, so she had already one attorney that I
              appointed. So she's already had that benefit, even though she
              had hired an attorney from Cleveland, who withdrew.

              She filed this motion December 27th, a month ago -- almost a
              month ago, and the issue is narrow. The only documents I've
              ever seen and which she attached deal with restitution. They
              don't deal with her motion about ineffective assistance of
              counsel.

              I am going to deny the continuance. It shouldn't be too
              difficult to find out from Mr. Barstow what he advised her and
              what he didn't advise her. She's alleging he was ineffective.
              That should be a pretty narrow inquiry.
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No. 15AP-405


              Plus, I do my pleas the same every time. You know that. It's
              almost verbatim the same. So I know I was thorough with her.
              I know I went over the plea form carefully with her. And if I
              didn't, I guess when you'll appeal this motion if I deny it,
              you'll have a record. But the bottom line is, I am not going to
              continue it. It's set today. Asking for a continuance today, I am
              not going to do that.

              Beside the fact that I believe from prior statements from Mr.
              Barstow that she's been uncooperative, wouldn't show up for
              meetings he scheduled, didn't bring the restitution documents
              until the day of the hearing, despite him trying to get ahold of
              her, I see this as a delaying tactic on her part. I'm going to
              deny the continuance.
(Jan. 20, 2015 Tr. 7-9.)
       {¶ 20} The record does not reflect the exact "length of the delay requested," but it
appears to have been "brief" in order to obtain and review the transcripts. Unger at 67.
This factor weighs in favor of granting the continuance.
       {¶ 21} Concerning "other continuances have been requested and received," the
record reflects 5 prior continuances in the case for a total of 266 days. Id. at 67. All
continuances were apparently jointly requested, and 4 out of 5 continuances do not reflect
whether they were primarily for the benefit of one party over the other. One of the 5 (for
62 days) was to permit the defendant to obtain appointed counsel after her private
counsel withdrew. This factor therefore weighs against granting the continuance, but not
strongly, because most prior continuances were jointly sought by the parties.
       {¶ 22} There is some indication that there would have been "inconvenience to
litigants, witnesses, opposing counsel and the court." Id. at 67. The continuance was not
sought until the day of the hearing at which representatives for the State had appeared,
where a witness had appeared, and where the trial court had cleared a time in which to
preside over the hearing. This factor weighs in favor of denying the continuance.
       {¶ 23} On the topic of "whether the requested delay is for legitimate reasons or
whether it is dilatory, purposeful, or contrived" the trial court said, "I believe from prior
statements from [Lauer's former counsel] that she's been uncooperative, wouldn't show
up for meetings he scheduled, didn't bring the restitution documents until the day of the
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No. 15AP-405


hearing, despite him trying to get ahold of her, I see this as a delaying tactic on her part."
(Jan. 20, 2015 Tr. 8-9); Id. at 67-68. Not only is the overall standard of review in this case
"abuse of discretion," but we typically review fact findings by a trial court (which has the
opportunity to personally interact with and adjudge the demeanor of persons appearing
before it) with the "utmost" deference. See, e.g., State v. C.A., 10th Dist. No. 14AP-738,
2015-Ohio-3437, ¶ 15. Therefore, despite the fact that Lauer would dispute the trial
court's finding, this factor also weighs heavily for denial of her new counsel's motion for
continuance.
       {¶ 24} The facts in this case show that Lauer "contributed to the circumstance
which g[a]ve[] rise to the request for a continuance." Unger at 68. The record reflects that
she discharged her attorney in November of 2014, did not obtain new counsel until
shortly before the January 20, 2015 hearing, and first met with that attorney less than a
week before the hearing.
       {¶ 25} Under the catch-all considerations of Unger, we acknowledge that the State
did not formally oppose the continuance, though counsel for the State did speak against it
in the sense that he expressed the view that he believed it to be unnecessary. Id. at 68
(noting that courts should consider "other relevant factors, depending on the unique facts
of each case"). We also recognize that being unprepared probably had a negative impact
on defense counsel's ability to represent Lauer in the most optimal way and that a
continuance could have cured this problem.
       {¶ 26} This analysis yields three factual considerations against granting the
continuance, two in favor, and two which may lean slightly against the continuance but
which could also be fairly characterized as neutral. Under such circumstances, we do not
find that the trial court abused its discretion in failing to grant the continuance.
       {¶ 27} Lauer argues that she was deprived of due process and the right to the
effective assistance of counsel through the trial court's failure to grant the requested
continuance. Even assuming (counter to what we have already decided) that the trial
court should have granted Lauer the continuance she sought, Lauer does not explain what
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No. 15AP-405


prejudice she suffered.2 That is, even though Lauer asserts that a lack of time to prepare
prevented her counsel from representing her viewpoint optimally, Lauer does not explain
how that may have prevented her from establishing the manifest injustice showing that is
required for a post-sentencing motion to withdraw a guilty plea. See, e.g., Ohio Crim. R.
32.1; State v. Smith, 49 Ohio St.2d 261 (1977), paragraph one of the syllabus; State v.
Reeder, 12th Dist. No. CA2013-05-075, 2014-Ohio-2233, ¶ 23. Lauer does not explain
what facts or evidence could have changed the result had her counsel had time to learn of
them. Nor can Lauer show that the trial court's denial of a continuance (whether or not
an abuse of discretion) resulted in a denial of rights as a matter of law. See, e.g., State v.
Canty, 10th Dist. No. 15AP-715, 2015-Ohio-5241, ¶ 8 ("Although an abuse of discretion is
typically defined as an unreasonable, arbitrary, or unconscionable decision, no court has
the authority, within its discretion, to commit an error of law.").
        {¶ 28} Lauer's single assignment of error is overruled.
IV. CONCLUSION
        {¶ 29} Because there were relatively balanced considerations for and against
granting the continuance and because we find no abuse of discretion in the trial court's
decision not to grant the continuance, we therefore affirm the judgment of the Franklin
County Court of Common Pleas.
                                                                                  Judgment affirmed.

                                KLATT and HORTON, JJ., concur.




2 Lauer cites Carey v. Piphus, 435 U.S. 247, 266 (1978) for the proposition that due process rights are
"absolute" and that it is immaterial whether there has been actual prejudice. While Carey holds as such in
the context of civil damages, a violation of due process is absolute in the sense that it is nominally
compensable even where no actual damages are shown. However, this does not mean that any procedural
denial of due process requires reversal without consideration of prejudice as though it were automatically
structural error.
