[Cite as State v. Batross, 2016-Ohio-265.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. W. Scott Gwin, J.
                                             :       Hon. William B. Hoffman, J.
-vs-                                         :
                                             :
JUSTIN M. BATROSS                            :       Case No. CT2015-0038
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. CR2015-108




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 21, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GERALD V. ANDERSON, II                               DAVID A. SAMS
27 North Fifth Street                                Box 40
P.O. Box 189                                         West Jefferson, OH 43162
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2015-0038                                                     2

Farmer, P.J.

       {¶1}    On March 18, 2015, the Muskingum County Grand Jury indicted appellant,

Justin Batross, on one count of burglary in violation of R.C. 2911.12 and two counts of

theft in violation of R.C. 2913.02. On March 30, 2015, the trial court appointed counsel

for appellant and set a trial date for May 19, 2015. On April 15, and May 8, 2015, appellant

sought continuances of the trial date. Both requests were denied.

       {¶2}    On May 18, 2015, appellant pled guilty to the counts. By entry filed July 1,

2015, the trial court merged the counts and sentenced appellant to thirty months in prison.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶4}    "THE TRIAL COURT ABUSED ITS DISCRETION WHEN REFUSING

DEFENDANT-APPELLANT'S REQUEST FOR A CONTINUANCE OF HIS FIRST TRIAL

DATE."

                                              I

       {¶5}    Appellant claims the trial court abused its discretion in denying his requests

for a continuance of the trial date as he had newly appointed trial counsel and the requests

were made well before the trial date. We disagree.

       {¶6}    The grant or denial of a continuance rests in the trial court's sound

discretion. State v. Unger, 67 Ohio St.2d 65 (1981). In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983). "There are no mechanical tests for deciding when a denial of a
Muskingum County, Case No. CT2015-0038                                                   3


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 at the time the request is denied." Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

      {¶7}   Despite appellant's claimed error, we fail to find any prejudice to appellant.

On May 18, 2015, appellant entered guilty pleas as follows:



             The Defendant acknowledges that the parties have engaged in plea

      negotiations and he accepts and agrees to be bound by the following

      agreement, which is the product of such negotiations.

             Upon a plea of "guilty" to Count One of the indictment, as amended,

      and Counts Two and Three as contained in the indictment, the parties agree

      to a joint recommendation that Defendant be sentenced to eighteen (18)

      months in prison. Defendant agrees to make restitution in the amount of

      $2,339.49. The State will not oppose a Motion For Judicial Release after

      Defendant has served twelve (12) months in prison, provided Defendant is

      accepted into the program at the Franklin County Community Based

      Correctional Facility, or similar facility approved by this Court.       The

      Defendant agrees to be subject to a polygraph examination upon the

      request of the State.

             The Defendant further acknowledges that he understands any

      sentencing recommendation does not have to be followed by the Court.
Muskingum County, Case No. CT2015-0038                                                  4


      {¶8}   Although the trial court did not follow the recommendations of the state

regarding the length of the sentence (thirty months as opposed to the recommended

eighteen months), we fail to find that the matter was properly preserved for appeal given

appellant's guilty pleas.   As explained by this court in State v. Patterson, 5th Dist.

Muskingum No. CT2012-0029, 2012-Ohio-5600, ¶ 19:



             Appellant entered a guilty plea in this case.        " '[A] guilty plea

      represents a break in the chain of events which has preceded it in the

      criminal process.' " State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d

      351 (1992), quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602,

      36 L.Ed.2d 235 (1973). When a criminal defendant admits to the facts

      contained in the indictment, all independent claims relating to the

      deprivation of constitutional rights that occurred prior to the entry of the

      guilty plea are thereby waived.     Id.   This waiver includes any right to

      challenge defects in the indictment. State v. Martin, 8th Dist. No. 95281,

      2011-Ohio-222, ¶ 20. The defendant's only recourse, with regard to non-

      jurisdictional defects, is to raise an issue with the voluntary and intelligent

      character of the guilty plea or with the effectiveness of his trial counsel for

      rendering advice pertaining to the plea.        Spates; see also State v.

      Alexander, 10th Dist. Nos. 05AP-192 and 05AP-245, 2006-Ohio-1298, ¶

      12–13 (the defendant, by pleading guilty to the charges, waived any non-

      jurisdictional error committed in the course of the proceedings to that point,
Muskingum County, Case No. CT2015-0038                                                  5


      including any error with respect to the court's failure to appoint new

      counsel).



      {¶9}     Upon review, we find by pleading guilty to the counts, appellant waived his

right to appeal the denial of his continuance requests.

      {¶10} The sole assignment of error is denied.

      {¶11} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Hoffman, J. concur.




SGF/sg 107
