[Cite as In re R.W., 2014-Ohio-175.]

                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



IN RE: R.W.                              :             APPEAL NOS. C-130151
                                                                    C-130152
                                         :             TRIAL NOS. 12-10785Z
                                                                  12-10786Z

                                         :                  O P I N I O N.




Criminal Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: January 22, 2014



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Kari Bloom and Gordon Magella, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
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D INKELACKER , Judge.

       {¶1}     In three assignments of error, the state argues that the trial court

erred when it ordered the state to produce certain documents prior to a probable-

cause bindover hearing and when it dismissed the case for witness unavailability and

discovery violations. We agree.

                            The Lengthy Road to Dismissal

       {¶2}     The state alleged that defendant-appellee R.W., a juvenile, had

committed acts which, if committed by an adult, would have constituted the offenses of

felonious assault and aggravated robbery with a firearm specification.         The state

subsequently moved the trial court to relinquish jurisdiction and to bind R.W. over to

the general division of the common pleas court. The case was set for a probable-cause

hearing on January 7, 2013.

       {¶3}     On January 7, the parties appeared, but the trial court was uncertain if

the case had been assigned to the proper judge. The state noted that its witness from the

coroner’s office was not present, but indicated that she could be called in if needed. The

matter was being continued solely to determine which judge was to handle it. At a

subsequent pretrial conference, the trial court was satisfied that the matter was properly

before it, and set the case for a new probable-cause hearing on February 4.

       {¶4}     Prior to the January 7 hearing, R.W. had sent discovery requests to the

state. After the hearing, R.W. moved the trial court for an order compelling the state to

comply with the discovery request and asked for numerous items including two police

reports, a “301 report” and a “527(b) report.”

       {¶5}     At the February 4 hearing, the trial court ordered the state to produce

the forms R.W. had requested and continued the matter to February 20. The state was

given until February 8 to comply. On February 6, the state disclosed all reports except


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the 527(b) report, and asked for a continuance of the hearing date because its witness

from the coroner’s office was unavailable on the scheduled hearing date. On February

11, R.W. filed a motion to dismiss as a sanction for failing to produce the 527(b) report.

The state filed the final form, under seal, on February 19. At the hearing on February 20,

the trial court dismissed the case against R.W. for the discovery violation, and because of

the unavailability of the state’s witness.

                          The Order to Disclose was Improper

       {¶6}     In its first assignment of error, the state claims that the trial court erred

when it ordered the state to disclose the 301 and 527(b) reports. We agree.

       {¶7}     The trial court’s decision in this case was issued prior to our opinion in

In re DM, 2013-Ohio-668, 989 N.E.2d 123 (1st Dist.). In that case, we addressed this

precise issue and held that “prior to a probable-cause bindover hearing, the state must

provide to a juvenile upon request only (1) any Brady materials in its possession and (2)

the evidence that the state intends to use at the probable-cause hearing.” (Emphasis

added.) Id. at ¶ 9. The state had provided those materials, and the reports at issue did

not fall within either category. The state—at that stage in the proceeding—cannot be

compelled to produce the 301 and 527(b) reports. Id. at ¶ 13. Therefore, the trial court

erred when it ordered the state to provide those reports to R.W.

       {¶8}     We sustain the state’s first assignment of error.

                  Dismissal for Witness Unavailability was Improper

       {¶9}     In its second assignment of error, the state argues that the trial court

improperly denied its request for a continuance of the February 20 hearing and

dismissed the case. We agree.




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       {¶10}   In deciding a motion for continuance the trial court may consider the

following factors: (1) the length of delay requested; (2) the number of continuances

already requested; (3) the inconvenience to litigants, witnesses, opposing counsel

and the court; (4) whether the [moving party] contributed to the circumstance giving

rise to the request for a continuance; and other relevant factors depending on the

facts of the case. State v. Landrum, 53 Ohio St.3d 107, 115, 559 N.E.2d 710 (1990).

       {¶11}   Contrary to the belief of the trial court, the state had not sought a

prior continuance because of the witness’s unavailability. While the witness was not

present at the initial hearing, the case was continued at that time solely for the

purpose of determining the proper judge to hear the case. The state had indicated

that, while the witness was not present, she could be called if needed and could be in

court in 20 minutes.

       {¶12}   According to the record, the witness was not available on February 20

because she had not been consulted about her availability when the date for the

hearing had been set, and was scheduled to be out-of-town on that day. The state

shortly discovered the scheduling problem and asked for a continuance two weeks

prior to the hearing date. Therefore, the state did everything possible to mitigate the

situation and cannot be said to have contributed to the circumstances giving rise to

the request such that a dismissal was proper. Further, there was no discussion of

how the delay would inconvenience the parties, witnesses, or the court.

       {¶13}   Under the facts of this case, we conclude that the trial court abused its

discretion when it denied the state’s request for a continuance and dismissed the

case. We sustain the state’s second assignment of error.




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                   Dismissal for Discovery Violations was Improper

       {¶14}    Finally, the state argues that the trial court abused its discretion when

it dismissed the case for the claimed discovery violation.           Since the trial court

improperly ordered the state to turn the reports over, the imposed sanction that

resulted from that determination was also erroneous. See In re D.M. at ¶ 13 (since

the underlying discovery order was erroneous, the trial court erred when it dismissed

the case). We sustain the state’s third assignment of error.

                                        Conclusion

       {¶15}    Having considered and determined all assignments of error, we reverse

the decision of the trial court and remand this cause with instructions to the trial court to

schedule a probable-cause hearing and for further proceedings consistent with law and

this opinion.

                                                 Judgment reversed and cause remanded.

HENDON, P.J., and HILDEBRANDT, J., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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