[Cite as State v. Kleman, 2019-Ohio-4404.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HARDIN COUNTY




STATE OF OHIO,
                                                         CASE NO. 6-19-01
       PLAINTIFF-APPELLEE,

       v.

DAKOTA RYAN KLEMAN,                                      OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. CRI-2018-2107

                                     Judgment Affirmed

                           Date of Decision: October 28, 2019



APPEARANCES:

        Elizabeth H. Smith for Appellant

        Jason M. Miller for Appellee
Case NO. 6-19-01


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Dakota R. Kleman (“Kleman”) appeals the

judgment of the Hardin County Court of Common Pleas, alleging the trial court

erred by denying his motion to continue the jury trial and erred by imposing

consecutive sentences. For the reasons set forth below, the judgment of the trial

court is affirmed.

                          Facts and Procedural History

       {¶2} On September 19, 2018, Kleman was indicted on one count of burglary

in violation of R.C. 2911.12(A)(2); two counts of safecracking in violation of R.C.

2911.31(A); two counts of tampering with evidence in violation of R.C.

2921.12(A)(1); one count of possessing criminal tools in violation of R.C.

2923.24(A); one count of grand theft in violation of R.C. 2913.02(A)(1), (B)(2); one

count of having weapons while under disability in violation of R.C. 2923.13(A)(2);

eight counts of grand theft in violation of R.C. 2913.02(A)(1) with firearm

specifications; and one count of money laundering in violation of R.C.

1315.55(A)(1).

       {¶3} On September 26, 2018, the State filed an initial list of witnesses with

the trial court. Doc. 10. One of the witnesses named on this list was Breyannea

Wells (“Wells”). Doc. 10. The State conducted a recorded interview with Wells on

December 11, 2018 and delivered a copy of this recorded interview to the Defense

on December 13, 2018. Doc. 40. On December 14, 2018, Kleman filed a motion

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Case NO. 6-19-01


for a continuance with the trial court, alleging that he needed more time to prepare

his defense. Doc. 40. On December 17, 2018, the trial court denied Kleman’s

motion for a continuance. Doc. 41.

        {¶4} Kleman’s case proceeded to a jury trial on December 18, 2018. Tr. 1.

The jury acquitted Kleman of three counts of grand theft. Doc. 54, 59, 60. The jury

found Kleman guilty of the remaining fourteen charges. Doc. 45-53, 55-58, 61.

Kleman’s sentencing hearing was held on January 17, 2019. Doc. 73. The trial

court entered its judgment entry of sentencing on January 24, 2019. Doc. 73.

Kleman was ordered to serve two hundred and sixteen (216) months in prison.1 Doc.

73. The trial court ordered the sentences for the two counts of safecracking to be

served concurrently and the sentences for the two counts of tampering with evidence

to be served concurrently.           Doc. 73.      The remaining sentences were to run

consecutively. Doc. 73.

        {¶5} The appellant filed his notice of appeal on January 28, 2019. Doc. 76.

On appeal, Kleman raises the following assignments of error:

                                 First Assignment of Error

        The Trial Court erred when it unreasonably denied Appellant’s
        Motion to Continue the jury trial as it prejudiced Appellant and
        did not allow counsel to properly prepare a defense on
        Appellant’s behalf.




1
 Of these two hundred and sixteen (216) months, two hundred and four (204) months were non-mandatory,
and twelve (12) months were mandatory. Doc. 73.

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                           Second Assignment of Error

        Appellant’s sentence is both contrary to law and an abuse of
        discretion as the trial court sentenced Appellant to consecutive
        sentences as to certain counts having stated that it considered all
        the required factors, but having a complete lack of facts to
        support the claimed findings under R.C. 2929.11 and 2929.12, and
        the appeals court can clearly and convincingly find that the
        record does not support the sentencing court’s findings under
        division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4)
        of section 2929.14, or division (I) of section 2929.20 of the Revised
        Code, whichever, if any, is relevant, and should reduce the
        Appellant’s sentence accordingly pursuant to 2953.08(G)(2) of the
        Revised Code.

                             First Assignment of Error

        {¶6} Kleman argues that the trial court erred in denying his request for a

continuance. Kleman alleges that he needed more time to prepare his defense after

he received a copy of an interview of one of the State’s witnesses several days before

his jury trial.

                                   Legal Standard

        {¶7} “A court has supervisory power and control over its docket.

Independent of statute, as an incident to their authority to hear and determine causes,

courts have power to grant continuances.” State ex rel. Buck v. McCabe, 140 Ohio

St. 535, 537, 45 N.E.2d 763, 766 (1942).

        In evaluating a motion for a continuance, a court should note,
        inter alia: the length of the delay requested; 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

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Case NO. 6-19-01


       defendant contributed to the circumstance which gives rise to the
       request for a continuance; and other relevant factors, depending
       on the unique facts of each case.

State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078, 1080 (1981).

       There are no mechanical tests for deciding when a denial of a
       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.

Id. at 67-68, quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11

L.Ed.2d 921 (1964). “The reviewing court must weigh potential prejudice against

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

efficient dispatch of justice.’” State v. Powell, 49 Ohio St.3d 255, 259, 552 N.E.2d

191, 196 (1990), overruled on other grounds in State v. Smith, 80 Ohio St.3d 89,

684 N.E.2d 668, fn. 4 (1997).

       {¶8} “The grant or denial of a continuance is a matter which is entrusted to

the broad, sound discretion of the trial judge.” Unger at 67. For this reason, an

appellate court may not disturb the ruling of the trial court in the absence of an abuse

of discretion. Id.

       An abuse of discretion is not merely an error of judgment. State
       v. Sullivan, 2017-Ohio-8937, [102 N.E.3d 86], ¶ 20 (3d Dist.).
       Rather, an abuse of discretion is present where the trial court’s
       decision was arbitrary, unreasonable, or capricious. State v.
       Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 23. When
       the abuse of discretion standard applies, an appellate court is not
       to substitute its judgment for that of the trial court. State v.
       Thompson, 2017-Ohio-792, 85 N.E.3d 1108, ¶ 11 (3d Dist.).


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Case NO. 6-19-01


State v. Wilson, 3d Dist. Seneca No. 13-17-41, 2018-Ohio-2805, ¶ 14.

                                  Legal Analysis

       {¶9} The continuance that is at issue on appeal appears, from the record, to

have been the only continuance that Kleman requested. Kleman’s motion did not

specify the length of the requested continuance. Thus, the record does not provide

any indication as to how long the delay of the trial would have been if the

continuance had been granted. Powell, supra, at 196. Further, the record does not

contain any indication that the reason Kleman filed his motion for a continuance

was “dilatory, purposeful, or contrived.” Unger, supra, at 67-68. However, the fact

that Kleman does not appear to have had an illegitimate reason to request a

continuance does not mean that he had a compelling reason to request a continuance.

       {¶10} At trial, Wells was one of thirteen witnesses that the State called to

testify. Kleman was fully aware that the State was going to call Wells as a witness

because the State disclosed its intention to do so almost three months before the

trial. Thus, the Defense had three months to interview Wells; ask the same questions

that the State did in its December interview with Wells; and investigate any matters

that were relevant to Kleman’s defense. Thus, the information in the recording that

Kleman received from the State was potentially available to the Defense almost

three months prior to the State’s interview with Wells.

       {¶11} Further, on appeal, Kleman alleges that he was prejudiced by the trial

court’s decision but has not demonstrated how the denial of his motion for a

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Case NO. 6-19-01


continuance prejudiced his defense. He merely argues that he would have had more

time to prepare for trial if the trial court had granted him more time to prepare for

trial. This self-evident assertion does not explain how the denial of his motion for

a continuance prejudiced his defense.

       {¶12} In this case, the trial court denied a motion for a continuance of

indeterminate length that was requested to allow Kleman more time to examine

information that the Defense could have obtained had it interviewed Wells three

months earlier. After examining the evidence in the record and balancing the

relevant factors, we cannot conclude that the trial court did abused its discretion in

denying Kleman’s motion for a continuance. For this reason, Kleman’s first

assignment of error is overruled.

                            Second Assignment of Error

       {¶13} Kleman argues that the record does not support the imposition of

consecutive sentences in this case, making his sentence contrary to law.

                                    Legal Standard

       {¶14} R.C. 2929.14(C)(4) reads, in its relevant part, as follows:

       (4) If multiple prison terms are imposed on an offender for
       convictions of multiple offenses, the court may require the
       offender to serve the prison terms consecutively if the court finds
       that the consecutive service is necessary to protect the public from
       future crime or to punish the offender and that consecutive
       sentences are not disproportionate to the seriousness of the
       offender’s conduct and to the danger the offender poses to the
       public, and if the court also finds any of the following:


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      (a) The offender committed one or more of the multiple offenses
      while the offender was awaiting trial or sentencing, was under a
      sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
      of the Revised Code, or was under post-release control for a prior
      offense.

      (b) At least two of the multiple offenses were committed as part of
      one or more courses of conduct, and the harm caused by two or
      more of the multiple offenses so committed was so great or
      unusual that no single prison term for any of the offenses
      committed as part of any of the courses of conduct adequately
      reflects the seriousness of the offender’s conduct.

      (c) The offender’s history of criminal conduct demonstrates that
      consecutive sentences are necessary to protect the public from
      future crime by the offender.

R.C. 2929.14(C)(4).

      {¶15} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

‘only if it determines by clear and convincing evidence that the record does not

support the trial court's findings under relevant statutes or that the sentence is

otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam No. 12-16-15 and

12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.

      Clear and convincing evidence is that measure or degree of proof
      which is more than a mere ‘preponderance of the evidence,’ but
      not to the extent of such certainty as is required ‘beyond a
      reasonable doubt’ in criminal cases, and which will produce in the
      mind of the trier of facts a firm belief or conviction as to the facts
      sought to be established.




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State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 12, quoting Cross

v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the syllabus

(1954).

                                   Legal Analysis

       {¶16} At the sentencing hearing, the trial court considered the contents of the

presentence investigation (“PSI”). Sentencing Tr. 4. Kleman’s prison report

indicated that he committed twenty-one prison infractions in a seven-month period.

Id. These infractions included assaulting another inmate, refusing to comply with

orders, and having prohibited paraphernalia. Id. at 5-6. While he was in jail,

Kleman was also charged “with being involved with illegal drugs” and attempted

escape. Id. at 7.

       {¶17} The trial court also found that the victim had “suffered serious

physical, psychological, or economic harm * * *” and that “none of the factors

[indicating] that [Kleman’s] conduct is less serious apply.” Id. at 7-8. Similarly,

the trial court recognized that Kleman had a criminal history; that he “has not

responded favorably to sanctions previously imposed * * *”; and that “none of those

factors” indicating the “offender’s recidivism is less likely * * * apply.” Id. at 8.

The trial judge stated that this was “one of the most planned crimes [that he has]

seen in [his] career as a judge” and that he observed no remorse from Kleman at

trial. Id. at 8, 44, 46.



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Case NO. 6-19-01


       {¶18} The trial judge also noted that Kleman has “within the last couple of

years * * * performed the same crime against another person’s relative and that

punishment of 12 months for that crime obviously wasn’t sufficient to deter him

from future crime.” Id. at 56. These facts support the trial judge’s finding that

“consecutive service is necessary to protect the public from future crime or to punish

the offender and that consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the

public * * *.” R.C. 2929.14(C)(4). Sentencing Tr. 56.

       {¶19} Further, in order to impose consecutive sentences, the trial court must

also find that one of the three factors listed in R.C. 2929.14(C)(4)(a-c) is applicable.

R.C. 2929.1(C)(4)(a-c). In this case, the trial court found that all three of the factors

listed in R.C. 2929.14(C)(4)(a-c) applies. Sentencing Tr. 56. The record supports

the trial court’s finding that Kleman committed the instant offenses while “under

post-release control from a prior offense.” R.C. 2929.14(C)(4)(a). See PSI.

       {¶20} As to the factor in R.C. 2929.14(C)(4)(b), the victims of these offenses

were close relatives of Kleman, and these offenses were committed in furtherance

of a complex criminal plot. Sentencing Tr. 44-45, 47-48. Thus, the trial court’s

finding that “[a]t least two of the multiple offenses were committed as part of * * *

[a] course[] of conduct” and that “the harm caused * * * was so great or unusual

that no single prison term * * * adequately reflects the seriousness of the offender’s

conduct” was supported by the record. R.C. 2929.14(C)(4)(b).

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       {¶21} Finally, as to the factor in R.C. 2929.14(C)(4)(c), the trial court

examined Kleman’s extensive criminal history at sentencing. The PSI indicates that

Kleman had a record as a juvenile, had been convicted of multiple criminal offenses

as an adult, and had committed multiple infractions while incarcerated. PSI. Thus,

the trial court’s finding that “[t]he offender’s history of criminal conduct

demonstrate[d] that consecutive sentences [were] necessary to protect the public *

* *” is supported by the evidence in the record. R.C. 2929.14(C)(4)(c).

       {¶22} After examining the evidence, we cannot conclude that there is clear

and convincing evidence that indicates that the imposition of consecutive sentences

is unsupported by the record. For this reason, Kleman’s second assignment of error

is overruled.

                                   Conclusion

       {¶23} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of Hardin County Court of Common Pleas is

affirmed.

                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hls




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