[Cite as State v. Reber, 2018-Ohio-4016.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                            VINCENT REBER,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 17 MA 0028


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 16 CR 1042

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                            JUDGMENT:
                                       Reversed and Remanded.


Atty. Ralph Rivera, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th
Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and

Atty. John Juhasz, 7081 West Boulevard, Suite 4, Youngstown, Ohio 44512, for
Defendant-Appellant.
                                      Dated:
                               September 28, 2018
                                                                                         –2–




Donofrio, J.

        {¶1}   Defendant-appellant, Vincent Reber, appeals his convictions following
guilty pleas in the Mahoning County Court of Common Pleas to one count of aggravated
murder in violation of R.C. 2903.01(B), an unclassified felony, and one count of
aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree.
        {¶2}   On September 15, 2016, appellant was indicted on three counts:
aggravated murder in violation of R.C. 2903.01(B), aggravated robbery in violation of
R.C. 2911.01(A)(1), and aggravated burglary in violation of R.C. 2911.11(A)(2), a felony
of the first degree. All three charges carried firearm specifications pursuant to R.C.
2941.145(A). Appellant entered pleas of not guilty to all counts.
        {¶3}   Following appellant’s arraignment on September 27, 2016, the trial court
appointed counsel for appellant. The trial court also set the initial discovery pretrial for
October 4, 2016 and set trial for November 21, 2016.
        {¶4}   On October 3, 2016, appellant submitted to the plaintiff-appellee, the State
of Ohio, numerous discovery requests. These requests included: a bill of particulars, a
motion for notice of intention to use evidence, a motion for disclosure of favorable
evidence, and a request for discovery. On October 4, 2016, appellant filed a notice and
receipt of discovery from the state. Appellant acknowledged that he received from the
state an information packet regarding his case containing 47 items, 11 of which were
DVDs.
        {¶5}   On October 14, 2016, the trial court issued a judgment entry containing
numerous rulings. Relevant to this appeal, the trial court acknowledged that appellant
knowingly, intelligently, and voluntarily waived his right to a speedy trial. The trial court
also granted appellant’s oral motion to continue trial due to the “case being recently
arraigned and Defense Counsel needing additional time to prepare and investigate
matters pertaining to the disposition of this case[.]”
        {¶6}   The October 14, 2016 judgment entry contains two errors as it relates to
appellant’s oral motion to continue. First, it states that the original trial date was October
11, 2016. Second, it holds that the jury trial was to be continued until November 21,



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2016. The trial court’s initial judgment entry dated September 27, 2016 set the trial for
November 21, 2016.
         {¶7}   On October 19, 2016, the state filed a notice of supplemental discovery
that it provided to appellant. This notice contained another 19 items that were disclosed
to appellant including a DVD and audiotaped interviews and jail phone calls.
         {¶8}   On November 1, 2016, the state filed another notice of supplemental
discovery. This notice indicated that three BCI lab reports were available for appellant to
review in preparation for his trial. On the same day, the state also filed a supplemental
witness list identifying another four potential witnesses.
         {¶9}   On November 14, 2016, the state filed a third notice of supplemental
discovery. This notice contained one item, a BCI lab report.
         {¶10} On November 16, 2016, appellant made an oral motion to continue trial at
a pretrial hearing. The state did not oppose this motion. But the trial court ultimately
denied this motion.
         {¶11} On November 17, 2016, the state filed a fourth notice of supplemental
discovery containing one item, a BCI lab report along with the CV of one potential
witness.
         {¶12} On November 18, 2016, the state filed a fifth notice of supplemental
discovery containing one item, a Youngstown Police Department crime scene diagram.
         {¶13} On the date of trial, November 21, 2016, appellant filed a motion to
continue. In this motion, appellant argued that between the indictment and the trial date,
approximately 60 days had passed. Appellant also argued that the state provided him
with a great amount of discovery and due to the limited amount of time before trial, this
rendered his counsel unable to fully counsel him on a plea agreement or prepare for
trial.
         {¶14} Appellant never had a trial. Instead, on the date of trial, the trial court held
two hearings: a plea offer hearing and a change of plea and sentencing hearing. At the
plea offer hearing, the state noted that it offered to dismiss appellant’s aggravated
burglary charge and all of the firearm specifications and would recommend a sentence
of 20 years to life in exchange for appellant pleading guilty to aggravated murder and
aggravated robbery. (Offer Tr. 2)



Case No. 17 MA 0028
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       {¶15} Appellant’s counsel explained that there were multiple pieces of discovery
that were disclosed within a month of trial, some of it only disclosed approximately a
week before trial. (Offer Tr. 3). Appellant’s counsel also expressed how he wanted to
explore pursuing the affirmative defense of duress. (Offer Tr. 4-5). The trial court
indicated that much of the recent discovery appellant’s counsel received would be
excluded because it would delay trial. (Offer Tr. 5).
       {¶16} Appellant’s counsel also explained that due to the amount of recent
discovery, appellant did not fully understand the legal ramifications of it, specifically how
it related to a duress defense. (Offer Tr. 7). In an attempt to reach a plea deal, the trial
court stated the following to appellant directly:

       THE COURT: I’m a part of encouraging, if not directing, your lawyer to try
       and make a deal. If you don’t want a deal, that’s okay. That’s your
       decision. But this is a case, based upon what the lawyers have told me in
       pretrial, should be discussed, because the down side for you, if you get
       nailed with everything, is that you would never get out of prison. That’s
       what could happen.

(Offer Tr. 11).
       {¶17} Regarding appellant’s motion to continue filed the same day, the trial court
indicated that it did not read this motion. The trial court noted that the prior week, it
overruled an oral motion to continue made by appellant and unopposed by the state.
The trial court explained the reason for its denial of a continuance was that it had
granted appellant’s first motion to continue. (Offer Tr. 14) After the plea offer hearing,
the trial court recessed for a few hours.
       {¶18} That same day, after the recess, the parties reconvened for a change of
plea and sentencing hearing. Appellant’s counsel noted that he talked to appellant for
more than two hours. (Plea and Sent. Tr. 2). Appellant then withdrew any pending
motions and accepted the state’s plea offer. (Plea and Sent. Tr. 3). The trial court
proceeded to perform the Crim.R. 11 plea colloquy and accepted appellant’s guilty
pleas. (Plea and Sent. Tr. 4-11).




Case No. 17 MA 0028
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       {¶19} The trial court sentenced appellant to 11 years of incarceration on the
armed robbery conviction and 20 years of incarceration on the aggravated murder
conviction. The trial court ordered these sentences to run concurrently.
       {¶20} The trial court memorialized appellant’s sentence in a judgment entry
dated November 29, 2016. Appellant filed a motion for a delayed appeal on February
13, 2017 which this court granted. Appellant raises two assignments of error.
       {¶21} We will address appellant’s second assignment of error out of order for
ease of discussion.

              APPELLANT WAS DENIED DUE PROCESS AND THE EFFECTIVE
       ASSISTANCE OF COUNSEL WHEN THE TRIAL COURT REFUSED TO
       CONTINUE THE TRIAL, IN VIOLATION OF LIBERTIES GUARANTEED
       BY U.S. CONST., AMEND. XIV AND OHIO CONST., ART. I, §§ 1, 2, 10,
       AND 16.

       {¶22} Appellant argues that he was essentially denied the effective assistance of
counsel because his trial counsel was unprepared to try the case or accurately advise
him on a plea offer. Appellant argues that due to the length of time between arraignment
and trial and the volumes of discovery, the trial court abused its discretion by failing to
continue the trial.
       {¶23} The trial court’s judgment denying a motion to continue is reviewed for
abuse of discretion. See State v. Wood, 7th Dist. No. 11 CO 9, 2011-Ohio-6405, ¶ 27.
Abuse of discretion implies that the court acted in an unreasonable, arbitrary, or
unconscionable manner. State ex rel. Sartini v. Yost, 96 Ohio St. 3d 37, 2002-Ohio-
3317, 770 N.E.2d 584.
       {¶24} Appellant argues that the six-factor test set forth by the Ohio Supreme
Court establishes that the trial court abused its discretion by not granting him a
continuance. “The six factors are: 1) the length of the delay requested; 2) whether other
continuances have been requested and granted; 3) the inconvenience to litigants,
witnesses, opposing counsel and the court; 4) whether the requested delay is legitimate
or not; 5) whether the defendant contributed to the circumstances giving rise to the
request for the continuance; and 6) other relevant factors, depending on the unique



Case No. 17 MA 0028
                                                                                       –6–


facts of each case.” State v. Mitchell, 7th Dist. No. 88 C.A. 130, 1995 WL 310044 citing
State v. Sowders, 4 Ohio St.3d 143, 447 N.E.2d 118 (1983).
       {¶25} Regarding the length of the delay requested, appellant’s motion to
continue requested a 30-day continuance. This is not an unreasonable request under
the circumstances. Appellant was arraigned less than 60 days prior to the trial date, the
state disclosed extensive discovery, and the charges at issue carry a potential sentence
of life imprisonment. Due to the severity of the charges and overall minimal amount of
time appellant requested, the requested continuance was reasonable.
       {¶26} Regarding whether other continuances have been requested and granted,
the trial court’s judgment entry dated October 14, 2016 continued appellant’s trial to
November 21, 2016. This is the same original trial date set forth in the trial court’s
arraignment judgment entry. While appellant requested a continuance on October 6,
2016, the trial court granted said continuance to the original trial date so appellant never
actually received a continuance in this case.
       {¶27} Regarding the inconveniences to all parties, at the plea offer hearing, the
trial court addressed an oral motion to continue trial at a pretrial hearing made by
appellant approximately one week prior. The trial court noted that, at the pretrial
hearing, “everybody wanted it continued”. (Offer Tr. 14). From this, a continuance would
not have inconvenienced appellant or the state. Also, the record contains no indication
of any inconvenience on the part of any potential witnesses.
       {¶28} Regarding whether the requested delay is legitimate, appellant’s motion to
continue trial dated November 21, 2016 notes that less than 60 days elapsed between
appellant’s arraignment and the trial date. The motion notes that the state’s initial
discovery disclosures contained over 100 pages of documents as well as several hours
of interviews with appellant, the co-defendants, and possible witnesses. The
supplemental discovery contained numerous documents as well as hours of recorded
jail phone calls. The motion also notes that appellant was unable to have any
independent review of any scientific evidence that the state disclosed because some of
the scientific evidence was disclosed one week before trial.
       {¶29} Moreover, appellant’s motion to continue says, in part:




Case No. 17 MA 0028
                                                                                        –7–


       Given the voluminous nature of the discoverable material, counsel has not
       even been able to fully review said material. Counsel has not been able to
       listen to the jail calls of the Co-Defendants (or even all of the Defendant’s)
       and counsel certainly hasn’t been able to review said material fully enough
       to conduct meaningful cross-examinations of witnesses or consider the
       effect of said evidence on his defense.

       Counsel has attempted to, at the same time he reviewed the above-
       mentioned discoverable material, also attempted to conduct legal research
       on a variety of issues including possible defenses in this matter. Given the
       lack of time, counsel has been unable to adequately and effectively
       complete this legal research.

11/21/16 Mot. at 2.
       {¶30} Based on appellant’s motion, appellant’s counsel was unprepared for trial
or to fully counsel him regarding the evidence or a potential plea due to extensive
discovery and limited time. Therefore, appellant’s request for a continuance was
legitimate.
       {¶31} Regarding whether the defendant contributed to the circumstances giving
rise to the request for the continuance, the continuance was requested due to the large
amount of discovery provided by the state and lack of time to prepare. Appellant did not
contribute to the circumstances giving rise to his request for a continuance.
       {¶32} Regarding other relevant factors, appellant was charged with serious
crimes and faced serious penalties and a potential life sentence. Appellant had also
executed a waiver of his speedy trial right.
       {¶33} The state argues that Sowders affirmed a trial court’s judgment denying a
motion to continue and allowing a trial to commence eleven days after arraignment.
Sowders, 4 Ohio St.3d at 144-145. Sowders is factually dissimilar because the defense
counsel in Sowders requested a continuance to: locate witnesses, interview witnesses,
and subpoena witnesses. Id. at 145. But defense counsel made no showing as to what
efforts he put forth in performing these tasks and why a continuance was necessary. Id.




Case No. 17 MA 0028
                                                                                       –8–


In this case, appellant’s counsel requested a continuance due to discovery constantly
being disclosed, in some instances, a week before trial.
       {¶34} The state also argues that appellant’s trial counsel put forth no facts to
indicate that he was unprepared for trial. This is not accurate. At the plea offer hearing,
appellant’s counsel admitted that he was not completely prepared for trial due to the
extensive discovery provided by the state. (Offer Tr. 3-5, 14-15). Appellant’s motion to
continue trial date states that counsel was not able to review all of the evidence in order
to perform “meaningful cross-examinations of witnesses” or to “adequately and
effectively” complete legal research. Moreover, the jailhouse phone calls that were
disclosed potentially affected an affirmative defense appellant was seeking to employ.
(Offer Tr. 3-4). Based on the Sowders six-factor test, the trial court abused its discretion
in not granting appellant’s motion to continue trial.
       {¶35} Accordingly, appellant’s second assignment of error has merit and is
sustained.
       {¶36} Appellant’s first assignment of error states:

              APPELLANT        WAS     DENIED      DUE     PROCESS      AND     THE
       EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE TRIAL COURT
       COERCED AND THEN ACCEPTED HIS GUILTY PLEAS, IN VIOLATION
       OF LIBERTIES GUARANTEED BY U.S. CONST., AMEND. XIV AND
       OHIO CONST., ART. I §§ 1, 2, 10, AND 16.

       {¶37} Appellant argues that he did not enter his guilty pleas knowingly,
intelligently, and voluntarily. He asserts the trial court coerced him into pleading guilty
by presenting him with two options: either proceed to trial that day with counsel who
was admittedly unprepared due to new discovery or accept the state’s plea offer.
       {¶38} In a criminal case, a plea must be made knowingly, voluntarily and
intelligently. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 7;
State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450. If a plea is not
knowing, voluntary, and intelligent, it has been obtained in violation of due process and
is void. State v. Martinez, 7th Dist. No. 03MA196, 2004-Ohio-6806, ¶ 11, citing Boykin
v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).



Case No. 17 MA 0028
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       {¶39} As we concluded in appellant’s second assignment of error, the trial court
abused its discretion by not granting appellant’s requested continuance. Consequently,
appellant was faced with the decision to either proceed immediately to trial with counsel
who was not prepared to try the case, though not counsel’s fault, or to plead guilty.
Based on these facts and the trial court’s abuse of discretion in failing to grant the
continuance, we conclude that appellant did not enter his pleas knowingly, voluntarily,
and intelligently.
       {¶40} Accordingly, appellant’s first assignment of error has merit and is
sustained.
       {¶41} For the reasons stated above, the trial court’s judgment is hereby
reversed. Appellant’s guilty pleas are vacated. This matter is remanded for further
proceedings pursuant to law and consistent with this opinion.

Waite, J., concurs

Robb, P. J., concurs




Case No. 17 MA 0028
[Cite as State v. Reber, 2018-Ohio-4016.]




        For the reasons stated in the Opinion rendered herein, appellant’s two
assignments of error are sustained. It is the final judgment and order of this Court that
the judgment of the Court of Common Pleas of Mahoning County, Ohio, is reversed,
and appellant’s pleas are hereby vacated. We hereby remand this matter to the trial
court for further proceedings according to law and consistent with this Court’s Opinion.
Costs to be taxed against the Appellee.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
