[Cite as State v. Johnson, 2013-Ohio-5196.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-13-16

        v.

SETH A. JOHNSON,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 12-CR-0025

                                      Judgment Affirmed

                          Date of Decision: November 25, 2013




APPEARANCES:

        James W. Fruth for Appellant

        Angela M. Boes for Appellee



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Case No. 13-13-16


SHAW, J.

       {¶1} Defendant-appellant, Seth A. Johnson (“Johnson”), appeals the April

25, 2013 judgment of the Seneca County Court of Common Pleas journalizing his

conviction by a jury for one count of felonious assault and sentencing him to serve

five years in prison and to pay restitution in the amount of $2,097.93. Johnson

assigns as error the trial court’s denial of his oral request for a continuance at the

sentencing hearing prior to the trial court imposing its sentence.

       {¶2} On February 8, 2012, Johnson was indicted on one count of felonious

assault, in violation of R.C. 2903.11(A)(1),(D)(1)(a), a felony of the second

degree. The charge stemmed from allegations that Johnson physically assaulted a

woman with whom he maintained a relationship, causing damage to her spleen

which resulted in the woman being hospitalized in intensive care for over a week

and enduring several months of physical recovery.

       {¶3} On July 2, 2012, the trial court appointed counsel to the case and

Johnson was arraigned the following day.          Shortly, thereafter Johnson was

released on bond. The matter was set for a jury trial to take place on November

15, 2012.

       {¶4} On November 8, 2012, Johnson’s appointed trial counsel moved for

leave to withdraw from his representation of Johnson on the basis that Johnson

had failed to cooperate and communicate with him.


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       {¶5} On November 13, 2012, the prosecution filed a motion to continue on

the basis that the prosecuting attorney had to attend a family funeral on the date

the jury trial was scheduled to commence.            The trial court granted the

prosecution’s continuance and also granted Johnson’s trial counsel leave to

withdraw as court-appointed counsel.          New trial counsel was subsequently

appointed to represent Johnson.

       {¶6} On January 24 and 25, 2013, the trial court conducted a jury trial in

the case. After hearing the testimony of multiple witnesses and medical evidence

documenting the serious nature and the extent of the victim’s internal injuries, the

jury found Johnson guilty of committing felonious assault. Johnson’s bond was

revoked and he was remanded to the custody of the Seneca County Sheriff. The

matter of sentencing was continued pending the completion of a pre-sentence

investigative report.

       {¶7} On January 28, 2013, Johnson’s counsel filed a Motion for Bond

Hearing, requesting the trial court reconsider the revocation of Johnson’s bond.

       {¶8} In an envelope postmarked February 11, 2013, Johnson sent a letter to

the trial court expressing his displeasure with the performance of his trial counsel

and requesting he be granted bond prior to sentencing so that he could spend time

with his four young children.




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      {¶9} On February 20, 2013, after a hearing, the trial court set Johnson’s

bond at $20,000.00 with 10% allowed. As conditions of his bond, Johnson was

placed under house arrest with electronic monitoring and permitted to only attend

appointments with his attorney and “verifiable medical appointments.” (Doc. No.

65). In the same judgment entry, the trial court permitted Johnson’s trial counsel

to withdraw based upon Johnson’s letter to the trial court. Substitute counsel was

appointed to represent Johnson. Johnson’s girlfriend subsequently posted bond for

Johnson’s release.

      {¶10} On April 23, 2013, Johnson appeared for sentencing with his

substitute counsel. At the hearing, Johnson’s substitute counsel orally requested a

continuance citing the fact that Johnson had not contacted him prior to the

sentencing hearing despite the fact that he sent Johnson a letter requesting Johnson

to call him. As a result, Johnson’s substitute counsel explained that he had not

been able to meet with Johnson until ten minutes prior to the sentencing hearing.

Johnson’s substitute counsel explained that he wanted additional time to research

Johnson’s complaints about his trial counsel’s performance as a possible basis for

a motion for a new trial. The prosecution opposed any continuance as a mere

delay tactic and argued Johnson had shown a pattern of non-compliance and lack

of cooperation with his three court-appointed attorneys throughout the court

proceedings.


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       {¶11} The trial court recessed the proceedings and allowed Johnson’s

substitute counsel thirty minutes to discuss the case.        The trial court then

proceeded with sentencing. The trial court permitted Johnson to make a statement

prior to the pronouncement of sentence.        Johnson proclaimed his innocence,

accused the victim of lying about the nature of her injuries, and again expressed

his dissatisfaction with his trial counsel. The trial court then sentenced Johnson to

five years in prison and ordered him to pay restitution in the amount of $2,097.93.

       {¶12} Johnson now appeals, asserting the following assignment of error.

       THE TRIAL COURT ERRED IN PROCEEDING WITH [THE]
       SENTENCING HEARING AND FAILING TO CONDUCT AN
       EVIDENTIARY   HEARING     WHEN     APPELLANT’S
       SUBSTITUTE COUNSEL ASKED FOR ADDITIONAL TIME
       TO EXPLORE DEFICIENCIES IN THE TRIAL COUNSEL’S
       PERFORMANCE FOR PURPOSES OF SEEKING POST-
       CONVICTION RELIEF.

       {¶13} On appeal, Johnson argues that the trial court erred when it denied

Johnson’s substitute counsel’s oral request for a continuance at the sentencing

hearing to further research Johnson’s allegations that his trial counsel provided

him ineffective assistance.

       {¶14} At the outset, we note that in his appellate brief Johnson attempts to

characterize his substitute counsel’s request for a continuance as an oral petition

for post-conviction relief and claims the trial court erred by failing to follow the

specific due process procedures in place for addressing a formal petition for post-


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conviction relief.   The record demonstrates Johnson’s characterization of his

substitute counsel’s request to be an inaccurate account of what transpired at the

sentencing hearing. Specifically, the transcript of the proceedings reflects that

Johnson’s substitute counsel had not met with Johnson prior to the hearing

because Johnson failed to contact him. Substitute counsel requested the trial court

grant him additional time to assess whether a motion for a new trial should be

filed in the case. However, no mention of a petition for post-conviction relief was

made at the hearing and the record is devoid of any evidence of such a petition

being filed. Thus, despite Johnson’s mischaracterization on appeal, this case does

not involve a petition for post-conviction relief, but rather it involves the trial

court’s decision to overrule Johnson’s request for a continuance.

      {¶15} An appellate court must not reverse the denial of a continuance

unless there has been an abuse of discretion.” State v. Unger, 67 Ohio St.2d 65,

67 (1981).    An abuse of discretion implies that the court’s attitude was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983). The Supreme Court of Ohio has recognized: “ ‘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.’ ” Unger at 67, quoting Ungar v. Sarafite, 376 U.S. 575, 589,


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(1964). The trial court may consider factors such as the length of the delay

requested, prior requests for continuances, the inconvenience to the parties,

witnesses, counsel, and the court, whether the movant contributed to the

circumstances 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 (1990).

      {¶16} Here, the record demonstrates that on February 20, 2013, Johnson

was released on bond and placed on electronic monitoring pending sentencing.

The same day, Johnson’s substitute counsel was appointed to handle his case. The

trial court expressly gave Johnson permission to meet with his attorney as a

condition of his bond.    Nevertheless, the record demonstrates that Johnson

neglected to meet with his substitute counsel prior to the sentencing hearing

despite having over two months to do so. In addition, at the sentencing hearing

Johnson’s substitute counsel informed the court that two weeks prior to the

hearing he had sent a letter asking Johnson to call him about the case. Johnson

acknowledged receiving this letter at the sentencing hearing and offered no

reasonable explanation for why he failed to contact his attorney prior to the

hearing.

      {¶17} Notably, the prosecution opposed Johnson’s request for a

continuance at the hearing. Specifically, the prosecution argued that the request


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was simply another delay tactic employed by Johnson to prolong the case. The

prosecution highlighted to the court Johnson’s pattern of not contacting his

previously appointed attorneys, which resulted in continuances being granted

earlier in the case proceedings. The prosecution also noted that the case had been

pending for over a year and three months had passed since Johnson was convicted

by the jury. Furthermore, the record demonstrates that the victim had traveled

from out of town and came from work to be at the sentencing hearing and

therefore would be further inconvenienced by the trial court granting Johnson a

continuance.

         {¶18} Notwithstanding the fact that Johnson failed to take the initiative to

contact his attorney prior to the sentencing hearing, the trial court recessed the

proceedings for a half an hour and permitted Johnson and his substitute counsel to

discuss Johnson’s case. When the parties appeared back on the record, neither

Johnson nor his substitute counsel were able to articulate a substantive basis for

the trial court to grant a motion for a new trial under the specific grounds set forth

Crim.R. 33(A).1


1
  Moreover, Crim.R. 33(B) states that the “[a]pplication for a new trial shall be made by motion which,
except for the cause of newly discovered evidence, shall be filed within fourteen days after the verdict was
rendered, or the decision of the court where a trial by jury has been waived, unless it is made to appear by
clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new
trial, in which case the motion shall be filed within seven days from the order of the court finding that the
defendant was unavoidably prevented from filing such motion within the time provided herein.” At the
sentencing hearing, Johnson did not argue that new evidence in his case was discovered nor did he
demonstrate that he was unavoidably prevented from filing his motion for a new trial within fourteen days
after the jury verdict.

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       {¶19} Finally, Johnson has failed to demonstrate that he suffered any

prejudice as a result of the trial court’s decision to deny his substitute counsel’s

oral motion for a continuance and to proceed with sentencing. Moreover, nothing

precluded Johnson from raising assignments of error regarding his allegations of

his trial counsel’s deficient performance in this direct appeal of his conviction and

sentence.

       {¶20} For all of these reasons, we conclude that the trial court’s decision to

overrule any request for a continuance and to proceed with sentencing did not

constitute an abuse of discretion.      Accordingly, the assignment of error is

overruled and the conviction and sentence of the Seneca County Court of

Common Pleas is affirmed.

                                                               Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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