[Cite as State v. Jones , 2015-Ohio-5443.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 4-15-11

        v.

IVAN M. JONES,                                             OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Defiance County Common Pleas Court
                            Trial Court No. 14CR12051

                                       Judgment Affirmed

                           Date of Decision: December 28, 2015




APPEARANCES:

        W. Alex Smith for Appellant

        Brian S. Deckert for Appellee
Case No. 4-15-11


SHAW, J.

       {¶1} Defendant-appellant Ivan Jones (“Jones”) brings this appeal from the

May 26, 2015 judgment of the Defiance County Common Pleas Court sentencing

Jones to 18 years in prison after Jones was convicted in a jury trial of Felonious

Assault in violation of R.C. 2903.11(A)(1), a felony of the second degree, and a

Repeat Violent Offender Specification pursuant to R.C. 2941.149. On appeal

Jones specifically challenges the trial court’s denial of Jones’s motion to continue

the case, which he made on the day of trial.

                      Relevant Facts and Procedural History

       {¶2} Jones was indicted on October 2, 2014, for one count of Felonious

Assault in violation of R.C. 2903.11(A)(1). The indictment also contained a

specification pursuant to R.C. 2941.149 alleging that Jones was a Repeat Violent

Offender (“RVO”) due to Jones having a prior conviction in Michigan for

“Assault with intent to do great bodily harm less than murder.” (Doc. No. 1).

       {¶3} Jones was determined to be indigent and attorney Steven Furnas was

appointed to represent him. Jones was subsequently arraigned and he pled not

guilty to the charge and the RVO specification.

       {¶4} On December 30, 2014, Jones’s attorney filed a motion to withdraw as

Jones’s counsel due to the fact that he was joining the prosecutor’s office. The




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motion to withdraw was granted. Attorney Jeffrey Horvath was then appointed as

counsel for Jones.

       {¶5} Due to Jones’s prior counsel joining the Defiance County Prosecutor’s

Office, a special prosecutor from the Ohio Attorney General’s Office was assigned

to prosecute Jones’s case.

       {¶6} Despite being represented by his new counsel, on January 6, 2015,

Jones filed a pro se motion to dismiss contending that there was not enough

evidence to sustain a conviction against him. (Doc. No. 14).

       {¶7} On March 16, 2015, Jones sent a letter to the judge presiding over his

case, which was filed in the record before us. In the letter Jones stated that he was

informed by his counsel that Jones’s pro se motion to dismiss would not be heard

and that all filings had to come from counsel since Jones was represented by

counsel.    In the letter Jones stated that he thought his attorney was being

untruthful, so Jones wanted to know if what his attorney had informed him was

accurate.

       {¶8} In addition to the letter and the motion to dismiss that Jones filed,

Jones wrote and filed multiple other pro se motions. According to the record

Jones filed a pro se motion to suppress evidence arguing that the victim had

recanted her statements and that any of her statements she had made previously

should be suppressed. The suppression motion was accompanied by a typewritten


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and notarized statement of the victim wherein the victim stated that she wished to

recant her statement that Jones had beat her and that she did not want to press

charges against him.1 (Doc. No. 35).

           {¶9} Jones also filed another pro se motion to dismiss arguing that he did

not receive a preliminary hearing within 10 days of arrest. Jones contended that

this entitled him to a dismissal of his case despite the fact that he had been

subsequently indicted. (Doc. No. 36).

           {¶10} On March 20, 2015, Jones’s attorney filed a notice of alibi indicating

that Jones was at a party at the time the victim was assaulted. (Doc. No. 23).

           {¶11} On March 20, 2015, a pretrial hearing was held on the record. At the

hearing the trial court acknowledged that Jones had filed a number of pro se

documents including the motions to dismiss, the motion to suppress evidence, and

the letter to the court. After reviewing the documents filed by Jones, the trial court

informed Jones that he was represented by counsel and that it was Jones’s

counsel’s job to file motions on his behalf.

           {¶12} Jones then stated that he told his attorney to file the motions and his

attorney did not file them. Jones’s attorney addressed why he did not file Jones’s

motions, stating that the first motion to dismiss was based on anticipated

testimony from the alleged victim that would go to the trier-of-fact, and thus there



1
    Jones’s motion also requested the return of some property of his that had been taken.

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was no merit to the motion.                  Jones’s attorney stated that while Jones was

concerned with purported issues with the timing of his preliminary hearing in his

second motion to dismiss, Jones was ultimately indicted, curing any defects and

thus there was no arguable issue.2 In addition, Jones’s counsel also indicated that

Jones wanted something filed regarding speedy trial; however, Jones’s counsel

indicated that due to requests for discovery and tolled time he did not believe any

such argument had merit. Jones’s counsel stated at the hearing that although he

discussed these issues with Jones, Jones had filed the pro se motions without his

knowledge and he had not even received any copies of motions that Jones filed.

         {¶13} Ultimately the trial court instructed Jones to speak with his attorney

about the matters and informed Jones that only motions filed by his attorney

would be considered.

         {¶14} On March 24, 2015, Jones’s counsel filed a motion in limine seeking

to prevent the State from offering the contents of Jones’s jailhouse phone calls

wherein Jones spoke to the victim after he was indicted and Jones tried to

convince her to recant her story. Jones’s counsel also filed a notice of intent to



2
  This Court has made clear in the past that “ ‘the general rule is that a subsequent indictment by the grand
jury renders any defects in the preliminary hearing moot[.]’ ” State v. Gott, 3d Dist. Auglaize No. 2-88-19,
1990 WL 88799, * 9 (June 28, 1990) quoting State v. Washington, 30 Ohio App.3d 98, 99 (8th Dist.1986).
To be clear, we are not suggesting there was any issue related to any such preliminary hearing in this case
(the first item filed in the trial court’s docket is the indictment so we would have no way to review any such
preliminary hearing), we are simply suggesting that even assuming there was an issue with the preliminary
hearing it would be wholly irrelevant and inconsequential as there was a subsequent indictment filed. Any
defect in the preliminary hearing would not warrant dismissal of the subsequent indictment.

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object to the use of the judgment entry of Jones’s prior conviction in Michigan to

establish that Jones was a RVO.

       {¶15} On March 25, 2015, the matter proceeded to a jury trial. The trial

court first addressed the motion in limine filed by Jones’s counsel and the trial

court overruled the motion.      The court then addressed the issue of the State

presenting the judgment entry of Jones’s prior conviction to prove the RVO

specification.   The trial court determined that the State could use the prior

judgment entry at trial.

       {¶16} At that time Jones indicated that he was not aware of the potential

penalties for the RVO specification, despite clearly being informed at arraignment

and stating that he understood at that time. Plea negotiations were then put on the

record, and one final offer was provided to Jones to plead to the Felonious Assault

and have the RVO specification dismissed. The court recessed briefly to allow

Jones to consider the final offer.

       {¶17} When court reconvened, Jones stated that he wanted to fire his

attorney and he requested another attorney. The court stated that since the matter

was set for trial that day, Jones could not have a different attorney appointed to

him as the matter had been pending for months. Despite the court denying Jones’s

request for a different attorney on the day of trial, Jones still asked that his




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attorney be removed from his case. (Tr. at 21). Jones stated that he wanted to

represent himself. (Id.)

       {¶18} The trial court engaged in a lengthy dialogue with Jones stating that

it is “generally a bad idea to proceed without an attorney.” (Tr. at 21). The trial

court discussed with Jones the difficulty of evidentiary procedure. The trial court

also inquired into Jones’s education and Jones stated that he had only gone as far

as seventh grade in school. (Id. at 23). The trial court also discussed the fact with

Jones that Jones had previously represented himself in a jury trial in the same

court and that Jones would be subject to the same rules that the lawyers would

have to use. (Tr. at 24).

       {¶19} Jones stated that he felt he did not have a choice in the matter, though

the court stated Jones did have a choice. Jones stated that he had issues with his

attorney because his attorney would not file the motions requested by Jones that

were addressed at the preliminary hearing. Jones indicated that it was because of

these issues he felt he did not “have a choice” but to represent himself. (Tr. at 24).

       {¶20} Jones’s counsel, who had not been removed yet, then requested a

continuance for Jones if Jones was going to represent himself. The trial court

denied the request for continuance since the case had been pending since October

and since the jury venire was waiting.




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       {¶21} The trial court took another recess and prepared a written waiver of

counsel for Jones to execute. When court reconvened the trial court again asked

Jones what he wished to do. Jones’s attorney indicated that Jones did not want

him as his attorney and that Jones wanted a new attorney.             The trial court

reiterated that it would not appoint a new attorney at the last minute “because he

or she could not conceivably be ready to proceed with trial.” (Tr. at 28). The trial

court further stated that Jones had a “right to represent [himself] if [he] chose to do

that. I’ve told you that is a bad idea. It is likely not in your best interest. It is,

however, your right.” (Id.)

       {¶22} The trial court further reiterated the difficulty with Jones representing

himself and stated that if Jones chose to represent himself his current attorney, due

to his familiarity with the case, could be appointed simply to assist Jones. Jones

requested that it be someone else, but the trial court stated that it could not be

because no other attorney would have the same familiarity with the case on such

short notice.

       {¶23} Jones then asked the court if he would be able to file his motions if

he represented himself.       The trial court stated that it would take them into

consideration; however, the court cautioned Jones that the prior pro se motions

Jones filed did not have any merit and would be denied. (Tr. at 32).




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       {¶24} A written waiver of counsel was then signed in open court. Beside

his signature Jones added the words “was not giving [sic] all my rights.” (Doc.

No. 37). When questioned by the trial court Jones initially said he simply signed

the waiver and did not read it. The trial court then had the written waiver of

counsel read to him. (Tr. at 33). Jones stated that he was “getting railroaded” and

that “[y]ou all want to give me eighteen years, man. I see it, man.” (Tr. at 34).

       {¶25} The trial court then stated it did not have any intention of giving

Jones anything, that Jones had a right to trial by jury, and that Jones had been

afforded every one of his constitutional rights but was attempting to “manipulate

the situation[.]” (Tr. at 35).

       {¶26} Jones then stated that he had no help on his case since October and

that his attorney had done nothing for him. The following dialogue then ensued

between the trial court and Jones.

       THE COURT: You do not want him to represent you? By
       signing this document you say you intend to represent yourself.

       THE DEFENDANT: What has he done?

       THE COURT: Is it your intention to represent yourself?

       THE DEFENDANT: I don’t have a choice, Your Honor. I – I –
       don’t have a choice.

       THE COURT: You have the choice to have Mr. Horvath
       represent you, or to represent yourself.

       THE DEFENDANT: What – What --

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      THE COURT: You’ve signed this waiver of counsel, by signing
      that your [sic] saying you intend to represent yourself.

      THE DEFENDANT: What is he going to do when he represent
      me? He ain’t--

      THE COURT: I don’t --

      THE DEFENDANT: --did nothing yet. What is he going to do?
      Just stand there and sit there – I mean he look nice in the suit,
      but --

      THE COURT: This --

      THE DEFENDANT: -- that’s the only thing he’s doing.

      THE COURT: Mr. Jones, this is – this is not a game --

      THE DEFENDANT: That’s what I’m trying to tell you --

      THE COURT: -- This is a --

      THE DEFENDANT: -- twenty years of my life is we talking
      about right now Mr. – Mr. Schmenk – twenty years, man. I just
      did ten. Trust me, I know very well what’s --

      THE COURT: All right.

      THE DEFENDANT: -- going on right now, man. Very well,
      man.

      THE COURT: You’ve also – if your [sic] choosing to represent
      yourself, do you want Mr. Horvath to assist you regarding --

      THE DEFENDANT: -- can I have any other --

      THE COURT: -- technical issues?



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           THE DEFENDANT: -- attorney help assist me? ‘Cause he ain’t
           help assist me this whole time.

           THE COURT: There’s no other attorney that’s going to be
           familiar with the situation at all. I’m not going to continue the
           trial given the circumstances in this matter and --

           THE DEFENDANT: I ain’t had no time, look at these, study
           these, nothing.

           THE COURT: You were told back in January that the Court
           was not going to take the motions you filed on your – or
           attempted to file on your own behalf. That those would not be
           considered, and certainly had you intended to, um, attempt to
           fire Mr. Horvath and have another attorney represent you, you
           could have asked that back in, no later, I guess, than --

           THE DEFENDANT: This guy been telling --

           THE COURT: January.

           THE DEFENDANT: -- me, he going to help try to get my money
           back since then.3 You know what I mean, and he just didn’t do
           anything. He didn’t file it. That’s all I asking in most of these,
           you say they don’t have no merit. I don’t understand why they
           don’t have no merit.

           * * * [The trial court then gives a multi-page response as to why
           Jones’s pro se motions have no merit. After discussing those
           motions with Jones, Jones begins to talk about issues that are not
           directly related to the trial.] * * *

           THE COURT: We’re going to trial. Do you want Mr. Horvath
           appointed to assist you or not?

           THE DEFENDANT: I need somebody else to help assist me.




3
    The money Jones refers to is approximately $600 that was taken from Jones when he was arrested.

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       THE COURT: I’m not going to appoint a different attorney
       who would have no knowledge of the circumstances and no idea
       what the case is about. I’m not going to bring him in at this
       point in time, and make an attorney attempt to assist you when
       they wouldn’t have any idea what even the case is about.

       THE DEFENDANT: What you want me to say, Your Honor? I
       can’t – I can’t say no more.

       THE COURT: I want you to say yes, you want Mr. Horvath to
       assist you, or no you do not want Mr. Horvath to assist you.

       THE DEFENDANT: I do not want Mr. Horvath.

       THE COURT:         Mr. Horvath, you can be excused, you’re
       released.

(Tr. at 36-43).

       {¶27} The case then proceeded to trial. During jury selection Jones asked

for a continuance again because he had not reviewed the jury questionnaires.

Jones also filed a written motion stating this same request. (Doc. No. 33). The

trial court denied Jones’s motion stating that the matters related to a continuance

had been discussed. (Tr. at 64).

       {¶28} After jury selection Jones renewed his motion to continue, stating

that he had not had a chance to go through discovery. (Tr. at 136). That request

was again denied after the court noted that it found Jones’s claim “completely

implausible” on the basis that there had been numerous pre-trial conferences and

Jones had filed and prepared his numerous pro se motions. (Id. at 137). The trial



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court also noted that Jones had asked his prior attorney to prepare a notice of alibi,

indicating his familiarity with the record. (Id.)

       {¶29} Another lengthy discussion was held between the trial court and

Jones during which the court made clear that Jones chose the morning of trial to

fire his lawyer “in an effort, I suspect, to manipulate the system * * * to get the

case continued[.]” (Tr. at 141). Jones then stated that he wanted to appeal the

denial of his pretrial motions, and the trial court stated that Jones could not until

his case was complete. (Id. at 143).

       {¶30} When Jones stated that he could not read his prior attorney’s notes

that were in the files, the trial court renewed the offer to allow attorney Horvath to

act as standby counsel; however, Jones simply repeated his request for a

continuance and the court denied it. (Tr. at 148). The discussion continued

further to the point where Jones asked for another continuance and the court

denied it again, stating that it felt Jones was attempting to manipulate the trial date.

       {¶31} The case then proceeded through opening statements and the State

began its case-in-chief by calling the victim to the stand. On direct-examination

the victim testified that after an argument in September of 2014 Jones “started

punching [her] in the face, repeatedly. And then started choking [her] and told

[her], say Ivan Jones, say Ivan Jones[.]” (Tr. at 188). The victim indicated that




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Jones punched her seven times, mainly on the right side of her face, but also on the

left side of her face. (Id. at 190).

       {¶32} The victim testified that afterward Jones cleaned up her face but he

would not let her look in the mirror. (Tr. at 190-191). The victim testified that

Jones apologized and that Jones said she needed medical attention. (Id.) The

victim testified that she was afraid to call the police or seek medical attention

initially because she did not want Jones to go back to prison. (Id. at 191-192).

She further testified that she and Jones came up with a story at the time that she

would say she met someone online and that he had beat her. (Tr. at 195-196). The

victim testified that she and Jones went to a hotel shortly after the incident and that

the police became involved after a desk clerk saw the victim’s face when she

approached the desk alone once Jones went to sleep. The police responded and

the victim was taken to the hospital.

       {¶33} The extent of the victim’s injuries was later established at trial

through the testimony of an ER physician who treated the victim. From the

incident the victim had a fracture of part of her face, specifically her “maxilla,”

which was described as “part of what makes up your upper jaw[,] * * * what the

teeth insert into[.]” (Tr. at 434). The primary injury was described as “basically a

broken bone with significant bleeding and swelling under the skin.” (Id. at 434).

In addition to the fracture, the victim’s injuries were described as, “[a] significant


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amount of swelling mainly to the right side of her face along with two black eyes.

Her nose was swollen. Her lip was so swollen that we couldn’t even really even

[sic] see within her mouth[.]” (Id. at 433-34).

       {¶34} The victim further testified on direct-examination that after Jones

was indicted in this case she received numerous phone calls from Jones while

Jones was in jail. The victim testified that Jones would call an intermediary who

would then contact the victim. Three of the jailhouse calls were played for the

jury wherein Jones urged the victim to “change [her] story.” (State’s Ex. 48).

Jones instructed the victim to write a statement recanting her earlier story to the

police and told her how to do it. When Jones asked the victim if he could trust her

to do it, the victim responded “can I trust you not to beat my face in again?” (Id.)

       {¶35} When the victim’s direct-examination concluded, Jones started his

lengthy cross-examination of the victim, but by the end of the first day of trial,

Jones’s cross-examination was not finished so the trial recessed for the day.

       {¶36} At the start of the second day of the trial, before the jury was brought

in, the State indicated that it was contacted by the victim the prior night and the

victim indicated she had received a call that evening from the jail. It would later

be established through testimony that it was Jones who attempted to call the victim

on the first night of trial.




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        {¶37} As the court addressed preliminary issues on the second day of trial,

it brought up the issue of Jones requesting continuances so many times the day

prior both out of the presence of the jury and in the presence of the jury. The trial

court gave the State another opportunity to address Jones’s requests and the State

indicated it was opposed to a continuance. The trial court then wanted to elaborate

on its reasons for denying Jones’s request for a continuance. The trial court stated

that,

        A principal concern that the Court had – has still, and it was
        brought to the Court’s attention essentially at the time, the
        motion in limine was filed on behalf of the Defendant seeking to
        exclude the jail tape, and specific reference was made in that
        motion to the Defendant’s attempt to procure the unavailability
        of the State’s principal witness. The Court determined that it
        can further – or that a continuance particularly at yesterday’s
        date was, had the potential for significant prejudice to the State,
        as it was apparent to the Court that the Defendant had and
        apparently was continuing to attempt to prevent the witness
        from appearing or attending. The Court had not prior to
        yesterday’s testimony heard the expressed content of the jail
        tapes. But it confirms that obviously the Defendant was
        expressly attempting to prevent or convince the witness to not
        attend, to modify her statements or testimony, and that set of
        circumstances is a – was a substantial factor in the Court’s
        denial of the motion to continue. I don’t know that I expressly
        stated that. I know I referred to the Defendant’s attempt to
        manipulate the system and I thought I had expressed what I
        meant by his efforts to manipulate the system, though
        principally with his efforts to try to procure the unavailability of
        the State’s principal witness.

(Tr. at 367-368).



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        {¶38} After the preliminary matters on the second day of trial were

concluded, the case proceeded through the remainder of the State’s case-in-chief.

The State called twelve witnesses total including the victim.                       The State also

introduced the victim’s medical records related to the incident, the jailhouse calls

made by Jones, and numerous photographs of the victim from the night of the

incident and from several days after the incident that illustrated significant facial

bruising from the fracture and the beating.

        {¶39} After the State rested its case, the trial was continued into its third

and final day. During the final day of trial Jones called four witnesses and he

testified on his own behalf.4 The parties then proceeded to closing arguments and

the case was submitted to the jury, which returned guilty verdicts on both the

Felonious Assault charge and the RVO specification.

        {¶40} On April 13, 2015, the trial court filed an entry explaining what

occurred at the trial including Jones’s waiver of counsel. The entry accepted the

jury’s verdict and the matter was set for sentencing.

        {¶41} Jones then filed a pro se notice of appeal from the trial court’s April

13, 2015 entry. This Court dismissed Jones’s appeal on April 24, 2015, after

determining that there was not a final appealable order at that time.



4
  We would note that throughout the trial Jones made numerous claims in front of the jury that he had to
represent himself because his prior attorney had done nothing on the case, and that discovery was not
provided to him

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      {¶42} On May 12, 2015, the case proceeded to sentencing. The State

requested a maximum sentence given the seriousness of the harm to the victim and

Jones’s lengthy criminal history. Jones requested leniency. Ultimately the trial

court ordered Jones to serve a maximum 8 year prison term on the Felonious

Assault conviction and a maximum 10 year sentence on the RVO specification.

Those sentences were ordered to be served consecutively for an aggregate prison

term of 18 years. A judgment entry memorializing this sentence was filed May

26, 2015.

      {¶43} It is from this judgment that Jones appeals, asserting the following

assignment of error for our review.

                    ASSIGNMENT OF ERROR
      THE TRIAL COURT ERRED WHEN [IT] DENIED THE
      DEFENDANT’S MOTION TO CONTINUE, A VIOLATION
      OF HIS DUE PROCESS RIGHTS UNDER THE 6TH AND 14TH
      AMENDMENTS OF THE UNITED STATES CONSTITUTION
      AND ARTICLE I § 10 OF THE OHIO CONSTITUTION.

      {¶44} In his assignment of error, Jones argues that the trial court erred by

denying his motion to continue the case that Jones made on the day of trial.

      {¶45} “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).

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      {¶46} 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

(1964) (additional citations omitted). “Weighed against any potential prejudice to

a defendant are concerns such as a court’s right to control its own docket and the

public’s interest in the prompt and efficient dispatch of justice.” State v. Unger,

67 Ohio St.2d 65, 67 (1981).

      {¶47} In State v. Unger, supra, the Supreme Court of Ohio identified a

number of factors a trial court should consider when evaluating a motion for a

continuance, which include (1) the length of the delay requested; (2) whether other

continuances have been requested and received; (3) the inconvenience to litigants,

witnesses, opposing counsel and the court; (4) whether the requested delay is for

legitimate reasons or whether it is dilatory, purposeful, or contrived; (5) whether

the defendant contributed to the circumstance which gives rise to the request for a

continuance; and (6) other relevant factors, depending on the unique facts of each

case. Unger at 67–68; Defiance v. Ford, 3d Dist. Defiance No. 4-14-07, 2014-

Ohio-5627, ¶ 18.




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       {¶48} In this case Jones argues that the factors the Ohio Supreme Court

delineated in Unger support granting his motion for a continuance. We will

address each of the Unger factors below, discussing the record and the parties’

arguments regarding those factors.

                     Length of Delay and Prior Continuances

       {¶49} Jones argues that the first two factors of Unger, (1) the length of

delay requested and (2) whether other continuances have been requested or

received, weigh in his favor. The record is clear that Jones had not previously

requested any continuances in this case, so Jones contends that the second factor

obviously weighs in his favor. As to how much time Jones contended that he

needed, Jones orally requested a “small bit of time” or “a couple of days” for his

continuance. (Tr. at 156). Jones argues that such a short time requested for a

continuance was inherently reasonable given that Jones elected to represent

himself at trial.

       {¶50} While the State does concede that there had been no prior

continuances requested in this case, the State does argue that the “couple of days”

requested by Jones would actually amount to a much longer delay than Jones

suggested. The State argues that the jury venire would have to be dismissed and

that a trial date would have to be scheduled and coordinated with the court,

prosecutors and witnesses. The State contends that granting such a request could


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have effectively resulted in a continuance of months rather than days. The record

indicated that the trial court shared the State’s concern that a jury was present and

that the case had been pending for months.

                                   Inconvenience

       {¶51} The third factor of Unger considers the inconvenience to the

litigants, witnesses, opposing counsel and the court. Jones argues that there would

have been little inconvenience to the witnesses due to the fact that most of the

witnesses were “relatively local.” However, Jones does acknowledge in his brief

that there would have been some inconvenience due to the fact that the jurors were

already at the courthouse. Jones also acknowledges that the special prosecutors

were coming in from out of town. Nevertheless, Jones argues that the third factor

of Unger weighs in his favor.

       {¶52} The State counters by suggesting that the inconvenience to the State

would have been substantial. The State contends that numerous witnesses had

been subpoenaed and were ready to testify on the days set aside for trial. In

addition, the State noted that a jury panel had been brought in and counsel for the

State was from out of town.

                     Legitimacy of the Requested Continuance

       {¶53} The fourth factor of Unger concerns whether the requested delay is

for legitimate reasons or whether it is dilatory, purposeful, or contrived. Jones


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contends that he legitimately needed the continuance to prepare his defense since

he elected to represent himself on the day of trial. Jones indicated to the trial

court, and he argues on appeal, that he was not prepared to defend his case after

dismissing his attorney.

        {¶54} The State argues that Jones’s request to continue the case on the day

of trial was not for legitimate reasons. The State contends that this factor, more

than any other, weighs most heavily against Jones due to Jones’s attempts

throughout the pendency of this case to change the victim’s testimony.

        {¶55} The record did reflect that Jones had made numerous phone calls to

the victim in this case while Jones was in jail. Jones used an intermediary so that

he could talk to the victim. In the phone conversations, which were played for the

jury, Jones told the victim to change her story and urged her to recant what she

had told the police previously. Jones also attempted to call the victim from jail

after the first day of trial.5

        {¶56} When the trial court denied Jones’s motion for a continuance, the

trial court stated that it was particularly concerned with Jones attempting to

manipulate the trial date.          The trial court later elaborated stating that it was

seriously concerned with Jones’s potential manipulation of the victim. The trial




5
 The State suggested that Jones possibly got the victim’s new phone number from his dismissed attorney’s
notes once Jones elected to represent himself.

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court cited this factor as its primary reason for denying Jones’s motion for

continuance.

                    Jones’s Contribution to the Circumstances
                         Giving Rise to the Continuance

       {¶57} The fifth factor of Unger concerns whether Jones contributed to the

circumstances giving rise to the continuance. While Jones argues that this factor

should not weigh heavily against him, the record clearly reflects that Jones was the

sole reason for his request for a continuance.

       {¶58} Prior to the trial, Jones had expressed that he did not feel his attorney

was helping him because his attorney was not filing motions that Jones was

requesting his attorney to file. A pre-trial hearing was held where Jones’s motions

were addressed by his attorney in open court, and Jones’s attorney made clear that

he felt the motions had no merit.

       {¶59} At trial, before Jones dismissed his attorney, the trial court cautioned

Jones that his motions had no merit and the court spent multiple pages of the

transcript explaining to Jones why the motions had no merit. Notwithstanding the

trial court’s warnings and his attorney’s statements on the record, Jones cited his

distrust with his attorney for not filing these meritless motions as his primary

reason for not feeling comfortable with his attorney. Jones stated he felt his

attorney had done nothing on his case despite the fact that his counsel had filed a

motion in limine, a notice of alibi, and he clearly had interviewed witnesses. In

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fact, Jones later complained that he could not read his attorney’s handwriting on

all the notes that his attorney had made. Despite all of this, Jones stated he had

“no choice” but to dismiss his attorney on the day of trial and Jones flatly refused

to keep his attorney even as standby counsel to help with procedure. Moreover,

when Jones later stated he could not read his attorney’s notes that were in

discovery, the trial court offered to bring his attorney back as standby counsel after

already dismissing him and Jones still elected to proceed pro se.

       {¶60} Jones could have at any time prior to the day of trial elected to

request a new attorney, yet he waited until the day of trial and claimed that he had

to have a new attorney. On the basis of then proceeding without an attorney,

Jones sought a continuance that was solely of his making.

                           Any Other Relevant Factor(s)

       {¶61} The final factor of Unger is a catch-all, allowing a court to consider

any other relevant factor. Jones contends that the trial court should have heavily

weighed the potential prejudice to Jones for having to handle his own jury trial.

The State contends that Jones had already previously represented himself pro se in

a jury trial and was obviously very familiar with the system, so there was minimal

potential prejudice.




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                                       Analysis

       {¶62} The strongest supporting factor under Unger that Jones has in his

favor is that he had not previously asked for a continuance in this case prior to

requesting one on the day of trial. However, the trial court could have properly

found that several of the Unger factors weighed heavily against granting Jones’s

request for a continuance.

       {¶63} Jones was clearly responsible for any purported necessity of the

continuance due to his obstinacy to proceed without even standby counsel. Jones

claimed that he was not prepared to proceed without counsel and that he had not

looked through discovery but Jones flatly refused to allow his former attorney to

provide any assistance.

       {¶64} Moreover, Jones’s request for a continuance seems particularly

illegitimate given that after the first day of trial he attempted to contact the victim,

presumably in yet another attempt to get her to change her story. The trial court

was especially concerned with this factor, and placed that concern on the record

when noting why it denied Jones’s continuance.

       {¶65} Furthermore, there is some inherent inconvenience to the court, the

State, and the jury venire in continuing the case on the day of trial after everyone

had already arrived.




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       {¶66} Given that there were multiple reasons supporting the trial court’s

decision to deny Jones’s request for a continuance in this case, we cannot find that

the trial court abused its discretion in denying Jones’s motion for a continuance.

Therefore Jones’s assignment of error is overruled.

       {¶67} For the foregoing reasons Jones’s assignment of error is overruled

and the judgment of the Defiance County Common Pleas Court is affirmed.

                                                               Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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