[Cite as State v. Hiser, 2014-Ohio-1683.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 11-13-04

        v.

DUSTIN A. HISER,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Paulding County Common Pleas Court
                            Trial Court No. CR-11-566

                                       Judgment Affirmed

                              Date of Decision: April 21, 2014




APPEARANCES:

        Timothy C. Holtsberry for Appellant

        Joseph R. Burkard for Appellee
Case No. 11-13-04


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Dustin A. Hiser (“Hiser”) brings this appeal from

the judgment of the Court of Common Pleas of Paulding County finding him

guilty of one count of sexual conduct with a minor. Hiser challenges the denial of

his motion for a continuance and claims that he was denied effective assistance of

counsel. For the reasons set forth below, the judgment is affirmed.

       {¶2} On December 12, 2011, the Paulding County Grand Jury indicted

Hiser on one count of unlawful sexual conduct with a minor in violation of R.C.

2907.04(A), a felony of the fourth degree. Doc. 2. Hiser was arraigned on

December 19, 2011, and entered a plea of not guilty and not guilty by reason of

insanity.   Doc. 9.   On January 13, 2012, Hiser filed a motion for mental

evaluation. Doc. 15. The trial court granted the motion on January 17, 2012.

Doc. 16. On March 23, 2012, Hiser’s counsel filed a motion to withdraw as he

had taken a job with the Van Wert County Prosecutor’s Office. Doc. 19. The trial

court granted the motion and appointed new counsel for Hiser on April 3, 2012.

Doc. 20.

       {¶3} A final pretrial conference was held on March 29, 2013. Doc. 26. At

the conference, Hiser made an oral motion for a continuance claiming that he

needed additional time to develop his defense of sexsomnia or temporary insanity.

Doc. 26. The trial court denied the motion. Id. Hiser then indicated that he


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wished to change his plea to one of no contest.1 Id. After engaging in a Criminal

Rule 11 discussion with Hiser, the trial court accepted the plea of no contest and

found Hiser guilty of unlawful sexual conduct with a minor. Id. A sentencing

hearing was held on May 8, 2013. Doc. 27. The trial court sentenced Hiser to a

prison term of seventeen months and informed him of his registration

requirements as a Tier II sex offender. Id. Hiser filed his notice of appeal from

this judgment on June 5, 2013. Hiser raises the following assignments of error on

appeal.

                                    First Assignment of Error

         The trial court abused its discretion in not allowing a requested
         continuance so that all affirmative defenses could be fully
         investigated.

                                  Second Assignment of Error

         [Hiser] was denied his constitutional right to effective assistance
         of counsel.

         {¶4} In the first assignment of error, Hiser claims that the trial court erred

by denying his motion for a continuance. The decision of whether to grant a

continuance lies within the sound discretion of the trial court. Ham v. Ham, 3d

Dist. Wyandot No. 16-09-24, 2010-Ohio-1262, ¶ 10.


1
  “[W]hen a defendant enters a plea of not guilty by reason of insanity and then later enters a plea of guilty
without formally withdrawing the not guilty by reason of insanity plea, the defendant has waived any
argument pertaining to the insanity defense.” State v. Langenkamp, 3d Dist. Shelby Nos. 17-07-08, 17-07-
09, 2008-Ohio-1136 (quoting State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, 774 N.E.2d
1228, ¶ 34 (12th Dist.).

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Case No. 11-13-04


       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
       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 (1981). Here, the trial

court noted that the defense had known of the possible defense for over a year and

had had approximately eleven months to prepare the defense. Hiser was unable to

show that after all that time, the defense would even be applicable because he was

just beginning the testing. At the hearing, Hiser’s attorney testified that they were

not having any success in finding an expert who was willing to address the

diagnosis in a criminal case.     Additionally, Hiser’s attorney was not able to

provide the court with any sort of time line for when they would be ready or that

even if given the additional time, any defense would be available. See Dent v.

Simmons, 7th Dist. Mahoning No. 10 MA 120, 2011-Ohio-4331 (holding that the

denial of a motion for a continuance may be harmless error if prejudice is not

shown). The State also argued that to their knowledge, no expert was willing to

testify as to whether the defendant was having an episode which would negate his

mens rea at the time the sexual conduct occurred. Based upon the amount of time

that had passed since the issue was first known and the uncertainty as to whether


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additional time would make any difference, this court cannot conclude that the

trial court abused its discretion in denying the motion to continue. The first

assignment of error is overruled.

       {¶5} Hiser argues in the second assignment of error that he was denied

effective assistance of counsel.

       In evaluating whether a petitioner has been denied effective
       assistance of counsel, this court has held that the test is “whether
       the accused, under all the circumstances, * * * had a fair trial
       and substantial justice was done.” State v. Hester (1976), 45 Ohio
       St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the
       syllabus. When making that determination, a two-step process is
       usually employed. “First, there must be a determination as to
       whether there has been a substantial violation of any of defense
       counsel’s essential duties to his client. Next, and analytically
       separate from the question of whether the defendant’s Sixth
       Amendment rights were violated, there must be a determination
       as to whether the defense was prejudiced by counsel’s
       ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 396–
       397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other
       grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed2d 1154.

       On the issue of counsel’s ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
       ST.2d 299, 31 O.O.2d 567, 209 N.E.2d 164.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905.

       Judicial scrutiny of counsel’s performance is to be highly
       deferential, and reviewing courts must refrain from second-
       guessing the strategic decisions of trial counsel. To justify a
       finding of ineffective assistance of counsel, the appellant must
       overcome a strong presumption that, under the circumstances,
       the challenged action might be considered sound trial strategy.
       (Citation omitted.)

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State v. Sallie, 81 Ohio St.3d 673, 674, 693 N.E.2d 267 (1998).

      {¶6} Here, Hiser argues that his counsel was ineffective for allowing him to

enter a plea of no contest instead of taking the matter to trial and presenting a

defense. A review of the record indicates that the decision to enter the plea of no

contest was that of Hiser. The plea was entered after the motion to continue was

denied. At that point in time, Hiser was getting no additional time and the trial

was in one week. He did not have an expert or any medical records which could

support his alleged defense that his actions were involuntarily done while he was

sleeping. Thus, the defense he claims that his counsel was ineffective for not

presenting was unlikely to have affected the outcome of the case.

      {¶7} Additionally, the trial court specifically addressed the defendant

regarding the change of plea.

      The Court: * * * Mr. Hiser, do you hear what Mr. Wolfrum has
      to say?

      The Defendant: Yes, I do.

      The Court: He indicates that you would be – because I’m not
      inclined to continue the trial, it would be your intention to plead
      no contest to this charge. Is that what you want to do here
      today?

      The Defendant: Yes.

      The Court: And before the Court can accept this no-contest plea
      to an offense such as this, the Court is required to make sure you
      understand the consequences of what you are doing here.

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Case No. 11-13-04



       You do understand you are pleading no contest to the charge of
       unlawful sexual conduct with a minor, and that is a felony of the
       fourth degree? Do you understand that?

       The Defendant: Yes.

       ***

       The Court: Do you understand that you are entitled to a trial by
       jury, by entering this plea of no contest, you are giving up your
       right to trial by jury? Do you understand that?

       The Defendant: Yes, Your Honor.

       The Court: Do you understand also that you’re giving up your
       right to confront or cross examine the witnesses against you?

       The Defendant: Yes, Your Honor.

       The Court: And do you understand that you’re giving up your
       right to use the Court’s subpoena power to bring in witnesses to
       testify on your behalf?

       The Defendant: Yes, Your Honor.

       The Court: Do you understand further that you’re giving up
       your right to require the State to prove your guilt beyond a
       reasonable doubt?

       The Defendant: Yes, Your Honor.

       The Court: And do you understand that you cannot be forced
       or compelled to testify against yourself?

       The Defendant: Yes, Your Honor.

Mar. 25, 2013 Tr., 8-12. Hiser was informed by the court that by entering the plea

of no contest, he was agreeing to give up his right to present a defense by bringing

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in witnesses to testify for him. He acknowledged to the court that he understood

this. Even after the warning, when asked if he was entering a no contest plea of

his own free will, Hiser said yes. Tr. 14. Given the record before us, there is

nothing from which this court could determine that counsel was ineffective. Thus,

the second assignment of error is overruled.

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

assigned and argued, the judgment of the Court of Common Pleas of Paulding

County is affirmed.

                                                             Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jlr




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