[Cite as State v. Monk, 2011-Ohio-5751.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO,                                   JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee,                      Hon. Sheila G. Farmer, J.
                                                 Hon. Julie A. Edwards, J.
v.
                                                 Case No. 11-CA-28
DANIEL MONK,

        Defendant-Appellant.                     OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Licking County Court of
                                              Common Pleas Court, Case No. 10-CR-526


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        November 4, 2011


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


KENNETH W. OSWALT                             J. MATTHEW DAWSON
Licking County Prosecutor                     35 S. Park Pl., Suite 10
20 S. Second Street, Fourth Floor             Newark, Ohio 43055
Newark, Ohio 43055
Licking County, Case No. 11-CA-28                                                       2

Hoffman, P.J.


        {¶ 1} Defendant-appellant Daniel Monk appeals his conviction and sentence

entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the State of

Ohio.

                                 STATEMENT OF THE CASE

        {¶ 2} Appellant was indicted on two counts of sexual battery and one count of

contributing to the delinquency of a minor. On November 8, 2010, Appellant entered an

initial plea of not guilty by reason of insanity. The trial court ordered a competency

evaluation, and a hearing was scheduled for December 14, 2010.             At Appellant’s

request, the hearing was then continued to January 3, 2011.

        {¶ 3} On January 3, 2011, Appellant moved the trial court to continue the trial

set for January 5, 2011. Appellant also filed a motion to suppress on the same date.

The trial court denied the motions.

        {¶ 4} On January 4, 2011, Appellant retained new counsel.         On January 5,

2011, the date scheduled for trial, Appellant’s new trial counsel moved the trial court to

continue the jury trial. The trial court denied the motion. Appellant then entered a plea

of no contest to the charges.

        {¶ 5} On February 16, 2011, the trial court sentenced Appellant to three years

incarceration on each count of sexual battery to run consecutively with a six month term

on the one count of contributing to the delinquency of a minor charge, for an aggregate

prison term of six years.

        {¶ 6} Appellant now appeals, assigning as error:
Licking County, Case No. 11-CA-28                                                        3


       {¶ 7} “I. WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION

BY DENYING THE APPELLANT’S MOTION TO SUPPRESS AS UNTIMELY.

       {¶ 8} “II. WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION

BY DENYING THE APPELLANT’S MOTIONS FOR CONTINUANCE.

       {¶ 9} “III. WHETHER OR NOT PREVIOUS COUNSEL WAS INEFFECTIVE BY

FAILING TO FILE A MOTION TO SUPPRESS.

       {¶ 10} “IV. WHETHER OR NOT THE TRIAL COURT’S IMPOSITION OF

SENTENCE WAS CONTRARY TO LAW DUE TO THE LACK OF THE TRIAL

COURT’S CONSIDERATION OF THE OVERRIDING PURPOSES AND FACTORS TO

BE CONSDIERED IN FELONY SENTENCING.”

                                              I. & III.

       {¶ 11} Appellant’s first and third assignments of error raise common and

interrelated issues; therefore we will address the arguments together.

       {¶ 12} Appellant asserts the trial court erred in denying Appellant’s motion to

suppress as untimely. Appellant further asserts his prior trial counsel was ineffective in

failing to move the trial court to suppress the evidence earlier in the proceedings.

       {¶ 13} Criminal Rule 12 governs pretrial motions, and states in pertinent part:

       {¶ 14} “(D) Motion date

       {¶ 15} “All pretrial motions except as provided in Crim. R. 7(E) and 16(F) shall be

made within thirty-five days after arraignment or seven days before trial, whichever is

earlier. The court in the interest of justice may extend the time for making pretrial

motions.

       {¶ 16} “***
Licking County, Case No. 11-CA-28                                                         4


       {¶ 17} “(H) Effect of failure to raise defenses or objections

       {¶ 18} “Failure by the defendant to raise defenses or objections or to make

requests that must be made prior to trial, at the time set by the court pursuant to division

(D) of this rule, or prior to any extension of time made by the court, shall constitute

waiver of the defenses or objections, but the court for good cause shown may grant

relief from the waiver.”

       {¶ 19} When a motion to suppress is filed out of the rule timelines, the movant

must “offer a convincing reason to warrant relief.” State v. Phillips (1995), 74 Ohio St.3d

72, 97.

       {¶ 20} In the within case, Appellant argues the motion to suppress was untimely

due to the delay in the competency results, and “everything was pending the

competency evaluation results.” Appellant’s Brief p. 9. We disagree.

       {¶ 21} The pending competency evaluation did not preclude Appellant from filing

a motion to suppress; rather, Appellant’s alleged competency would serve as a basis for

challenging his statements to the police. We conclude Appellant was not precluded

from arguing the inadmissibility of the evidence due to the questions surrounding his

competency.

       {¶ 22} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838,
Licking County, Case No. 11-CA-28                                                        5

122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

       {¶ 23} To prevail on this claim, appellant must meet both the deficient

performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance

(2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251.

       {¶ 24} To show deficient performance, appellant must establish that “counsel's

representation fell below an objective standard of reasonableness.” Strickland, at 688.

In light of “the variety of circumstances faced by defense counsel [and] the range of

legitimate decisions regarding how best to represent a criminal defendant,” the

performance inquiry necessarily turns on “whether counsel's assistance was reasonable

considering all the circumstances.” Id., at 688-689. At all points, “[j]udicial scrutiny of

counsel's performance must be highly deferential.” Id ., at 689.

       {¶ 25} Appellant must further demonstrate that he suffered prejudice from his

counsel's performance. See Strickland, 466 U.S., at 691 (“An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

       {¶ 26} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient
Licking County, Case No. 11-CA-28                                                         6


before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.

       {¶ 27} The failure to file a motion to suppress constitutes ineffective assistance of

counsel “only if, based on the record, the motion would have been granted.” State v.

Moss, Licking App. 05-CA-74, 2006-Ohio-2524. Here, Appellant has not demonstrated

his motion to suppress would have ultimately been granted on the merits. The record

demonstrates Appellant was found competent after evaluation.           Appellant does not

develop in his brief the merits of the proposed motion to suppress; therefore, he has not

demonstrated the motion would have been granted by the trial court but for counsel’s

alleged error.

       {¶ 28} Appellant’s first and third assignments of error are overruled.

                                                II.

       {¶ 29} In the second assignment of error Appellant maintains the trial court

abused its discretion in denying Appellant’s motion for a continuance.

       {¶ 30} The granting of continuances is within the sound discretion of the trial

court. State v. McMilen (1996), 113 Ohio App.3d 137. Factors to be considered include

the length of the continuance requested, any prior continuances granted, any

inconvenience to other parties and to the court, the reasons offered for the delayed and

whether the moving party contributed to the delay. Village of Glenwillow v. Tomsick

(1996), 111 Ohio App.3d 718.

       {¶ 31} Again, Appellant asserts the continuance was necessary in this matter as

his competency was at issue at the time the continuance was requested and delayed

matters herein.     Further, Appellant argues the retention of new trial counsel
Licking County, Case No. 11-CA-28                                                         7


necessitated a continuance as counsel had only one day to prepare for trial. Appellant

requested one prior continuance which was granted by the trial court. Appellant asserts

the State was not prejudiced by the delay.

       {¶ 32} Upon review, we find Appellant has not demonstrated his decision to

retain new counsel was based upon deterioration in his relationship with his prior trial

counsel. Rather, the record demonstrates Appellant “wanted a second opinion on an

issue that’s very crucial for his life.” Tr. at 9.

       {¶ 33} A defendant’s right to retain counsel of his own choosing is not an

unlimited right. State v. Perkins, 2007-Ohio-136. Instead, “when considering a motion

for…new counsel, a trial court must balance ‘any potential prejudice to a defendant

against 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.” Id.

       {¶ 34} Based on the above, we find the trial court did not abuse its discretion in

denying Appellant’s motion for a continuance. The Appellant’s last minute decision to

change counsel clearly contributed to the delay that would have been necessitated by a

continuance.

       {¶ 35} Appellant’s second assignment of error is overruled.

                                                     IV.

       {¶ 36} In the fourth assignment of error, Appellant asserts his sentence was

contrary to law as the trial court failed to consider the overriding purposes and factors to

be considered in felony sentencing.

       {¶ 37} R.C. 2929.11(B) states,
Licking County, Case No. 11-CA-28                                                        8


       {¶ 38} “(B) A sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing set forth in division (A) of this

section, commensurate with and not demeaning to the seriousness of the offender's

conduct and its impact upon the victim, and consistent with sentences imposed for

similar crimes committed by similar offenders.”

       {¶ 39} A court has broad discretion in determining the most effective way to

comply with the purposes and principles of sentencing. R.C. 2929.12(A).

       {¶ 40} As stated in R.C. 2929.11, the two overriding purposes of felony

sentencing are to first, protect the public from future crime by the offender, and, second,

punish the offender. The court shall consider “the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating the offender, and

making restitution to the victim of the offense, the public or both.” Id.

       {¶ 41} In State v. Kienzle, 2007-Ohio-4346, the Ninth District held,

       {¶ 42} “In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Court found that

Ohio's sentencing structure was unconstitutional to the extent that it required judicial

fact-finding. Id. at paragraphs one through seven of the syllabus. In constructing a

remedy, the Court excised the portions of the statute it found to offend the Sixth

Amendment and thereby granted full discretion to trial court judges to sentence

defendants within the bounds prescribed by statute. See Id.; State v. Dudukovich, 9th

Dist. No. 05CA008729, 2006-Ohio-1309, at ¶ 19.

       {¶ 43} “Additionally, Foster altered this Court's standard of review which was

previously a clear and convincing error standard. State v. Windham, 9th Dist. No.

05CA0033, 2006-Ohio-1544, at ¶ 11. Accordingly, this Court reviews Appellant's
Licking County, Case No. 11-CA-28                                                          9

sentence utilizing an abuse of discretion standard. Id. at ¶ 12. An abuse of discretion is

more than an error in judgment or law; it implies an attitude on the part of the trial court

that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219. Furthermore, when applying the abuse of discretion standard, an

appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio

State Med. Bd. (1993), 66 Ohio St.3d 619, 621.

       {¶ 44} “The Foster Court noted that “there is no mandate for judicial fact-finding

in the general guidance statutes. The court is merely to ‘consider’ the statutory factors.”

Foster, supra, at ¶ 42. Moreover, post Foster, it is axiomatic that “[t]rial courts have full

discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Id. at paragraph 7 of the syllabus. Therefore, post-

Foster, trial courts are still required to consider the general guidance factors in their

sentencing decisions. The trial court stated that it had considered Appellant's prior

record when making its decision.

       {¶ 45} “***

       {¶ 46} “Appellant was convicted of a third degree felony. Accordingly, the trial

court was permitted to utilize its discretion to sentence him within the range of one to

five years incarceration for the third degree felony conviction. R.C. 2929.14(A)(3).

Appellant was sentenced to five years incarceration. Accordingly, Appellant's conviction

fell within the statutory ranges set forth in R.C. 2929.14.”

       {¶ 47} In the case herein, we find the trial court did not abuse its discretion in

sentencing Appellant as the prison term was within the statutory range for Appellant’s
Licking County, Case No. 11-CA-28                                                 10


convictions, and the court clearly stated it had considered the necessary factors in

sentencing Appellant. Tr. at 19-20.

      {¶ 48} The fourth assignment of error is overruled.

      {¶ 49} For the reasons set forth above, Appellant’s convictions and sentence in

the Licking County Court of Common Pleas are affirmed.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur

                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
Licking County, Case No. 11-CA-28                                                 11


            IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO,                            :
                                          :
      Plaintiff-Appellee,                 :
                                          :
v.                                        :         JUDGMENT ENTRY
                                          :
DANIEL MONK,                              :
                                          :
      Defendant-Appellant.                :         Case No. 11-CA-28


      For the reasons stated in our accompanying Opinion, Appellant’s convictions and

sentence in the Licking County Court of Common Pleas are affirmed.          Costs to

Appellant




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer___________________
                                          HON. SHEILA G. FARMER


                                          s/ Julie A. Edwards ___________________
                                          HON. JULIE A. EDWARDS
