Continuances

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

R.C. 2945.02 -- Setting and continuing cases.
Crim. R. 50 -- "Criminal cases shall be given precedence over civil matters and proceedings."

Basics

In re A.L., Franklin App. No. 07AP-638 and 647, ¶78-88 -- The denial of a continuance in termination of parental rights proceedings is assessed on the basis of the abuse of discretion standard followed in criminal proceedings.
 
State v. Lindsey, 183 Ohio App. 3d 727, 2009-Ohio-4124 – Crack possession case drifted for nine months before another request for continuance by the state. Instead the court granted the defendant’s motion to dismiss. The state did not object at the time, but reversed as plain error. Time had not run under the speedy trial statutes and the state was entitled to have the case go forward according to proper procedure.
 
In re Kutcher, Belmont App. No. 02 BE 58, 2003-Ohio-1235 -- No abuse of discretion found in refusal to continue termination of parental rights hearing because of the mother's unexplained absence.
 
State v. Liming, Greene App. No. 02CA43, 2004-Ohio-168 -- It was an abuse of discretion to deny a continuance for the defendant to allow the defendant to respond to surprising matters revealed in the presentence investigation.
 
Ungar v. Sarafite (1964), 376 U.S. 575, 589-590 -- "The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3. 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 the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385; Torres v. United States, 270 F. 2d 252 (C.A. 9th Cir.); cf. United States v. Arlen 252 F. 2d 491 (C.A. 2d Cir.)."
 
State v. Unger (1981), 67 Ohio St. 2d 65 -- Syllabus; "The grant or denial of a continuance is a matter that is entrusted to the broad, sound discretion of the trial judge. When a continuance is denied as a consequence of defense counsel's tactical design, a trial court is under no duty to adapt its schedule to accommodate this strategy." At p. 67: "In evaluating a motion for 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 circumstances which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case." Also see State v. Powell (1990), 49 Ohio St. 3d 255, 259.
 
Columbus v. Dalton (January 30, 1979), Franklin Co. App. No. 78AP-522, unreported (1979 Opinions 79, 81) -- "...(I)t is no justification to refuse a continuance solely on the basis that a jury has been summoned and is present and that the court's docket is crowded. When circumstances arise which justify a continuance, a continuance may not be arbitrarily denied based on these considerations."
 
State v. Sowders (1983), 4 Ohio St. 3d 143 -- No abuse of discretion in denial of continuance when trial date fell only eleven days after arraignment where defense counsel failed to state why he had not been afforded sufficient time to prepare an adequate defense. Also see Avery v. Alabama (1939), 308 U.S. 444; White v. Ragen (1945), 324 U.S. 760, 763-764; Hawk v. Olson (1945), 326 U.S. 271; Powell v. Alabama (1932), 287 U.S. 45.

Technical Requirements

State v. Wagner (1993), 88 Ohio App. 3d 398 -- The court must state in its entry the reasons for a continuance, if the speedy trial time limit is to be tolled. At page 403, the appellate court states it is "...highly reluctant to rely on a justification that is pronounced nearly four months after the continuance is journalized rather than contemporaneously therewith."
 
State v. Benson (1985), 29 Ohio App. 3d 321 -- To toll the time within which a defendant must be brought to trial, a continuance must be journalized and the journal entry must indicate the reason for the continuance and which party sought the continuance or whether the continuance was sua sponte. A bailiff's testimony that continuances were charged to the defendant according to the court's internal scheduling card may not take the place of the requirement that the court speak through its journal. Also see State v. Miller (1990), 70 Ohio App. 3d 727, 729.
 
State v. Owens (1992), 81 Ohio App. 3d 412, 416-417 -- After a continuance to contact an expert was refused, defense counsel stood mute during trial, which was held to be ineffective assistance of counsel: "A total abdication of duty should never be viewed as permissible trial strategy...Trial counsel's conduct at trial was reprehensible, but the error here lies not with the conduct of trial counsel but with the inaction of the court...The trial court erred when it failed to order counsel, under threat of contempt, to provide his client with effective representation."
 
State v. Stamps (1998), 127 Ohio App. 3d 219 -- Though advisable, a continuance entry need not state it is at the defendant's request for time to be tolled under the speedy trial statutes. The court may look beyond the journal entry to the transcript to determine whether a continuance was at the defendant's request.

Sua Sponte Continuances

State v. Mincy (1982), 2 Ohio St. 3d 6 -- Syllabus: When sua sponte granting a continuance under R.C. 2945.72(H), the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for bringing the defendant to trial." Also see Oakwood v. Ferrante (1975), 44 Ohio App. 2d 318.
 
Mentor v. Caswell (1997), 123 Ohio App. 3d 256 -- Defendant was absent for unexplained reasons at time of suppression hearing, which proceeded with participation of counsel and a codefendant. Defendant had a right to be present. Denial of continuance was an abuse of discretion.
 
State v. Jordan (February 21, 1991), Franklin Co. App. No. 90AP-660, unreported (1991 Opinions 789) -- Sua sponte continuance was not "reasonable" where there was not an adequate explanation why case was set for trial, on short notice, on the 89th day following arrest, or evidence that defense counsel's unavailability, due to vacation, on that date was contrived. Alternate counsel was present and the defendant indicated his desire to proceed to trial.

Representation Issues

Toledo v. Van Landingham, Lucas App. No. L-03-1339, 2005-Ohio-1216 -- It was an abuse of discretion to refuse a continuance where defense counsel failed to return the defendant's calls the week before trial, failed to file a timely jury demand, and appeared for trial totally unprepared.
 
State v. Brown, 163 Ohio App. 3d 222, 2005-Ohio-4590 -- Defendant charged with a minor misdemeanor traffic offense appeared on date of trial and asked for a continuance so retained counsel could appear. This was denied, based on concern the state's witnesses might not return. Time was allowed for counsel and defense witnesses to appear at a later date. Reversed. The right to counsel is more important than efficient administration of criminal justice.
 
State v. Wenzlick, 164 Ohio App. 3d 155, 2005-Ohio-5741 -- Following earlier continuances, the judge was determined that the trial would proceed on the third scheduled trial date. But counsel broke his arm and was unable to write. The judge refused to continue the case and the defendant was advised to secure new counsel. He did. Though claiming a lack of time to prepare, that attorney was also denied a continuance, and felt compelled to go forward for the good of the client. Reversed. Blind adherence to the scheduled date without consideration of factors relevant to whether a continuance should be allowed was an abuse of discretion.
 
State v. Maudlin, Hamilton App. No. C-030158, 2003-Ohio-6505 -- It was an abuse of discretion to deny continuance of sentencing where defense counsel informed the court he was too ill to participate.
 
State v. Bingman, 149 Ohio App. 3d 243, 2002-Ohio-2885 -- Majority finds no abuse of discretion in denying a 30-day continuance of the sentencing hearing to permit newly retained counsel an opportunity to review documents to determine whether plea was in the client's best interest. Dissent sees no reason to deny the motion given the short time between indictment, plea, and sentencing hearing, and the possibility new counsel would conclude the plea was in fact appropriate.
 
State v. Jones, 91 Ohio St. 3d 335, 341-342, 2001-Ohio-57 -- New counsel sought to take over representation in a death penalty case two hours after the jury had been sworn. No abuse of discretion in denying a four month continuance.
 
State v. Goins (1975), 47 Ohio App. 2d 283, 286 -- Even though counsel did not state an objection for the record: "...directing appointed counsel to proceed to trial the day following his appointment constituted an abuse of discretion by the trial court and resulted in a trial so speedy as to cause counsel to be ineffective." Compare State v. Price (1973), 34 Ohio St. 2d 43 where counsel stated was ready to go to trial, notwithstanding client's concerns about preparedness.
 
Linton v. Perini (6th Cir. 1981), 656 F. 2d 207 -- Abuse of discretion for the court to deny a continuance sought by retained counsel, who was unable to prepare in the ten days allowed before case proceeded to trial, then appoint counsel and force trial to proceed on the scheduled date.
 
State v. Arcoria (1998), 129 Ohio App. 3d 376 -- Counsel requested a continuance based on a previously scheduled trial in another court which appeared likely to go. Court refused, but indicated it would be granted if the other trial actually went forward. Client was told to show up, explain why he had no counsel, then enter a no contest plea. Court accepted the no contest plea without inquiring whether he wanted continuance or was willing to waive counsel. Reversed.
 
State v. Emory (1983), 12 Ohio App 3d 101 -- Assistant public defender assigned to case had been injured in an auto accident and substitute had only an hour and a half to prepare for trial after continuance request was denied. Reversed as defendant was denied effective assistance of counsel. Compare Morris v. Slappy (1982), 461 U.S. 1 where substitute public defender stated he was ready to proceed to trial six days after taking over the case.
 
State v. Beekman (January 7, 1992), Franklin Co. App. No. 90AP-536, unreported (1992 Opinions 1) -- When the public defender assigned to a case is ill on the date of trial, it is an abuse of discretion to deny a continuance and force substitute counsel to proceed to trial. Also see Columbus v. Dalton (January 30, 1979), Franklin Co. App. No. 78AP-522, unreported (1979 Opinions 79).
 
State v. Hook (1986), 33 Ohio App. 3d 101 -- Headnote: "Where a defendant refuses to take effective action to obtain counsel, and on the day of trial requests a continuance in order to delay the trial, the court may be permitted to infer a waiver of the right to counsel. In so doing, the court must take into account the total circumstances of the individual case, including the background, experience and conduct of the defendant." Compare Chandler v. Freytag (1954), 348 U.S. 3.
 
State v. Butler (1994), 97 Ohio App. 3d 322 -- No abuse of discretion found in conditioning continuance on pro se defendant's agreement to employ appointed counsel in his defense. When previous counsel was discharged, defendant had indicated he was prepared to proceed on his own.
 
Hudson v. South (1994), 99 Ohio App. 3d 208 -- Defendant retained new counsel who was unable to appear on date set for suppression hearing. Court abused its discretion in denying continuance request, and denied defendant his right to counsel by insisting hearing proceed without counsel being present or waived.
 
State v. Bronaugh (1982), 3 Ohio App. 3d 307 -- Headnote: "Where an accused and his (appointed) counsel jointly make a motion for the appointment of new counsel, the refusal of the court to order a continuance for the purpose of the acquisition of new legal counsel may constitute prejudicial error mandating reversal of a subsequent conviction. Compare Lockett v. Arn (6th Cir. 1984), 740 F. 2d 407.

Witness Issues

State v. Upshaw, 166 Ohio App. 3d 95, 2006-Ohio-1819 -- It was an abuse of discretion to deny a brief continuance to permit the testimony of the defendant's treating psychiatrist at a hearing on the use of forced medication to restore competency to stand trial.
 
State v. Hillis, 162 Ohio App. 3d 280, 2005-Ohio-3591 -- The trial court abused its discretion by refusing to briefly continue a sex offender classification hearing to allow the testimony of a defense psychologist who was out of town. The defendant had been examined without the benefit of his hearing aid. Even the judge had recognized problems with the state expert's report. The defense expert had been the state expert's professor at Xavier and told counsel her report would have earned a failing grade.
 
State v. Ducey, Franklin App. No. 03AP-944, 2004-Ohio-3833 -- It was an abuse of discretion and denial of compulsory process to not issue a capias warrant for a witness who appeared on the first day of trial, but did not return the following day.
 
State v. Parks (1990), 69 Ohio App. 3d 150 -- Error to deny continuance after prosecutor had willfully withheld address of prosecuting witness until the day before trial without seeking a protective order. Error not cured by fact that rape victim refused to talk to defense counsel before trial. Counsel was under a duty to investigate the case and might have interviewed victims's neighbors or associates.
 
State v. Mularkey (May 30, 1991), Franklin Co. App. Nos. 90AP-1377, 1738, unreported (1991 Opinions 2542) -- Abuse of discretion to deny continuance of trial date, set shortly after pretrial, to allow defense to continue efforts to locate a witness.
 
State v. Woltz (March 11, 1980), Franklin Co. App. No. 79AP-704, unreported (1980 Opinions 645) -- Denial of continuance so co-defendant could offer exculpatory testimony was not an abuse of discretion or a denial of the constitutional right to compulsory process when same information was presented to the jury through other witnesses.
 
State v. Holmes (1987), 36 Ohio App. 3d 44 -- Court abused its discretion by denying continuance in the following circumstances: (1) request was for 30-45 minutes to secure additional witnesses; (2) after request was denied and defendant rested court recessed for three days; and (3) defendant was not allowed to reopen case when court reconvened the following Monday. Also see Copeland v. State (1928), 118 Ohio St. 69; State of Ohio v. Barton (1961), 191 N.E. 2d 173; State v. Reardon (1964), 28 Ohio Ops. 2d 394.
 
State v. Saffell (1988), 35 Ohio St. 3d 90 -- Continuance because arresting officer was on vacation was reasonable, even though was beyond the 90-day period specified for speedy trial purposes. Appears that the defendant was not in custody. Court does not set forth a per se rule for when a continuance beyond the speedy trial time limit is reasonable.
 
State v. Swisshelm (1987), 40 Ohio App. 3d 196 -- No abuse of discretion in denial of continuance where unsubpoenaed expert witness was tardy and several hours had been allowed for him to appear at the courthouse.

Propriety of Ruling

State v. Packer, 188 Ohio App. 3d 162, 2010-Ohio-2627 – Shortly before trial the defendant began taking new medications prescribed by a physician to treat his mental health problems. At trial he was to represent himself, assisted by standby counsel. He requested a continuance based on how he was affected by the new medications, but this was denied. He exhibited difficulties as trial got underway, then did not return, and was found guilty in absentia. Reversed. Starting the new medications did not constitute voluntary incapacitation. A pro se defendant is entitled to the same consideration as counsel when requesting a continuance based on illness.
 
State v. Crosby, Lucas App. No. L-03-1158, 2004-Ohio-4674 -- During a suppression hearing an officer testified to a statement of the defendant which had not been not disclosed in discovery. Continuance request was denied. Trial court abused its discretion by permitting the state to use that statement to impeach the defendant's testimony. Without the benefit of the statement the defendant could not knowingly and intelligently decide whether to take the stand and place his credibility at issue.
 
State v. Wilkinson (1969), 17 Ohio St. 2d 9, 12 -- No abuse of discretion in denying continuance based on medical condition when according to physician the defendant's condition merely called for frequent breaks during the trial so the defendant could use the restroom. Also see Columbus v. Blackston (December 9, 1982), Franklin Co. App. No. 82AP-541, unreported (1982 Opinions 3691); annotation, 66 A.L.R. 2d 232: Continuance of criminal case because of illness of accused.
 
State v. Blackmon (1998), 130 Ohio App. 3d 142 -- No abuse of discretion in denying continuance because trial fell during Ramadan where defendant failed to demonstrate the sincerity of his beliefs and how proceeding with trial would burden the exercise of his religious freedom.
 
State v. Allen (1997), 118 Ohio App. 3d 846 -- Continuance improperly denied where trial came twelve days after arraignment, including the New Year holiday, the discovery process continued through the morning of trial, and counsel stated he had not had time to interview witnesses whose names were furnished seven and eight days before trial.
 
State v. Rash (1996), 111 Ohio App. 3d 351 -- State unexpectedly rested at 2:40 p.m. on the first day of a projected two and a half day trial. Court abused its discretion and denied defendant due process by denying adjournment until the following morning so defense witnesses could appear. At p. 355: "It is enough that any witness must take time off from work to testify in a civil or criminal matter; most attorneys, realizing this hardship, do their best to 'schedule' witnesses within a reasonable amount of time and with as little inconvenience to the witness as possible, especially if the allegiance of the witness is weak or nonexistent."
 
State v. Alexander (March 14, 1995), Franklin Co. App. No. 94APA04-593, unreported (1995 Opinions 893, 900) -- As to why the refusal of a continuance in a kidnapping prosecution arising from the 1993 Lucasville riot was not an abuse of discretion: "Defendant was unable to specify the length of time he would need to interview the inmates, was unable to suggest any likelihood of meeting with any inmates given additional time, was unable to suggest any likely evidence to be garnered from the interviews, and was unwilling to cooperate with the trial court in its efforts to produce inmates to be interviewed by defense counsel and thus avoid a continuance."
 

Publishing Information

Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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