State v. Jones , 42 Ohio App. 3d 14 ( 1987 )

I dissent. Both the Ohio and federal Constitutions grant the defendant a right to counsel of his own choosing. Here the defendant told the court he wanted a lawyer of his own choosing (Powell v. Alabama [1932], 287 U.S. 45). That lawyer went to the trial judge seven days before the trial date and requested a continuance because he had a previously scheduled trial on another matter on the same day before another judge of the same court. The trial judge (it appears from the record) made no effort to accommodate the situation, but arbitrarily denied the motion. Jones was at that time serving a sentence so he posed no threat to society. Certainly a request seven days before trial is not unreasonable and only minimally discommoding to the trial court. As was stated in Ungar v. Sarafite (1964), 376 U.S. 575, 589:

"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 * * *. 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. * * * *"

In Linton v. Perini (C.A. 6, 1981), 656 F.2d 207, at 209, the circuit court said:

"It is also true that a trial court, acting in the name of calendar control, cannot arbitrarily and unreasonably interfere with a client's right to be represented by the attorney he has selected. On the other hand, the right to counsel of choice may not be used to unreasonably delay trial."

It should be remembered that harmless error tests are not relevant to Sixth Amendment guarantees of assistance of counsel.Holloway v. Arkansas (1978), 435 U.S. 475.