State v. Johnson

{¶ 16} I disagree. "The grant or denial of a continuance is a matter that is entrusted to the broad, sound discretion of the trial judge." State v. Unger (1981),67 Ohio St. 2d 65, 21 O.O.3d 41, 423 N.E.2d 1078, syllabus. An abuse of discretion "connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. "The trial court balances the court's interest in controlling its docket and the public's interest in an efficient judicial system with the possibility of prejudice to the defendant." Sayrev. Hoelzle-Sayre (1994), 100 Ohio App. 3d 203,653 N.E.2d 712. "Factors to be considered can include the length of the continuance requested, any prior continuance, inconvenience, reasons for the delay, whether the defendant contributed to the delay, and other relevant factors." State v. Grant (1993), 67 Ohio St. 3d 465, 479, 620 N.E.2d 50. "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." Ungar v. Sarafite (1964), 376 U.S. 575, 589,84 S. Ct. 841, 11 L. Ed. 2d 921.

{¶ 17} "A trial court has broad discretion when imposing discovery sanctions." Nakoff v. Fairview Gen.Hosp. (1996), 75 Ohio St. 3d 254, 662 N.E.2d 1, syllabus.

{¶ 18} At the hearing on Johnson's motion, the state appeared to suggest that counsel for Johnson bore some responsibility for the fact that Johnson did not have the bank statements: "[B]ased on the Bill of Particulars the State suggests that * * * [defense counsel] * * * should have known that this was what the case was all about and although he has a formal request for discovery, and the State is obligated to continue to give that discovery, there was no additional request made, which I understand that is [sic] doesn't have to be, that being said, the matter came up this morning." The state conceded that "the Court is aware that this matter has been going on for some time. I believe we [are] at the end of the line in terms of the Supreme Court Report. So it has been going on at least six months almost."

{¶ 19} The state appears to have been referring to the Rules of Superintendence of the Ohio Supreme Court. "Section 5(A), Article IV [of the] Ohio Constitution authorizes the Ohio Supreme Court to establish Rules of Superintendence. * * * These Rules of Superintendence are designed (1) to expedite the disposition of both criminal and civil cases in the trial courts of this state, while at the same time safeguarding the inalienable rights of litigants to the just processing of their causes; and (2) to serve that public interest which mandates the prompt disposition of all cases before the courts." State v.Perry, Ross App. No. 05CA2839, 2006-Ohio-220,2006 WL 158860, ¶ 14.

{¶ 20} "The very name and substance of these rules indicates that they were intended as an administrative directive from the Supreme Court to all the Court of Common Pleas [and Municipal Courts] of this state, and the individual judges thereof, succinctly setting forth procedures designedto more clearly define judicial duties and responsibilitiesand to provide for more uniform and effective methods of generalcourt administration. The Rules of Superintendence were notintended to function as rules of practice and procedure." (Emphasis sic.) State v. Brown (May 7, 1987), Cuyahoga App. No. 52098, 1987 WL 11197.

{¶ 21} "In municipal and county court, all criminal cases shall be tried within the time provided in Chapter 2945. of the Revised Code." Sup.R. 39. "[A] person against whom a charge of misdemeanor * * * is pending in a court of record, shall be brought to trial * * * [w]ithin ninety days after the person's arrest or the service of the summons, if the offense charged is a misdemeanor of the first * * * degree." R.C. 2945.71.

{¶ 22} Although Johnson waived her right to trial within the time set forth in R.C. 2945.71, the trial court properly remained mindful of its obligation to expedite the disposition of Johnson's case. Had the court required the defense to proceed on schedule, however, the prejudice to Johnson, as her counsel indicated, would have been clear; to prepare for trial in one day was not Johnson's "burden to carry," especially when Johnson was "looking at jail time." Any suggestion that the defense should have made a specific request for the bank statements is without merit. The prosecuting attorney bore the ultimate responsibility to provide counsel for Johnson with the bank records necessary to prove their case. This responsibility should not be foisted upon the detective nor the defendant. The trial judge properly excluded the bank's records. Just as important, the trial court did not abuse its discretion in denying the state's request for a continuance because the court has an absolute right to manage its docket, penalize the city for a major discovery infraction, and dismiss the case.

{¶ 23} I would affirm.

JOHN R. MILLIGAN, J., retired, of the Fifth District Court of Appeals, sitting by assignment.