[Cite as State v. Williams,

.]

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

STATE OF OHIO, CASE NO. 13-19-23 PLAINTIFF-APPELLEE,

v.

JOSHUA D. WILLIAMS, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO, CASE NO. 13-19-24 PLAINTIFF-APPELLEE,

v.

JOSHUA D. WILLIAMS, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO, CASE NO. 13-19-25 PLAINTIFF-APPELLEE,

v.

JOSHUA D. WILLIAMS, OPINION

DEFENDANT-APPELLANT. Case Nos. 13-19-23, 13-19-24 and 13-19-25

Appeals from Seneca County Common Pleas Court Trial Court Nos. 18-CR-0021, 17-CR-0033 and 18-CR-0178

Judgments Affirmed

Date of Decision: December 23, 2019

APPEARANCES:

Sarah R. Anjum for Appellant

Derek W. DeVine Appellee

WILLAMOWSKI, J.

{¶1} Defendant-appellant Joshua D. Williams (“Williams”) brings this

consolidated appeal from judgments of the Court of Common Pleas of Seneca

County convicting him of multiple counts of trafficking in cocaine and one count of

possessing criminal tools. On appeal, Williams claims that the trial court erred by

1) denying his motion for a continuance and 2) sentencing him to consecutive

sentences. For the reasons set forth below, the judgments are affirmed.

Procedural Background

Trial Case No. 17 CR 0033

{¶2} On February 22, 2017, the Seneca County Grand Jury indicted Williams

on one count of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a),

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a felony of the fifth degree. ADoc.1 1. This charge stemmed from an incident that

allegedly occurred on March 24, 2016.

Williams initially entered pleas of not

guilty to the indictment. ADoc. 9. The matter was originally scheduled for a jury

trial on September 28-29, 2017. ADoc. 13. The trial was sua sponte rescheduled to

begin on January 25, 2018. ADoc. 16 and 18. On January 19, 2018, Williams filed

a motion for a continuance of the trial as new charges were pending for Williams.

ADoc. 23. The trial court granted the motion and set the January 25, 2018, date for

a change of plea hearing. ADoc. 24. At the change of plea hearing, Williams again

asked for a continuance, which was granted and the hearing was rescheduled for

February 2, 2018. ADoc. 25. At that hearing, the trial court was informed that no

agreement had been reached and the matter was set for trial on February 12, 2018.

ADoc. 26. On February 12, 2018, Williams changed his plea from not guilty to

guilty. ADoc. 29. As part of the plea agreement, the parties entered a joint

sentencing recommendation for three years of community control, which would

include 90 days in jail.

The trial court accepted the plea of guilty and

immediately sentenced Williams to the jointly recommended sentence. ADoc. 30.

Additionally, the trial court ordered that a violation of the community control would

result in “a prison term of twelve (12) months to be served consecutively to twenty-

1 There are three records in this case. The record in appellate case number 13-17-24 will be identified as “ADoc.” The record in appellate case number 13-17-23 will be identified as “BDoc.” The record in appellate case number 13-17-25 will be identified as “CDoc.”

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four (24) months reserved for a violation of community control in Seneca County

Case No. 18 CR 0021.”

{¶3} On April 27, 2018, the State filed a motion to suspend supervision of

Williams because he had absconded from supervision. ADoc. 34. Williams was

apprehended on June 27, 2018, and his supervision was reinstated. ADoc. 39. Once

Williams was apprehended, the State served him notification of alleged community

control violations. ADoc. 37. On August 3, 2018, Williams filed for a continuance

of the revocation hearing because further charges were pending. ADoc. 45. This

motion was granted by the trial court. ADoc. 47.

{¶4} On August 16, 2018, the State filed a second notification of community

control violations alleging that Williams had violated the terms of his community

control by selling cocaine to a confidential informant in four separate transactions

and by possessing cocaine. ADoc. 49. The original alleged violations were

dismissed by the State on August 15, 2018. ADoc. 51. A full revocation hearing

on the August notification of violation was set for November 2, 2018. ADoc. 55.

On November 2, 2018, Williams filed a motion for a continuance claiming that there

were technical issues with the discovery discs. ADoc. 56. The trial court granted

this motion and set the revocation hearing for November 28, 2018. ADoc. 57. On

November 26, 2018, Williams again filed for a continuance to allow for additional

time to review discovery. ADoc. 58. The trial court again granted the motion.

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ADoc. 59. On March 20, 2019, Williams again requested a continuance due to

health issues of counsel and the trial court granted the motion. ADoc. 63-64.

{¶5} On March 28, 2019, counsel for Williams filed a motion to withdraw.

ADoc. 66. The motion stated that the attorney client relationship had broken down

and that counsel may be called as a witness as to the probation violation.

The

trial court granted the motion on March 29, 2019. ADoc. 67. No further

continuances appear on the record in this case.

{¶6} The revocation hearing was held on June 14, 2019, and Williams was

represented by counsel. ADoc. 72. At the hearing, Williams admitted that he

violated the terms of his community control.

The trial court ordered Williams

to serve 12 months in prison for the community control violation and ordered it to

be served consecutive to the sentences in case numbers 18 CR 0021 and 18 CR

0178.

Williams filed a timely notice of appeal from this judgment. ADoc. 74.

On appeal, it was assigned appellate case number 13-19-24.

Trial Case No. 18 CR 0021

{¶7} On February 12, 2018, Williams waived indictment and agreed to be

charged by bill on information on two counts of trafficking in cocaine in violation

of R.C. 2925.03(A)(1), (C)(4)(a), a felony of the fifth degree. BDoc. 2. These

charges stemmed from alleged sales on November 9, 2016 and on June 19, 2017.

Williams entered a plea of guilty to the charges. BDoc. 4. The parties made a

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jointly recommended sentencing recommendation of three years on community

control with 90 days of that to be served in jail.

The agreed sentence included

the following.

Defendant to serve a stated prison term of twelve (12) months as to Count One and twelve (12) months as to Count Two to be served consecutively for a total of twenty-four (24) months for a violation of community control to be served consecutively to twelves (12) months reserved for a violation of community control in case 17 CR 0033.

The trial court accepted the plea of guilty and imposed the jointly recommended

sentence. BDoc. 5.

{¶8} On April 27, 2018, the State filed a motion to suspend supervision of

Williams because he had absconded from supervision. BDoc. 8. Williams was

apprehended on June 27, 2018, and his supervision was reinstated. BDoc. 11.

{¶9} On August 16, 2018, the State filed a notification of community control

violations alleging that Williams had violated the terms of his community control

by selling cocaine to a confidential informant in four separate transactions and by

possessing cocaine. BDoc. 12. A full revocation hearing on the notification of

violation was set for November 2, 2018. BDoc. 17. On November 2, 2018,

Williams filed a motion for a continuance claiming that there were technical issues

with the discovery discs. BDoc. 18. The trial court granted this motion and set the

revocation hearing for November 28, 2018. BDoc. 19. On November 26, 2018,

Williams again filed for a continuance to allow for additional time to review

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discovery. BDoc. 20. The trial court again granted the motion. BDoc. 21. On

March 20, 2019, Williams again requested a continuance due to health issues of

counsel and the trial court granted the motion. BDoc. 26-27.

{¶10} On March 28, 2019, counsel for Williams filed a motion to withdraw.

BDoc. 29. The motion stated that the attorney client relationship had broken down

and that counsel may be called as a witness as to the probation violation.

The

trial court granted the motion on March 29, 2019. BDoc. 30. No further

continuances appear on the record in this case.

{¶11} The revocation hearing was held on June 14, 2019, and Williams was

represented by counsel. BDoc. 35. At the hearing, Williams admitted that he

violated the terms of his community control.

The trial court ordered Williams

to serve 12 months in prison on each count for the community control violation and

ordered them to be served consecutive to each other.

The trial court also ordered

these sentences be served consecutive to the sentences in case numbers 18 CR 33

and 18 CR 0178.

Williams filed a timely notice of appeal from this judgment.

BDoc. 37. On appeal, it was assigned appellate case number 13-19-23.

Trial Case No. 18 CR 0178

{¶12} On August 18, 2018, the Seneca County Grand Jury indicted Williams

on three counts of trafficking in cocaine in violation of R.C.

2925.03(A)(1),(C)(4)(a), felonies of the fifth degree, one count of trafficking in

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cocaine in violation of R.C. 2925.03(A)(1),(C)(4)(b), a felony of the fourth degree,

one count of possession of cocaine in violation of R.C. 2925.11(A),(C)(4)(b), a

felony of the fourth degree, and one count of possessing criminal tools in violation

of R.C. 2923.24(A),(C), a felony of the fifth degree. CDoc. 1. All of these offenses

were alleged to have occurred in May and June of 2018. CDoc. 10.

{¶13} On November 2, 2018, Williams filed a motion for a continuance due

to technical issues that interfered with the ability to review discovery. CDoc. 16.

The trial court granted this motion. CDoc. 17. A second motion for a continuance

was filed by Williams on November 21, 2018, to request additional time to review

discovery. CDoc. 18. This motion was also granted. CDoc. 19. A scheduled plea

hearing was held on January 25, 2019. CDoc. 20. At that hearing, the parties

requested another continuance to attempt to reach a plea agreement and the trial

court granted the request.

The matter was eventually scheduled for a jury trial

on March 28 and 29, 2019. CDoc. 31. On March 20, 2019, Williams again

requested a continuance due to health issues of counsel and the trial court granted

the motion. CDoc. 34-35.

{¶14} On March 28, 2019, counsel for Williams filed a motion to withdraw.

CDoc. 37. The motion stated that the attorney client relationship had broken down

and that counsel may be called as a witness as to the probation violation.

The

trial court granted the motion on March 29, 2019, and new counsel was appointed.

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CDoc. 39-40. The trial was not held on the scheduled date, but was subsequently

rescheduled as a bench trial for May 28-29, 2019. CDoc. 48. At the beginning of

the trial, Williams requested a continuance alleging that he had some newly

discovered evidence. Trial Tr. 9-10. The trial court noted that the case had been in

progress for nine months and denied the motion. Id. at 10. The matter proceeded

to trial and Williams did not make a proffer of the new evidence for the record. At

the conclusion of the trial, the trial court found Williams guilty of all six counts.

CDoc. 57. A sentencing hearing was then held on June 14, 2019. CDoc. 59. The

trial court ordered Williams to serve a prison term of 12 months on each of counts

one, two, four, and six and to serve a prison term of 18 month on counts three and

five. Id. The sentences were ordered to be served consecutive to each other for an

aggregate prison term of 84 months. Id. Additionally, this sentence was ordered to

be served consecutive to the sentences set forth in cases numbered 17 CR 0033 and

18 CR 0021. Id. In making this order, the trial court made the following finding.

Consecutive sentences being necessary to fulfill the purposes of Revised Code Section 2929.11, and not disproportionate to the seriousness of the defendant’s conduct or the danger the defendant poses, the Court further finds that the defendant was under a community control sanction when the offense was committed and defendant’s criminal history requires consecutive sentences.

Id. Williams then filed a timely notice of appeal. CDoc. 63. On appeal, this case

was assigned appellate number 13-19-25.

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{¶15} On July 5, 2019, this Court sua sponte ordered that all three cases

would be consolidated into appellate case number 13-19-23 for purposes of appeal.

Williams makes the following arguments on appeal.

First Assignment of Error

The trial court erred in failing to grant [Williams’] request for a continuance.

Second Assignment of Error

Consecutive sentences were disproportionate to the seriousness of the offense.

Denial of Motion to Continue

{¶16} In the first assignment of error, Williams claims that the trial court

erred by denying his motion for continuance made on the first day of trial. This

Court notes that this assignment of error only applies to case number18 CR 0178

(appellate case number 13-19-25) as that was the only case being heard that day.

The grant or denial of a motion for a continuance is left to the sound discretion of

the trial court. State v. Kleman, 3d Dist. Hardin No. 6-19-01,

.

Thus, without a showing that the trial court’s judgment was arbitrary, unreasonable,

or capricious, this Court will not reverse the judgment. Id. at 8.

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

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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,

,

(1981).

{¶17} A review of the record in this case shows that Williams had been

granted multiple continuances previously. This case had been pending since August

of 2018. When making the request, Williams did not give any indication how much

additional time was necessary. Additionally, Williams did not proffer the evidence

or even the nature of the evidence from which the trial court could make any

determination as to the necessity of the evidence. Williams does not even indicate

the nature of the newly discovered evidence on appeal. Instead, Williams argues

that counsel was denied the opportunity to review the evidence “to decide whether

or not to proffer it and preserve it for the record.” Appellant’s Brief at 7. Given the

record before this Court, we do not find that the trial court’s determination was an

abuse of discretion. Thus, the first assignment of error is overruled.

Consecutive Sentences

{¶18} Williams claims in his second assignment of error that his sentence

was disproportionate to the seriousness of the offense. This Court notes that the

sentences imposed in cases numbered 13-19-23 and 13-19-24 were agreed

sentences, including that if Williams were to violate the terms of his community

control, the prison terms would be served consecutively. “A sentence imposed upon

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a defendant is not subject to review under this section if the sentence is authorized

by law, has been recommended jointly by the defendant and the prosecution in the

case, and is imposed by a sentencing judge.” R.C. 2953.08(D)(1). All three of the

original charges in these cases were felonies of the fifth degree, so the sentencing

range of prison terms was six to twelve months. R.C. 2929.14(A)(5). The sentences

imposed were within the sentencing range. Since Williams agreed to the imposition

of consecutive cases between these two cases for a total of 36 months in prison, he

cannot challenge it now.

{¶19} Williams argument in his brief is that the sentences resulting from the

convictions in case number 13-19-25 should not have been ordered to be served

consecutively because they were disproportionate to the offenses. Before a trial

court can impose consecutive sentence, it must first make certain findings for the

record. State v. Ackles, 3d Dist. Allen No. 1-18-16,

.

If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

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(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

R.C. 2929.14(C)(4). A review of the record shows that the trial court made all the

required findings.

{¶20} Williams argues that the trial court erred in finding that consecutive

sentences were not disproportionate to the offenses because the amounts of the

cocaine were very small. There is no question that the amounts of cocaine were

small. However, this does not account for the rest of the facts. The evidence showed

that one of the sales occurred in the vicinity of a juvenile. Sent. Tr. 5. Williams’

record shows that he has been involved with drugs for more than 25 years. Id. at 9.

He has 14 prior felony convictions for either possession or trafficking in cocaine.

Id. at 9-10. At the time Williams committed these offenses, he was on community

control and had absconded from supervision. Id. at 10. While on bond awaiting

trial on this case, his bond was revoked because he failed drug screens. Id. at 10-

11. Williams repeatedly failed to attend treatment or to report to his probation

officer. Id. at 11. Given all of this evidence, this Court does not find that the trial

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court’s imposition of consecutive sentences was disproportionate to the offenses.

The second assignment of error is overruled.

{¶21} Having found no prejudicial errors in the particulars assigned and

argued, the judgments of the Court of Common Pleas of Seneca County is affirmed.

Judgments Affirmed

ZIMMERMAN, P.J. and SHAW, J., concur.

/hls

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