State v. Grigsby
| Decision Date | 03 June 2013 |
| Docket Number | Case No. 13-CA-11 |
| Citation | 2013 Ohio 2300 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. ZACHARIAH GRIGSBY Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
For Plaintiff-Appellee
MICHAEL KING
Assistant Law Director
For Defendant-Appellant
PHILIP L. PROCTOR
{¶1} Defendant-appellant Zachariah Grigsby ["Grigsby"] appeals his conviction and sentence after a bench trial in the Licking County Municipal Court on one count of receiving stolen property a misdemeanor of the first degree.
{¶2} On October 13, 2013, Grigsby and an individual known only as "Brad," were at the home of the victim, Harry Weger negotiating a deal to exchange Weger's non-operational cell phone for Grigsby's cell phone.
{¶3} Weger contended that he made clear to Grigsby and Brad that his phone was on the glass table. Weger testified that he had not agreed to trade at that time because Grigsby did not have a telephone to trade. Weger did not see either individual take the phone; however, about 10-15 minutes after they left Weger noticed the phone had been taken. Grigsby had previously indicated he intended to sell the phone at Best Buy. Accordingly, Weger called Best Buy as well as T-Mobile and reported the theft of his phone. A customer service representative of Best Buy, Hailee Grove, took down the serial number. He had also called "Brad," who denied any knowledge of the phone. Attempts to reach Grigsby and his girlfriend were unsuccessful.
{¶4} When Grigsby entered Best Buy, Ms. Grove relayed the information to James Horton, who works in the cell-phone department. Mr. Horton, who knew Grigsby from prior dealings, proceeded to stall while the police were called. Sergeant Chad Hunt of the Heath Police Department responded to the call. He recovered the phone and, after processing it as evidence, returned the phone to Weger.
{¶5} Grigsby testified that he had taken the phone, but did give Weger the phone he had promised.
{¶6} On October 24, 2012, the state filed a criminal complaint against Grigsby for receiving stolen property in violation of R.C. 2913.51, a misdemeanor of the first degree. On December 13, 2012, Grigsby requested a continuance to submit an application for a court appointed attorney. Grigsby stated that he had sent an application to the court, but because the court had not received it, he wanted a continuance to submit another application. On December 14, 2012, the motion for continuance was granted. In that Order, the court stated that no more continuances would be granted to obtain counsel. Trial was set for January 8, 2013.
{¶7} On January 7, 2013, Grigsby filed a second request for a court appointed attorney. He also submitted another pro se continuance request wherein he stated that he had sent in a request for appointed counsel on January 2, 2013 but the court did not receive it. The trial court denied Grigsby's requests.
{¶8} On January 8, 2013, counsel appeared at the courthouse upon request to be there by Grigsby and suggestion of the court.1 However, the court denied Grigsby's request for court appointed counsel. Grigsby then retained the attorney privately in the hallway a few minutes before the trial was to begin. Counsel requested a continuance both orally on the record and by submitting a written request for continuance. The trial court denied counsel's requests.
{¶9} After the state rested their case in chief, Grigsby moved for a directed verdict pursuant to Criminal Rule 29. He argued that because he was charged with receiving stolen property, as opposed to theft, there was insufficient evidence to sustaina conviction. The trial court denied the motion. Grigsby then requested a break to make a phone call to get a witness to the courthouse who would support his position that the property was not stolen. That motion was also denied. At the conclusion of the case, Grigsby again argued, in his summation, that there was no proof of the charge of receiving stolen property.
{¶10} On January 8, 2013, the court filed a Judgment Entry of Conviction finding Grigsby guilty of receiving stolen property and sentenced him to ninety days in the Licking County Jail.
{¶11} On January 25, 2013, Grigsby filed a motion to review the previous order and that counsel be allowed to be appointed counsel. By Judgment Entry filed January 29, 2013, the motion was denied. On February 6, 2013, Grigsby filed a Motion to Supplement the Record and attached a copy of the proposed court appointed attorney fees showing that the fees, if granted, would have been $212.00. By Judgment Entry dated February 25, 2013, the motion to supplement the record was granted.
{¶12} Grigsby raises three assignments of error,
{¶13} "I. BECAUSE APPELLANT'S REASONABLE REQUEST FOR A CONTINUANCE TO PREPARE FOR TRIAL AND TO CALL WITNESSES WAS DENIED, APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, A TRIAL BY JURY, TO CALL WITNESSES ON HIS OWN BEHALF, AND OTHER SUCH RIGHTS.
{¶14} "II. BECAUSE APPELLANT WAS CHARGED WITH RECEIVING STOLEN PROPERTY AND NOT THEFT, THE STATE FAILED TO PROVE ITS CASE BEYOND A REASONABLE DOUBT.
{¶15}
{¶16} In his first assignment of error, Grigsby argues that the trial court abused its discretion when it denied his attorney's request for a continuance made the morning of trial.2
{¶17} The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. CONST. amend. VI. This right "guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds." Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). "A criminal defendant who desires and is financially able to retain his own counsel 'should be afforded a fair opportunity to secure counsel of his own choice.'" Ibid. (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).
{¶18} In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), the Court considered the matter under a due process analysis. It said:
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 thatviolates 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.... 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...." (Emphasis added)
{¶19} In addition, the Supreme Court in United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) explicitly upheld its previous holding in Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), where the Court "recognized a trial court's wide latitude in balancing the right to counsel of choice ... against the demands of its calendar." Gonzalez-Lopez, 548 U.S. at 152. The trial court's difficult responsibility of assembling witnesses, lawyers and jurors for trial "counsels against continuances except for compelling reasons." Morris, 461 U.S. at 11.
{¶20} On November 7, 2012, the court scheduled the trial date for December 14, 2012. On December 13, 2012, Grigsby asked for a continuance contending that he had mailed his request for appointed counsel form to the court on December 3, 2012, but it did not arrive. The court granted that continuance with the caveat that no further continuances to obtain counsel would be granted. Trial was scheduled for January 8, 2013. On January 7, 2013, Grigsby again asked the court for a continuance. Grigsbyclaimed that he "turned in" his request for appointed counsel form on January 2, 2013, but it never showed up. The trial court denied Grigsby's request.
{¶21} Grigsby offered no explanation concerning his efforts to obtain counsel or contact the trial court to obtain appointed counsel between December 13, 2011 and January 7, 2013. Grigsby had acknowledged in writing that he had been advised of where to obtain the forms needed to request counsel and for the need to do so expeditiously. Grigsby was further advised that applications for appointed counsel made on the day of trial are not looked upon favorably by the court. (Your Rights in Court, filed November 13, 2012 at 4 "COURT APPOINTED ATTORNEY").
{¶22} In the landmark decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799(1963), the United States Supreme Court held an indigent defendant was entitled to court appointed counsel. Subsequently, the High Court narrowed this Right, holding "the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of appointed counsel in his defense." Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed. 2d 383(1979). Accord, Nichols v. United States, 511 U.S. 738, 743 114 S.Ct. 1921, 1926(1994); State v. Brandon, 45 Ohio St.3d 85, 86, 543 N.E.2d 501, 503(1989). ( ...
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