COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69650 CITY OF CLEVELAND : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANGEL L. CUEVAS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CLEVELAND MUNICIPAL COURT CASE NO. 95-CRB-17266 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: SHARON SOBOL JORDAN (#0006731) Director of Law BY: RAMONA L. GERBER (#0059940) and BARBARA LANGHENRY (#0038838) Assistant Directors of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, OH 44114 For Defendant-Appellant: JEFFREY L. BRAVERMAN (#0058472) 6116 West Creek Road Independence, OH 44131 - 2 - SPELLACY, C.J.: Defendant-appellant Angel Cuevas ("appellant") appeals his conviction for illegal use of property. Appellant assigns the following errors for review: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO INFORM APPELLANT OF HIS RIGHTS PURSUANT TO CRIMINAL RULES 5 AND 10. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DISREGARDED APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. III. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL REQUIRING REVERSAL. Finding the appeal to have merit, the judgment of the trial court is reversed. I. On June 26, 1995, a Cleveland Building Inspector issued a citation to appellant for illegal use of property for operating an auto repair business on his premises in violation of zoning ordinances, for changing the use of the premises from a private garage and lot into one for auto repair and the storage of motor vehicles and auto parts, and for having junk cars and debris on the property. When the violations went uncorrected, appellant appeared before Housing Court on July 25, 1995. Before commencing the day's proceedings, the trial court gave a general announcement of rights to all the defendants present in court. Appellant requested a continuance in order to speak with an attorney. A continuance was granted until August 8, 1995. On that date, the prosecutor - 3 - informed the trial court appellant still needed to obtain counsel. The prosecutor agreed to one more week's continuance for this purpose. The trial court continued the case until August 15, 1995. On August 15, 1995, appellant appeared before the trial court without his attorney. Appellant told the trial court he had spoken with his attorney who had advised appellant to plead not guilty and to request a jury trial. The trial court denied the motions for a continuance and a jury trial and proceeded with appellant's trial. The Housing Inspector and a Housing Specialist both testified as to the conditions they observed at appellant's property. Appellant asked neither any questions. The trial court asked appellant what he had to tell the court. Appellant replied he went to see an attorney who was to represent him but his attorney was in another courtroom. The trial court asked what appellant had to tell the court about this case. Appellant then made various statements regarding his use of the property. Appellant was found guilty of the violations. Appellant was sentenced to thirty days and fined $10,000.00 and costs. II. In his first assignment of error, appellant contends the trial court failed to read appellant his rights as required by Crim.R. 5 and Crim.R. 10. The failure to inform a defendant of his rights pursuant to these rules can constitute prejudicial error. State v. Orr (1985), 26 Ohio App.3d 24. Crim.R. 5(A) provides that a - 4 - defendant be informed of his right to counsel, of his right against self-incrimiation, and of his right to a jury trial. Crim.R. 10(C) requires the trial court to inform an unrepresented defendant of his right to counsel and the right to a continuance to obtain counsel and that the defendant need not make any statement at any point in the proceedings. Crim.R. 10(D) permits the trial court to make a general announcement of rights if there are multiple defendants. A review of the record reveals the trial court made a general announcement of the defendants' constitutional rights at the beginning of each session of court. The trial court informed the defendants of the possible pleas which could be entered and the effect of each plea, of the right to an attorney and to request a reasonable continuance during their first appearance to retain counsel, of the right to appointed counsel, that no statements need be made at any point but that any statements could be used against the defendant and of the right to request a jury trial. The trial court complied with the requirements set forth in Crim.R. 5 and Crim.R. 10. Appellant was informed of his rights by the trial court. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant argues the trial court erred when it denied him assistance of counsel by proceeding to trial without appellant's attorney being present. Appellant - 5 - asserts he never waived his right to counsel and that he was denied a fair trial when he was tried without assistance from his legal counsel. The trial court refused to grant appellant an additional continuance in order for appellant's attorney to attend the trial. The grant or denial of a motion for a continuance is a matter within the discretion of the trial court and will be reversed on appeal only if the trial court abused that discretion. State v. Unger (1981), 67 Ohio St.2d 65. When determining whether that discretion has been abused, a reviewing court must balance the interests of judicial economy and justice against any potential prejudice to the defendant. Griffin v. Lamberjack (1994), 96 Ohio App.3d 257. 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. Appellant requested a continuance because his attorney was in another courtroom at the time of appellant's trial. Appellant previously requested and received two continuances in order to obtain counsel. Those continuances were of relatively short duration as the first was for two weeks and the second for one week. Appellant did indeed secure representation but his counsel - 6 - did not appear for appellant's trial, apparently due to a previous commitment. The right to assistance of counsel is a fundamental right basic to our system of jurisprudence. Sixth Amendment and Fourteenth Amendment to the United State Constitution; Section 10, Article I, Ohio Constitution; Gideon v. Wainwright (1963), 372 U.S. 335. This right has come to guarantee the right to counsel for persons accused of misdemeanor or felony offenses. The right to a fair trial may often necessarily require the right to counsel. State v. Hook (1986), 33 Ohio App.3d 101. However, this right to counsel must be balanced against the trial court's need for the efficient and effective administration of justice. A reviewing court must apply a totality of the circumstances test to determine whether the defendant's right outweighs the trial court's ability to administer criminal justice. State v. Wagner (1993), 88 Ohio App.3d 27. In Hudson v. South (1994), 99 Ohio App.3d 208, South appeared for his suppression hearing and informed the trial court his attorney was unable to appear. The trial court ordered the hearing proceed as scheduled. The court held the trial court abused its discretion by refusing South a continuance as South was prevented from exercising his constitutionally guaranteed right to counsel. South moved to continue only because his attorney was unavailable on that day. The continuance was not sought for an improper reason nor would the delay be lengthy. - 7 - As in South, appellant was forced to proceed without representation. Although appellant received two earlier short continuances, he did obtain counsel, fulfilling the purpose of those continuances. Another continuance to permit appellant to be represented would have been of a short duration. It is noted that the delay would have inconvenienced the trial court, opposing counsel and the witnesses. This inconvenience must be weighed against appellant's constitutionally guaranteed right to be represented by counsel. Based on the circumstances present in this case, the trial court abused its discretion by denying appellant a continuance. Appellant also argues he was denied his right to a jury trial, the right against self-incrimination and his right to confront and cross-examine adverse witnesses. It already has been determined that the trial court abused its discretion in denying appellant a continuance and, therefore, his right to counsel. Because the failure to grant a continuance was reversible error, any other possible errors occurring later are moot. Appellant's second assignment of error is well taken. III. In his third assignment of error, appellant asserts he was denied effective assistance of counsel. Appellant's attorney failed to appear for trial. Appellant argues his attorney's performance was deficient and prejudiced appellant. - 8 - To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. Deficient performance means that claimed errors were so serious that the defense attorney was not functioning as the "counsel" that the Sixth Amendment guarantees. Prejudice means that counsel's error compromised the reliability of the trial. State v. Cook (1992), 65 Ohio St.3d 516, 524. A defendant must show there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra, at 694. Appellant's attorney failed to provide appellant with any defense as he was not at appellant's trial. Without any legal representation or assistance, appellant did not cross-examine adverse witnesses, present any witnesses in his defense, and answered questions asked by the trial court even though appellant never took the witness stand. Basically, appellant presented no defense to the charges against him. The absence of appellant's attorney certainly prejudiced appellant. It cannot be said that the outcome of the trial would have been the same if appellant received any assistance of counsel. Appellant's third assignment of error has merit. Judgment reversed and remanded. - 9 - This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, J. and TIMOTHY E. MCMONAGLE, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .