COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71373 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DOUGLAS WILBERGER : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 14, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-320622. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Kestra Smith Crutcher Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: Gregory T. Stralka, Esq. Crown Centre Suite 600 5005 Rockside Road Cleveland, Ohio 44131 Douglas Wilberger, pro se #304-094, P.O. Box 788 Mansfield, Ohio 44901 SWEENEY, JAMES D., C.J.: Defendant-appellant Douglas Wilberger, d.o.b. February 21, 1971, appeals from his plea of guilty to one count of Felonious 2 Assault (R.C. 2903.11)1 on the victim, Mr. David Petch, an aggravated felony of the second degree. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the defendant was indicted on March 9, 1995. At his March 28, 1995 arraignment, the defendant was declared to be indigent and the public defender was appointed as defense counsel. On March 31, 1995, the court conducted a pretrial hearing, at which time, after the request of the defendant to allow completion of discovery, the court scheduled a final pretrial for April 5, 1995, and trial for April 24, 1995. Thereafter, the parties engaged in normal pretrial discovery. On the morning of Monday, April 24, 19952, immediately before the commencement of the scheduled jury trial, defense counsel motioned the court to have the State provide the medical records of the victim for medical history prior to the offense herein. It was believed that these records would demonstrate a history of previous back injuries to the victim, thereby tending to show that the defendant did not cause serious physical harm to the victim's back. The court noted the timing of the motion and the procedural history of the case, stated that the defense was welcome to cross-examine the victim (who was noted as a trial witness by the State) on his pre-existing back injuries, and denied this motion. With the jury 1 The original indictment contained two counts, namely, Felonious Assault (R.C. 2903.11) as charged in count one, and Tampering With Records (R.C. 2913.42) as charged in count two. 2 The statutory time to bring the defendant to trial expired on this day. 3 waiting to go into the box, the defense then motioned the court for a continuance of the trial so that he could possibly contact several more witnesses on his behalf. Noting the timing of this motion and the fact that the public defender's office has had the case for approximately one month, the trial court denied the continuance. Subsequent to the defendant speaking with his counsel for a moment, the defendant retracted his plea of Not Guilty and entered a plea of Guilty to count one of the indictment. The trial court then advised the defendant of his rights pursuant to Crim.R. 11, accepted the plea of Guilty to count one and nolled count two, and immediately sentenced the defendant to a term of 3 to 15 years imprisonment, the minimum term available, with credit for time served, plus court costs. See Journal Vol. 1392, page 86 (dated April 24, 1995; journalized on April 27, 1995). On October 30, 1995, the defendant filed a motion for super shock probation pursuant to R.C. 2947.061(B). The State opposed this motion and the court denied this motion on December 18, 1995. Thereafter, the incarcerated defendant filed a plethora of motions with the court seeking discovery of a number of items. On April 22, 1996, the defendant filed a petition for post- conviction relief pursuant to R.C. 2953.21 seeking to vacate or set aside the plea and sentence. Subsequent to opposition by the State, the trial court denied the petition on May 22, 1996. The delayed notice of appeal sub judice was filed on October 4, 1996. The order appealed from is the order of April 24, 1995, wherein the Court accepted the plea of guilty to count one and 4 sentenced the defendant. This appeal presents four assignments of error. Due to the nature of the arguments contained in the assignments of error and in order to provide a more logical analysis, the assignments will be discussed out of the order presented in appellant's brief. II THE TRIAL COURT VIOLATED THE DEFENDANT- APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN IT DENIED THE DEFENDANT-APPELLANT'S REQUEST FOR A CONTINUANCE TO SUBPOENA A WITNESS. Pursuant to State v. Unger (1981), 67 Ohio St.2d 65, 21 O.O.3d 41, 423 N.E.2d 107, a trial court is given broad discretion in deciding whether to grant a continuance of trial proceedings. In Unger, supra, at 67-68, the court struck a balancing test to determine whether a motion to continue a trial should be granted, holding: In evaluating a motion for a continuance, a court should note, inter alia: the length of 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 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. In the case sub judice, it is noted that: the motion for continuance was made just prior to the impaneling of the jury; defense counsel had sufficient opportunity to issue subpoenas before the day of trial; apart from the desire of the defendant to 5 obtain other witnesses (R. 10), which formed the basis for the motion, there was no demonstration as to the identity, location, or existence of these witnesses, or the substance of their potential testimony, leading one to the conclusion that the motion was contrived and dilatory; the State, witnesses for the State, and the trial court with the jury panel were prepared and ready to proceed with the trial proceedings, indicating that these participants would be inconvenienced should the motion be granted. In light of the above, we cannot conclude that the trial court abused its discretion in denying the motion for a continuance. The second assignment of error is overruled. III THE TRIAL COURT VIOLATED THE DEFENDANT- APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN IT DENIED THE DEFENDANT-APPELLANT'S DEMAND FOR DISCOVERY. The contested discovery materials relative to this assignment are the victim's medical history of pre-existing back injuries. The appellant claims that he made a timely demand for discovery and that this was a willful decision on the part of the prosecutor in failing to comply with a demand for discovery and turn over allegedly exculpatory evidence within the prosecutor's possession, resulting in a trial by ambush. See Crim.R. 16. The record indicates that the defendant filed on April 6, 1995, a motion for discovery and to examine exculpatory and mitigating material, seeking, among other things, Any results or reports of physical or mental examinations ... made in connection with this case ... available to or within the possession of ... the 6 State; ... See Motion for Discovery, at Item 6. The State filed on April 11, 1995, a response to the defense discovery motion, in which it was stated: c. Prior to trial and at the convenience of defense counsel, the Prosecutor will permit inspection, copying and photographing of the items listed in Rule 16(B)(1)(c) and/or 16 (B)(1)(d). Medical records Photos * * * e. No exculpatory material is available to or in the possession of the Prosecuting Attorney. On April 21, 1995, defense counsel filed a motion to compel discovery, in which counsel sought the discovery of any medical records of any previous back injuries suffered by the victim ... See Motion To Compel Discovery, at Item 1. The record does not reflect a formal ruling on this Motion to Compel. The discourse between the parties just prior to the change in plea, when the defense requested to have the State be ordered to obtain the victim's medical records relative to the pre-existing back injuries, indicates that the existence of pre-existing back injuries was alluded to in the medical report of the victim made in relation to the present offense, and this report was provided in discovery to the defense. It is clear that the State did not possess the medical records for the pre-existing back injuries, and is under no obligation under Crim.R. 16 to seek them out in addition to the medical report relative to the victim's injury sustained at the hand of the defendant. The defense had ample 7 notice of the existence of these additional records and opportunity to obtain them, yet neglected or chose not to do so. Considering the timing of the request for discovery, the inconvenience to the trial participants should a continuance be granted, the availability of these records to the defense via a timely defense subpoena, and the speculative nature of the benefit to the defense in these records, we conclude that the trial court did not abuse its discretion in denying the request for a continuance of trial to permit discovery. Given that the records of pre-existing back injuries may or may not have proved beneficial to the defense, any prejudice to the defense would likewise be speculative. Additionally, prejudice to the defense was muted by the availability of the defense to cross-examine the victim at trial on his history of pre-existing back injuries. The third assignment of error is overruled. I THE DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL WAS NOT GIVEN A SUFFICIENT PERIOD OF TIME TO PREPARE A DEFENSE. The standard of review for addressing an argument based upon the alleged ineffective assistance of trial counsel was recently stated in State v. Brooks (1996), 75 Ohio St.3d 148, 157, 661 N.E.2d 1030: Reversal of a conviction on the basis of ineffective assistance of counsel requires that the defendant show that counsel's performance was deficient and that the deficient performance prejudiced the defense, that is, deprived the defendant of a fair 8 trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Appellant argues that his trial counsel was deficient by failing to adequately prepare for trial. Appellant's brief, at 6. Specifically, appellant argues that his trial counsel did not have sufficient time to issue subpoenas and did not have adequate time to prepare for trial. Id. at 7. This assertion is without merit. The public defender's office had the case for approximately one month prior to trial. Defense counsel participated in normal pre-trial discovery practice and assisted the trial court in scheduling the final pre-trial and trial dates so that counsel could complete discovery. There is no demonstration that additional discovery, of the type sought by the defense on the day of trial, would, if extant, have been beneficial to the defendant. In short, it has not been demonstrated in the record on appeal that trial counsel for the defendant was deficient in his preparation for trial or that prejudice resulted to the defendant-appellant. The first assignment of error is overruled. IV THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT-APPELLANT'S PETITION TO VACATE OR SET ASIDE THE SENTENCE WITHOUT A HEARING OR FILING FINDINGS OF FACT OR CONCLUSIONS OF LAW. In the notice of appeal sub judice, the order appealed from is the order of April 24, 1995. See Journal Vol. 1392, page 86. App.R. 3(D) provides: (D) Content of the Notice of Appeal. The 9 notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed; *** (Italization added.) App.R. 12(A)(1)(a) provides: (A) Determination. (1) On an undismissed appeal from a trial court, a court of appeals shall do the following: (a) Review and affirm, modify, or reverse the judgment or final order appealed; *** (Italization added.) In this assignment, appellant seeks review of the May 22, 1996 order denying his petition for post-conviction relief. This order is not the order appealed from in his notice of appeal. Hence, this court is without jurisdiction to review this assignment of error. The fourth assignment of error is overruled. Judgment affirmed. 10 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, J.,and ANN DYKE, J., CONCUR. __________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry 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(E) 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 .