COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73195, 73196 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND JERRY L. CARPENTER, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: AUGUST 6, 1998 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court, Case Nos. CR- 344584 and CR-337022 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GINA J. VILLA Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PATRICIA KOCH WINDHAM SCHUSTER & SIMMON The Bevelin House 2913 Clinton Avenue Cleveland, Ohio 44113-2940 -2- KARPINSKI, J.: Defendant-appellant, j he trial court, which accepted his pleas of guilty in two criminal cases. In Case No. 337022, defendant pled guilty to one count of felonious assault with a peace officer specificationJerry L. Carpe and one count of failure to comply. In case number 344584, defendant pled guilty to one count of breaking and entering, one count of theft, one count of possession of criminal tools, and one count of assault with a peace officer specification. On appeal defendant argues that his plea was involuntary because (1) the trial court did not grant his motion for a continuance, (2) his counsel was unprepared, and (3) the trial court would not allow him to enter an agreed upon plea in case number 344584. For the reasons that follow, we find no merit to these assignments and affirm the judgment of the court below. Defendant was indicted in case number 3445841 on November 7, 1996 and in case number 3370222 on April 8, 1996. The indictments were for two separate incidents. The cases were assigned to the same trial judge. Numerous pre-trials were held throughout the fall and winter of 1996 and early 1997. The record included a 1 In Case No. 344584, defendant was indicted for breaking and entering in count one, theft in count two, possession of criminal tools in count three, and assault with a peace officer specification in count four. 2 In Case No. 337022 defendant was indicted for felonious assault in count one. This count contained three violence specifications, two aggravated felony specifications, and one peace officer specification. The second count charged defendant with failure to comply and contained two violence specifications. -3- transcript of the hearing held January 28, 1997, the date set for trial. At this hearing, defense counsel assumed that they would be pleading to case number 344584 only. The docket shows, however, that both cases were set for trial on January 28. The court believed that defendant would be pleading to a reduced charge in both cases. The state confirmed that the agreement required pleading guilty in both cases. (Tr. 4-5.) The court advised and the state confirmed that if defendant wanted to plead to only 344584, he would have to plead guilty to the full charge as indicted. The state was offering a reduced charge only as part of a package involving a plea to both cases. After discussing the matter with his attorney, defendant pled guilty to all four counts as charged in 344584 without any reductions and maintained his not-guilty plea in case number 337022. Defense counsel then asked for a continuance of three or four days to prepare for trial in 337022. The trial judge denied the request and set trial for the next day. In open court, the next day, defendant indicated that he had a change of heart and pled guilty to charges which had been reduced to felonious assault with a peace officer specification and failure to comply in 337022 (Tr. 54). Defendant appeals raising three assignments of error, the first of which states as follows: I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A CONTINUANCE TO PREPARE FOR TRIAL, RESULTING IN AN INVOLUNTARY PLEA OF GUILTY. -4- In this assignment, defendant argues that the trial court's refusal to grant a continuance in case number 337022 rendered his plea in that case involuntary. This argument lacks merit. A review of the docket reveals that both cases were originally set for trial on January 22, 1997. Thereafter, at the request of defense counsel, the trial date was moved to January 27, 1997. When defendant appeared on this date and pled guilty only to 344584, the court did not immediately begin the trial in 337022. The court provided extra time to the defense when it postponed the trial to the next day. The trial court's decision to deny a further continuance to defendant did not render his plea involuntary. Generally, the decision to grant or deny a continuance is left to the sound discretion of the trial court. State v. Sowders (1983), 4 Ohio St.3d 143. The case had numerous pre-trials. Moreover, the trial date had already been moved twice at the request of defendant. The court also noted that the case did not involve many witnesses. More importantly, the defendant does not cite any evidence in the record that the defense was unprepared or that the defendant was pleading guilty because his counsel was not prepared to go forward with trial. Finally, in response to defendant's argument that his plea was not voluntary, the following exchange occurred at the plea hearing: THE COURT: Are you entering this plea voluntarily and knowledgeably and of your own free will? THE DEFENDANT: Yes, sir. -5- (Tr. 23.) Accordingly, the record does not support defendant's argument that his plea was involuntary. The first assignment is overruled. II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, RENDERING HIS GUILTY PLEA INVOLUNTARY. In this assignment, defendant argues that his plea in 337022 was involuntary because his trial counsel was unprepared to go to trial on January 28, 1997. This argument fails. As stated earlier, there is nothing in the record to support the proposition that defense counsel was unprepared for trial. The record does not contain even the general assertion of unpreparedness, much less any examples of it. Defense counsel never alleged, for example, any problem with the availability of witnesses or the need for further investigation. Accordingly, defendant's second assignment of error is overruled. III. THE TRIAL COURT'S REFUSAL TO ALLOW APPELLANT TO ENTER THE AGREED UPON PLEA IN CASE NO. 344584 WAS AN ABUSE OF DISCRETION. In this assignment, defendant argues that the trial court erred by not allowing him to enter the agreed upon plea in case number 344584. This argument is factually inaccurate. The court never prevented defendant from pleading to anything. The court merely stated what the state was offering. At the very beginning of the hearing, the prosecutor stated her understanding that defendant had agreed to plead guilty to a reduced charge in both cases. (Tr. 4.) The state confirmed that it would allow defendant to plead to reduced charges in 344584 only as part of a package. Accordingly, defendant's third assignment is overruled. -6- Judgment affirmed. -7- 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. TIMOTHY E. McMONAGLE, J., and JOHN T. PATTON, J., CONCUR. DIANE KARPINSKI PRESIDING JUDGE 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 .