[Cite as State v. E.G. , 2019-Ohio-3531.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO Appellee

v. E.G. Appellant C.A. No. 18CA0109-M

APPEAL FROM JUDGMENT ENTERED IN THE MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 18CRB01317

DECISION AND JOURNAL ENTRY Dated: September 3, 2019

CALLAHAN, Judge. {¶1} Appellant, E.G., appeals he r conviction for domestic violence by the Medina Municipal Court. This Court reverses.

I. {¶2} On September 3, 2018, E.G.’s stepdaughter contacted law enforcement to report an argument between her father, G.G., and his wife, E.G. A Medina County Sheriff’s deputy responded to the call, and after speaking with G.G. and the stepdaughter, he learned that E.G. had slapped G.G. with an open hand, leaving a red mark on his face. The deputy sheriff arrested E.G., and she was charged with domestic violence. E.G. pleaded not guilty, and the trial court set the case for a bench trial on October 3, 2018. The State moved to continue the trial to a date after October 9, 2018, because a witness was unavaila ble. On September 26, 2018, the trial court granted the State’s motion, and the bench tr ial was rescheduled for October 17, 2018.2

{¶3} Seven days before the trial date, E.G.’s attorney filed a motion to continue the trial date, arguing that he had a previously sche duled conflicting court appearance. The next day, the trial court denied the motion, noting that the “[bench trial] was set be fore conflicting matters” and that “dates in conflicting matters were set ‘at the request of the [defendant].’” On the day of trial E.G.’s attorney orally requested a con tinuance on three grounds: he had just received the case from his partner and was “ill-prepared to go forward,” it was “kind of a conflict of interest,” and his client was prepared to accept a plea offer made by the State. The trial court denied the motion without further inquiry and declined to accept the negotiated plea, noting that by local rule, plea agreements that involved changing the charged offense had to be completed two days before trial and emphasizing that defense coun sel had not mentioned e ither the conflict of interest or his preparedness for trial in his wr itten motion. The trial court also emphasized that the trial had been previously continued, but did no t ask the State to respond to the request for a

continuance. {¶4} Following the bench trial, the trial cour t found E.G. guilty of domestic violence, fined her $300, and ordered her to serve one day in jail. E.G. filed this appeal.

II. ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN DENYING DEFENSE COUNSEL’S MOTION TO CONTINUE THE TRIAL FILED A WEEK BEFORE THE TRIAL. {¶5} In her first assignment of error, E.G. argues that the trial court erred by denying her attorney’s request for a continuance. Although her assignment of error is framed in terms of the written request for a continuance that counsel f iled seven days before tr ial, the substance of3

her argument focuses on the oral request for a c ontinuance that defense counsel made on the day

of trial. {¶6} Because the decision to grant or deny a continuance is one that is generally entrusted to the discretion of the trial court judge, this Court reviews such a decision for an abuse

of discretion. State v. Unger , 67 Ohio St.2d 65 (1981), syllabus, 67. An abuse of discretion is present when a trial court’s decision “‘is cont rary to law, unreasonable, not supported by evidence, or grossly unsound.’” Menke v. Menke , 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola , 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25. {¶7} When considering a request for continua nce, trial courts should consider the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigan ts, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whet her the defendant contributed to the circumstance which gives rise to the requ est for a continuance; and other relevant factors, depending on the unique facts of each case. Unger at 67-68. Although entrusted to the discretion of the trial court, the denial of a motion for a continuance can have grave consequences, partic ularly when the motion is related to counsel’s ability to mount a defense on the client’s behalf. See State v. Sowders , 4 Ohio St.3d 143, 144 (1983). In this respect, the denial of a request fo r a continuance can be “so arbitrary as to violate due process.” Ungar v. Sarafite , 376 U.S. 575, 589 (1964). “There are no mechanical tests” for determining whether the denial of a continuance rises to this level, so a reviewing court must consider the circumstances of each case, “particularly * * * the reasons presented to the trial judge at the time the request is denied.” Id

. {¶8} In this case, counsel’s motion for a con tinuance on the day of trial raised two issues of grave concern: his admitted lack of preparation for trial and the possibility of a conflict of interest in his representation of E.G. Pe rhaps understandably, the tr ial court responded with4

frustration that counsel’s previous motion, filed just seven days earlier, di d not raise either of these issues. Nonetheless, the trial court should have inquired about the nature of the potential

conflict of interest and couns el’s level of preparedness so that it could undertake the determination contemplated by Unger instead of summarily denying the continuance. See Unger

at 67-68. See also Ungar at 589. The trial court’ s failure to do so, under the facts of this case, constituted an arbitrary denial of E.G.’s request for a continuance and, therefore, an abuse of

discretion. See id. E.G.’s first assignment of e rror is, therefore, sustained.

ASSIGNMENT OF ERROR NO. 2

THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HER ATTORNEY SHOWED UP FOR TRIAL UNPREPARED, HAD NOT PREVIOUSLY MET WITH THE CLIENT, HAD NOT FILED A JURY DEMAND, AND VIOLATED THE CLIENT’S RIGHT TO EFFECTIVE REPRESENTATION UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT’S JUDGMENT FINDING APPELLANT GUILTY OF DOMESTIC VIOLENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHERE APPELLANT’S HUSBAND WAS THE AGGRESSOR, APPELLANT’S HUSBAND ACTED IN A THREATENING MANNER, AND APPELLANT HAD A REASONABLE BELIEF THAT SHE NEEDED TO SLAP HER HUSBAND IN THE FACE TO DEFEND HERSELF AGAINST THE IMMINENT USE OF UNLAWFUL FORCE BY HER HUSBAND. {¶9} E.G.’s second and third assignments of e rror argue that she received ineffective

assistance of counsel at trial a nd that her conviction for domestic violence is against the manifest weight of the evidence. These assignments of erro r are moot in light of this Court’s resolution of her first assignment of error. See App.R. 12(A)(1)(c).5

III. {¶10} E.G.’s first assignment of error is sust ained. Her second and third assignments of error are moot. The judgment of the Medina M unicipal Court is reversed, and this matter is remanded for proceedings cons istent with this opinion. Judgment reversed and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Medina Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

LYNNE S. CALLAHAN FOR THE COURT

TEODOSIO, P. J. HENSAL, J. CONCUR.6

APPEARANCES: DAVID SHELDON, Attorney at Law, for Appellant. J. MATTHEW LANIER, Prosecuting Attorney, for Appellee.