[Cite as State v. Kleman, 2019-Ohio-4404.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HARDIN COUNTY 

 

STATE OF OHIO, 

 CASE NO. 6-19-01 

 PLAINTIFF-APPELLEE, 

 v. 

DAKOTA RYAN KLEMAN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hardin County Common Pleas Court 

Trial Court No. CRI-2018-2107 

Judgment Affirmed 

Date of Decision: October 28, 2019 

 

APPEARANCES: 

Elizabeth H. Smith for Appellant 

Jason M. Miller for Appellee 

 
Case NO. 6-19-01 

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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Dakota R. Kleman (“Kleman”) appeals the 

judgment of the Hardin County Court of Common Pleas, alleging the trial court 

erred by denying his motion to continue the jury trial and erred by imposing 

consecutive sentences. For the reasons set forth below, the judgment of the trial 

court is affirmed. 

Facts and Procedural History 

{¶2} On September 19, 2018, Kleman was indicted on one count of burglary 

in violation of R.C. 2911.12(A)(2); two counts of safecracking in violation of R.C. 

2911.31(A); two counts of tampering with evidence in violation of R.C. 

2921.12(A)(1); one count of possessing criminal tools in violation of R.C. 

2923.24(A); one count of grand theft in violation of R.C. 2913.02(A)(1), (B)(2); one 

count of having weapons while under disability in violation of R.C. 2923.13(A)(2); 

eight counts of grand theft in violation of R.C. 2913.02(A)(1) with firearm 

specifications; and one count of money laundering in violation of R.C. 

1315.55(A)(1). 

{¶3} On September 26, 2018, the State filed an initial list of witnesses with 

the trial court. Doc. 10. One of the witnesses named on this list was Breyannea 

Wells (“Wells”). Doc. 10. The State conducted a recorded interview with Wells on 

December 11, 2018 and delivered a copy of this recorded interview to the Defense 

on December 13, 2018. Doc. 40. On December 14, 2018, Kleman filed a motion 
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for a continuance with the trial court, alleging that he needed more time to prepare 

his defense. Doc. 40. On December 17, 2018, the trial court denied Kleman’s 

motion for a continuance. Doc. 41. 

{¶4} Kleman’s case proceeded to a jury trial on December 18, 2018. Tr. 1. 

The jury acquitted Kleman of three counts of grand theft. Doc. 54, 59, 60. The jury 

found Kleman guilty of the remaining fourteen charges. Doc. 45-53, 55-58, 61. 

Kleman’s sentencing hearing was held on January 17, 2019. Doc. 73. The trial 

court entered its judgment entry of sentencing on January 24, 2019. Doc. 73. 

Kleman was ordered to serve two hundred and sixteen (216) months in prison.1

 Doc. 

73. The trial court ordered the sentences for the two counts of safecracking to be 

served concurrently and the sentences for the two counts of tampering with evidence 

to be served concurrently. Doc. 73. The remaining sentences were to run 

consecutively. Doc. 73. 

{¶5} The appellant filed his notice of appeal on January 28, 2019. Doc. 76. 

On appeal, Kleman raises the following assignments of error: 

First Assignment of Error 

The Trial Court erred when it unreasonably denied Appellant’s 

Motion to Continue the jury trial as it prejudiced Appellant and 

did not allow counsel to properly prepare a defense on 

Appellant’s behalf. 

 

 

1

 Of these two hundred and sixteen (216) months, two hundred and four (204) months were non-mandatory, 

and twelve (12) months were mandatory. Doc. 73. 
Case NO. 6-19-01 

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Second Assignment of Error 

Appellant’s sentence is both contrary to law and an abuse of 

discretion as the trial court sentenced Appellant to consecutive 

sentences as to certain counts having stated that it considered all 

the required factors, but having a complete lack of facts to 

support the claimed findings under R.C. 2929.11 and 2929.12, and 

the appeals court can clearly and convincingly find that the 

record does not support the sentencing court’s findings under 

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) 

of section 2929.14, or division (I) of section 2929.20 of the Revised 

Code, whichever, if any, is relevant, and should reduce the 

Appellant’s sentence accordingly pursuant to 2953.08(G)(2) of the 

Revised Code. 

First Assignment of Error 

{¶6} Kleman argues that the trial court erred in denying his request for a 

continuance. Kleman alleges that he needed more time to prepare his defense after 

he received a copy of an interview of one of the State’s witnesses several days before 

his jury trial. 

Legal Standard 

{¶7} “A court has supervisory power and control over its docket. 

Independent of statute, as an incident to their authority to hear and determine causes, 

courts have power to grant continuances.” State ex rel. Buck v. McCabe, 140 Ohio 

St. 535, 537, 45 N.E.2d 763, 766 (1942). 

In evaluating a motion for a continuance, a court should note, 

inter alia: the length of the 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 
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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. 

State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078, 1080 (1981). 

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. 

Id. at 67-68, quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 

L.Ed.2d 921 (1964). “The reviewing court must weigh potential prejudice against 

‘a court’s right to control its own docket and the public’s interest in the prompt and 

efficient dispatch of justice.’” State v. Powell, 49 Ohio St.3d 255, 259, 552 N.E.2d 

191, 196 (1990), overruled on other grounds in State v. Smith, 80 Ohio St.3d 89, 

684 N.E.2d 668, fn. 4 (1997). 

{¶8} “The grant or denial of a continuance is a matter which is entrusted to 

the broad, sound discretion of the trial judge.” Unger at 67. For this reason, an 

appellate court may not disturb the ruling of the trial court in the absence of an abuse 

of discretion. Id. 

An abuse of discretion is not merely an error of judgment. State 

v. Sullivan, 2017-Ohio-8937, [102 N.E.3d 86], ¶ 20 (3d Dist.). 

Rather, an abuse of discretion is present where the trial court’s 

decision was arbitrary, unreasonable, or capricious. State v. 

Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 23. When 

the abuse of discretion standard applies, an appellate court is not 

to substitute its judgment for that of the trial court. State v. 

Thompson, 2017-Ohio-792, 85 N.E.3d 1108, ¶ 11 (3d Dist.). 

 
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State v. Wilson, 3d Dist. Seneca No. 13-17-41, 2018-Ohio-2805, ¶ 14. 

Legal Analysis 

{¶9} The continuance that is at issue on appeal appears, from the record, to 

have been the only continuance that Kleman requested. Kleman’s motion did not 

specify the length of the requested continuance. Thus, the record does not provide 

any indication as to how long the delay of the trial would have been if the 

continuance had been granted. Powell, supra, at 196. Further, the record does not 

contain any indication that the reason Kleman filed his motion for a continuance 

was “dilatory, purposeful, or contrived.” Unger, supra, at 67-68. However, the fact 

that Kleman does not appear to have had an illegitimate reason to request a 

continuance does not mean that he had a compelling reason to request a continuance. 

{¶10} At trial, Wells was one of thirteen witnesses that the State called to 

testify. Kleman was fully aware that the State was going to call Wells as a witness 

because the State disclosed its intention to do so almost three months before the 

trial. Thus, the Defense had three months to interview Wells; ask the same questions 

that the State did in its December interview with Wells; and investigate any matters 

that were relevant to Kleman’s defense. Thus, the information in the recording that 

Kleman received from the State was potentially available to the Defense almost 

three months prior to the State’s interview with Wells. 

{¶11} Further, on appeal, Kleman alleges that he was prejudiced by the trial 

court’s decision but has not demonstrated how the denial of his motion for a 
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continuance prejudiced his defense. He merely argues that he would have had more 

time to prepare for trial if the trial court had granted him more time to prepare for 

trial. This self-evident assertion does not explain how the denial of his motion for 

a continuance prejudiced his defense. 

{¶12} In this case, the trial court denied a motion for a continuance of 

indeterminate length that was requested to allow Kleman more time to examine 

information that the Defense could have obtained had it interviewed Wells three 

months earlier. After examining the evidence in the record and balancing the 

relevant factors, we cannot conclude that the trial court did abused its discretion in 

denying Kleman’s motion for a continuance. For this reason, Kleman’s first 

assignment of error is overruled. 

Second Assignment of Error 

{¶13} Kleman argues that the record does not support the imposition of 

consecutive sentences in this case, making his sentence contrary to law. 

Legal Standard 

{¶14} R.C. 2929.14(C)(4) reads, in its relevant part, as follows: 

(4) If multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the 

offender to serve the prison terms consecutively if the court finds 

that the consecutive service is necessary to protect the public from 

future crime or to punish the offender and that consecutive 

sentences are not disproportionate to the seriousness of the 

offender’s conduct and to the danger the offender poses to the 

public, and if the court also finds any of the following: 
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(a) The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under a 

sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 

of the Revised Code, or was under post-release control for a prior 

offense. 

(b) At least two of the multiple offenses were committed as part of 

one or more courses of conduct, and the harm caused by two or 

more of the multiple offenses so committed was so great or 

unusual that no single prison term for any of the offenses 

committed as part of any of the courses of conduct adequately 

reflects the seriousness of the offender’s conduct. 

(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from 

future crime by the offender. 

R.C. 2929.14(C)(4). 

{¶15} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence 

‘only if it determines by clear and convincing evidence that the record does not 

support the trial court's findings under relevant statutes or that the sentence is 

otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam No. 12-16-15 and 

12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516, 

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. 

Clear and convincing evidence is that measure or degree of proof 

which is more than a mere ‘preponderance of the evidence,’ but 

not to the extent of such certainty as is required ‘beyond a 

reasonable doubt’ in criminal cases, and which will produce in the 

mind of the trier of facts a firm belief or conviction as to the facts 

sought to be established. 
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State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 12, quoting Cross 

v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the syllabus 

(1954). 

Legal Analysis 

{¶16} At the sentencing hearing, the trial court considered the contents of the 

presentence investigation (“PSI”). Sentencing Tr. 4. Kleman’s prison report 

indicated that he committed twenty-one prison infractions in a seven-month period. 

Id. These infractions included assaulting another inmate, refusing to comply with 

orders, and having prohibited paraphernalia. Id. at 5-6. While he was in jail, 

Kleman was also charged “with being involved with illegal drugs” and attempted 

escape. Id. at 7. 

{¶17} The trial court also found that the victim had “suffered serious 

physical, psychological, or economic harm * * *” and that “none of the factors 

[indicating] that [Kleman’s] conduct is less serious apply.” Id. at 7-8. Similarly, 

the trial court recognized that Kleman had a criminal history; that he “has not 

responded favorably to sanctions previously imposed * * *”; and that “none of those 

factors” indicating the “offender’s recidivism is less likely * * * apply.” Id. at 8. 

The trial judge stated that this was “one of the most planned crimes [that he has] 

seen in [his] career as a judge” and that he observed no remorse from Kleman at 

trial. Id. at 8, 44, 46. 
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{¶18} The trial judge also noted that Kleman has “within the last couple of 

years * * * performed the same crime against another person’s relative and that 

punishment of 12 months for that crime obviously wasn’t sufficient to deter him 

from future crime.” Id. at 56. These facts support the trial judge’s finding that 

“consecutive service is necessary to protect the public from future crime or to punish 

the offender and that consecutive sentences are not disproportionate to the 

seriousness of the offender’s conduct and to the danger the offender poses to the 

public * * *.” R.C. 2929.14(C)(4). Sentencing Tr. 56. 

{¶19} Further, in order to impose consecutive sentences, the trial court must 

also find that one of the three factors listed in R.C. 2929.14(C)(4)(a-c) is applicable. 

R.C. 2929.1(C)(4)(a-c). In this case, the trial court found that all three of the factors 

listed in R.C. 2929.14(C)(4)(a-c) applies. Sentencing Tr. 56. The record supports 

the trial court’s finding that Kleman committed the instant offenses while “under 

post-release control from a prior offense.” R.C. 2929.14(C)(4)(a). See PSI. 

{¶20} As to the factor in R.C. 2929.14(C)(4)(b), the victims of these offenses 

were close relatives of Kleman, and these offenses were committed in furtherance 

of a complex criminal plot. Sentencing Tr. 44-45, 47-48. Thus, the trial court’s 

finding that “[a]t least two of the multiple offenses were committed as part of * * * 

[a] course[] of conduct” and that “the harm caused * * * was so great or unusual 

that no single prison term * * * adequately reflects the seriousness of the offender’s 

conduct” was supported by the record. R.C. 2929.14(C)(4)(b). 
Case NO. 6-19-01 

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{¶21} Finally, as to the factor in R.C. 2929.14(C)(4)(c), the trial court 

examined Kleman’s extensive criminal history at sentencing. The PSI indicates that 

Kleman had a record as a juvenile, had been convicted of multiple criminal offenses 

as an adult, and had committed multiple infractions while incarcerated. PSI. Thus, 

the trial court’s finding that “[t]he offender’s history of criminal conduct 

demonstrate[d] that consecutive sentences [were] necessary to protect the public * 

* *” is supported by the evidence in the record. R.C. 2929.14(C)(4)(c). 

{¶22} After examining the evidence, we cannot conclude that there is clear 

and convincing evidence that indicates that the imposition of consecutive sentences 

is unsupported by the record. For this reason, Kleman’s second assignment of error 

is overruled. 

Conclusion 

{¶23} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of Hardin County Court of Common Pleas is 

affirmed. 

Judgment Affirmed 

SHAW and PRESTON, J.J., concur. 

/hls