[Cite as State v. Nichols, 2016-Ohio-7554.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2016-T-0053 - vs - :
FELISHA O. NICHOLS, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2015 CR 00491.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant- Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Felisha O. Nichols, was charged in the Warren Municipal Court
with one count of Receiving Stolen Property, a fifth-degree felony, on June 25, 2015.
After the matter was bound over to the Trumbull County Court of Common Pleas,
appellant was indicted by the Trumbull County Grand Jury on July 21, 2015, on two
counts: (1) Grand Theft, a fourth-degree felony, in violation of R.C. 2913.02(A)(3); and
(2) Passing Bad Checks, a fourth-degree felony, in violation of R.C. 2913.11(B). Following appellant’s guilty plea to Count One, the trial court sentenced appellant to six
months in prison on May 10, 2016.
{¶2} Appellant timely appeals the May 10, 2016 sentencing entry, raising one
assignment of error:
{¶3} “The trial court erred and abused its discretion by denying the appellant’s
motion for a reasonable continuance of appellant’s sentencing hearing.”
{¶4} Appellant asserts the trial court abused its discretion in denying her oral
motion to continue the sentencing hearing until such time that appellant could undergo
an interview for purposes of a presentence investigation (“PSI”) report.
{¶5} “The decision to grant or deny a continuance is within the sound discretion
of the trial court. An appellate court will not reverse a trial court’s denial of a
continuance absent a finding that the trial court abused its discretion.” State v. Green,
11th Dist. Lake No. 2011-L-037, 2012-Ohio-2355, ¶71 (citation omitted).
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 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 (1981) (citation omitted).
{¶6} On March 14, 2016, appellant entered into a plea agreement with
appellee, the state of Ohio. In exchange for appellant pleading guilty to Count One,
Grand Theft, the state entered a nolle prosequi on Count Two, Passing Bad Checks.
This plea agreement advised appellant that her potential prison term ranged from six to
2 eighteen months. The trial court accepted the plea agreement and ordered a PSI be
conducted prior to sentencing.
{¶7} An appointment for the PSI was scheduled for March 21, 2016, at 9:00
a.m.; appellant did not appear and called that same day to reschedule. The PSI
appointment was rescheduled for March 25, 2016, at 9:00 a.m.; appellant again did not
appear and called that same day to reschedule. The interview was once again
rescheduled for April 1, 2016, at 1:00 p.m.; appellant did not appear. The probation
officer submitted to the trial court the portion of the PSI that could be completed without
appellant’s direct participation.
{¶8} On May 9, 2016, the sentencing hearing was held. At the hearing,
defense counsel requested a continuance due to the fact that appellant had not yet
undergone her PSI interview. Counsel stated appellant had communicated to him via
email that she was having difficulty arranging transportation, from Campbell to Warren,
for the scheduled appointments. Counsel suggested that appellant could go to the
Probation Department that day and again schedule a date for the PSI interview.
{¶9} The trial court stressed that appellant had already missed three
appointments without a medical issue or any other type of documentation. The court
read into the record, from the partial PSI report, that the probation officer had “stressed
the importance of this interview” to appellant, who replied that “her life situation was
more important than the presentence investigation interview.” The court further stated
that many people in her situation use public transportation, pay for a ride, or ask a friend
for help; appellant had utilized none of these options.
3 {¶10} The trial court denied appellant’s oral motion to delay the imposition of
sentence.
{¶11} The court then outlined the available portion of appellant’s criminal record:
a 1999 theft conviction, for which she received two years probation; a theft conviction in
the state of Georgia, for which she received twelve months probation; a 2014 misuse of
credit cards conviction, for which she also received probation.
{¶12} Attempting to establish to the court that appellant was amenable to
probation, defense counsel elicited from appellant that she was currently attending
culinary school, which assists students with job placement upon completion of the
program. Appellant assured the court that she would show up for probation
appointments.
{¶13} The state presented the victim of appellant’s current conviction, Dr. Diana
Karnavas-Ashdown, who gave a statement on behalf of Advanced Foot & Ankle Center,
Inc. Appellant was apparently employed by the victim at the time appellant stole a
company check and issued it to her son in the amount of $10,183.00. Dr. Karnavas-
Ashdown further stated she was interested in seeing appellant incarcerated, as there
did not appear to be any way appellant could pay the money back.
{¶14} The trial court stated it was imposing a prison term due to appellant’s prior
record, the amount of money stolen from the victim in this case, and her failure to
appear for the scheduled PSI interviews. The court told appellant: “Three different
times appointments were made for you that you did not go to which, to me, is the first
sign of somebody not interested in the probation process.” The court then sentenced
appellant to six months in prison, the minimum sentence available for her conviction of
4 Grand Theft. She was also ordered to pay courts costs and restitution in the amount of
$10,183.00.
{¶15} These facts demonstrate that a continuance of the sentencing hearing
was not warranted. Although appellant had never requested or received any previous
sentencing continuances, the sole reason she now requested a continuance was to
undergo a PSI interview, which she had, with apparent indifference, already
rescheduled three times. Additionally, appellant did not request a continuance for a
specific length of time but, instead, until such time as she could undergo her PSI
interview.
{¶16} By the time she appeared for the sentencing hearing, appellant had
already inconvenienced the judicial system. Further inconvenience would have been
inflicted upon the schedules of the trial court, the prosecutor, and the victim who
appeared in court that day.
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[Cite as State v. Nichols, 2016-Ohio-7554.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2016-T-0053 - vs - :
FELISHA O. NICHOLS, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2015 CR 00491.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant- Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Felisha O. Nichols, was charged in the Warren Municipal Court
with one count of Receiving Stolen Property, a fifth-degree felony, on June 25, 2015.
After the matter was bound over to the Trumbull County Court of Common Pleas,
appellant was indicted by the Trumbull County Grand Jury on July 21, 2015, on two
counts: (1) Grand Theft, a fourth-degree felony, in violation of R.C. 2913.02(A)(3); and
(2) Passing Bad Checks, a fourth-degree felony, in violation of R.C. 2913.11(B). Following appellant’s guilty plea to Count One, the trial court sentenced appellant to six
months in prison on May 10, 2016.
{¶2} Appellant timely appeals the May 10, 2016 sentencing entry, raising one
assignment of error:
{¶3} “The trial court erred and abused its discretion by denying the appellant’s
motion for a reasonable continuance of appellant’s sentencing hearing.”
{¶4} Appellant asserts the trial court abused its discretion in denying her oral
motion to continue the sentencing hearing until such time that appellant could undergo
an interview for purposes of a presentence investigation (“PSI”) report.
{¶5} “The decision to grant or deny a continuance is within the sound discretion
of the trial court. An appellate court will not reverse a trial court’s denial of a
continuance absent a finding that the trial court abused its discretion.” State v. Green,
11th Dist. Lake No. 2011-L-037, 2012-Ohio-2355, ¶71 (citation omitted).
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 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 (1981) (citation omitted).
{¶6} On March 14, 2016, appellant entered into a plea agreement with
appellee, the state of Ohio. In exchange for appellant pleading guilty to Count One,
Grand Theft, the state entered a nolle prosequi on Count Two, Passing Bad Checks.
This plea agreement advised appellant that her potential prison term ranged from six to
2 eighteen months. The trial court accepted the plea agreement and ordered a PSI be
conducted prior to sentencing.
{¶7} An appointment for the PSI was scheduled for March 21, 2016, at 9:00
a.m.; appellant did not appear and called that same day to reschedule. The PSI
appointment was rescheduled for March 25, 2016, at 9:00 a.m.; appellant again did not
appear and called that same day to reschedule. The interview was once again
rescheduled for April 1, 2016, at 1:00 p.m.; appellant did not appear. The probation
officer submitted to the trial court the portion of the PSI that could be completed without
appellant’s direct participation.
{¶8} On May 9, 2016, the sentencing hearing was held. At the hearing,
defense counsel requested a continuance due to the fact that appellant had not yet
undergone her PSI interview. Counsel stated appellant had communicated to him via
email that she was having difficulty arranging transportation, from Campbell to Warren,
for the scheduled appointments. Counsel suggested that appellant could go to the
Probation Department that day and again schedule a date for the PSI interview.
{¶9} The trial court stressed that appellant had already missed three
appointments without a medical issue or any other type of documentation. The court
read into the record, from the partial PSI report, that the probation officer had “stressed
the importance of this interview” to appellant, who replied that “her life situation was
more important than the presentence investigation interview.” The court further stated
that many people in her situation use public transportation, pay for a ride, or ask a friend
for help; appellant had utilized none of these options.
3 {¶10} The trial court denied appellant’s oral motion to delay the imposition of
sentence.
{¶11} The court then outlined the available portion of appellant’s criminal record:
a 1999 theft conviction, for which she received two years probation; a theft conviction in
the state of Georgia, for which she received twelve months probation; a 2014 misuse of
credit cards conviction, for which she also received probation.
{¶12} Attempting to establish to the court that appellant was amenable to
probation, defense counsel elicited from appellant that she was currently attending
culinary school, which assists students with job placement upon completion of the
program. Appellant assured the court that she would show up for probation
appointments.
{¶13} The state presented the victim of appellant’s current conviction, Dr. Diana
Karnavas-Ashdown, who gave a statement on behalf of Advanced Foot & Ankle Center,
Inc. Appellant was apparently employed by the victim at the time appellant stole a
company check and issued it to her son in the amount of $10,183.00. Dr. Karnavas-
Ashdown further stated she was interested in seeing appellant incarcerated, as there
did not appear to be any way appellant could pay the money back.
{¶14} The trial court stated it was imposing a prison term due to appellant’s prior
record, the amount of money stolen from the victim in this case, and her failure to
appear for the scheduled PSI interviews. The court told appellant: “Three different
times appointments were made for you that you did not go to which, to me, is the first
sign of somebody not interested in the probation process.” The court then sentenced
appellant to six months in prison, the minimum sentence available for her conviction of
4 Grand Theft. She was also ordered to pay courts costs and restitution in the amount of
$10,183.00.
{¶15} These facts demonstrate that a continuance of the sentencing hearing
was not warranted. Although appellant had never requested or received any previous
sentencing continuances, the sole reason she now requested a continuance was to
undergo a PSI interview, which she had, with apparent indifference, already
rescheduled three times. Additionally, appellant did not request a continuance for a
specific length of time but, instead, until such time as she could undergo her PSI
interview.
{¶16} By the time she appeared for the sentencing hearing, appellant had
already inconvenienced the judicial system. Further inconvenience would have been
inflicted upon the schedules of the trial court, the prosecutor, and the victim who
appeared in court that day. The requested delay was based on dilatory, not legitimate,
reasons; and appellant was clearly the cause of the circumstance which gave rise to the
request. The totality of the circumstances indicates the trial court’s denial of the oral
request was not an abuse of discretion.
{¶17} Appellant’s sole assignment of error is without merit.
{¶18} The judgment of the Trumbull County Court of Common Pleas, imposing a
six-month sentence on appellant after denying her oral motion to continue, is affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
DIANE V. GRENDELL, J.,
concur.