[Cite as In re R.W., 2014-Ohio-175.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: R.W. : APPEAL NOS. C-130151
C-130152
: TRIAL NOS. 12-10785Z
12-10786Z
: O P I N I O N.
Criminal Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: January 22, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Kari Bloom and Gordon Magella, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
D INKELACKER , Judge.
{¶1} In three assignments of error, the state argues that the trial court
erred when it ordered the state to produce certain documents prior to a probable-
cause bindover hearing and when it dismissed the case for witness unavailability and
discovery violations. We agree.
The Lengthy Road to Dismissal
{¶2} The state alleged that defendant-appellee R.W., a juvenile, had
committed acts which, if committed by an adult, would have constituted the offenses of
felonious assault and aggravated robbery with a firearm specification. The state
subsequently moved the trial court to relinquish jurisdiction and to bind R.W. over to
the general division of the common pleas court. The case was set for a probable-cause
hearing on January 7, 2013.
{¶3} On January 7, the parties appeared, but the trial court was uncertain if
the case had been assigned to the proper judge. The state noted that its witness from the
coroner’s office was not present, but indicated that she could be called in if needed. The
matter was being continued solely to determine which judge was to handle it. At a
subsequent pretrial conference, the trial court was satisfied that the matter was properly
before it, and set the case for a new probable-cause hearing on February 4.
{¶4} Prior to the January 7 hearing, R.W. had sent discovery requests to the
state. After the hearing, R.W. moved the trial court for an order compelling the state to
comply with the discovery request and asked for numerous items including two police
reports, a “301 report” and a “527(b) report.”
{¶5} At the February 4 hearing, the trial court ordered the state to produce
the forms R.W. had requested and continued the matter to February 20. The state was
given until February 8 to comply. On February 6, the state disclosed all reports except
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the 527(b) report, and asked for a continuance of the hearing date because its witness
from the coroner’s office was unavailable on the scheduled hearing date. On February
11, R.W. filed a motion to dismiss as a sanction for failing to produce the 527(b) report.
The state filed the final form, under seal, on February 19. At the hearing on February 20,
the trial court dismissed the case against R.W. for the discovery violation, and because of
the unavailability of the state’s witness.
The Order to Disclose was Improper
{¶6} In its first assignment of error, the state claims that the trial court erred
when it ordered the state to disclose the 301 and 527(b) reports. We agree.
{¶7} The trial court’s decision in this case was issued prior to our opinion in
In re DM, 2013-Ohio-668, 989 N.E.2d 123 (1st Dist.). In that case, we addressed this
precise issue and held that “prior to a probable-cause bindover hearing, the state must
provide to a juvenile upon request only (1) any Brady materials in its possession and (2)
the evidence that the state intends to use at the probable-cause hearing.” (Emphasis
added.) Id. at ¶ 9. The state had provided those materials, and the reports at issue did
not fall within either category. The state—at that stage in the proceeding—cannot be
compelled to produce the 301 and 527(b) reports. Id. at ¶ 13. Therefore, the trial court
erred when it ordered the state to provide those reports to R.W.
{¶8} We sustain the state’s first assignment of error.
Dismissal for Witness Unavailability was Improper
{¶9} In its second assignment of error, the state argues that the trial court
improperly denied its request for a continuance of the February 20 hearing and
dismissed the case. We agree.
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{¶10} In deciding a motion for continuance the trial court may consider the
following factors: (1) the length of delay requested; (2) the number of continuances
already requested; (3) the inconvenience to litigants, witnesses, opposing counsel
and the court; (4) whether the [moving party] contributed to the circumstance giving
rise to the request for a continuance; and other relevant factors depending on the
facts of the case. State v. Landrum, 53 Ohio St.3d 107, 115, 559 N.E.2d 710 (1990).
{¶11} Contrary to the belief of the trial court, the state had not sought a
prior continuance because of the witness’s unavailability. While the witness was not
present at the initial hearing, the case was continued at that time solely for the
purpose of determining the proper judge to hear the case. The state had indicated
that, while the witness was not present, she could be called if needed and could be in
court in 20 minutes.
{¶12} According to the record, the witness was not available on February 20
because she had not been consulted about her availability when the date for the
hearing had been set, and was scheduled to be out-of-town on that day. The state
shortly discovered the scheduling problem and asked for a continuance two weeks
prior to the hearing date. Therefore, the state did everything possible to mitigate the
situation and cannot be said to have contributed to the circumstances giving rise to
the request such that a dismissal was proper. Further, there was no discussion of
how the delay would inconvenience the parties, witnesses, or the court.
{¶13} Under the facts of this case, we conclude that the trial court abused its
discretion when it denied the state’s request for a continuance and dismissed the
case. We sustain the state’s second assignment of error.
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Dismissal for Discovery Violations was Improper
{¶14} Finally, the state argues that the trial court abused its discretion when
it dismissed the case for the claimed discovery violation. Since the trial court
improperly ordered the state to turn the reports over, the imposed sanction that
resulted from that determination was also erroneous. See In re D.M. at ¶ 13 (since
the underlying discovery order was erroneous, the trial court erred when it dismissed
the case). We sustain the state’s third assignment of error.
Conclusion
{¶15} Having considered and determined all assignments of error, we reverse
the decision of the trial court and remand this cause with instructions to the trial court to
schedule a probable-cause hearing and for further proceedings consistent with law and
this opinion.
Judgment reversed and cause remanded.
HENDON, P.J., and HILDEBRANDT, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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