{¶ 12} A person was indicted for a serious crime and hauled off to prison sixty-five days later. He had asked for a short continuance, which was denied. If ever a case exemplified a rush to judgment, this is the case. Bingman may well have deserved the sentence, but he certainly had the right to a short continuance.
{¶ 13} Only one month passed between Bingman's indictment and his plea of guilty; only fifty-six days passed between the indictment and his second continuance motion.
{¶ 14} Bingman's new counsel argued that, based on her experience handling sex-related crimes, she needed to review documents not contained in Bingman's file in order to advise him whether a guilty plea was in his best interest. *Page 247 Specifically, she determined that certain drawings had not been produced in discovery and that the file had not contained the incident report from the police.
{¶ 15} Bingman was not asking to withdraw his plea. If he had been, the court would have been required to "freely and liberally" consider granting it.6 But he was asking only for an opportunity for his lawyer to review the evidence and advise him whether his plea was proper. It is quite likely that counsel might have advised him to stand on his plea — and nothing would have been lost but thirty days.
{¶ 16} While whether to grant a continuance rests in the trial court's discretion, the discretion is not unlimited. In State v.Green,7 the Ohio Supreme Court reiterated the analysis applicable to the review of a denial of a continuance. Whether the denial of a continuance was so arbitrary that it violates due process depended on the circumstances, especially the reasons given at the time of the denial. Relevant factors to be considered included the length of the delay requested, whether there has been prior continuances, inconvenience, the reason given for the delay, and whether the defendant has contributed to the delay.8 The trial court had the responsibility to weigh the potential prejudice to Bingman, and "[a] myopic insistence upon expeditiousness in the face of a justifiable delay can render the right to defend with counsel an empty formality."9
{¶ 17} The delay requested by Bingman's counsel was reasonable because (1) only four days before the request, the trial court had allowed Bingman's prior counsel to withdraw; (2) the state had not yet provided new counsel with certain evidence; (3) the only prior continuance had been one day because of a religious holiday (4) the request was for only thirty days; (5) only a short time had passed since the indictment; (6) Bingman's counsel believed that she could not advise him on whether he should withdraw his plea to a serious offense without the continuance; and (7) there was no assertion of inconvenience to the state or the court other than the state's comment that the victim and her family, who were present, expected Bingman to be sent to prison that day. Opposed to those seven good reasons stands — nothing. *Page 248
{¶ 18} Shockingly, the majority uses as a reason for its affirmance that "Bingman had already received one continuance." This was one day for a religious holiday.
{¶ 19} If this denial is not an abuse of discretion, I cannot fathom what would be. There was no excuse for the trial court's unreasonable and arbitrary decision — or for the unreasonable and arbitrary decision of this court to connive in this rush to judgment and denial of due process.
6 See, e.g., State v. Fish (1995), 104 Ohio App.3d 236; 661 N.E.2d 788;State v. Griffin, 141 Ohio App.3d 551, 2001-Ohio-3203, 752 N.E.2d 310.
7 State v. Green, 90 Ohio St.3d 352, 368, 2000-Ohio-182,738 N.E.2d 1208, quoting Ungar v. Sarafite (1964), 376 U.S. 575, 589,84 S.Ct. 841.
8 See id., citing to State v. Landrum (1990), 53 Ohio St.3d 107,115, 559 N.E.2d 710.
9 See Ungar v. Sarafite, supra at 589, 84 S.Ct. at 850.