State v. Smith

[Cite as State v. Smith, 2026-Ohio-1387.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY

STATE OF OHIO,                              :   CASE NO. 25CA23

        Plaintiff-Appellee,                 :

        v.                                  :

KIRBY SMITH,                                :   DECISION AND JUDGMENT ENTRY

        Defendant-Appellant.

________________________________________________________________
                           APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant1.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Alisa
Turner, Assistant Prosecuting Attorney, Chillicothe, Ohio, for
appellee.

________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:4-8-26
ABELE, J.

        {¶1}     This is an appeal from a Ross County Common Pleas

Court judgment of conviction and sentence.               Kirby Smith,

defendant below and appellant herein, raises two assignments of

error for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT VIOLATED MR. SMITH’S
                 CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION
                 BY DENYING HIS REQUEST TO TERMINATE COUNSEL
                 AND PROCEED PRO SE.”




1   Different counsel represented appellant during the trial court proceedings.
ROSS, 25CA23                                                          2


              SECOND ASSIGNMENT OF ERROR:

              “THE TRIAL COURT ERRED TO THE PREJUDICE OF
              MR. SMITH BY DENYING HIS REQUEST FOR A
              CONTINUANCE.”


       {¶2}   In May 2022, a Ross County Grand Jury returned an

indictment that charged appellant with one count of tampering

with evidence in violation of R.C. 2921.12, a third-degree

felony.       Appellant entered a not guilty plea.

       {¶3}   On May 24, 2022, Kelsey J. Reno, a public defender,

entered an appearance as counsel of record for appellant.        On

July 18, 2022, Reno filed a motion to withdraw, citing “a major

and complete breakdown in communication between Defendant and

Counsel, including allegations against Counsel that have caused

an irreparable breakdown in the client attorney relationship.”

On July 21, 2022, appellant filed a pro se request to retain

private counsel.      On July 25, 2022, the trial court appointed

attorney Jeffrey Blosser to represent appellant.

       {¶4}   At appellant’s October 3, 2022 combined plea and

sentencing hearing, the trial court conducted a Crim.R. 11

colloquy and advised appellant of his rights and the effects of

his decision to plead guilty, reviewed the signed plea form and

jury waiver, reviewed the facts and charges, and asked appellant

if any drugs, alcohol, or mind-altering substances influenced

him.    The court reviewed with appellant the constitutional
ROSS, 25CA23                                                        3


rights he waived with his plea, including (1) the right to a

jury trial, (2) the right to confront one's accusers, (3) the

right to compulsory process to obtain witnesses, (4) the right

to require appellee to prove guilt beyond a reasonable doubt,

and (5) the privilege against compulsory self-incrimination.

The court also explained the maximum penalties, postrelease

control, and the effect of appellant's already being under the

APA's supervision at the time of this offense.   Appellant

expressed his understanding and agreement and acknowledged his

execution of the written plea form.   Thus, on October 3, 2022

appellant withdrew his not guilty plea and, pursuant to the

jointly recommended sentencing agreement, pleaded guilty to the

indictment.

    {¶5}   During the sentencing portion of the hearing, the

trial court considered the record, the parties’ statements, the

R.C. 2929.11 principles and purposes of sentencing, and the R.C.

2929.12 seriousness and recidivism factors.   The court then

sentenced appellant to serve a three-year community control term

with specific conditions, including, but not limited to: (1)

obey all laws, (2) successfully complete the Franklin County

Community-Based Correction Facility program and aftercare, (3)

successfully complete the Ross County Intensive Supervision

Program and aftercare, (4) successfully complete basic

supervision, and (5) pay costs.   Conditions of basic supervision
ROSS, 25CA23                                                        4


included, but were not limited to: (1) refrain from possessing

or using narcotics or alcohol, (2) refrain from possessing or

using weapons, (3) submit to random drug tests, and (4) report

monthly to probation.   Finally, the court reserved a 36-month

prison term.

    {¶6}   On April 9, 2025, appellee filed a petition for capias

that alleged that appellant violated: (1) Term 1, failure to

obey federal, state and local laws and ordinances, due to a

pending warrant for F4 Failure to Comply, (2) Term 6, refrain

from possessing firearms, because officers recovered a stolen

firearm and ammunition from the area of a crash involving

appellant’s car, (3) Term 7, refrain from possessing or using

narcotics, because officers found multiple knotted bags

containing white powder, orange powder, and orange and blue

pills in the car along with appellant’s ID, and (4) Term 15,

regularly report to probation, because appellant failed to

report to probation after January 17, 2025.

    {¶7}   On May 6, 2025, appellee filed a notification of

preliminary hearing and charges and alleged that appellant

violated: (1) Term 1 because he has a pending Failure to Comply

charge, (2) Term 7 because he tested positive for amphetamines,

cocaine, ecstasy, methamphetamine and marijuana on May 6, 2025,

and (3) Term 15 (with no explanation).   At the May 6, 2025

preliminary hearing on the community-control violation,
ROSS, 25CA23                                                        5


appellant appeared with public defenders Alysia Goss and Ariel

Eilola, and entered a general denial.

    {¶8}   At the June 9, 2025, final community-control hearing,

appellant appeared with public defender Nick Wille.   Counsel

made an oral motion to dismiss two of the violations.   Counsel

argued that Term 15 did not include a “to wit” section, and,

thus, failed to provide notice to appellant of the manner of

violating Term 15 of his community control.   The trial court,

however, permitted the amendment of the notice to include the

“to wit” section.   Counsel further sought to dismiss Term 1

because counsel asserted that the reference to a pending charge

implicated double jeopardy.   The court disagreed, and also

referred to a letter appellant sent to the court in which

appellant:

    admits that he committed the term fifteen (15)
    violation.   He may not know what that, he it may be
    illegally insufficient document to tell him that he’s
    being charged with not reporting but I can tell you from
    the letter that he wrote he is very awell (sic.) that he
    committed that violation in fact he indicates I didn’t
    report, I was using, my dad overdosed uh and died. Um,
    so I think that.    But we’ll make copies of this for
    everybody as well.    So let’s get a new final hearing
    date in about a week.

    {¶9}   On June 16, 2025, appellee filed a second notification

of preliminary hearing and charges and alleged that appellant

violated: (1) Term 1A due to a pending failure to comply (F3),

possession (F2), weapons under disability (F3), and receiving
ROSS, 25CA23                                                        6


stolen property (F4), and Term 1 B due to two disorderly conduct

convictions on January 16, 2025, (2) Term 7 because on May 5,

2025, appellant tested positive for amphetamines, cocaine,

ecstasy, methamphetamine, and marijuana, and (3) Term 15 because

appellant failed to report to the probation department after

January 17, 2025.

    {¶10} On June 16, 2025, the trial court held another

preliminary hearing on appellant’s new community control

violation allegations.     Counsel Wille appeared on appellant’s

behalf.     At the hearing, the appellee indicated that it would

dismiss the previous violations and proceed on the June 16, 2025

violation notification.

    {¶11} Ross County Probation Officer Casey Oates testified

that appellant faced charges in another case for failure to

comply, felony possession, and receiving stolen property.     In

addition, appellant has two recent convictions from Greenfield,

Ohio.     Oates also testified that appellant tested positive for

amphetamines, cocaine, ecstasy, methamphetamine, and marijuana

on May 6, 2025.    Finally, Oates indicated that appellant last

reported by phone on January 17, 2025.     The trial court found

probable cause that appellant committed each violation.

    {¶12} At appellant’s June 23, 2025, final community control

hearing, the following conversation occurred:
ROSS, 25CA23                                                      7


    MR. WILLE: Um, Your Honor it appears we are having a
    sudden uh breakdown of the attorney client relationship.
    THE COURT: Alright. Are you ready to proceed?
    MR. WILLE: I thought I was, I was talking to Mr. Smith,
    I no longer believe I am ready. Uh.
    THE COURT: Very well. Mr. Smith you said that there was
    a   breakdown,   I  assume   that’s   what  your   quick
    conversation was, what’s the breakdown?
    MR. SMITH: Um, I do not want him representing me.
    THE COURT: You wish to proceed without an attorney?
    MR. SMITH: I would wish to have a continuance to hire
    private counsel.
    THE COURT: I’ve continued this thing twice, you’ve had
    the opportunity to . . .
    MR. SMITH: (Talkover) Okay then, I, yeah, I’ll represent
    myself.
    THE COURT: Don’t interrupt me.
    MR. SMITH: (Talkover) I’ll represent myself.
    THE COURT: Don’t interrupt me again.
    MR. SMITH: Okay.
    THE COURT: You’ve had several weeks to do that, if you
    wish to represent yourself, you may do so.
    MR. SMITH: Okay.
    THE COURT:     Um, but we are going to have a small
    conversation about that.
    THE COURT: Um, Mr. Wille, hold on, I’m not releasing
    you just yet.

    {¶13} The trial court then held a bench conference where

counsel informed the court that appellant had just informed him

that counsel could either withdraw or appellant would fire him.

The trial court, however, denied the oral motion to discharge

counsel and stated, “I specifically find that the request is

untimely made.   I cite State v Casino, 96 Ohio St. 380, 94

[State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751] that

indicates a request made three (3) days before trial is

untimely.   Certainly two (2) seconds before a hearing is
ROSS, 25CA23                                                          8


untimely.”   Although appellant stated that he asked counsel to

withdraw the last time they spoke, the court explained:

    I am also doing this to protect you from yourself. Quite
    frankly I don’t think you have the ability to represent
    yourself well. I would also note that you have pending
    F3’s, F2’s, F3’s, another F4, and that you may open
    yourselves up to. . . Mr. Smith, if you don’t listen to
    me, it’s just a total waste of time here. Between those
    four charges, you may open the door for the prosecuting
    attorney to get into evidence that they may otherwise
    wouldn’t be able to get in, they may further be able to
    cross-examine you on those cases and get damaging
    information that may hurt you in the other cases. You
    don’t understand the rules of evidence, you would have
    no idea if you were setting yourself up for those to
    happen. Uh, I think it’s in your best interest that we
    keep Mr. Wille on. Having said that, Mr. Wille, is there
    anything you wish to say before we proceed.

    {¶14} Counsel then informed the trial court that one of the

disagreements he had with appellant is that appellant requested

that counsel move that the trial court did not hold the hearings

within the time period set forth in Crim.R. 5, but counsel

informed appellant that Crim.R. 5 does not apply to community

control violations.   The court replied, “That’s right.    That’s

exactly why he’s not allo[wed], I am not letting him represent

himself at this late of the game.   He doesn’t understand the law

let alone the Rules of Evidence, uh, so it’s denied.”     Appellant

stated, “So, Criminal Rule 5 doesn’t apply.”   The court replied,

“Anything else? . . . I am not going to sit and teach you the

law, that’s not how this works, you’re held to the same
ROSS, 25CA23                                                          9


standards as a lawyer.     Quite frankly, you’re not one, you think

you are, but you’re not. . .”

      {¶15} Ross County Probation Officer Eric Barbee then

testified that he had also supervised appellant during this

case.     Barbee explained that: (1) appellant’s two recent

Greenfield disorderly conduct convictions violated Term 1, (2)

appellant’s positive May 6 drug test for amphetamine, cocaine,

ecstasy, methamphetamine, and marijuana violated Term 7, and (3)

appellant’s failure to report to probation since January 17

violated Term 15.

      {¶16} After discussion about whether appellant should

testify, the trial court assured counsel:

      I will let him avoid any questions about his pending
      charges as long as he doesn’t open the door on it. If
      he starts talking about them, then all bets are off.
      But if he stays away from the pending charges, I’ll order
      the state to stay away from them.

      {¶17} Appellant testified that the recent Greenfield charges

involved “a domestic violence between me and my wife and

(inaudible). . . it was dropped to a lower offense of a minor

misdemeanor,” and said he informed his probation officer about

it.     Appellant also stated that his probation officer ordered

him to report on Martin Luther King Day, and he “stood out in

front of the building for hours until I realized that it was

closed because it was a holiday and I called him. . . [and] left

a message.”     Appellant stated that the Probation Officer Oates
ROSS, 25CA23                                                        10


returned his call the following day on January 21.    Appellant

further testified that he requested Oates to send his drug test

to a lab, and “I don’t know what they did, but to my knowledge,

no they did not.”    On cross-examination, appellant acknowledged

that he did not report to his probation officer in March or

April as required.

    {¶18} At the close of appellant’s testimony, the trial court

concluded that appellant violated Term 1B (failure to obey all

laws) and Term 15 (failure to report monthly).    In allocution,

appellant testified that he reported to his probation officer

for two years, maintained employment for a year, completed 200

hours of community service, “passed every drug test that they

gave me,” completed the intensive probation program, “got my

license . . . got insurance for the first time in probably ten

(10) years, um, I completed substance abuse, I completed CBCF.”

Appellant argued that he completed “every requirement that they

gave me,” except restitution.   In addition, appellant stated

that he has a sick mother that he cares for and six children.

    {¶19} The trial court noted that it considered the

presentence investigation report, the record, statements of

counsel, the principles and purposes of felony sentencing, the

seriousness and recidivism factors, and concluded that appellant

“is no longer amenable to community control” and that a prison

term “is consistent with purposes and principles of felony
ROSS, 25CA23                                                      11


sentencing.”   Thus, the trial court sentenced appellant to: (1)

serve the original 36-month prison term (with credit for 267

days served) for tampering with evidence in violation of R.C.

2921.12, (2) serve a discretionary postrelease control term of

up to two years, and (3) pay costs.      This appeal followed.

                                    I.

    {¶20} In his first assignment of error, appellant asserts

that the trial court violated his constitutional right to self-

representation when it denied his request to terminate counsel

and permit him to proceed pro se.   Specifically, appellant

contends that the trial court should have permitted him to

represent himself when, prior to the commencement of the

hearing, he unequivocally requested that he be permitted to

represent himself.

    {¶21} Appellee, on the other hand, contends that appellant

did not unequivocally and timely assert his right to represent

himself at the June 23, 2025 community control violation final

hearing and disposition.

    {¶22} On appeal, where a criminal defendant challenges the

denial of a tardy request for self-representation, an appellate

court will review a trial court’s ruling under the abuse of

discretion standard.   State v. Vrabel, 2003-Ohio-3193.
ROSS, 25CA23                                                      12


    {¶23} The Sixth Amendment, as made applicable to the states

by the Fourteenth Amendment Due Process Clause, guarantees a

defendant in a state criminal proceeding the constitutional

right of self-representation and that he may proceed to defend

himself without counsel if he voluntarily, knowingly, and

intelligently elects to do so.   State v. Martin, 2004–Ohio–5471,

¶ 24; State v. Taylor, 2002–Ohio–7017, ¶ 45; State v. Gibson, 45

Ohio St.2d 366, paragraph one of the syllabus (1976).     The right

to counsel under the Sixth Amendment to the United States

Constitution includes the right to self-representation.     See

Faretta v. California, 422 U.S. 806, 819-821 (1975) (examining

the substance and structure of the Sixth Amendment to conclude

that the right to self-representation is implied in the panoply

of rights granted to criminal defendants); see also Adams v.

United States ex rel. McCann, 317 U.S. 269, 279 (1942) (the

Sixth Amendment right to the assistance of counsel implicitly

includes a “correlative right to dispense with a lawyer's

help”).   “If a trial court denies the right to self-

representation when the right has been properly invoked, the

denial is per se reversible error.”   State v. Neyland, 2014-

Ohio-1914, ¶ 71, citing State v. Reed, 74 Ohio St.3d 534, 535

(1996), citing McKaskle v. Wiggins, 465 U.S. 168, 177, fn. 8

(1984); State v. Ahmed, 2004-Ohio-4190, ¶ 104.
ROSS, 25CA23                                                        13


    {¶24} A trial court, however, may properly deny an untimely

request for self-representation.     State v. Knuff, 2024-Ohio-902,

¶ 57; see also State v. Degenero, 2016-Ohio-8514, ¶ 14 (11th

Dist.), quoting State v. Deir, 2006-Ohio-6885, ¶ 34 (11th Dist.)

(“a trial court may predicate ‘its decision solely on the timing

of appellant's request’ ”).     As appellee points out, the Supreme

Court of Ohio recently held, “we have recognized that ‘a

defendant in a state criminal trial has an independent

constitutional right of self-representation and . . . may

proceed to defend himself without counsel when he voluntarily,

and knowingly and intelligently elects to do so.’ ”     Knuff at ¶

54, quoting Gibson, supra, 45 Ohio St.2d 366, at paragraph one

of the syllabus, citing Faretta, 422 U.S. 806.     But this right —

called a Faretta right — must be “ ‘timely and unequivocally

asserted’ ” or else it is waived.     Knuff, id., citing State v.

Cassano, 2002-Ohio-3751, ¶ 38, quoting Jackson v. Ylst, 921 F.2d

882, 888 (9th Cir.1990).

    {¶25} The Knuff court acknowledged that assertions of the

right to self-representation must also be balanced “ ‘against

considerations of judicial delay.’ ”     Knuff at ¶ 55, quoting

United States v. Powell, 847 F.3d 760, 774 (6th Cir.2017),

quoting United States v. Martin, 25 F.3d 293, 295-296 (6th

Cir.1994).     In fact, “[e]ven a clear request made prior to trial

may be denied when it ‘is merely a tactic to secure a delay in
ROSS, 25CA23                                                               14


the proceeding.’ ”      Id., quoting Robards v. Rees, 789 F.2d 379,

383 (6th Cir.1986).

       {¶26} In Knuff, the court did not reach the issue of whether

the defendant’s self-representation request was unequivocal

because the court considered the request, made eight days before

jury selection began, as untimely and properly denied.             Knuff at

¶ 57.    See, e.g., Neyland, supra, 2014-Ohio-1914, at ¶ 76 (“[A]

request for self-representation can be denied when the request

is untimely.”); accord Martinez v. Court of Appeal of

California, Fourth Appellate Dist., 528 U.S. 152, 161 (2000)

(defendant must make timely assertion of Faretta right).

       {¶27} Knuff also rejected a bright-line rule that a self-

representation motion is timely when it is made “any time before

trial.”    Id., supra, citing Cassano2, supra, 2002-Ohio-3751, at ¶

40 (defendant's request made three days before trial untimely).

Moreover, the court noted that courts have also found requests

similar to Knuff's to be untimely.         Knuff at ¶ 61, citing United

States v. Smith, 413 F.3d 1253, 1281 (10th Cir.2005)(self-




2 Wenote that the trial court in the case at bar cited Cassano for the
proposition that seeking self-representation 3 days before trial constitutes
an untimely request. The Knuff court observed that in Cassano v. Shoop, the
United States Court of Appeals for the Sixth Circuit rejected the Ohio
Supreme Court’s conclusion in State v. Cassano that Cassano’s self-
representation motion was untimely. Cassano v. Shoop, 1 F.4th 458, 474-475
(6th Cir.2021). However, the Knuff court distinguished State v. Cassano from
Knuff because Cassano’s self-representation motion, made 3 days before trial,
was not his first such motion. Knuff, supra, Fn. 2.
ROSS, 25CA23                                                        15


representation motion filed six days before trial untimely),

overruled on other grounds by United States v. Hutchinson, 573

F.3d 1011 (10th Cir.2009); People v. Ruiz, 142 Cal.App.3d 780,

784, 790-791 (1983)(self-representation motion three days before

trial untimely).   Thus, the court concluded that Knuff’s self-

representation motion, filed eight days before trial, was

untimely.   Id. at ¶ 64.

    {¶28}   In the case sub judice, appellant argues that he

requested self-representation “as timely as he could have.”    As

appellee notes, however, appellee filed appellant’s initial

community control violation on April 9, 2025, but later

dismissed it and filed the newest community control violation on

June 16, 2025, one week before the hearing in question.

Appellee contends that appellant could have sought to represent

himself as early as April.   However, even assuming, arguendo,

that the date to measure the reasonableness of the request is

one week before the hearing, we nevertheless conclude that

appellant’s self-representation request is untimely.

    {¶29} Appellant argues, however, that even if his self-

representation request is untimely, the trial court should have

used its discretion to grant the request.   Appellant cites State

v. Tucker, 2003-Ohio-6056 (1st Dist.) in support.   In Tucker,

the First District held that once a trial has begun, it is

within the trial court’s discretion whether to grant a
ROSS, 25CA23                                                         16


defendant’s request for self-representation.    Id. at ¶ 16,

citing Vrabel, 2003-Ohio-3193, ¶ 53.    The court explained that

in exercising this discretion, a court should consider (1) the

reasons given for the request, (2) the quality of the present

attorney’s representation, and (3) the defendant’s “prior

proclivity to substitute counsel.”     Id., quoting State v. Reed,

1996 WL 637830 (1st Dist. Nov. 6, 1996).    In applying this

construct, the First District concluded that Tucker’s self-

representation request was neither timely nor unequivocal.

Tucker sought to represent himself “only after the hearing on

the motion to suppress, voir dire, opening statements, and

direct and cross-examination of the first four witnesses for the

dates.”    Id. at ¶ 17.

    {¶30} In the case sub judice, although the present case did

not involve a trial, as appellee points out appellant waited

until the final hearing on his community control violations to

seek to represent himself.    Initially appellant stated that he

wished for a continuance “to hire private counsel.”    When the

trial court indicated that it had twice previously continued the

case and that appellant had other opportunities to express this

sentiment, appellant stated, “Okay then, I, yeah, I’ll represent

myself.”    After appellee pointed out to the trial court and

defense counsel that appellant would be “playing a dangerous

game cause (sic.) I will ask him about that other case if he
ROSS, 25CA23                                                         17


opens the door to it,” the court determined that it would not be

in appellant’s best interest to discharge his attorney.       The

court noted the untimeliness of the request and that moving

forward with counsel would “protect [appellant] from [himself].”

    {¶31} In reviewing “the quality of present counsel,”

appellee points out that counsel had successfully argued against

two of the four community control violations, including the

illicit drug use, in spite of appellant’s letter to the trial

court in which he apparently admitted such illegal drug use.

    {¶32}    Finally, with regard to the “defendant’s prior

proclivity to substitute counsel,” appellant argues that there

is no “history of Appellant firing appointed counsel and

requesting substitute counsel.”    However, as appellee points

out, the record indicates legal representation by multiple

attorneys.     After the grand jury returned an indictment on May

20, 2022, the trial court on May 24, 2022 appointed Assistant

Public Defender Kelsey J. Reno to represent appellant.     On July

18, 2022, Reno filed a motion to withdraw and stated: “There has

been a major and complete breakdown in communication between

Defendant and Counsel, including allegations against Counsel

that have caused an irreparable breakdown in the client attorney

relationship.” On July 21, 2022, appellant filed a hand-written

letter with the trial court requesting the court “to grant me a

reasonable continuance to obtain private council [sic.].”       On
ROSS, 25CA23                                                      18


July 25, 2022, the trial court permitted Reno to withdraw,

appointed Jeffrey Blosser to represent appellant, and granted a

continuance.   At the Preliminary Hearing on May 6, 2025,

Assistant Public Defenders Alysia Goss and Ariel Eilola

represented appellant.   From the first final scheduled hearing

on June 9, 2025, to the final community control violation

hearing on June 23, 2025, Assistant Public Defender Nicholas

Wille represented appellant.   Thus, the record reflects that

appellant’s actions demonstrated a prior proclivity to

substitute counsel.

    {¶33}   Appellant also cites State v. Gordon, 2004-Ohio-2644

(10th Dist.), which observed that when a trial court determines

whether to grant a request to proceed pro se made after the

commencement of trial, the trial court must balance a

defendant’s interest in self-representation against the

potential disruption of the proceedings already in progress.

Id. at ¶ 31, citing Martin, 25 F.3d at 296 (even where the right

to self-representation is clearly invoked, it must be done in a

timely manner, and courts will balance the defendant’s assertion

against considerations of judicial delay).   The court noted that

Gordon did not seek to represent himself until after two

witnesses had been examined, expressed no displeasure with

counsel’s performance, gave no indication of a desire to proceed

pro se until the jury had heard opening statements and witness
ROSS, 25CA23                                                      19


testimony, counsel had not previously been aware of Gordon’s

dissatisfaction, and counsel took steps to remedy the client’s

stated concerns.   Id. at ¶ 32.   The court concluded that the

trial court “was within its discretion to deny defendant’s mid-

trial request to represent himself.”    Id.   Again, we find no

support for appellant’s position in Gordon.

    {¶34} In State v. Billiter, 2025-Ohio-4693 (4th Dist.), we

recently considered the timeliness of a request for self-

representation:

    Courts   typically   consider   a  request   for   self-
    representation untimely when the defendant makes the
    request after the trial has begun. See Neyland, 2014-
    Ohio-1914, at ¶ 77 (the trial court did not err by
    denying the defendant's request for self-representation
    as untimely when he did not make the request until right
    “before the beginning of the trial-phase closing
    arguments”); State v. Vrabel, 2003-Ohio-3193, ¶ 53 (“the
    trial court did not abuse its discretion and properly
    refused appellant's request to represent himself after
    voir dire had been completed and on the first day that
    evidence was to be presented”); see, e.g., State v.
    Barron, 2024-Ohio-5836, ¶ 31 (2d Dist.) (“request for
    self-representation was untimely since it was made on
    the second day of trial in the middle of the State's
    case-in-chief”); State v. Beamon, 2019-Ohio-443, ¶ 16
    (12th Dist.) (request for self-representation made on
    the second day of trial, after the State had nearly
    completed its case-in-chief, was untimely); State v.
    Montgomery, 2008-Ohio-6077, ¶ 59 (5th Dist.) (request
    made after the presentation of three witnesses was
    untimely); see also Knuff at ¶ 58 (the trial court
    properly denied the defendant's request for self-
    representation as untimely when the defendant made the
    request eight days before jury selection began).

    {¶35} Id. at ¶ 75.   In Billiter, we concluded that the trial

court properly denied appellant's self-representation request.
ROSS, 25CA23                                                       20


When Billiter did not assert the right until the close of

evidence, immediately before closing arguments, we concluded

that he did not timely assert the right, and the trial court

properly denied it on that basis alone.    Billiter at ¶ 76,

citing Neyland at ¶ 77; Degenero, supra, 2016-Ohio-8514, at ¶ 14

(11th Dist.).

    {¶36} In the case at bar, appellant asserts that the

proceeding would have continued unimpeded if the trial court had

granted the self-representation request.   However, as appellee

observes, the court would have been required to engage in an

inquiry into whether appellant knowingly, intelligently, and

voluntarily waived his right to counsel.   See State v. Simon,

2021-Ohio-3090 (4th Dist.).   Importantly, the trial court

explained that, because of appellant’s pending felony charges,

if he proceeded without counsel, he could open the door for

appellee to adduce evidence they would not otherwise be able to,

which could damage appellant’s ability to defend himself in the

pending cases.   After this exchange, appellant did not reassert

his wish to represent himself again, and the hearing continued.

    {¶37}   Thus, after our review of the record, we conclude

that appellant’s self-representation request was untimely.     See

Neyland, 2014-Ohio-1914, at ¶ 77 (the trial court did not err by

denying the defendant's request for self-representation as

untimely when he did not make the request until right “before
ROSS, 25CA23                                                       21


the beginning of the trial-phase closing arguments”); Vrabel,

2003-Ohio-3193, ¶ 53 (“the trial court did not abuse its

discretion and properly refused appellant's request to represent

himself after voir dire had been completed and on the first day

that evidence was to be presented”); State v. Barron, 2024-Ohio-

5836, ¶ 31 (2d Dist.) (“request for self-representation was

untimely since it was made on the second day of trial in the

middle of the State's case-in-chief”); State v. Beamon, 2019-

Ohio-443, ¶ 16 (12th Dist.) (request for self-representation

made on the second day of trial, after the State had nearly

completed its case-in-chief, was untimely); State v. Montgomery,

2008-Ohio-6077, ¶ 59 (5th Dist.) (request made after the

presentation of three witnesses was untimely); see also Knuff at

¶ 58 (the trial court properly denied the defendant's request

for self-representation as untimely when the defendant made the

request eight days before jury selection began).   Consequently,

we believe that appellant’s self-representation request, made at

the start of his final community control violation hearing, was

untimely and the trial court was within its discretion to deny

it.

      {¶38} Accordingly, based upon the foregoing reasons we

overrule appellant’s first assignment of error.
ROSS, 25CA23                                                       22


                                  II.

    {¶39} In his second assignment of error, appellant asserts

that the trial court erred to his prejudice when it denied his

request for a continuance.   Appellee, however, contends that:

(1) a continuance was unlikely to result in the appearance of

private counsel, (2) appellant is not entitled to the counsel of

his choice, (3) appellant offered no example of prejudice, and

(4) appellant offered no basis for discharge of his court-

appointed attorney.

    {¶40} In general, “[t]he grant or denial of a continuance is

a matter which is entrusted to the broad, sound discretion of

the trial judge.   An appellate court must not reverse the denial

of a continuance unless there has been an abuse of discretion.”

State v. Unger, 67 Ohio St.2d 65, 67 (1981), citing Ungar v.

Sarafite, 376 U.S. 575, 589 (1964), State v. Conway, 2006-Ohio-

791, ¶ 147, State v. Jones, 91 Ohio St.3d 335, 342 (2001).     “

‘[A]buse of discretion’ [means] an unreasonable, arbitrary, or

unconscionable use of discretion, or * * * a view or action that

no conscientious judge could honestly have taken.’ ”   State v.

Kirkland, 2014-Ohio-1966, ¶ 67, quoting State v. Brady, 2008-

Ohio-4493, ¶ 23; State v. Stevers, 2023-Ohio-3050 (4th Dist.).

    {¶41} A trial court that considers a motion to continue

should “[w]eigh [ ] against any potential prejudice to the

defendant * * * concerns such as a court's right to control its
ROSS, 25CA23                                                        23


own docket and the public's interest in the prompt and efficient

dispatch of justice.”    Unger, 67 Ohio St.2d at 67.   Therefore,

when evaluating a request for a continuance, a court should also

consider, 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   to   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.

    {¶42} Id. at 67-68.    While it is a “basic due process right

and indeed essential to a fair trial that a defense counsel be

afforded the reasonable opportunity to prepare his case,” State

v. Sowders, 4 Ohio St.3d 143, 144 (1983), not every denial of a

continuance violates due process.    Ungar, supra, 376 U.S. at

589; Stevers, supra, at ¶ 21.    This court has held that “nothing

requires trial courts to specifically articulate an analysis of

each Unger factor.”     State v. Dickens, 2009-Ohio-4541, ¶ 13 (4th

Dist.); Fultz v. Fultz, 2014-Ohio-3344, ¶ 20 (4th Dist.).

Further, absent evidence to the contrary, we “must presume that

the trial court applied the law [in this case, the Unger

factors] correctly.”    State v. Coombs, 18 Ohio St.3d 123, 125

(1985); Hartt v. Munobe, 67 Ohio St.3d 3, 7 (1993).

    {¶43} Although appellant argues that the Unger factors favor

the grant of his continuance request, based on our analysis we
ROSS, 25CA23                                                       24


disagree.   First, we point out that the trial court did not

specifically deny appellant’s pro se oral motion for a

continuance made on June 23, 2025, at the start of the final

community control hearing.   As appellee notes, the trial court

implicitly denied the request by proceeding with the final

hearing, with appellant represented by counsel, thereby

eliminating any need for a continuance.   Generally, a reviewing

court will presume that a lower court overruled a motion on

which it did not expressly rule, in instances where it is clear

from the record that this is what the lower court intended.

Matter of M.M.E.W., 2023-Ohio-2039 (4th Dist.); State ex rel.

The V Cos. v. Marshall, 81 Ohio St.3d 467, 469 (1998), citing

State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.,

69 Ohio St.3d 217, 223 (1994), and Newman v. Al Castrucci Ford

Sales, Inc., 54 Ohio App.3d 166 (1st Dist. 1988).   Thus, we

presume that the motion to continue is implicitly overruled.

    {¶44} Turning to the Unger factors, the first factor is the

length of the delay requested.   Appellant requested a

continuance at the beginning of the final community control

violation hearing.   Appellant did not state a proposed length

for the delay he sought via the continuance.   Even if appellant

sought a week to retain private counsel, as we held in Stevers,

supra, at ¶ 23, although a week or two does not necessarily

equate to a long delay, appellee arrested appellant on April 9,
ROSS, 25CA23                                                         25


2025, filed violations on May 6, 2025 and June 16, 2025, and the

final hearing occurred on June 23, 2025.     Consequently,

appellant had sufficient time to consult with and retain private

counsel if he desired to do so.    And, again, appellant did not

specify a proposed length for the delay he sought with a

continuance.     This factor weighs in favor of appellee.

    {¶45} The second Unger factor is whether other continuances

had been requested and received.     Trial counsel sought a

continuance at the June 9, 2025 hearing due to a lack of notice

in the violation of Term 15 because the violation notice lacked

a “to wit” section.    The trial court continued the hearing to

June 16, 2025.    At the June 23, 2025 final hearing, appellant

made the pro se oral motion and stated, “I would wish to have a

continuance to hire private counsel.”    The trial court replied,

“I’ve continued this thing twice, you’ve had the opportunity to

. . . you’ve had several weeks to do that . . .”     Thus, because

the trial court had continued the matter at least once before,

this factor weighs in favor of appellee.

    {¶46} The third Unger factor involves the inconvenience to

litigants, witnesses, opposing counsel, and to the court that

results from a continuance.     Appellant argues that because this

was a community control hearing, appellee would not have been

prejudiced by a brief continuance.    However, that does not

diminish the inconvenience if the trial court again continued
ROSS, 25CA23                                                       26


the hearing.   See State v. Colley, 2010-Ohio-4834, ¶ 20 (4th

Dist.) (continuance would have inconvenienced court, state, and

various witnesses when request made one business day before

trial date); State v. Jones, 2015-Ohio-5443, ¶ 51 (3d

Dist.)(fact witnesses “relatively local” did not diminish

inherent inconvenience to the court, state, witnesses, and jury

venire); Stevers, supra, 2023-Ohio-3050 at ¶ 25 (deputy and

parole officer being present as employment requirement does not

diminish the inconvenience if the trial court continued the

hearing).    Therefore, this factor weighs in favor of appellee.

    {¶47} The fourth Unger factor is whether the requested delay

is for legitimate reasons, or is it dilatory, purposeful, or

contrived.   Appellant contends that he made his request

immediately at the start of the hearing and only needed “a very

short window” to retain counsel.    After going through multiple

attorneys, the appellant requested a pro se continuance to

retain private counsel only after a disagreement with his

appointed counsel over whether Crim.R. 5 applied to community

control violation hearings.    The trial court, however, did not

abuse its discretion when it refused to continue the revocation

hearing, especially when revocation is not premised upon

information unknown to the defendant.    State v. Harden, 2002-

Ohio-4673 (5th Dist.).    This factor weighs in favor of appellee.
ROSS, 25CA23                                                         27


    {¶48} The fifth Unger factor is whether the defendant

contributed to the circumstances that give rise to the

continuance request.   In the case at bar, it is clear that

appellant’s pro se continuance request resulted from his

continual dissatisfaction with various counsel.    This Court has

recently observed that the “ ‘ “important right to counsel of

choice is not absolute; it must be balanced against the court's

authority to control its own docket,” ’ ” and further “ ‘ “a

court must beware that a demand for counsel may be utilized as a

way to delay proceedings or trifle with the court.” ’ ”      State

v. Thompkins, 2024-Ohio-4927, ¶ 23 (4th Dist.), quoting State v.

Harmon, 2005-Ohio-1974, ¶ 32 (4th Dist.), in turn quoting United

States v. Krzyske, 836 F.2d 1013, 1017 (6th Cir. 1988); State v.

Woodfork, 2025-Ohio-2786, ¶ 23 (4th Dist.).

    {¶49} In State v. Thompkins, supra, although court-appointed

counsel represented Thompkins, Thompkins sought a continuance

the morning of trial to substitute his appointed counsel with

retained counsel.   Id. at ¶ 30.   Newly retained counsel appeared

in court on the morning of trial and filed a “notice of

conditional substitution of counsel,” and “conditioned the

motion to be substituted as counsel for Thompkins on the trial

court granting the motion for a continuance.”     Id.   Thompkins

argued that his family only obtained the funds required three

days prior to the trial, and newly retained counsel argued that
ROSS, 25CA23                                                       28


Thompkins “was entitled to representation with counsel of his

choice,” and that a 30-day continuance was necessary.     This

court affirmed the trial court’s denial of the continuance

motion and concluded that the trial court did not abuse its

discretion when it denied the motion, and that Thompkins had not

been prejudiced by the denial of the motion.   Id. at ¶ 33-35.

We concluded that the continuance request was untimely, that the

trial court had granted previous continuances, that retained

counsel had previously withdrawn, and that witnesses were

present and appointed counsel was ready to proceed.     Id. at ¶

34.   Similarly, in the case at bar we believe the continuance

request is untimely; the trial court previously granted two

continuances, appellant’s previously retained counsel had

withdrawn, as had other attorneys, and witnesses were present,

and counsel appeared ready to proceed, apart from the

disagreement he had with appellant.   As such, this factor weighs

in appellee’s favor.

      {¶50} Finally, the sixth Unger factor incorporates any other

relevant factors depending on the case’s unique facts.     A review

of the record reveals no additional relevant factors not already

considered above, nor does appellant present any.     Thus, this

factor is neutral.

      {¶51} Accordingly, after our review of the record, we do not

believe that appellant demonstrated prejudice from the trial
ROSS, 25CA23                                                    29


court’s denial of his motion to continue, or any possibility

that the outcome of the revocation hearing would have been

different.

    {¶52} Therefore, for all the foregoing reasons, we concluded

that the trial court’s denial of appellant’s continuance request

did not constitute an abuse of discretion.   Consequently, we

overrule appellant’s assignment of error and affirm the trial

court’s judgment.

                                   JUDGMENT AFFIRMED.
ROSS, 25CA23                                                      30


                         JUDGMENT ENTRY

     It is ordered that the judgment be affirmed. Appellee
shall recover of appellant the costs herein taxed.

     The Court finds there were reasonable grounds for this
appeal.

     It is ordered that a special mandate issue out of this
Court directing the Ross County Common Pleas Court to carry this
judgment into execution.

     If a stay of execution of sentence and release upon bail
has been previously granted by the trial court or this court, it
is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is
to allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period,
or the failure of the appellant to file a notice of appeal with
the Supreme Court of Ohio in the 45-day appeal period pursuant
to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of 60 days, the stay will
terminate as of the date of such dismissal.

     A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

    Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

                                   For the Court




                                   BY:__________________________
                                      Peter B. Abele, Judge


                        NOTICE TO COUNSEL

     Pursuant to Local Rule No. 22, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.