2018 Ohio 4855
Ohio Ct. App.2018Background
- In 1995 S.S. reported being sexually assaulted in her apartment; police arrested Berry shortly thereafter and a police report named him as a suspect. S.S. obtained a rape kit on January 11, 1995 but did not continue cooperating at the time.
- The rape-kit evidence was retested in October 2012; Investigator Riolo reopened the matter in 2014, interviewed S.S., obtained an ID from a photo array, and sought to locate Berry.
- An indictment and warrant/summons were issued December 30–31, 2014 (within the 20-year limitations period). The mailed summons was returned as a bad address in January 2015. No further service or record subpoenas were attempted; Riolo knew Berry made child-support payments through the county but did not seek records from the agency.
- Berry was not arrested on the 2014 indictment until December 7, 2016 — nearly two years after indictment and about 22 years after the underlying incident. He was tried in September 2017 and convicted of rape and kidnapping and sentenced to 3 years.
- Defense counsel did not move to dismiss based on statute of limitations or preindictment delay; on appeal Berry argued counsel was ineffective for that omission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to move to dismiss on statute-of-limitations/preindictment-delay grounds | State contended indictment was returned within the 20-year limitations period and prosecution properly commenced | Berry argued prosecution did not commence due to lack of "reasonable diligence" in locating/serving him after indictment and that counsel should have moved to dismiss | Court held counsel was ineffective: state failed to exercise reasonable diligence to execute the indictment and dismissal motion likely would have succeeded |
| Whether the indictment commenced prosecution for limitations purposes despite late arrest | State asserted indictment return commences prosecution under R.C. 2901.13(E) | Berry argued return alone insufficient where no reasonable efforts to effect service/execute process were made | Court held indictment return does not commence prosecution absent reasonable diligence in issuing/executing process |
| Whether defendant concealed whereabouts so tolling applies | State implied no concealment; investigator had no evidence Berry left county | Berry argued no concealment; investigator knew Berry paid child support but didn’t use that resource | Court found no evidence of concealment and tolling did not apply |
| Whether prejudice under Strickland was established | State implied conviction shows no prejudice from counsel’s omission | Berry argued reasonable probability case would have been dismissed if counsel moved to dismiss | Court found prejudice: reasonable probability dismissal would have occurred; vacated judgment and remanded |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (Iowa 1984) (two-part ineffective-assistance test requiring deficient performance and prejudice)
- Sizemore v. Smith, 6 Ohio St.3d 330 (Ohio 1983) (reasonableness standard for diligence in locating defendant to commence prosecution)
- State v. King, 103 Ohio App.3d 210 (Ohio Ct. App. 1995) (single attempt to serve insufficient to show reasonable diligence)