State v. Hawkins, 2019 Ohio 3889

Background

March 20, 2011: Hawkins and his then-girlfriend had a physical altercation; police investigated the same day, took the victim’s statement and photographed injuries.
December 2, 2016: Grand jury returned an eight-count indictment (felonious assault; aggravated robbery; robbery; kidnapping; theft; misdemeanor theft; domestic violence; disrupting public services).
The clerk sent a summons by commercial carrier to the victim’s (Hawkins’s former) address the same day; the FedEx receipt was returned “unclaimed.” No further service attempts are reflected on the docket.
Hawkins did not appear at the December 16, 2016 arraignment; a capias issued. No docket activity until April 2018, when Hawkins was arrested and arraigned; he waived a jury and was tried to the bench in September 2018, convicted on all counts and sentenced to three years.
Hawkins argued on appeal that his trial counsel was ineffective for failing to file a motion to dismiss under R.C. 2901.13 (six-year felony statute of limitations), because the prosecution was not "commenced" with reasonable diligence.
The court of appeals concluded counsel’s failure to move to dismiss was deficient and prejudicial given the record’s showing (or lack thereof) about reasonable diligence and the state’s reliance on tolling via "purposely avoided prosecution." The convictions were reversed and the case remanded to permit Hawkins to move to dismiss.

Issues

Issue	State's Argument	Hawkins' Argument	Held
Whether counsel was ineffective for failing to move to dismiss based on R.C. 2901.13 (statute of limitations).	The statute was tolled because Hawkins "purposely avoided prosecution"—he left Ohio for Georgia, used an alias, and failed to appear at arraignment (capias issued).	The prosecution was not "commenced" because the state did not exercise reasonable diligence to execute process (summons sent to an address where Hawkins no longer lived; returned unclaimed); Hawkins was unaware of the charges.	Court: Counsel was deficient for not filing a motion to dismiss; there is a reasonable probability the outcome would differ; reverse and remand to allow a dismissal motion.
Whether issuance of indictment/summons in 2016 tolled the limitations period despite delayed service.	Indictment and issuance of summons within six years suffice because a capias later reflected failure to appear.	Indictment alone does not commence prosecution unless the state exercises reasonable diligence to execute process; mere issuance is insufficient.	Court: Issuance alone is insufficient; record lacks proof the state exercised reasonable diligence to execute process; tolling not established on this record.
Whether the trial court erred in denying Hawkins’ Crim.R. 29 motion (sufficiency of evidence).	Evidence at trial supported convictions.	Insufficient evidence as matter of law.	Court: Assignment deemed moot after reversal on the ineffective-assistance/statute-of-limitations ground; not addressed on merits.

Key Cases Cited

State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A., 85 Ohio St.3d 582 (Ohio 1999) (purpose and operation of criminal statute of limitations).
Sizemore v. Smith, 6 Ohio St.3d 330 (Ohio 1983) (definition of "reasonable diligence" in service context).
State v. Morris, 20 Ohio App.3d 321 (10th Dist. 1984) (issuance of summons must be accompanied by reasonable diligence to execute service to commence prosecution).
Doggett v. United States, 505 U.S. 647 (U.S. 1992) (when defendant hides and government pursues with reasonable diligence, delay may be excused).
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel).
State v. Iacona, 93 Ohio St.3d 83 (Ohio 2001) (presumption of competence; standards for assessing counsel performance).
State v. Lytle, 48 Ohio St.2d 391 (Ohio 1976) (assessing prejudice from counsel's errors).
State v. Russell, 182 Ohio App.3d 191 (6th Dist. 2009) (departure from state before prosecution exists does not show purposeful avoidance).