State v. Porter, 2021 Ohio 2539

Inmate Michael J. Porter was indicted on March 12, 2020 for 20 counts of child-pornography–related offenses allegedly committed on or about December 5, 2017, based on images found on a contraband cell phone in his prison cell.
The State obtained an indictment roughly 28 months after the phone was seized; discovery (eDiscovery) was produced April 2, 2020 but was not included in the appellate record.
Porter moved to dismiss the indictment for unjustifiable preindictment delay (May 15, 2020); a July 30, 2020 hearing was held where no witnesses testified and the motion was submitted on written filings.
The trial court denied the motion, finding Porter failed to prove actual prejudice from the delay; Porter later pleaded no contest to all counts and was sentenced to an aggregate 21-year term on December 9, 2020.
On appeal Porter argued the 28-month delay violated due process because it impaired his ability to identify witnesses, locate exculpatory evidence, and preserve witness memory; the Third District affirmed the trial court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 28-month preindictment delay violated due process by causing actual prejudice	State: indictment within statute of limitations; defendant must prove actual, non-speculative prejudice before burden shifts	Porter: delay made it impossible to identify/locate alternative users or witnesses and caused fading memories/exculpatory loss	Court: Porter failed to show specific, non-speculative actual prejudice; motion to dismiss properly denied

United States v. Marion, 404 U.S. 307 (limits Sixth Amendment to post-accusation period; statutes of limitations and due-process remedy for prejudicial preindictment delay)
United States v. Lovasco, 431 U.S. 783 (statutes of limitations supply predictable time limits; due process protects against unjustified prejudicial delay)
State v. Jones, 148 Ohio St.3d 167 (reaffirmed burden-shifting framework: defendant must show actual prejudice before state must justify delay)
State v. Adams, 144 Ohio St.3d 429 (no presumption of prejudice from length of delay; defendant must identify specific exculpatory evidence lost)
State v. Whiting, 84 Ohio St.3d 215 (cited for burden-shifting framework in preindictment-delay claims)
State v. Luck, 15 Ohio St.3d 150 (defines actual prejudice in preindictment-delay context)
United States v. Schaffer, 586 F.3d 414 (no presumption of prejudice merely from delay; statutes of limitations protect against stale charges)
State v. Walls, 96 Ohio St.3d 437 (courts must assess prejudice by comparing available evidence at indictment and the effect of delay on trial)