STATE OF OHIO, PLAINTIFF-APPELLANT, v. SHANE P. IRISH, DEFENDANT-APPELLEE.
CASE NO. 10-18-13
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY
July 8, 2019
[Cite as State v. Irish, 2019-Ohio-2765.]
Appeal from Mercer County Common Pleas Court Trial Court No. 16-CRM-071 Judgment Reversed and Cause Remanded
OPINION
APPEARANCES:
Matthew K. Fox and Joshua A. Muhlenkamp for Appellant
Reed D. Searcy for Appellee
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{¶1} Plaintiff-appellant, the State of Ohio, appeals the October 12, 2018 judgment of the Mercer County Court of Common Pleas dismissing the indictment against defendant-appellee, Shane P. Irish (“Irish“). For the reasons that follow, we reverse.
{¶2} On June 16, 2016, the Mercer County Grand Jury indicted Irish on two counts: Count One of burglary in violation of
{¶3} A change of plea hearing was held on August 18, 2017. (Doc. No. 34); (Aug. 18, 2017 Tr. at 3). Pursuant to plea negotiations, the State moved to amend Count One of the indictment from second-degree felony burglary to trespass in a habitation in violation of
{¶4} On August 30, 2017, the trial court sentenced Irish to three years of community control. (Doc. No. 41); (Aug. 30, 2017 Tr. at 7). The trial court tolled Irish‘s community control sanctions until he completed his 44-month prison sentence. (Doc. No. 41). The trial court filed its judgment entry of sentence on September 15, 2017. (Id.).
{¶5} On September 25, 2017, Irish filed a notice of appeal from the trial court‘s September 15, 2017 judgment of sentence. (Doc. No. 48). On May 14, 2018, this court reversed Irish‘s conviction and sentence. (Doc. No. 72). We remanded the matter to the trial court with instructions for the trial court to consider whether Irish‘s statutory and constitutional speedy-trial rights had been violated. (Id.).
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{¶6} On remand, Irish filed a motion to dismiss the indictment on July 16, 2018 alleging that his statutory and constitutional speedy-trial rights were violated. (Doc. No. 89). On July 31, 2018, Irish filed a memorandum in support of his motion to dismiss. (Doc. No. 94). On August 14, 2018, the State filed a memorandum in opposition
{¶7} Following a September 12, 2018 hearing, the trial court granted Irish‘s motion to dismiss and dismissed the indictment on October 12, 2018. (Doc. No. 100). Specifically, the trial court concluded that Irish‘s statutory speedy-trial rights under
{¶8} On November 7, 2018, the State filed a notice of appeal. (Doc. No. 107). It raises one assignment of error.
Assignment of Error
The trial court erred when it found that the speedy trial statute, ORC §2945.71, had been violated and granted the defendant‘s motion to dismiss, and in improperly conflating the statutory and constitutional speedy trial rights.
{¶9} In its assignment of error, the State argues that the trial court erred by granting Irish‘s motion to dismiss. Specifically, the State argues that the trial court erred by concluding that
{¶10} “A speedy trial claim involves a mixed question of law and fact for purposes of appellate review.” State v. Gartrell, 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 104, quoting State v. Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735, ¶ 20, citing State v. Masters, 172 Ohio App. 3d 666, 2007-Ohio-4229, ¶ 11 (3d Dist.). “Accordingly, a reviewing court must give due deference to the trial court‘s findings of fact if they are supported by competent, credible evidence but will independently review whether the trial court correctly applied the law to the facts of the case.” Id., quoting Hansen at ¶ 20, citing Masters at ¶ 11.
{¶11} “An accused is guaranteed the constitutional right to a speedy trial pursuant to the
{¶13} Conversely,
When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which
the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner.
* * *
The warden or superintendent having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment, information, or complaint against him, concerning which the warden or superintendent has knowledge, and of his right to make a request for final disposition thereof.
* * *
If the action is not brought to trial within the time provided, subject to continuance allowed pursuant to this section, no court any longer has jurisdiction thereof, the indictment, information, or complaint is void, and the court shall enter an order dismissing the action with prejudice.
“In its plainest language,
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{¶14} This court has previously addressed the relationship between
{¶15} However, it has become clear that Salyers and its progeny are outliers. “The weight of authority * * * advises that once a defendant is admitted to
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prison,
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¶ 6 (8th Dist.); State v. Spencer, 4th Dist. Scioto No. 15CA3718, 2017-Ohio-456, ¶ 24-27; Skorvanek at ¶ 19; Stewart at ¶ 21-22.
{¶16} In reaching this conclusion, these courts have observed that because it is a specific statute,
{¶17} We find these courts’ reasoning to be persuasive. Therefore, we conclude that when a person who is imprisoned in an Ohio correctional institution is charged with a crime separate from the crime for which they are imprisoned,
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{¶18} We now apply these principles to the facts of this case. It is undisputed that Irish was imprisoned in an Ohio correctional institution throughout the entire period relevant to this case: June 16, 2016, the date he was indicted, through August 18, 2017, the date he entered his no contest pleas. Thus, during this period,
{¶19} Furthermore, we conclude that Irish‘s statutory speedy-trial rights under
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{¶20} Nevertheless, Irish argues that the indictment could have been properly dismissed under
{¶21} Irish‘s argument is without merit. The Supreme Court of Ohio has
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duty arises “only when the warden or superintendent has knowledge of such charges.” Id. If a warden or prison superintendent has knowledge of untried charges pending against a prisoner in their custody and fails to inform the prisoner in writing of the source and contents of those charges and of the right to request disposition of the charges, the prisoner‘s speedy-trial rights under
{¶22} However, under
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the charges pending against her” despite a diligent search: “Regardless of her reason for not doing so, because [the defendant] failed to comply with [
{¶23} Here, there is no evidence in the record suggesting that the warden or superintendent of any of the correctional institutions in which Irish was incarcerated had knowledge of the untried indictment. Furthermore, although the record contains evidence that a member of the law enforcement community in Mercer County may have been aware of the indictment pending against Irish and of the fact that he was incarcerated in the Belmont
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2018 Tr. at 26-27). Finally, the record does not indicate that Irish attempted to comply with
{¶24} We acknowledge that, in some cases, this interpretation of the relation between
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{¶25} “To determine whether a defendant has been deprived of [their] constitutional speedy-trial rights, a court must balance four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant‘s assertion of a speedy-trial right, and (4) the prejudice to the defendant.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 88, citing State v. Selvage, 80 Ohio St.3d 465, 467 (1997) and Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 (1972). In balancing these four factors, the court must examine the totality of the circumstances; no one factor is controlling. State v. Keaton, 10th Dist. Franklin No. 16AP-716, 2017-Ohio-7036, ¶ 8; Rice at ¶ 23.
{¶26} However, prior to engaging in any balancing, “the court must make a threshold determination concerning the length of [the] delay.” Adams at ¶ 89. “‘Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.‘” (Emphasis sic.) State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, ¶ 23, quoting Barker at 530. Stated differently, “the Barker analysis is only triggered once a ‘presumptively prejudicial’ delay is shown.” Keaton at ¶ 9, citing Doggett v. United States, 505 U.S. 647, 651-652, 112 S.Ct. 2686 (1992) and State v. Yuen, 10th Dist. Franklin No. 03AP-513, 2004-Ohio-1276, ¶ 10. “A delay becomes presumptively prejudicial as it approaches one year in length.” Adams at ¶ 90, citing Doggett at 652, fn. 1.
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{¶27} Here, the trial court found that 375 days elapsed between the date of the indictment and the date Irish was served with a copy of the indictment. (Doc. No. 100). Further, the trial court found that an additional 53 days passed between the date Irish was served with the indictment and the date he entered his no contest pleas. (Id.). Thus, a little more than one year elapsed between the date Irish was formally
{¶28} In weighing the Barker factors, we first consider whether the length of the delay tilts in favor of Irish‘s claim that his constitutional speedy-trial rights were violated. While we initially consider the length of the delay in determining whether we must even balance the Barker factors, upon concluding that a delay is presumptively prejudicial, the length of the delay is analyzed in a new light in
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conjunction with the other Barker factors. See State v. Kadune, 10th Dist. Franklin No. 15AP-920, 2016-Ohio-4637, ¶ 21. In this case, although the delay is sufficient to raise a bare presumption of prejudice and while we find that the length of the delay ultimately weighs in Irish‘s favor, we conclude that its weight is insignificant.
{¶29} In State v. Triplett, the Supreme Court of Ohio concluded that a 54-month delay between indictment and trial, while significant, did not violate the defendant‘s constitutional right to a speedy trial. 78 Ohio St.3d 566, 569-571 (1997). In analyzing the first Barker factor, the court observed:
[T]he delay in this case, while significant, did not result in any infringement on Triplett‘s liberty. In fact, according to her own testimony, she was completely ignorant of any charges against her. The interests which the
Sixth Amendment was designed to protect—freedom from extended pretrial incarceration and from the disruption caused by unresolved charges—were not issues in this case. Therefore, while the first factor does technically weigh in Triplett‘s favor, its weight is negligible.
Id. at 569.
{¶30} We find Triplett‘s reasoning applicable to the instant case. At the time Irish was indicted on June 16, 2016, he was serving a 44-month prison sentence for unrelated crimes. (Doc. No. 91). When Irish was finally served with the indictment
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in June 2017, he was still serving the 44-month prison sentence, and he remained imprisoned through his change of plea and sentencing hearings. Moreover, Irish testified that he did not become aware of the pending indictment until May 2017 when he received a letter from his former court-appointed counsel advising him to request disposition of the matter. (Sept. 12, 2018 Tr. at 10-13); (Defendant‘s Ex. A). As Irish was unaware of the untried indictment for the substantial majority of the delay and because he was already serving an unrelated term of imprisonment, the record contains little indication that Irish‘s life was disrupted by the unresolved charges against him. Accordingly, although we conclude that the length of the delay weighs in Irish‘s favor, it does so only negligibly. See, e.g., Keaton, 2017-Ohio-7036, at ¶ 11 (concluding that a 22-month delay weighed negligibly in favor of the defendant because the defendant did not know about the indictment prior to his
{31} Next, we consider the reasons the government assigns for the delay. The inquiry into causation for the delay involves a sliding scale. McCain, 2016-Ohio-4992, at ¶ 15; Rice, 2015-Ohio-5481, at ¶ 25. “Where the state purposefully causes a delay, hoping to gain some impermissible advantage at trial, this factor would weigh heavily against the state and in favor of dismissal.” Hubbard at ¶ 19, citing Doggett, 505 U.S. at 656. In contrast, where the defendant caused or contributed to the delay, this factor would weigh significantly against him. Id., citing Triplett at 569-570 and Smith at ¶ 14. Finally, “[a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered * * *.” Barker, 407 U.S. at 531. “Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground.” Hubbard at ¶ 19, quoting Doggett at 656-657. “Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused‘s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Id., quoting Doggett at 657. “The weight assigned to official negligence compounds over time as the presumption of evidentiary prejudice grows.” Id., citing Doggett at 657.
{32} Here, there is no suggestion in the record that Irish or the State deliberately caused the delay. Instead, the State attempts to shift blame for the delay entirely onto Irish by relying on Irish‘s apparent inadvertence in failing to promptly file a request for disposition under
{33} As explained earlier,
Therefore, while the State may not be penalized under
{34} At the hearing on Irish‘s motion to dismiss, Ronald Waltmire (“Waltmire“), formerly with the Celina Police Department and currently an investigator for the Mercer County Prosecutor‘s Office, testified that he, along with two other investigators from Mercer County, located Irish at the Madison Correctional Institution in order to serve him with a warrant to collect his DNA. (Sept. 12, 2018 Tr. at 25-26); (Doc. No. 91). He testified that he successfully served the warrant on Irish and collected a DNA sample from Irish via buccal swab. (See Sept. 12, 2018 Tr. at 25-27). Irish‘s DNA sample tied him to the offenses for which he was ultimately indicted in this case. (See Doc. No. 91). Furthermore, Waltmire testified that he knew at one time that Irish was later imprisoned in the Belmont Correctional Institution, the facility in which Irish was housed when he eventually learned that he was under indictment. (Sept. 12, 2018 Tr. at 26). Finally, Waltmire stated that an inmate‘s location is “normally” obtainable through the Ohio Department of Rehabilitation and Correction‘s (“ODRC“) website. (Id. at 26-27).
{35} Thus, the record reflects that before Irish was indicted, three investigators from Mercer County were aware that Irish was incarcerated in the Madison Correctional Institution. The record further reflects that, at the very least, Waltmire was aware that Irish was later housed at the Belmont Correctional Institution. However, there is nothing in the record suggesting that anyone other than Waltmire knew that Irish had been relocated to the Belmont Correctional Institution. While this information likely could have been discovered by searching the ODRC‘s website, nothing in the record indicates that the State willfully refused to take the appropriate steps to determine Irish‘s precise location. Moreover, there is no evidence that the State intentionally failed to serve Irish with the indictment despite possessing knowledge of his location. Thus, from this record, we can discern little more than prosecutorial negligence on the part of the State. Accordingly, we conclude that the second factor weighs in Irish‘s favor, if only somewhat. See Hubbard, 2015-Ohio-646, at ¶ 19-20; Rice, 2015-Ohio-5481, at ¶ 25-26; Owens, 2010-Ohio-3353, at ¶ 11-13.
{36} Third, we consider Irish‘s assertion of his right to a speedy trial. “The third factor addresses the timeliness and frequency of the defendant‘s assertions of his speedy-trial right.” Rice at ¶ 27, citing Barker, 407 U.S. at 529. Here, Irish‘s uncontradicted testimony establishes that he did not become aware of the untried indictment until May 2017—nearly a year after it was issued. (Sept. 12, 2018 Tr. at 11-13); (See Defendant‘s Ex. A). Consequently, for most of the delay, Irish‘s failure to assert his right to a speedy trial or claim that his speedy-trial rights were violated will not be held against him. See Hubbard at ¶ 21, citing Owens at ¶ 14 and State v. Boyd, 4th Dist. Ross No. 04CA2790, 2005-Ohio-1228, ¶ 16. Furthermore, Irish filed his request for disposition under
{37} However, while Irish attempted to invoke his statutory speedy-trial rights in a relatively timely fashion, he did not file a motion to dismiss at any time before he entered his no contest pleas, and he did not assert a possible violation of his speedy-trial rights until he filed his first notice of appeal, which was nearly three months after he was served with the indictment. See Keaton, 2017-Ohio-7036, at ¶ 14 (six-month delay between arrest and filing of motion to dismiss weighed slightly in the State‘s favor); McCain, 2016-Ohio-4992, at ¶ 17 (three-month gap between arrest and filing of motion to dismiss weighed slightly against the defendant); Walker, 2007-Ohio-4666, at ¶ 31 (although the defendant asserted his right to a speedy trial at his arraignment, two-month delay between arraignment and filing of motion to dismiss weighed against his claim that he was deprived of his right to a speedy trial). In addition, when Irish entered the no contest pleas that initially resolved this case, he was specifically advised that he had the right to a speedy trial. (See Doc. No. 31). Yet, he signed a waiver of constitutional rights form wherein he acknowledged and agreed that he was waiving the right to a speedy trial by entering his no contest pleas. (Id.). Therefore, although Irish raised his speedy-trial rights under
{38} Finally, we consider the degree to which Irish was prejudiced by the delay. In considering the prejudice suffered by a defendant, the Supreme Court of the United States has “held that the inquiring court should assess prejudice ‘in light of the interests the speedy trial right was designed to protect.‘” McCain at ¶ 18, citing Barker at 532. The speedy-trial right was designed to “prevent[] oppressive pretrial incarceration, minimiz[e] the accused‘s anxiety, and limit[] the possibility that the passage of time will impair the accused‘s ability to mount a defense.” Id., citing Barker at 532; State v. Stevens, 3d Dist. Logan No. 8-14-09, 2014-Ohio-4875, ¶ 19, citing Barker at 532. “‘Of these forms of prejudice, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.“‘” Stevens at ¶ 19, quoting Doggett, 505 U.S. at 654, quoting Barker at 532. “Impairment of one‘s defense is also the most difficult form of prejudice to prove ‘because time‘s erosion of exculpatory evidence and testimony “can rarely be shown.“‘” Id., quoting Doggett at 655, quoting Barker at 532.
{39} With respect to prejudice, Irish argues that “witnesses favorable to [him] may have dispersed; memories of all witnesses may have faded; and it is currently unknown whether the physical DNA evidence is still viable for DNA testing.” (Appellee‘s Brief at 22). He notes that “[t]hese are things that cannot be affirmatively demonstrated by physical evidence because it would involve proving a negative, which is impossible to do.” (Id.). Irish suggests that he does not need to demonstrate that he has actually been prejudiced because, due to the length of the delay, prejudice is presumed. (See id.).
{40} We disagree. In Doggett, the court acknowledged that “consideration of prejudice is not limited to the specifically demonstrable, and * * * affirmative proof of particularized prejudice is
{41} The delay caused by the State‘s negligence in this case, while sufficient to raise a presumption of prejudice for purposes of triggering analysis of the Barker factors, was significantly shorter than the eight-and-one-half year delay at issue in Doggett. Accordingly, Irish was required to demonstrate actual prejudice.
{42} In this case, the first interest protected by the right to a speedy trial is not implicated. At all times relevant to Irish‘s speedy-trial claim, Irish was imprisoned for unrelated offenses. Therefore, Irish was not threatened with the prospect of oppressive pretrial incarceration as his liberty was already severely restrained. See Spencer, 2017-Ohio-456, at ¶ 36; Hubbard at ¶ 23; Owens at ¶ 15.
{43} Furthermore, for most of the delay, Irish was completely ignorant of the untried indictment. As a result, the pending charges could not have caused Irish any anxiety or concern during this period. See Keaton, 2017-Ohio-7036, at ¶ 15; McCain, 2016-Ohio-4992, at ¶ 19; Owens, 2010-Ohio-3353, at ¶ 15. In addition, once Irish learned about the indictment, the case proceeded quickly to its original resolution, and there is no evidence in the record regarding Irish‘s anxiety or concern during the three-month period between when he learned about the charges and when he entered his no contest pleas. Thus, Irish fails to show that he suffered actual prejudice in connection with the second interest protected by the speedy-trial right.
{44} Moreover, we conclude that Irish has failed to demonstrate that his defense was actually prejudiced by the delay. At the hearing on Irish‘s motion to dismiss, Waltmire testified that the State‘s witnesses, including the victim, were still willing to testify and that the evidence collected from the scene of the crime was available for testing. (Sept. 12, 2018 Tr. at 21-23). Furthermore, Waltmire testified that the evidence was stored in the Celina Police Department‘s evidence room, that the conditions in the evidence room “should be constant,” and that he was not aware of any case where evidence significantly degraded after being stored in the evidence room. (Id. at 31-32). However, he acknowledged that he did not know whether the buccal swab taken from Irish at the Madison Correctional Institution was still available for testing or whether the laboratory technician who first analyzed some of the organic evidence could testify. (Id. at 24, 27). Finally, while Waltmire could not say whether the buccal swab or blood samples could still yield DNA, he testified that so long as the samples
{45} Thus, at most, the record reflects that it is possible that some of the organic evidence tying Irish to the crimes may be unavailable or unsuitable for testing and that the whereabouts and availability of one of the State‘s witnesses are unknown, at least to Waltmire. However, the mere possibility that some of the State‘s evidence has deteriorated or that one of the State‘s witnesses may not be available to testify is insufficient to demonstrate actual prejudice to Irish‘s defense. Furthermore, Irish‘s conjecture that favorable witnesses may have “dispersed” and that the “memories of all witnesses may have faded” does not establish the requisite degree of prejudice.
{46} Finally, Irish argues that he was prejudiced by the delay because he “could have requested a sentence concurrent to what he was already serving.” (Appellee‘s Brief at 22). However, “‘the theoretical and speculative loss of the opportunity for [a] defendant to serve the sentence on the pending charge concurrently with the sentence in another case’ is insufficient to constitute substantial prejudice to the defendant.” McCain, 2016-Ohio-4992, at ¶ 19, quoting Rice, 2015-Ohio-5481, at ¶ 32. See Spencer, 2017-Ohio-456, at ¶ 37 (“Losing [the] opportunity to bargain for concurrent sentences is based upon speculation and is not sufficient to show prejudice; there is no constitutional or statutory right to be given concurrent sentences.“). Furthermore, to the extent that Irish may have been denied some chance to bargain for concurrent sentences, we note that when Irish entered his no contest pleas, he had only served approximately 24 months of his 44-month prison sentence. (See Doc. No. 91). As a result, Irish was not utterly deprived of the opportunity to negotiate for concurrent sentences. Altogether, because we conclude that Irish has not shown actual prejudice, the fourth Barker factor weighs heavily in favor of the State.
{47} In sum, we find that the first and second Barker factors weigh slightly in Irish‘s favor. However, we find that the third factor weighs slightly in the State‘s favor and that the fourth factor weighs decisively against Irish. Accordingly, we conclude that Irish‘s constitutional rights to a speedy trial were not violated. Because we ultimately conclude that neither his statutory nor constitutional speedy-trial rights were violated, the trial court erred by granting Irish‘s motion to dismiss.
{48} The State‘s assignment of error is sustained.
{49} Having found error prejudicial to the appellant herein in the particulars assigned and argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
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