{¶ 2} On July 31, 1993, at approximately 3:30 a.m., an assailant broke into the residence of Marilyn Hogan. The assailant struck Hogan in the head several times, with a hammer, and forced her to engage in vaginal and oral intercourse. Thereafter, the assailant restrained Hogan with duct tape, stole $15 and keys from her purse, and drove away in her vehicle. During the investigation of the crime, the police collected a sample of DNA, from a semen stain, found on the carpet in the living room of Hogan's residence. A DNA profile was developed, from the sample, and entered into the Combined DNA Index System ("CODIS").
{¶ 3} In August 2003, a search of the state and local CODIS databases led to a match with appellant's profile. The Stark County Crime Lab recommended that a DNA standard be obtained, from appellant, and submitted to the lab to confirm the match. On February 9, 2004, oral swabs were collected from appellant. Subsequent tests on the DNA samples, from appellant and the crime scene, confirmed that appellant was the source of the DNA found on the carpet at Hogan's residence.
{¶ 4} On May 21, 2004, the Stark County Grand Jury indicted appellant with one count of rape, one count of aggravated burglary and one count of aggravated robbery. Appellant filed a motion to dismiss the charges against him arguing the law in effect, on the date of the offenses, barred prosecution. On August 5, 2004, the trial court conducted a hearing on appellant's motion. Following the hearing, the trial court denied appellant's motion specifically finding that "* * * the statute of limitations under the law as it exists and applies to Mr. Massey has not run in this particular matter and the motion to dismiss is, therefore, denied." Tr. Aug. 5, 2004, at 6.
{¶ 5} Following the trial court's ruling on the motion to dismiss, appellant entered a plea of no contest. The trial court found the state provided sufficient evidence to find appellant guilty beyond a reasonable doubt and sentenced appellant to concurrent indeterminate terms of five to twenty-five years on the charges of rape and two counts of aggravated burglary. On October 8, 2004, following a risk assessment and classification hearing, the trial court found appellant to be a sexual predator.
{¶ 6} Appellant timely filed his notice of appeal and sets forth the following assignments of error for our consideration:
{¶ 7} "I. The defendant-appellant was deprived of a timely prosecution in violation of his constitutional right to a fair and speedy trial.
{¶ 8} "II. Other errors were committed at trial not raised herein but apparent on the record."
{¶ 10} On the date the offenses were committed, July 31, 1993, under R.C.
{¶ 11} "Section
{¶ 12} Thus, if the statute of limitations had not expired on March 8, 1999, an offender is subject to prosecution under the amended version of R.C.
{¶ 13} In support of this assignment of error, appellant cites the cases of State v. Diaz, Cuyahoga App. No. 81857,
{¶ 14} In Diaz, the victim of a rape reached the age of majority on January 25, 1994, which triggered the running of the statute of limitations. Diaz at ¶ 4. The defendant was not indicted on the charges of rape, kidnapping and felonious assault until December 27, 2001, nearly eight years after the statute of limitations began to run. Id. Defendant argued the statute of limitations had expired and therefore, he could not be prosecuted. The Eighth District Court of Appeals disagreed and relying upon the legislative history of the amended version of R.C.
{¶ 15} "The legislature intended, * * * that the lengthened statute of limitations apply to crimes committed prior to the amendment so long as the statute of limitations had not expired at the time the amendment took effect." Id. at ¶ 6.
{¶ 16} In Diaz, the six-year statute of limitations had not expired. It would have expired on January 25, 2000. Id. at ¶ 7. On March 9, 1999, when the twenty-year statute of limitations became effective, the six-year statute of limitations had not yet expired. Thus, the court of appeals concluded that appellant's prosecution was not barred by the statute of limitations. Id. at ¶ 6.
{¶ 17} In Stogner v. California (2003),
{¶ 18} "Even where courts have upheld extensions of unexpired statutes of limitations * * *, they have consistently distinguished situations where limitations periods haveexpired. Further, they have often done so by saying that extension of existing limitations periods is not ex post facto `provided,' `so long as,' `because,' or `if' the prior limitations periods have not expired — a manner of speaking that suggests a presumption that revival of time-barred criminal cases is not allowed. (Emphasis sic.) [Citations omitted.] Id. at 618.
{¶ 19} In the case sub judice, since the six-year statute of limitations had not expired at the time the twenty-year statute of limitations became effective, we find no violation of the Ex Post Facto Clause.
{¶ 20} Finally, appellant cites the cases of Barker v.Wingo (1972),
{¶ 21} Accordingly, appellant's First Assignment of Error is overruled.
{¶ 23} In Anders, appointed counsel found his indigent client's case to be wholly frivolous and without merit. The United States Supreme Court held it was error for counsel to advise the appellate court by letter without filing any motion or brief on behalf of his client. The case sub judice is distinguishable from Anders in that appellant's appellate counsel filed a brief and in fact assigned an error for review. Accordingly, an Anders claim under this assignment of error has no merit.
{¶ 24} Appellant's Second Assignment of Error is overruled.
{¶ 25} For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
Wise, J. Gwin, P.J., and Hoffman, J., concur.
Costs assessed to Appellant.