Case Information
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[Cite as
State v. McCaleb
,
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
STATE OF OHIO, :
CASE NO. CA2016-12-103 Plaintiff-Appellee, :
O P I N I O N : 7/24/2017 - vs -
:
JOSEPH K. McCALEB, :
Defendant-Appellant. : CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 16CR31877
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Jeffrey W. Stueve, 301 East Silver Street, Lebanon, Ohio 45036, for defendant-appellant
M. POWELL, J. Defendant-appellant, Joseph K. McCaleb, appeals from a decision of the Warren County Court of Common Pleas, denying his motions to dismiss the indictment. On October 6, 2011, McCaleb was charged by complaint in the Warren County Court with two counts of forgery and one count of receiving stolen property, all fifth-degree felonies. A warrant for McCaleb's arrest was also issued on the charges on October 6, 2011. The arrest warrant listed McCaleb's Franklin, Ohio address, where he resided at the time *2 subject to a house arrest order issued by the state of Indiana. The state also had knowledge of McCaleb's telephone number, social security number, and date of birth. Nonetheless, the arrest warrant was not served upon McCaleb. McCaleb remained at his Franklin, Ohio home until December 1, 2011, when he
was sentenced and incarcerated in an Indiana correctional institution upon Indiana charges. McCaleb remained incarcerated in Indiana until February 28, 2012, when he was transferred to Kentucky upon charges he faced in that state. Thereafter, McCaleb was imprisoned in Kentucky until May 1, 2015, when he was released and returned to his Franklin, Ohio home on parole to the Ohio Adult Parole Authority. McCaleb was released from parole on December 1, 2015. The forgery and receiving stolen property felony charges filed against McCaleb on October 6, 2011 and the arrest warrant on those charges remained pending. On February 16, 2016, McCaleb filed a motion in the Warren County Court to revoke the forgery and receiving stolen property arrest warrants and to dismiss those charges. On March 24, 2016, McCaleb was arrested on the forgery and receiving stolen property charges. McCaleb was released and a preliminary hearing was scheduled. McCaleb waived a preliminary hearing on all three charges, which were bound over to the grand jury and, on May 9, 2016, he was indicted for two counts of fifth-degree felony forgery and one count of first-degree misdemeanor receiving stolen property. On May 27, 2016, McCaleb, acting pro se filed a motion to dismiss the
indictment on the basis that the delay in bringing him to trial since October 2011 violated his right to a speedy trial. On August 23, 2016, McCaleb's defense counsel filed a supplemental motion to dismiss, alleging a violation of McCaleb's constitutional rights due to the delay in bringing him to trial on the charges. On September 7, 2016, the trial court denied McCaleb's motions to dismiss, finding that, despite the "presumptively prejudicial" length of the delay and McCaleb's apparent inability to assert his right to a speedy trial, the delay was *3 occasioned by McCaleb's incarceration in Indiana and Kentucky, the state did not delay prosecution to obtain a strategic advantage in the prosecution of the matter, and McCaleb had not demonstrated that he was prejudiced by the delay. McCaleb appealed the denial of his motions to dismiss on September 12, 2016. On October 6, 2016, this court dismissed McCaleb's appeal for want of a final appealable order. State v. McCaleb , 12th Dist. Warren CA2016-09-078 (Oct. 5, 2016) (Entry of Dismissal). Thereafter, McCaleb entered a plea of no contest on November 1, 2016 to the forgery charges, the receiving stolen property charge was dismissed, and McCaleb was sentenced. McCaleb appeals, asserting a single assignment of error.
{¶ 6} Assignment of Error No. 1: THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION TO
DISMISS. McCaleb asserts the state violated both his statutory speedy trial rights, as
established by R.C. 2945.71(C)(2), and his constitutional speedy trial rights, as guaranteed
by the United States and Ohio Constitutions. Additionally, McCaleb asserts a violation of his
due process rights because he suffered actual prejudice due to a delay in prosecution.
The Sixth Amendment of the United States Constitution and Article I, Section
10 of the Ohio Constitution guarantee the right to a speedy trial. The statutory speedy trial
provisions set forth by R.C. 2945.71 are coextensive with the constitutional speedy trial
provisions. State v. King , 70 Ohio St.3d 158, 160 (1994). The statutory scheme
"constitute[s] a rational effort to enforce the constitutional right to a * * * speedy trial * * * and
[must] be strictly enforced by the courts of this state." State v. Pachay ,
case has been pending since the filing of the complaint on October 6, 2011. Thus, after
excluding the days of his Indiana and Kentucky incarcerations, the state failed to satisfy the
270-day statutory speedy trial requirement. However, it is well-established that "[a] party who
fails to raise an argument in the court below waives his or her right to raise it" on appeal.
Niskanen v. Giant Eagle, Inc. , 122 Ohio St.3d 486,
refers to the statute only in discussing a case where the statutory speedy trial period was referenced as an example of a presumptively prejudicial delay pursuant to his constitutional speedy trial analysis. McCaleb's motion even distinguishes his Ohio statutory rights by stating: "[a]lthough statutory periods exist in Ohio, those statutory periods of limitations are not relevant to a determination of whether an individual's constitutional right to a speedy trial has been violated by an unjustified delay in prosecution." It is apparent that McCaleb did not allege a violation of the statutory right to a speedy trial. Although McCaleb's brief does not argue plain error due to a failure to observe
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his statutory right to a speedy trial, we find no error, plain or otherwise. "Plain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court." Crim.R. 52(B). Plain error does not exist unless the error is obvious
and but for the error, the outcome of the trial would have been different. State v. Blacker ,
12th Dist. Warren No. CA2008-07-094,
contends the time for the state to meet its 270-day obligation began to run upon the filing of
the complaint. However, in so doing, McCaleb fails to distinguish between two requisites
within R.C. 2945.71(C)(2) for commencement of the speedy trial clock. The plain language
of the statute states when a felony charge is pending against a person, that person shall be
brought to trial within 270 days after the person's arrest . Therefore, pendency of the charge
and arrest upon the charge must coincide before the speedy trial time will commence to run.
McCaleb argues an Ohio Supreme Court opinion found the concepts
synonymous by holding "for purposes of calculating speedy-trial time pursuant to R.C.
2945.71(C), a charge is not pending until the accused has been formally charged by a
criminal complaint or indictment, is held pending the filing of charges, or is released on bail or
recognizance." State v. Azbell ,
trial within 270 days after the date of his arrest * * * not includ[ing]" the day of the arrest.
(Citation omitted and emphasis added.) State v. Messer , 12th Dist. Clermont No. CA2006-
10-084,
time until the trial court denied his motion on September 7, 2016. R.C. 2945.72; State v.
Cox , 12th Dist. Clermont No. CA2008-03-028,
speedy trial rights. The primary intention of the Sixth Amendment is not to prevent prejudice
to the defense caused by the passage of time. United States v. Macdonald ,
determines the necessity to inquire into the remaining factors. Triplett at 569. The Ohio
Supreme Court in Triplett stated, "one year is generally considered enough" to be
presumptively prejudicial and trigger an inquiry into the other three factors. Id. , citing Doggett
v. United States ,
the trial court's finding that nothing suggests the state intentionally or with bad faith delayed
prosecution of the matter. Rather, the record fails to reveal anything beyond prosecutorial
negligence. The state certainly had sufficient information as to McCaleb's address and
identifying information to locate him at his home or while incarcerated in Indiana and
Kentucky. However, the record does not demonstrate the state took any efforts to move
forward with the prosecution during this time. Although negligence is 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," and compounds over time as the presumption of evidentiary prejudice
grows. Doggett v. United States ,
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The third factor, whether and how McCaleb asserted his speedy trial right,
cannot be weighed against him. McCaleb initially asserted his right on May 27, 2016,
approximately two months after his arrest on March 24, 2016. McCaleb testified he was
unaware of the pendency of the charges until his arrest; thus, any failure in asserting his
speedy trial rights at an earlier time cannot be held against him. State v. Triplett at 570;
State v. Owens , 2d Dist. Montgomery No. 23623,
to the delay. There are three interests protected by the Sixth Amendment right to a speedy
trial: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused, and (3) the
possibility that the accused's defense will be impaired. Barker v. Wingo ,
{¶ 23} Courts may decline to find a speedy trial violation where delay attributable to the negligence of the state is presumptively prejudicial, but not exceedingly long, absent actual prejudice to the defendant where the record supports such a conclusion. Hubbard at ¶ 25. While the length of the delay weighs in McCaleb's favor, that weight, as discussed above, is negligible, as the interests the Sixth Amendment protects against were not implicated in this case. Moreover, the record does not indicate the delay was due to anything other than prosecutorial negligence, nor does it support a finding McCaleb suffered any actual prejudice. Therefore, the trial court did not err by denying McCaleb's motions to dismiss because the state did not violate McCaleb's speedy trial rights. Finally, McCaleb asserts a due process violation based on alleged actual
prejudice he suffered. However, as discussed above, the trial court properly found McCaleb did not suffer any actual prejudice. Thus, McCaleb's asserted error on due process grounds is meritless. Accordingly, McCaleb's sole assignment of error is overruled. Judgment affirmed.
S. POWELL, P.J., and RINGLAND, J., concur.