STATE OF OHIO, Plaintiff-Appellee, vs. KENNETH PIERCE, Defendant-Appellant.
APPEAL NO. C-160699
TRIAL NO. B-1500199
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 12, 2017
[Cite as State v. Pierce, 2017-Ohio-5791.]
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: July 12, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant.
{1} Defendant-appellant Kenneth Pierce appeals from his convictions for two counts of nonsupport of dependents, fourth-degree felonies. Pierce challеnges the trial court‘s decision overruling his motion to dismiss the indictment against him on constitutional speedy-trial grounds. Because we determine that Pierce‘s constitutional right to a speedy-trial was violated, we reverse the judgment of the trial court.
Facts and Procedural History
{2} The evidence in the record shows that the state indicted Pierce on January 27, 2015, on two counts of nonsupport under
{3} At a hearing on Pierce‘s motion, the prosecutor argued that the Hamilton County Sheriff‘s Office had taken appropriate steps in requesting warrant service on Pierce in Kentucky, and that Kentucky‘s delay in serving the warrant should not be held against the state of Ohio. The prosecutor also argued that Pierce had not kept a current address on file with the juvenile court or the Child Support Enforcement Agency. The state did not offer any evidence to support these
{4} The trial court denied Pierce‘s motion to dismiss, determining that the state had acted with reasonable diligence when it forwarded the arrest warrant to Kentucky authorities, and that Pierce did not suffer particularized prejudice. Pierce pleaded no contest to the two charges, and the trial court sentenced Pierce to community control. Pierce appeals.
Pierce‘s Constitutional Speedy-Trial Right
{5} In his sole assignmеnt of error, Pierce argues that the trial court erred in overruling his motion to dismiss his indictment on constitutional speedy-trial grounds. This court reviews a trial court‘s judgment on a motion to dismiss an indictment on constitutional speedy-trial grounds as a mixed question of law and fact. State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 15 (1st Dist.).
{6} The
{8} First Barker Factor – Length of Delay. The length of delay is a “particularly important factor.” See Selvage at 467. The length of delay operates as a “‘triggering mechanism‘” for inquiry into the remaining Barker factors. Id., quoting Barker at 530-531. “‘Until there is sоme delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.‘” Selvage at 467, quoting Barker at 530-531. The length of delay tolerated by the Sixth Amendment differs depending on whether the case involves “an ordinary street crime,” to which less delay is tolerated, or “a serious, complex conspiracy charge.” Selvage at 467, quoting Barker at 530-531. Delay in commencing prosecution approaching one year has been considered presumрtively prejudicial. Selvage at 468, citing Doggett v. United States, 505 U.S. 647, 652, 112
{9} The trial court determined that the delay in Pierce‘s prosecution justified inquiry into the remaining Barker fаctors. The state does not concede that the length of delay is presumptively prejudicial. Moreover, the state argues that the length of delay should be calculated from the date of indictment to Pierce‘s arrest on March 15, 2016, when he first became aware of these charges, and not a month later when the arrest warrant was returned.
{10} Even if this court assumes a 13 1/2-month delay, instead of a 14 1/2-month delay, the length of delay still exceeds one year—the threshold time period identified in Doggett. See Selvage, 80 Ohio St.3d at 468, 687 N.E.2d 433. Furthermore, the state indicted Pierce on two charges of nonsupport of dependents, which are not complex charges and are low-level felonies, meaning less delay will be tolerated. Selvage, 80 Ohio St.3d at 467, 687 N.E.2d 433, quoting Barker, 407 U.S. at 530-531, 92 S.Ct. 2182, 33 L.Ed.2d 101. Therefore, we determine that the length of delay in prosecuting Pierce is presumptively prejudicial and requires this court‘s inquiry into the remaining Barker factors.
{11} Second Barker Factor – Reason for the Delay. “Closely related to the length of the delay is the reason the government assigns for the delay.” Barker at
{12} The state argues that even if this court determines that the stated acted negligently in prosecuting Pierce, the delay was not so long as to warrant relief absent actual prejudice. See State v. Hubbard, 12th Dist. Butler No. CA2014-03-063, 2015-Ohio-646, ¶ 20, 26 (determining that the state‘s failure to locate the defendant and serve him with the indictment and arrest wаrrant amounted to prosecutorial negligence, which weighed only somewhat in favor of the defendant, and the defendant suffered no actual prejudice); State v. Boyd, 4th Dist. Ross No. 04CA2790, 2005-Ohio-1228. However, the state failed to offer any evidence to explain the delay. Although nothing in the record suggests that the state acted intentionally to thwart service of the indictment on Pierce, this court cannot definitively make that determination because of the lack of evidеnce in the record. The state bears the burden to explain the reason for the delay under the second Barker factor. See United States v. Brown, 169 F.3d 344, 349 (6th Cir.1999). Thus, this factor weighs in favor of Pierce and against the state.
{13} Third Barker Factor – Defendаnt‘s assertion of the speedy-trial right. “Whether and how a defendant asserts his right is closely related to the other
{14} According to the record, thе state brought Pierce into state custody on April 14, 2016, and Pierce filed a motion to dismiss the indictment five days later, on April 19, 2016. The state argues that Pierce could have filed a motion to dismiss one month earlier upon his arrest on thеse charges in Kentucky on March 15, 2016. Although the parties agree on Pierce‘s arrest date, no evidence suggests when Pierce had counsel appointed to represent him on these charges. Moreover, even if we were to weigh this month-long delay in asserting his speedy-trial right against Pierce, it is not enough to tip the balance of this factor in favor of the state. Therefore, we determine that the third Barker factor weighs in favor of Pierce.
{15} Fourth Barker Factor – Prejudice. A court should assess prejudice “in light of the interests of defendants which the speedy trial right was designed to protect.” Barker, 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d 101. These interests identified in Barker are as follows: “(i) to prevent oppressive pretrial incarcеration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. However, affirmative proof of particularized prejudice is not required in every speedy-trial cаse. Selvage, 80 Ohio St.3d 465, 687 N.E.2d 433, citing Doggett, 505 U.S. at 655, 112 S.Ct. 2686, 120 L.Ed.2d 520. In Doggett, the United States Supreme Court determined that the defendant was entitled to relief for violation of his speedy-trial rights for an eight-year delay in prosecution where “the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant‘s acquiescence, * * * nor persuasively rebutted.”
{16} In Sears, this court determined that when the state failed to use reasonable diligence in notifying the criminal defendant of a complaint or indictment, then prejudice was presumed under the fourth Barker factor. See Sears, 166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060, at ¶ 16. Therefore, the Sears court did not discuss whether the defendant had suffered actual prejudice frоm the state‘s delay in prosecution. This court also determined that a defendant need not demonstrate actual prejudice where the defendant suffered a four-year delay brought about by the state‘s inaction. See State v. Jackson, 2016-Ohio-5196, 68 N.E.3d 1278, ¶ 20 (1st Dist.).
{17} The trial court and the state focus on the lack of actual prejudice to Pierce brought on by the delay in his arrest and prosecution. But, because the state offered no evidence to explain its delay in prosecuting Pierce, we presume that Pierce has been prejudiced under the fourth Barker factor, and the state offered no evidence to rebut this presumption of prejudice. See Doggett, 505 U.S. at 658, 112 S.Ct. 2686, 120 L.Ed.2d 520. Therefore, this factor weighs in favor of Pierce as well.
{18} Balancing the Barker Factors. Hаving determined that all four Barker factors weigh in favor of Pierce, we determine that Pierce‘s constitutional speedy-trial right was violated. Therefore, we sustain Pierce‘s assignment of error.
Conclusion
{19} In conclusion, we determine that the trial court erred in overruling Pierce‘s motion to dismiss the indictment on constitutional speedy-trial grounds.
Judgment reversed and cause remanded.
CUNNINGHAM, P.J., and ZAYAS, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.