State v. PinneyState v. Pinney
Marie Lane, Ashtabula County Public Defender, 4817 State Road, Suite 202, Ashtabula, OH 44004 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
O P I N I O N
{¶1} Appellant, Sandy Diane Pinney, appeals the March 2, 2021 judgment of the Ashtabula County Court of Common Pleas overruling her motion to dismiss due to pre-indictment delay, and the March 30, 2021, judgment sentencing her to twelve months community control on one count Insurance Fraud. On appeal, she asserts a due process violation stemming from the state‘s delay in prosecution. For the reasons discussed herein, the judgments are affirmed.
{¶3} On January 12, 2021, appellant filed a motion to dismiss due to a pre-indictment delay arguing prejudice in that she was deprived of the ability to argue for a concurrent sentence, or from seeking a negotiated plea that would have concluded the matter prior to her release from prison. Additionally, she argued that although the events occurred in 2018, the conviction appears on her record in 2021, after the completion of the 2019 prison sentence. Following a hearing. the trial court overruled appellant‘s motion, finding there was no evidence that the State was negligent or intentional in the delay, and that appellant failed to demonstrate prejudice in preparing her defense due to the delay.
{¶4} In March 2021, appellant withdrew her not guilty plea, and entered a plea of no contest to an amended count one, Insurance Fraud, in violation of
{¶5} Appellant now appeals, assigning one error for our review, which states:
{¶6} The trial court erred when overruling Appellant‘s motion to dismiss based upon the actual prejudice suffered by Appellant as a result from the State‘s unjustifiable delay in prosecution, thereby violating Appellant‘s right to due process.
{¶7} “In reviewing a trial court‘s decision on a motion to dismiss for preindictment delay, this court applies a de novo standard of review to the legal issues, but we afford great deference to the trial court‘s findings of fact.” (Citations omitted.) State v. Lynch, 8th Dist. Cuyahoga No. 105122, 2018-Ohio-1078, ¶20. See also State v. Bruce, 11th Dist. Portage No. 2017-P-0034, 2018-Ohio-1980, ¶10.
{¶8} “[W]hen unjustifiable preindictment delay causes actual prejudice to a defendant‘s right to a fair trial despite the state‘s initiation of prosecution within the statutorily defined limitations period, the Due Process Clause affords the defendant additional protection.” State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, ¶11, citing United States v. Lovasco, 431 U.S. 783, 789 (1977)
{¶9} In Jones, the Supreme Court of Ohio clarified that “preindictment delay violates due process only when it is unjustifiable and causes actual prejudice.” Jones, supra, at ¶12. “Once a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for delay.” Jones, supra, at ¶13, citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998). If the defendant fails to show actual prejudice, the state need not present evidence justifying the delay in the case. See Jones, supra, at ¶16.
{¶10} “To demonstrate prejudice, appellant ‘must point quite specifically to how [he] was prejudiced, and the defendant‘s showing must be concrete, not speculative.‘” State v. Ware, 11th Dist. Lake No. 2007-L-154, 2008-Ohio-3992, ¶19, quoting United States v. Doerr, 886 F.2d 944, 964 (C.A.7, 1989); see also State v. Owens, 8th Dist. Cuyahoga No. 102276, 2015-Ohio-3881, ¶4 (“[T]his court has made it clear that speculation does not show actual prejudice.“). In State v. Luck, Supreme Court of Ohio has found actual prejudice due to the death or faded memory of key witnesses and the loss of evidence. See State v. Luck, 15 Ohio St.3d 150, 157 (1984). However, the Court has clarified that “the possibility of faded memories, inaccessible witnesses, and lost evidence is insufficient to demonstrate actual prejudice.” (Emphasis added.) Jones, supra, at ¶27. Thus, mere possibilities do not prove actual prejudice.
{¶11} Here, appellant argues that the delay in prosecution deprived her of the ability to argue for concurrent sentences or negotiate the plea in the unrelated case. The state argues that appellant‘s argument must fail because she presented no evidence of this allegation to the trial court. We agree.
{¶12} At the hearing on her motion to dismiss, appellant argued that the delay in prosecution deprived her of the ability to argue for or negotiate concurrent sentences; she did not, however, present evidence of actual prejudice. Indeed, appellant‘s argument is fundamentally, and fatally, speculative; she argues that she was not permitted the opportunity to argue for concurrent sentences. Thus, appellant has not shown actual prejudice, and her sole assignment of error is without merit.
{¶13} In light of the foregoing, the judgments of the Ashtabula County Court of Common Pleas are affirmed.
MARY JANE TRAPP, P.J.,
JOHN J. EKLUND, J.,
concur.