[Cite as State v. McClain, 2015-Ohio-3691.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26601
:
v. : Trial Court Case No. 13-CR-3942/2
:
TODD A. McCLAIN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 11th day of September, 2015.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
DANIEL J. O’BRIEN, Atty. Reg. No. 0031461, 131 North Ludlow Street, Talbott Tower,
Suite 1210, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Todd A. McClain appeals from his conviction and sentence following a
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no-contest plea to one count of heroin trafficking, a second-degree felony.
{¶ 2} McClain advances two assignments of error. First, he contends he “was
denied his absolute right to seasonable discovery, his right to timely prepare a meaningful
defense and his right to a speedy trial in violation of due process and equal protection of
the law and Brady v. Maryland.” (Appellant’s brief at 3). Second, he asserts that “all
prejudicial deprivations” that occurred in a related but separate case involving his brother
Stephen McClain “are hereby incorporated herein by reference in toto, made a part
hereof and included as assignment of error #2 as if fully rewritten herein.” (Id.).
{¶ 3} The record reflects that McClain was indicted in January 2014 on two counts
of heroin trafficking and one count of engaging in a pattern of corrupt activity. (Doc. #1).
He was arrested at the end of March 2014. (Doc. #8). The charges against McClain
stemmed from controlled drug buys involving a confidential informant identified below in a
search-warrant affidavit as CI#2. The transactions resulted in police obtaining several
search warrants for various locations. McClain moved to suppress evidence obtained
during searches of the locations. (Doc. #17). Following an evidentiary hearing, the trial
court overruled the motion. (Doc. #25). On the morning of his scheduled trial, McClain
filed a conclusory motion to dismiss for a violation of his constitutional and statutory
speedy-trial rights. (Doc. #35). One day later, the trial court filed a waiver-and-plea form
showing McClain’s entry of a no-contest plea to one count of heroin trafficking in
exchange for dismissal of the other charges. (Doc. #37). The trial court found McClain
guilty and imposed a two-year prison sentence and other sanctions. (Doc. #47). The trial
court stayed execution of the sentence pending appeal. (Id.).
{¶ 4} The essence of McClain’s first assignment of error is that the State did not
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timely disclose (1) the identity of CI#2, the confidential informant with whom he engaged
in the controlled drug buys and (2) information allegedly impacting the credibility of this
informant, including “evidence that this CI had an extensive criminal record, was evading
an active criminal warrant, had a serious daily drug habit and was seeking extremely
valuable assistance from the RANGE Task Force for a girlfriend facing serious felony
charges in 2 different jurisdictions.”1 (Appellant’s brief at 4).
{¶ 5} Although McClain and his brother discovered the confidential informant’s
identity themselves and called the informant as a defense witness during the suppression
hearing, McClain argues the State’s failure to disclose the informant’s identity and the
foregoing impeaching information sooner violated his constitutional rights in various
ways. In his appellate brief, he raises these alleged violations in the form of a
constitutional speedy-trial argument under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 182,
33 L.Ed.2d 101 (1972). He asserts that not knowing the informant’s identity or the
impeaching information prevented him from preparing a meaningful defense for more
than one year while the charges against him remained pending. He maintains that the
government’s “failure to provide all required discovery, including Brady material[,]
satisfies the prejudice prong of the Barker v. Wingo analysis, as the type of inculpatory
evidence with which we were dealing, incriminating evidence which would have
catastrophically damaged the credibility of the prosecution’s sine qua non indispensable
witness, would have crippled and evaporated the case against the appellant.”
(Appellant’s brief at 6).
{¶ 6} Upon review, we find no constitutional speedy-trial violation resulting from
1
Although McClain’s appellate brief mentions two confidential informants, “CI#1” and
“CI#2,” the controlled drug buys giving rise to the charges against him involved CI#2.
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the State’s failure to disclose CI#2’s identity or the allegedly impeaching information
about the informant. The right to a speedy trial is guaranteed by the Sixth Amendment to
the United States Constitution and Article I, Section 10 of the Ohio Constitution. In Barker,
the Supreme Court established a balancing test for determining whether a defendant’s
constitutional right to a speedy trial has been violated. The four factors are “[l]ength of
delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the
defendant.” Barker at 530. “[T]hese four factors are balanced considering the totality of
the circumstances, with no one factor controlling.” State v. Perkins, 2d Dist. Clark No.
08-CA-0081, 2009-Ohio-3033, ¶ 8.
{¶ 7} Here McClain was indicted on January 10, 2014. He entered his no-contest
plea almost exactly one year later on January 5, 2015, his scheduled trial date. “One year
is generally a long enough delay to warrant consideration of the remaining three Barker
factors.” Id. at ¶ 9. But the record reflects multiple reasons for the delay that are
attributable to McClain. First, he apparently could not be located following his January 10,
2014 indictment and was not arrested on the indictment until March 28, 2014. (Doc. #7).
Second, McClain sought and received two continuances that caused a delay from
April 10, 2014 through May 22, 2014. (Doc. #13, 18). Third, McClain filed a suppression
motion on April 30, 2014. (Doc. #17). The trial court promptly held a May 22, 2014 hearing
on the motion. McClain asked to file a post-hearing memorandum which was not done
until June 19, 2014. (Doc. #23). The trial court overruled the suppression motion 78 days
later in a September 5, 2014 order. (Doc. #25). Contrary to the argument in McClain’s
reply brief, we see nothing unreasonable in the trial court’s 78-day delay after McClain
filed his post-hearing memorandum. See State v. McClain, 2d Dist. Montgomery No.
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26602, September 11, 2015 opinion (addressing the same issue with regard to the same
hearing). In short, the record reveals that the majority of the delay between McClain’s
January 10, 2014 indictment and his January 5, 2015 no-contest plea was attributable to
him. Accordingly, the second Barker factor weighs against finding a constitutional
speedy-trial violation.
{¶ 8} The next Barker factor is “the defendant’s assertion of his right” to a speedy
trial. Barker at 530. “ ‘It is well established under our law that the right to a speedy trial
conferred by the Constitution is not self-executing. Affirmative action on the part of an
accused in the nature of a demand to be tried is necessary to invoke the protection of the
Constitution.’ ” Perkins, ¶ 12, quoting Partsch v. Haskins, 175 Ohio St. 139, 140, 191
N.E.2d 922 (1963). “ ‘In other words, there can be no denial where there has been no
demand. The purpose of Section 10, Article I, is to provide a trial for an accused without
undue delay with its attendant anxieties and the possibility that the defense might be
prejudiced by the lapse of time. However, it was not intended as a shield to the guilty, the
protection of which might be invoked by sitting silently back and allowing the prosecution
to believe that the accused is acquiescing in the delay. It is a right which must be claimed
or it will be held to have been waived.’ ” Id. Here the record before us does not reflect any
assertion by McClain of his speedy-trial right prior to the filing of his terse January 5, 2015
motion to dismiss on speedy-trial grounds. As noted above, he filed that motion the same
day he entered his no-contest plea. Therefore, the third Barker factor weighs against
finding a constitutional speedy-trial violation.
{¶ 9} With regard to the fourth Barker factor, we see no actual prejudice to McClain
as a result of the delay at issue, which, as noted above, was largely attributable to him. In
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his appellate brief, McClain argues that the one-year delay in this case was
“presumptively prejudicial.” We note, however, that a finding of “presumptive prejudice” is
merely a triggering mechanism under the first Barker factor that justifies an inquiry into the
other three factors. State v. Kraus, 2d Dist. Greene No. 2011-CA-35, 2013-Ohio-393, ¶
23. The last of those other factors involves actual prejudice. Here the only actual
prejudice McClain suggests in his appellate brief is impairment of his defense.
Specifically, he argues that he was prejudiced by delay in learning the identity of CI#2 with
whom he engaged in the controlled drug buys and information impacting the credibility of
that informant. As noted above, he asserts that this information “would have
catastrophically damaged the credibility of the prosecution’s sine qua non indispensable
witness, [and] would have crippled and evaporated the case against the appellant.”
(Appellant’s brief at 6).
{¶ 10} Upon review, we find no actual prejudice to McClain for at least two
reasons. First, we are not persuaded that the information he discusses about the CI#2
would have “evaporated” the State’s case, which primarily was based on police directly
observing and recording at least two controlled drug buys involving McClain and the
informant. Second, the confidential informant testified as a defense witness at the May
22, 2014 suppression hearing and the allegedly impeaching facts about him were
discussed then. Given that McClain was not indicted until January 10, 2014 and was not
arrested on the indictment until March 28, 2014, he actually learned the information at
issue relatively quickly (i.e., roughly four months after his indictment and two months after
his arrest). For these reasons, we find no actual prejudice to McClain as a result of the
delay about which he complains. In light of the foregoing analysis, it is readily apparent
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that no constitutional speedy-trial violation exists. Although McClain complains about a
nearly one-year delay between his indictment and no-contest plea, he is responsible for
most of that delay, he did not assert his speedy-trial right, and he was not prejudiced by
the delay.
{¶ 11} While McClain’s opening appellate brief does not appear to raise a statutory
speedy-trial argument, we also note that we agree with the State’s assessment that no
statutory violation exists either. Ohio’s speedy trial statutes, R.C. 2945.71 et seq.,
constitute a rational effort to implement the constitutional right to a speedy trial and will be
strictly enforced. State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980). In Ohio,
R.C. 2945.71 requires the State to bring a felony defendant to trial within 270 days of
arrest. R.C. 2945.71(C). Each day during which the accused is held in jail in lieu of bail on
the pending charge is counted as three pursuant to the triple-count provision of R.C.
2945.71(E). This “triple-count” provision reduces to 90 days the time for bringing to trial an
accused who is incarcerated the entire time preceding trial. State v. Dankworth, 172 Ohio
App.3d 159, 2007-Ohio-2588, 873 N.E.2d 902, ¶ 31 (2d Dist.). Pursuant to R.C. 2945.72,
however, the time within which an accused must be brought to trial is extended by a
period of delay caused by his own motions.
{¶ 12} Applying the foregoing standards, we see no violation of McClain’s statutory
right to a speedy trial. He was arrested on March 28, 2014 and posted bond that same
day. Giving him credit for three days under the triple-count provision, the State still had
267 days to bring him to trial. Twelve days then elapsed before April 10, 2014, when
McClain moved for and received the first of two continuances. His April 30, 2014
suppression motion kept the speedy-trial clock tolled through the trial court’s May 22,
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2014 hearing on the motion, McClain’s filing of a post-hearing memorandum on June 19,
2014, and the trial court’s overruling of the suppression motion on September 5, 2014.
Another 122 days then elapsed between September 5, 2014 and McClain’s no-contest
plea on January 5, 2015. Adding together the 3 days, 12 days, and 122 days results in
137 speedy-trial days passing before McClain entered his no-contest plea. Therefore, the
plea occurred well within the 270-day statutory speedy-trial time limit.
{¶ 13} Finally, insofar as McClain’s appellate brief may be asserting free-standing
arguments about violations of his right to discovery and his right to prepare a meaningful
defense (as opposed to raising these issues as components of his constitutional
speedy-trial argument), we find them to be without merit. McClain assets that he had a
right under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to
learn CI#2’s identity and certain information affecting the informant’s credibility. He
likewise argues that he had a constitutional right to prepare a meaningful defense. He
maintains that these rights were violated by a one-year delay in his discovery of CI#2’s
identity and the information about the informant’s credibility. We disagree. Assuming,
arguendo, that McClain was entitled to information about the confidential informant, the
record reflects that he had that information at the time of the May 22, 2014 suppression
hearing, which was roughly four months after his indictment and two months after his
arrest—not one year as he alleges. For the foregoing reasons, the first assignment of
error is overruled.
{¶ 14} In his second assignment of error, McClain seeks to incorporate by
reference “all prejudicial deprivations” that occurred in the related criminal case involving
his brother Stephen McClain. The only issues in that case, however, involved whether a
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warrant to search Stephen McClain’s house was enforceable and whether Stephen
McClain’s statutory speedy-trial right was violated. We fail to see how either of these
issues is relevant to Todd McClain’s present appeal. In any event, we
contemporaneously have overruled the assignments of error in Stephen McClain’s case
and affirmed the trial court’s judgment. See State v. McClain, 2d Dist. Montgomery No.
26602, September 11, 2015 opinion. In light of that ruling, Todd McClain cannot possibly
identify any prejudicial error in his brother’s case that would assist him here. Accordingly,
the second assignment of error is overruled.
{¶ 15} The judgment of the Montgomery County Common Pleas Court is affirmed.
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FAIN, J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Daniel J. O’Brien
Steven K. Dankof