[Cite as State v. Pierce, 2017-Ohio-5791.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160699
TRIAL NO. B-1500199
Plaintiff-Appellee, :
vs. :
O P I N I O N.
KENNETH PIERCE, :
Defendant-Appellant. :
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.
OHIO FIRST DISTRICT COURT OF APPEALS
DETERS, Judge.
{¶1} Defendant-appellant Kenneth Pierce appeals from his convictions for
two counts of nonsupport of dependents, fourth-degree felonies. Pierce challenges
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 R.C. 2919.21(B), for failing to
support two children from July 2014 to January 2015. The state also issued a
warrant for Pierce’s arrest on January 27, 2015. The parties agree that Pierce resided
at the time in Kentucky, although the parties dispute the exact location. The parties
also agree that Pierce was arrested in Kentucky on these charges on March 15, 2016.
On April 14, 2016, the arrest warrant was returned, and Pierce was in custody in
Hamilton County. On April 19, 2016, Pierce filed a motion to dismiss the indictment
on constitutional speedy-trial grounds, arguing that the 14½-month delay between
the filing of the indictment and completion of the warrant was unreasonable.
{¶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
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assertions. Defense counsel argued that Pierce’s address had remained current with
the juvenile court; however, Pierce offered no evidence to support this assertion
either.
{¶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 assignment 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 Sixth Amendment to the United States Constitution provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial * * *.” The speedy-trial guarantee in the federal constitution applies to
state criminal trials through the Fourteenth Amendment. Klopfer v. North Carolina,
386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The Ohio Constitution also provides
speedy-trial guarantees. See Ohio Constitution, Article I, Section 10. The right to a
speedy trial applies “to unjustifiable delays in commencing prosecution, as well as to
unjustifiable delays after indictment.” State v. Meeker, 26 Ohio St.2d 9, 268 N.E.2d
589 (1971), paragraph three of the syllabus.
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{¶7} The United States Supreme Court developed a four-factor balancing
test to apply to constitutional speedy-trial cases in Barker v. Wingo, 407 U.S. 514,
530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four Barker factors include the
“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant.” Id. The Barker court noted that none of the factors
were necessary or sufficient conditions, but “[r]ather, they are related factors and
must be considered together with such other circumstances as may be relevant. In
sum, these factors have no talismanic qualities; courts must still engage in a difficult
and sensitive balancing process.” Id. at 533. Ohio courts apply the Barker four-
factor test in analyzing constitutional speedy-trial challenges. See State v. Selvage,
80 Ohio St.3d 465, 467, 687 N.E.2d 433 (1997); State v. Triplett, 78 Ohio St.3d 566,
568, 679 N.E.2d 290 (1997). The trial court applied the Barker factors to Pierce’s
speedy-trial challenge—a task we now undertake.
{¶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 some 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 presumptively
prejudicial. Selvage at 468, citing Doggett v. United States, 505 U.S. 647, 652, 112
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OHIO FIRST DISTRICT COURT OF APPEALS
S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1. This court has held that a nine-month
delay from the filing of the criminal complaint until the defendant’s arrest in a
misdemeanor-assault case amounted to presumptive prejudice. See State v. Sears,
166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060, ¶ 12 (1st Dist.); Rice, 2015-
Ohio-5481, 57 N.E.3d 84, at ¶ 24 (holding that an 18-month delay from the filing of
the criminal complaint until the date of indictment justified inquiry into the
remaining Barker factors).
{¶9} The trial court determined that the delay in Pierce’s prosecution
justified inquiry into the remaining Barker factors. 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 13½-month delay, instead of a 14½-
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
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531. A neutral reason, such as negligence, should be weighted less heavily against
the government. Id. Deliberate delay tactics weigh in favor of the defendant and
against the state. Rice, 2015-Ohio-548, 157 N.E.3d 84, at ¶ 27. The Ohio Supreme
Court determined that a 54-month delay between indictment and trial did not violate
a defendant’s speedy-trial rights, despite the government’s lack of effort to find the
defendant, because a copy of the indictment had been sent by certified mail to an
address that the defendant had provided to police upon her initial arrest. Triplett, 78
Ohio St.3d 566, 679 N.E.2d 290.
{¶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 warrant 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 evidence 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 – Defendant’s assertion of the speedy-trial right.
“Whether and how a defendant asserts his right is closely related to the other
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factors[.]” Barker, 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101. “The more serious
the deprivation, the more likely a defendant is to complain.” Id.
{¶14} According to the record, the 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 these 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 incarceration;
(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 case. 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.”
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(Internal citations omitted.) Doggett, 505 U.S. at 658, 112 S.Ct. 2686, 120 L.Ed.2d
520.
{¶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 from
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. Having 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.
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The judgment of the trial court is reversed, and the cause is remanded for the trial
court to dismiss the indictment.
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.
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