[Cite as State v. Duncan, 2012-Ohio-3683.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97208




                                      STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.



                                     JAMES DUNCAN
                                                             DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-544823

        BEFORE:          Jones, P.J., S. Gallagher, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                      August 16, 2012
FOR APPELLANT

James Duncan, Pro se
Inmate #603-472
Lebanon Correctional Institution
P.O. Box 56
Lebanon, Ohio 45036


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Jennifer A. Driscoll
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Defendant-appellant James Duncan appeals from the trial court’s judgment of

conviction, contending that his speedy trial rights were violated. We affirm.

                                             I.

       {¶2} In December 2010, Duncan was charged in a 13-count indictment with

sexually oriented offenses and specifications.     During the pretrial proceedings, defense

counsel sought and was granted several continuances, primarily for the purpose of further

discovery. Although Duncan was represented by counsel throughout the entirety of the

trial court proceedings, in May 2011, he filed pro se a motion to dismiss based on speedy

trial grounds and a motion for discovery; the trial court did not rule on the motions.

       {¶3} In June 2011, Duncan pleaded guilty to an amended Count 1, rape, and an

amended Count 3, sexual battery.        The remaining charges and specifications were

dismissed.   In July 2011, the trial court sentenced Duncan to an eight-year term,

consisting of an eight-year sentence on the rape to be served concurrent with a four-year

sentence on the sexual battery.    Duncan now appeals, contending that his speedy trial

rights were violated.

                                             II.

       {¶4} Motions not ruled on when a trial court enters final judgment are deemed

denied; thus, Duncan’s motion to dismiss based on speedy trial grounds is deemed denied.

 Jarrett v. Cuyahoga Cty. Common Pleas Court, 8th Dist. No. 87232, 2006-Ohio-222, ¶
2.

       {¶5} Ohio recognizes both a constitutional right to a speedy trial and a statutory

right to a speedy trial. In his motion to dismiss, Duncan contended that both of his

speedy trial rights had been violated. In regard to his statutory rights, Duncan waived

them by pleading guilty. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1990),

paragraph one of the syllabus; State v. Branch, 9 Ohio App.3d 160, 162, 458 N.E.2d 1287

(8th Dist.); State v. Compton, 8th Dist. No. 97959, 2012-Ohio-2936, ¶ 11.

       {¶6} We therefore only consider Duncan’s constitutional right to a speedy trial.

The analysis for consideration of a defendant’s constitutional speedy trial rights is set

forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In

Barker, the United States Supreme Court identified four factors to be assessed in

determining whether an accused had been constitutionally denied a speedy trial: (1) the

length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right

to a speedy trial, and (4) the prejudice to the defendant. Id. at 530; see also State v. Hull,

110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 22-23, citing Barker at 530-531.

       {¶7} In Barker, the United States Supreme Court stated that the length of the delay

is particularly important:

      The length of the delay is to some extent a triggering mechanism. Until
      there is some delay which is presumptively prejudicial, there is no necessity
      for inquiry into the other factors that go into the balance. Nevertheless,
      because of the imprecision of the right to speedy trial, the length of delay
      that will provoke such an inquiry is necessarily dependent upon the peculiar
      circumstances of the case.
(Footnote omitted.) Id. at 530-531.
         {¶8} The United States Supreme Court has described the length of the delay as a

double inquiry. Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120

L.Ed.2d 520 (1992).         First, the defendant must make a threshold showing of a

“presumptively prejudicial” delay in order to trigger the application of the Barker

analysis.      Doggett at 651-652, citing Barker.       Second, after the initial threshold

showing of “presumptively prejudicial” delay, the court again considers the length of

delay with the other Barker factors.    Doggett at 652, citing Barker.

         {¶9} Courts have generally found postaccusation delay to be “presumptively

prejudicial” as it approaches one year.        Doggett at fn. 1.    Here, approximately six

months elapsed from the beginning of the case until the plea. We do not find that time

frame to be presumptively prejudicial.        Duncan was charged with 13 crimes, which

included four charges of rape against two different victims. During the six month period

that the case was pending, discovery and pretrial negotiations were ongoing and included

in camera inspections by the court of files from the Cuyahoga County Department of

Children and Family Services relative to the two victims.

         {¶10} Because the delay in this case did not meet the threshold requirement of

presumptive prejudice, Duncan was not deprived of his constitutional right to a speedy

trial.   The sole assignment of error is therefore overruled and the trial court’s judgment

is affirmed.

         It is ordered that appellee recover from appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.   Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
