[Cite as State v. Johnson, 2013-Ohio-4077.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    GREENE COUNTY

 STATE OF OHIO                                    :
                                                  :     Appellate Case No. 2013-CA-1
          Plaintiff-Appellee                      :
                                                  :     Trial Court Case No. 10-CR-678
 v.                                               :
                                                  :
 BRIAN E. JOHNSON                                 :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
          Defendant-Appellant                     :
                                                  :
                                              ...........

                                              OPINION

                            Rendered on the 20th day of September, 2013.

                                              ...........

STEPHEN K. HALLER, Atty. Reg. #0009172, by STEPHANIE R. HAYDEN, Atty. Reg.
#0082881, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorneys for Plaintiff-Appellee

ANN M. CURRIER, Atty. Reg. #0082305, Gorman, Veskauf, Henson & Wineberg, 4 West Main
Street, Suite 723, Springfield, Ohio 45502
        Attorney for Defendant-Appellant

                                              .............

HALL, J.,

        {¶ 1}     Brian E. Johnson appeals from his conviction and sentence following a guilty
plea to four counts of felony non-support of dependents.

         {¶ 2}           In two related assignments of error, Johnson contends (1) his constitutional

speedy-trial rights were violated by a delay between his indictment and service of the indictment

and (2) his attorney provided ineffective assistance by not advising him of the speedy-trial

violation prior to his guilty plea, thereby rendering the plea not knowing, intelligent, and

voluntary.

         {¶ 3}           The record reflects that Johnson was indicted on five counts of felony

non-support of dependents on December 22, 2010. He was served with a warrant and the

indictment almost fourteen months later on February 10, 2012. Pursuant to a negotiated plea

agreement, he ultimately pled guilty to four of the five charges. The trial court imposed an

aggregate three-year prison sentence. This appeal followed.



         {¶ 4}           As set forth above, Johnson claims the nearly fourteen-month delay between his

indictment and service of the indictment violated his constitutional right to a speedy trial. 1

Although a guilty plea waives a defendant’s ability to assert a statutory speedy-trial violation on

appeal,2 Ohio courts have reached different conclusions as to whether the same rule applies to

alleged constitutional speedy-trial violations. The Eighth District Court of Appeals has held that

a guilty plea does not waive a defendant’s ability to raise a constitutional speedy-trial violation on

appeal. State v. Kutkut, 8th Dist. Cuyahoga No. 98479, 2013-Ohio-1442, ¶9; State v. King, 184



            1
            In his appellate brief, Johnson inaccurately refers to the delay as being “over two years.”
            2
                See State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), syllabus; Village of Montpelier v. Greeno, 25 Ohio St.3d 170, 172,
 495 N.E.2d 581 (1986) (“We are in agreement with the legion view that generally a guilty plea waives a defendant’s right to raise the statutory
 right to a speedy trial on appeal.”).
                                                                                                                                              3


Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d 399, ¶10 (8th Dist.).3 The First District Court of

Appeals has reached a contrary conclusion. State v. West, 134 Ohio App.3d 45, 52, 730 N.E.2d

388 (1st Dist.1999). This court has reached both conclusions. State v. Hawkins, 2d Dist. Greene

No. 98CA6, 1999 WL 197932, *4 (April 9, 1999) (“Because a plea of guilty waives the

defendant’s right to trial, it necessarily also waives any claim that the defendant was denied his

statutory and constitutional rights to a speedy trial.”), citing Clark v. Maxwell, 177 Ohio St. 49,

50, 201 N.E.2d 882 (1964); State v. Ellis, 2d Dist. Montgomery No. 18092, 2001 WL 28665, *1

(Jan. 12, 2001) (“The State points out, correctly, that Ellis’ guilty plea waived his right to

challenge his conviction for a violation of the speedy trial requirements imposed by R.C.

2945.71(B)(2).”). State v. Cordell, 2d Dist. Greene No. 2009 CA 57, 2010-Ohio-5277, ¶8 (“The

second ‘potential assignment of error’ is ‘whether appellant was denied speedy trial rights.’ * * *

[T]here is nothing in the record reflecting any possible constitutional speedy trial violation for

pre-indictment delay. Furthermore, the plea of guilty effectively waived any such challenge.”).

            3
              According to King, “the Ohio Supreme Court has held that a defendant who enters a guilty plea does not waive her constitutional
 right to a speedy trial.” King at ¶10. In support of this proposition, the Eighth District cited one of its earlier opinions, State v. Branch, 9
 Ohio App.3d 160, 162, 458 N.E.2d 1287 (8th Dist.1983). The only Ohio Supreme Court opinions mentioned in the relevant portion of
 Branch are State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), and State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980). Neither
 Wilson nor Pachay held that a guilty plea does not waive a constitutional speedy-trial claim.
             Wilson was not a speedy-trial case at all. The issue there was whether the defendant could challenge the constitutionality of the
 statute under which he was prosecuted despite his guilty plea. The Ohio Supreme Court held that the plea did not preclude the challenge. It
 reasoned that a guilty plea does not waive constitutional challenges to the validity of a statute relied on to convict a defendant. Wilson at
 54-55. In reaching this conclusion, Wilson cited Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), which held that a
 defendant’s rights under the Double Jeopardy Clause are not waived by a guilty plea. In Greeno, 25 Ohio St.3d 172, 495 N.E.2d 581, the Ohio
 Supreme Court subsequently reasoned that the rationale of Menna did not extend to speedy-trial violations. Although Greeno was a statutory
 speedy-trial case, it cited favorably to federal case law addressing constitutional speedy-trial claims as well.
             The other Ohio Supreme Court opinion cited in the relevant portion of Branch is Pachay, which was a speedy-trial case. The issue
 there, however, was whether Ohio’s speedy-trial statutes constituted an unlawful usurpation of judicial power. Pachay said nothing about
 whether a guilty plea waives a constitutional speedy-trial claim.
[Cite as State v. Johnson, 2013-Ohio-4077.]
         {¶ 5}        Although there is support for the proposition that a guilty plea waives both

statutory and constitutional speedy-trial claims,4 this court has recognized a potential exception

when a speedy-trial claim is raised in the context of ineffective assistance of counsel. See State v.

Johnson, 2d Dist. Clark No. 2000-CA-46, 2001 WL 1636316, *2 (Dec. 21, 2001), citing Greeno

at 172, fn. 5.5 We have stated that “[a] plea of guilty waives any claim that the accused was

prejudiced by ineffective assistance of trial counsel, except to the extent that the ineffectiveness

alleged may have caused the guilty plea to be less than knowing, intelligent, and voluntary.” State

v. Stivender, 2d Dist. Montgomery No. 23973, 2011-Ohio-247, ¶15. Likewise, Johnson’s

argument here is that his guilty plea was not made knowingly, intelligently, and voluntarily

because his attorney rendered ineffective assistance by not advising him of a constitutional

speedy-trial violation. Nevertheless, even assuming, arguendo, that this issue was not

extinguished by Johnson’s guilty plea, we find no basis for reversal.

         {¶ 6}        To prevail on his ineffective-assistance claim, Johnson must show that his

attorney’s performance was deficient and that the deficient performance prejudiced him.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice

            4
              This conclusion is consistent with older Ohio Supreme Court cases and federal case law. See, e.g., Clark v. Maxwell, 177 Ohio St.
 49, 50, 201 N.E.2d 882 (1964) (“It is well settled that the [constitutional] right to a speedy trial must be claimed, and a failure to urge such
 right or plea of guilty constitutes a waiver thereof.”); Partsch v. Haskins, 175 Ohio St. 139, 141, 191 N.E.2d 922 (1963) (“[E]ven assuming
 petitioner had made a demand for a speedy trial, when he entered his plea of guilty in 1961, it amounted to a withdrawal of such demand and
 waived his right to insist on the constitutional provisions relating to a speedy trial.”); United States. v. Gonzalez, 3d Cir. No. 10-1521, 2012
 WL 1059896 (Mar. 30, 2012) (“A speedy trial argument would necessarily be frivolous because Gonzalez’s guilty plea waived both statutory
 and constitutional speedy trial claims.”); United States v. Wilson, 11th Cir. No. 07-15819, 2008 WL 4228400 (Sept. 17, 2008) (“To the extent
 Wilson challenges his conviction on constitutional speedy trial grounds, the entry of his guilty plea waived any violation of his right to a
 speedy trial.”); United States v. Davis, 4th Cir. No. 06-4346, 2007 WL 1799714 (June 15, 2007) (“[B]oth the constitutional and the statutory
 right to a speedy trial are non-jurisdictional and are, therefore, waived by an unconditional and voluntary guilty plea.”).
            5
           While recognizing that a statutory speedy-trial claim is waived by a guilty plea, the Ohio Supreme Court opined in footnote five of
 Greeno that “a more colorable claim would be made if issues of ineffective counsel, involuntary plea, coercive plea bargain, etc. were present.”
                                                                                                      5


exists where “there is a reasonable probability that, but for counsel’s deficient performance, the

outcome would have been different.” Id. at 694. In the present context, Johnson must establish a

reasonable probability that the trial court would have sustained a motion to dismiss on

constitutional speedy-trial grounds. On the record before us, he has not made such a showing.

       {¶ 7}    To determine whether a constitutional speedy-trial violation exists “it is

necessary to balance and weigh the conduct of the prosecution and the defendant by examining

four factors: (1) the length of the delay; (2) the reason for the delay; (3) [d]efendant’s assertion of

his speedy trial rights; and (4) the prejudice to [d]efendant as a result of the delay.” State v.

Ferguson, 2d Dist. Clark No. 08CA0050, 2011-Ohio-4285, ¶72, citing Barker v. Wingo, 407 U.S.

514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Proper “resolution of a [constitutional] speedy trial

claim necessitates a careful assessment of the particular facts of the case.” United States v.

MacDonald, 435 U.S. 850, 858, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978).

       {¶ 8}    In light of Johnson’s guilty plea, the record contains few pertinent facts. The

absence of a developed record makes it difficult for him to establish a reasonable probability that

a constitutional speedy-trial claim would have prevailed below. We do know that the length of

the delay at issue was roughly fourteen months. Although this is enough to be “presumptively

prejudicial,” thereby triggering a full Barker analysis, such a delay still may be entitled

“negligible weight” where the interests the Sixth Amendment protects, namely freedom from

extended pretrial incarceration and from disruption caused by unresolved charges, are not

implicated. State v. Owens, 2d Dist. Montgomery No. 23623, 2010-Ohio-3353, ¶9, quoting State

v. Triplett, 78 Ohio St.3d 566, 569, 679 N.E.2d 290 (1997).

       {¶ 9}    The record does not reveal the reason for the fourteen-month delay. Johnson

admits in his appellate brief that “it is unclear precisely what resulted in the delay.” (Appellant’s
                                                                                                                                         6


brief at 12). 6 We certainly see nothing to indicate that the delay was attributable to any

government action or lack thereof. Johnson also never asserted his speedy-trial right, even after

service of the indictment. With regard to actual prejudice, we note that three types exist: (1)

pretrial incarceration on the charges, (2) anxiety and concern about the charges, and (3) the

possibility of an impaired defense due to fading memories and the loss of evidence. Owens at

¶15. The record before us does not indicate that Johnson experienced any such prejudice. He was

not in jail on the charges at issue, he admits not knowing about the charges during the

fourteen-month delay, and nothing suggests any impairment to his defense.

         {¶ 10} Under similar circumstances in Owens, this court found no constitutional

speedy-trial violation. Owens involved a little more than a twelve-month delay between a

defendant’s indictment and service of the indictment. Owens at ¶8. As in the present case,

Owens was unaware of the pending charges during that time. Id. at ¶10. This court attributed the

delay to at most governmental negligence. Id. at ¶11. As in the present case, the defendant never

asserted his speedy-trial right during the delay because he was unaware of the charges. Id. at ¶14.

He timely asserted his speedy-trial right, however, after being served with the indictment (which

is what Johnson claims his attorney should have done). Finally, as in the present case, the record

revealed no actual prejudice to the defendant. Id. at ¶15. Under such circumstances, this court

reasoned:

                   The disputed period of delay in Owens’ case is approximately one year,

         which barely even reaches the threshold needed to trigger a full Barker analysis.


           6
              Perhaps part of the delay was the nine-month prison sentence he was serving from his 2011 conviction which we upheld in State
 v. Johnson, 2d Dist. Clark No. 2011CA0079, 2012-Ohio-4082.
                                                                                                  7


        While this delay weighs in his favor, we explained above that its weight is

        negligible because the interests the Sixth Amendment protects were not implicated

        in this case. The record also does not suggest that the delay was due to anything

        worse than prosecutorial negligence. Finally, although Owens timely asserted his

        speedy trial right, the record contains no evidence of any actual prejudice as a

        result of the challenged delay. Owens’ hearing testimony indicates an absence of

        prejudice. On these facts, as in [State v. Bailey, 2d Dist. Montgomery No. 20764,

        2005-Ohio-5506], our review of the Barker factors leads us to conclude that

        Owens’ Sixth Amendment speedy trial right was not violated.

Id. at ¶17.

        {¶ 11} Having compared the limited record before us to the facts of Owens, we do not

find a reasonable probability that the trial court would have sustained a motion to dismiss on

constitutional speedy-trial grounds if Johnson’s counsel had raised the issue. Therefore, he cannot

show prejudice due to his attorney’s failure to advise him of the issue or raise it below. In the

absence of such a showing, Johnson’s ineffective-assistance-of-counsel claim fails.

        {¶ 12} Based on the reasoning set forth above, we overrule both assignments of error

and affirm the judgment of the Greene County Common Pleas Court.

                                         .............



FAIN, P.J., and DONOVAN, J., concur.



Copies mailed to:

Stephen K. Haller
                             8


Stephanie R. Hayden
Ann M. Currier
Hon. Michael A. Buckwalter
