[Cite as State v. McCaleb, 2017-Ohio-6944.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2016-12-103
        Plaintiff-Appellee,                         :
                                                               OPINION
                                                    :           7/24/2017
   - vs -
                                                    :

JOSEPH K. McCALEB,                                  :

        Defendant-Appellant.                        :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 16CR31877



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Jeffrey W. Stueve, 301 East Silver Street, Lebanon, Ohio 45036, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Joseph K. McCaleb, appeals from a decision of the

Warren County Court of Common Pleas, denying his motions to dismiss the indictment.

        {¶ 2} On October 6, 2011, McCaleb was charged by complaint in the Warren County

Court with two counts of forgery and one count of receiving stolen property, all fifth-degree

felonies. A warrant for McCaleb's arrest was also issued on the charges on October 6, 2011.

The arrest warrant listed McCaleb's Franklin, Ohio address, where he resided at the time
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subject to a house arrest order issued by the state of Indiana. The state also had knowledge

of McCaleb's telephone number, social security number, and date of birth. Nonetheless, the

arrest warrant was not served upon McCaleb.

       {¶ 3} McCaleb remained at his Franklin, Ohio home until December 1, 2011, when he

was sentenced and incarcerated in an Indiana correctional institution upon Indiana charges.

McCaleb remained incarcerated in Indiana until February 28, 2012, when he was transferred

to Kentucky upon charges he faced in that state. Thereafter, McCaleb was imprisoned in

Kentucky until May 1, 2015, when he was released and returned to his Franklin, Ohio home

on parole to the Ohio Adult Parole Authority. McCaleb was released from parole on

December 1, 2015. The forgery and receiving stolen property felony charges filed against

McCaleb on October 6, 2011 and the arrest warrant on those charges remained pending.

       {¶ 4} On February 16, 2016, McCaleb filed a motion in the Warren County Court to

revoke the forgery and receiving stolen property arrest warrants and to dismiss those

charges. On March 24, 2016, McCaleb was arrested on the forgery and receiving stolen

property charges.    McCaleb was released and a preliminary hearing was scheduled.

McCaleb waived a preliminary hearing on all three charges, which were bound over to the

grand jury and, on May 9, 2016, he was indicted for two counts of fifth-degree felony forgery

and one count of first-degree misdemeanor receiving stolen property.

       {¶ 5} On May 27, 2016, McCaleb, acting pro se filed a motion to dismiss the

indictment on the basis that the delay in bringing him to trial since October 2011 violated his

right to a speedy trial. On August 23, 2016, McCaleb's defense counsel filed a supplemental

motion to dismiss, alleging a violation of McCaleb's constitutional rights due to the delay in

bringing him to trial on the charges. On September 7, 2016, the trial court denied McCaleb's

motions to dismiss, finding that, despite the "presumptively prejudicial" length of the delay

and McCaleb's apparent inability to assert his right to a speedy trial, the delay was
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occasioned by McCaleb's incarceration in Indiana and Kentucky, the state did not delay

prosecution to obtain a strategic advantage in the prosecution of the matter, and McCaleb

had not demonstrated that he was prejudiced by the delay. McCaleb appealed the denial of

his motions to dismiss on September 12, 2016. On October 6, 2016, this court dismissed

McCaleb's appeal for want of a final appealable order. State v. McCaleb, 12th Dist. Warren

CA2016-09-078 (Oct. 5, 2016) (Entry of Dismissal). Thereafter, McCaleb entered a plea of

no contest on November 1, 2016 to the forgery charges, the receiving stolen property charge

was dismissed, and McCaleb was sentenced.                 McCaleb appeals, asserting a single

assignment of error.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION TO

DISMISS.

       {¶ 8} McCaleb asserts the state violated both his statutory speedy trial rights, as

established by R.C. 2945.71(C)(2), and his constitutional speedy trial rights, as guaranteed

by the United States and Ohio Constitutions. Additionally, McCaleb asserts a violation of his

due process rights because he suffered actual prejudice due to a delay in prosecution.

       {¶ 9} The Sixth Amendment of the United States Constitution and Article I, Section

10 of the Ohio Constitution guarantee the right to a speedy trial. The statutory speedy trial

provisions set forth by R.C. 2945.71 are coextensive with the constitutional speedy trial

provisions.    State v. King, 70 Ohio St.3d 158, 160 (1994).               The statutory scheme

"constitute[s] a rational effort to enforce the constitutional right to a * * * speedy trial * * * and

[must] be strictly enforced by the courts of this state." State v. Pachay, 64 Ohio St.2d 218

(1980), syllabus. R.C. 2945.71(C)(2) provides "[a] person against whom a charge of felony is

pending * * *[s]hall be brought to trial within two hundred seventy days after the person's

arrest." When an appellant raises a violation of a speedy trial issue, an appellate court must
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compute a "try-by date." State v. Watkins, 12th Dist. Warren No. CA2013-02-017, 2014-

Ohio-177, ¶ 13. "The court of appeals must count the days of delay chargeable to either side

and determine whether the case was tried within the statutory time limits." Id. This review

presents a mixed question of law and fact. Id. We defer to the trial court's findings of fact, if

supported by competent, credible evidence, and then, independently review whether the trial

court properly applied the law to those facts. Id.

       {¶ 10} McCaleb contends his statutory speedy trial rights were violated because his

case has been pending since the filing of the complaint on October 6, 2011. Thus, after

excluding the days of his Indiana and Kentucky incarcerations, the state failed to satisfy the

270-day statutory speedy trial requirement. However, it is well-established that "[a] party who

fails to raise an argument in the court below waives his or her right to raise it" on appeal.

Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, ¶ 34. Contrary to

McCaleb's assertion otherwise, McCaleb did not argue the state violated his statutory speedy

trial rights in his motions to dismiss; therefore, he waived the issue except for plain error.

State v. Roy, 12th Dist. Butler No. CA2009-12-305, 2010-Ohio-5528, ¶ 17; State v. Wright,

6th Dist. Erie No. E-15-044, 2017-Ohio-1479, ¶ 15.

       {¶ 11} McCaleb mentions R.C. 2945.71 once in his motions to dismiss. However, he

refers to the statute only in discussing a case where the statutory speedy trial period was

referenced as an example of a presumptively prejudicial delay pursuant to his constitutional

speedy trial analysis. McCaleb's motion even distinguishes his Ohio statutory rights by

stating: "[a]lthough statutory periods exist in Ohio, those statutory periods of limitations are

not relevant to a determination of whether an individual's constitutional right to a speedy trial

has been violated by an unjustified delay in prosecution." It is apparent that McCaleb did not

allege a violation of the statutory right to a speedy trial.

       {¶ 12} Although McCaleb's brief does not argue plain error due to a failure to observe
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his statutory right to a speedy trial, we find no error, plain or otherwise. "Plain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court." Crim.R. 52(B). Plain error does not exist unless the error is obvious

and but for the error, the outcome of the trial would have been different. State v. Blacker,

12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, ¶ 39. Notice of plain error is taken

with the utmost caution and only under exceptional circumstances to prevent a manifest

miscarriage of justice. Id.

       {¶ 13} In arguing on appeal a violation of his statutory speedy trial rights, McCaleb

contends the time for the state to meet its 270-day obligation began to run upon the filing of

the complaint. However, in so doing, McCaleb fails to distinguish between two requisites

within R.C. 2945.71(C)(2) for commencement of the speedy trial clock. The plain language

of the statute states when a felony charge is pending against a person, that person shall be

brought to trial within 270 days after the person's arrest. Therefore, pendency of the charge

and arrest upon the charge must coincide before the speedy trial time will commence to run.

       {¶ 14} McCaleb argues an Ohio Supreme Court opinion found the concepts

synonymous by holding "for purposes of calculating speedy-trial time pursuant to R.C.

2945.71(C), a charge is not pending until the accused has been formally charged by a

criminal complaint or indictment, is held pending the filing of charges, or is released on bail or

recognizance." State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, ¶ 21. However, the

Ohio Supreme Court's holding does not stand for McCaleb's contention; but rather, the

holding defines only the "pendency" element of R.C. 2945.71(C)(2).

       {¶ 15} "Generally, when an accused is charged with a felony, he must be brought to

trial within 270 days after the date of his arrest * * * not includ[ing]" the day of the arrest.

(Citation omitted and emphasis added.) State v. Messer, 12th Dist. Clermont No. CA2006-

10-084, 2007-Ohio-5899, ¶ 12. Therefore, McCaleb's arrest date, March 24, 2016, is the
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coincidence date of the pendency of the charges and arrest upon the charges, and thus, the

date when his statutory speedy trial time began to run.

       {¶ 16} On May 27, 2016, McCaleb filed his motion to dismiss the charges, which tolled

time until the trial court denied his motion on September 7, 2016. R.C. 2945.72; State v.

Cox, 12th Dist. Clermont No. CA2008-03-028, 2009-Ohio-928, ¶ 20. Time was tolled again

from September 12, 2016, when McCaleb filed a notice of appeal, to October 6, 2016, when

we dismissed the appeal for lack of a final appealable order. R.C. 2945.72. McCaleb then

enter his no contest plea on November 1, 2016. Thus, 64 days elapsed from the time of

McCaleb's arrest and release on March 24, 2016 until the filing of his motion to dismiss on

May 27, 2016, five days elapsed from the trial court's denial of his motion to dismiss on

September 7, 2016 until the filing of his notice of appeal on September 12, 2016, and 26

days elapsed from our dismissal of his appeal on October 6, 2016 until his no contest plea on

November 1, 2016. Therefore, no violation of McCaleb's statutory speedy trial rights

occurred because he was tried within 95 days of his arrest.

       {¶ 17} Next, we turn to McCaleb's argument the state violated his constitutional

speedy trial rights. The primary intention of the Sixth Amendment is not to prevent prejudice

to the defense caused by the passage of time. United States v. Macdonald, 456 U.S. 1, 8,

102 S.Ct. 1497 (1982). Rather, "that interest is protected primarily by the Due Process

Clause and by statutes of limitations." Id. "The speedy trial guarantee is designed to

minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but

nevertheless substantial, impairment of liberty imposed on an accused while released on bail,

and to shorten the disruption of life caused by arrest and the presence of unresolved criminal

charges." Id. A court must undertake a four-part balancing test to determine whether the

state has violated an accused's constitutional speedy trial rights. State v. Triplett, 78 Ohio

St.3d 566, 568 (1997), citing Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182 (1972).
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The four factors include (1) the length of the delay, (2) the reason the government assigns to

justify the delay, (3) the defendant's responsibility to assert his right to a speedy trial, and (4)

the prejudice to the defendant. Id.

       {¶ 18} The first factor, the length of the delay, is a "triggering mechanism" that

determines the necessity to inquire into the remaining factors. Triplett at 569. The Ohio

Supreme Court in Triplett stated, "one year is generally considered enough" to be

presumptively prejudicial and trigger an inquiry into the other three factors. Id., citing Doggett

v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686 (1992). As in Triplett, the delay for

McCaleb exceeded four years, but did not result in any infringement on McCaleb's liberty, as

he testified he was unaware of any pending charges against him. As discussed above and

as Triplett held, "[t]he interests which the Sixth Amendment was designed to protect * * *

were not issues in this case." Triplett at 569. Therefore, while the first factor does weigh in

favor of McCaleb, the weight is negligible.

       {¶ 19} With respect to the second factor, the reason for the delay, the record supports

the trial court's finding that nothing suggests the state intentionally or with bad faith delayed

prosecution of the matter. Rather, the record fails to reveal anything beyond prosecutorial

negligence. The state certainly had sufficient information as to McCaleb's address and

identifying information to locate him at his home or while incarcerated in Indiana and

Kentucky. However, the record does not demonstrate the state took any efforts to move

forward with the prosecution during this time. Although negligence is weighed more lightly

than a deliberate intent to harm the accused's defense, "it still falls on the wrong side of the

divide between acceptable and unacceptable reasons for delaying a criminal prosecution

once it has begun," and compounds over time as the presumption of evidentiary prejudice

grows. Doggett v. United States, 505 U.S. 647, 657, 112 S.Ct. 2686 (1992). Therefore, we

find the second factor weighs in McCaleb's favor.
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       {¶ 20} The third factor, whether and how McCaleb asserted his speedy trial right,

cannot be weighed against him. McCaleb initially asserted his right on May 27, 2016,

approximately two months after his arrest on March 24, 2016. McCaleb testified he was

unaware of the pendency of the charges until his arrest; thus, any failure in asserting his

speedy trial rights at an earlier time cannot be held against him. State v. Triplett at 570;

State v. Owens, 2d Dist. Montgomery No. 23623, 2010-Ohio-3353, ¶ 14 (declining to weigh

third factor against defendant where the record contained uncontroverted testimony

explaining the defendant was unaware of the charges during the delay).

       {¶ 21} The final Barker factor requires consideration of the prejudice to McCaleb due

to the delay. There are three interests protected by the Sixth Amendment right to a speedy

trial: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused, and (3) the

possibility that the accused's defense will be impaired. Barker v. Wingo, 407 U.S. 514, 532,

92 S.Ct. 2182 (1972). This case does not implicate the first two interests because McCaleb

was neither incarcerated upon the charges nor aware of their pendency during the delay.

       {¶ 22} With regards to the third interest, McCaleb testified he may have had difficulty

finding witnesses for his defense and that his memory may have faded over time. However,

McCaleb failed to identify these witnesses and he did not testify regarding any unsuccessful

efforts to locate them. Therefore, McCaleb's asserted difficulty in preparing a defense is

nothing more than mere speculation, which is "not sufficient to show prejudice." State v.

Hubbard, 12th Dist. Butler No. CA2014-03-063, 2015-Ohio-646, ¶ 24 (finding defendant's

speculation witnesses may have moved without any knowledge to verify, or even suggest,

the witnesses moved, insufficient to show prejudice); State v. Jones, 148 Ohio St.3d 167,

2016-Ohio-5105, ¶ 21 (explaining the difference between speculative prejudice and

demonstrating faded memories, actually unavailable witnesses, and lost evidence); see also

Doggett at 655 (discussing defendant's inability to affirmatively show the delay weakened his
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ability to put on a defense). Furthermore, the evidence against McCaleb is overwhelming.

McCaleb confessed to the crimes and he is shown on surveillance video depositing the

stolen money orders. McCaleb has not explained how the delay in bringing him to trial has

impaired his ability to controvert this evidence. Therefore, the final Barker factor weighs

against McCaleb.

       {¶ 23} Courts may decline to find a speedy trial violation where delay attributable to

the negligence of the state is presumptively prejudicial, but not exceedingly long, absent

actual prejudice to the defendant where the record supports such a conclusion. Hubbard at

¶ 25. While the length of the delay weighs in McCaleb's favor, that weight, as discussed

above, is negligible, as the interests the Sixth Amendment protects against were not

implicated in this case. Moreover, the record does not indicate the delay was due to anything

other than prosecutorial negligence, nor does it support a finding McCaleb suffered any

actual prejudice. Therefore, the trial court did not err by denying McCaleb's motions to

dismiss because the state did not violate McCaleb's speedy trial rights.

       {¶ 24} Finally, McCaleb asserts a due process violation based on alleged actual

prejudice he suffered. However, as discussed above, the trial court properly found McCaleb

did not suffer any actual prejudice. Thus, McCaleb's asserted error on due process grounds

is meritless.

       {¶ 25} Accordingly, McCaleb's sole assignment of error is overruled.

       {¶ 26} Judgment affirmed.


       S. POWELL, P.J., and RINGLAND, J., concur.




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