THE STATE OF OHIO, APPELLANT, v. SELVAGE, APPELLEE.

[Cite as State v. Selvage (1997), ___ Ohio St.3d ___.]

Criminal law — Statutory periods of limitations not relevant to determination of

      whether individual’s constitutional right to speedy trial has been violated

      by an unjustified delay in prosecution.

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.

      (No. 96-1386 — Submitted October 7, 1997 — Decided December 31,

1997.)

      APPEAL from the Court of Appeals for Montgomery County, No. 15530.

      Tina R. Selvage, appellee, allegedly made two sales of marijuana to

undercover police officers, one on March 17, 1994 and one on March 23, 1994.

The alleged purchases were part of an extensive, ongoing narcotics investigation.

As a result of the purchases, Officer Patrick Rice of the Huber Heights Police

Department filed a criminal complaint against appellee on June 7, 1994 in the

Common Pleas Court of Montgomery County.              In an effort to preserve the

anonymity of the officers involved in the investigation, the state did not pursue the

complaint at that time, and appellee was never served. Thereafter, in April 1995,

appellee was indicted on felony charges stemming from the March 1994 alleged

sales of marijuana.

      At appellee’s June 6, 1995 arraignment, after the reading of the indictment

was waived, appellee, while present in court and with counsel, failed to enter a

plea to the charges. As a result, the trial court, sua sponte, entered a not guilty

plea on her behalf.
      On July 6, 1995, appellee filed a motion to dismiss the charges, claiming

that the delay in bringing the indictment constituted a violation of her right to a

speedy trial. A hearing on the motion to dismiss was held on September 8, 1995.

From the testimony taken at the hearing, the trial court concluded that the delay in

bringing the indictment did violate appellee’s speedy trial rights and granted the

motion to dismiss. In its order dated September 29, 1995, the trial court held that

the thirteen-month delay between the alleged commission of the crimes and

appellee’s indictment and the ten-month delay between the filing of the criminal

complaint and appellee’s indictment were prejudicial to appellee. The court found

appellee’s assertion that she had no recollection of the events in question

compelling evidence that she was prejudiced in her defense.

      On May 17, 1996, the Montgomery County Court of Appeals affirmed the

judgment of the trial court and adopted the trial court’s order as its opinion. The

state of Ohio, appellant, filed a notice of appeal with this court on June 17, 1996.

      The matter is now before this court pursuant to the allowance of a

discretionary appeal.

                               __________________

      Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and

George A. Katchmer, Assistant Prosecuting Attorney, for appellant.

      Lynn G. Koeller, Montgomery County Public Defender, and Anthony R.

Cicero, Assistant Public Defender, for appellee.

                               __________________

      DOUGLAS, J. The sole question in this case is whether a statutory period of

limitations for commencing a criminal prosecution is dispositive of an individual’s

constitutional right to a speedy trial. Appellant contends that because appellee

was indicted within the statutory period of limitations for commencing a criminal



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prosecution under R.C. 2901.13, the trial court and the court of appeals erred as a

matter of law in determining that appellee’s speedy trial rights had been violated.

In effect, appellant argues that appellee could not have been prejudiced by any

delay in commencing prosecution when that delay did not exceed the six-year

limitations period for felony offenses contained in R.C. 2901.13(A)(1).            We

disagree and hold that 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. Accordingly, and for the

reasons that follow, we affirm the judgment of the court of appeals.

      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 * * *.” This provision has been held to be applicable to state criminal trials

via the Fourteenth Amendment. Klopfer v. North Carolina (1967), 386 U.S. 213,

87 S.Ct. 988, 18 L.Ed.2d 1. The Ohio Constitution provides similar protection.

See Section 10, Article I. In State v. Meeker (1971), 26 Ohio St.2d 9, 55 O.O.2d

5, 268 N.E.2d 589, paragraph three of the syllabus, this court held that “[t]he

constitutional guarantees of a speedy trial are applicable to unjustifiable delays in

commencing prosecution, as well as to unjustifiable delays after indictment.”1

(Emphasis added.)

      In this action, the trial court determined that the delay in prosecuting

appellee violated her constitutional right to a speedy trial. The trial court based its

determination on the test used for analyzing speedy trial claims set forth in the

seminal case of Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d

101. In Barker, the United States Supreme Court stated that “[a] balancing test

necessarily compels courts to approach speedy trial cases on an ad hoc basis.” Id.

at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-117. The court identified four factors



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which courts should assess in determining whether the right to a speedy trial has

been violated: (1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of his right; and (4) prejudice to the defendant. Id. at 530,

92 S.Ct. at 2192, 33 L.Ed.2d at 117. Although the court stated that no one factor

is controlling, id. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118, it noted that the

length of the delay is a particularly important factor:

      “The length of 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.

To take but one example, the delay that can be tolerated for an ordinary street

crime is considerably less than for a serious, complex conspiracy charge.”

(Emphasis added and footnote omitted.) Id. at 530-531, 92 S.Ct. at 2192, 33

L.Ed.2d at 117.

      Appellant argues that appellee’s speedy trial rights could not have been

violated because the length of the delay was not presumptively prejudicial, and the

Barker analysis was therefore not triggered. In support of its argument, appellant

relies on R.C. 2901.13, which provides time periods within which the state must

commence criminal prosecutions:

      “(A) Except as otherwise provided by this section, a prosecution shall be

barred unless it is commenced within the following periods after an offense is

committed:

      “(1) for a felony other than aggravated murder or murder, six years.”

      Appellant contends that prejudice, presumptive or otherwise, cannot occur

when an action is brought within the six-year period of limitations for the



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commencement of a felony prosecution under R.C. 2901.13(A)(1).                Thus,

according to appellant, because appellee was indicted within six years of the

alleged offense, Barker is inapplicable.

      However, appellant’s argument overlooks the fact that R.C. 2901.13 is a

statute of limitations, not a prescribed minimum of time which must run before

prejudicial delay can occur. In addition, the Barker court specifically rejected a

fixed approach to speedy trial analysis by finding “no constitutional basis for

holding that the speedy trial right can be quantified into a specified number of

days or months.”     Id. at 523, 92 S.Ct. at 2188, 33 L.Ed.2d at 113.        While

acknowledging that states are free to set such time periods, the court stated that

they must be reasonable and within constitutional standards. Id. at 523, 92 S.Ct. at

2188, 33 L.Ed.2d at 113.        Adopting appellant’s assertion that presumptive

prejudice cannot arise until after the six-year statute of limitations contained in

R.C. 2901.13 has expired would ignore the Barker court’s recognition that

prejudice to a defendant varies and ought to be reviewed on a case-by-case basis.

      Further, the United States Supreme Court recognized in a later case,

Doggett v. United States (1992), 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, 120

L.Ed.2d 520, 528, fn. 1, that “courts have generally found postaccusation delay

‘presumptively prejudicial’ at least as it approaches one year.” In the instant

action, there was a ten-month delay from the filing of the criminal complaint until

appellee was indicted and a one-year delay from the filing of the criminal

complaint until appellee was arraigned.

      Appellant also argues that the trial court erred in finding that appellee

suffered presumptive prejudice by relying on appellee’s assertion that she could

not recall her actions on the day that the alleged criminal acts occurred. Appellant

contends that such an assertion of forgetfulness does not rise to the level of



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presumptive prejudice required by Barker and therefore a more objective standard

is required. According to appellant, that standard is the legislatively sanctioned

period of limitations, as pointed out in United States v. MacDonald (1982), 456

U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696. The United States Supreme Court stated

in MacDonald that “[t]he Sixth Amendment right to a speedy trial is thus not

primarily intended to prevent prejudice to the defense caused by passage of time;

that interest is protected primarily by the Due Process Clause and by statutes of

limitations.” Id. at 8, 102 S.Ct. at 1502, 71 L.Ed.2d at 704. However, in Doggett,

the court distinguished MacDonald, noting that “[o]nce triggered by arrest,

indictment, or other official accusation, however, the speedy trial enquiry must

weigh the effect of delay on the accused’s defense just as it has to weigh any other

form of prejudice that Barker recognized.” (Emphasis added.) Doggett, 505 U.S.

at 655, 112 S.Ct. at 2692, 120 L.Ed.2d at 530.

      The appellee was formally accused when appellant filed the criminal

complaint in June 1994. The filing of the criminal complaint triggered the speedy

trial inquiry under Barker. If we were to adopt the standard put forth by appellant

we would be disregarding the current status of the law as well as depriving

appellee, and others like her, of the important safeguards guaranteed by the Sixth

Amendment.2 This we decline to do.

      In addition, for purposes of the right to a speedy trial, “consideration of

prejudice is not limited to the specifically demonstrable, and * * * affirmative

proof of particularized prejudice is not essential to every speedy trial claim.”

Doggett, 505 U.S. at 655, 112 S.Ct. at 2692, 120 L.Ed.2d at 530. As the United

States Supreme Court recognized in Doggett, “impairment of one’s defense is the

most difficult form of speedy trial prejudice to prove because time’s erosion of

exculpatory evidence and testimony ‘can rarely be shown.’ ” Id. at 655, 112 S.Ct.



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at 2692-2693, 120 L.Ed.2d at 530-531, quoting Barker v. Wingo, 407 U.S. at 532,

92 S.Ct. at 2193, 33 L.Ed.2d at 118.

      In Doggett, the court stated that “[o]ur speedy trial standards recognize that

pretrial delay is often both inevitable and wholly justifiable. The government may

need time to collect witnesses against the accused, oppose his pretrial motions, or,

if he goes into hiding, track him down.          We attach great weight to such

considerations when balancing them against the costs of going forward with a trial

whose probative accuracy the passage of time has begun by degrees to throw into

question. * * * Thus, in this case, if the government had pursued Doggett with

reasonable diligence from his indictment to his arrest, his speedy trial claim would

fail.” Id., 505 U.S. at 656, 112 S.Ct. at 2693, 120 L.Ed.2d at 531.

      In the case at bar, if the state had pursued appellee with “reasonable

diligence,” the trial court’s conclusion may have been different. However, the

alleged transactions which led to appellee’s indictment occurred in March 1994.

A criminal complaint was filed against appellee three months later, in June 1994.

Appellee was not indicted until April 1995, thirteen months after the date of the

alleged occurrences, and ten months after the filing of the criminal complaint.

Additionally, evidence before the trial court indicated that other persons

implicated by the undercover investigation were first arrested in late September or

early October 1994. Subsequent to these arrests, appellee was left in limbo for

seven months and not given an opportunity to answer the criminal charge against

her. These facts led the trial court to conclude that the state did not act with

reasonable diligence in commencing prosecution against appellee.

      In the proceedings on appellee’s motion to dismiss, the trial court

considered Barker and found that the delay in prosecuting appellee prejudiced her

defense. There is no indication that the trial court abused its discretion in applying



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the test and making its determination, and that determination will be accorded due

deference.

      Therefore, we hold that the trial court did not abuse its discretion in

determining that appellee was deprived of her Sixth Amendment right to a speedy

trial. The trial court did not err in determining that the delay in commencing

prosecution in this case, when considered in light of the appellant’s reason for the

delay, was constitutionally unreasonable. We further find that appellee did not fail

to assert her right to a speedy trial and that appellee was indeed prejudiced under

the facts herein.

      Accordingly, the judgment of the court of appeals is affirmed.

                                                                Judgment affirmed.

      MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG

STRATTON, JJ., concur.

FOOTNOTES:

1.    In State v. Luck (1984), 15 Ohio St.3d 150, 153, 15 OBR 296, 299, 472

N.E.2d 1097, 1101, this court limited the application of Meeker to those cases that

are factually similar to it. We believe that the facts herein are analogous to

Meeker and, thus, we find that the holding in Meeker is applicable to the instant

matter. In Luck, the defendant was indicted nearly sixteen years after the offense.

The court distinguished Luck from Meeker on the basis that the defendant in Luck

“was not the subject of any official prosecution” until her indictment, so the court

found that the delay between the offense and the indictment was not covered by

the speedy trial guarantee. (Emphasis added.) Id. at 153, 15 OBR at 299, 472

N.E.2d at 1101. The appellee in this case, as well as the defendant in Meeker, was

the subject of an official prosecution, i.e., official accusation. Thus, the delay

between accusation and indictment triggered the protection afforded by the Sixth



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Amendment to the United States Constitution and Section 10, Article I of the Ohio

Constitution.

2.    “Because the Court broadly assays the factors going into constitutional

judgments under the speedy trial provision, it is appropriate to emphasize that one

of the major purposes of the provision is to guard against inordinate delay between

public charge and trial, which, wholly aside from possible prejudice to a defense

on the merits, may ‘seriously interfere with the defendant’s liberty, whether he is

free on bail or not, and that may disrupt his employment, drain his financial

resources, curtail his associations, subject him to public obloquy, and create

anxiety in him, his family and his friends.’” Barker v. Wingo (1972), 407 U.S.

514, 537, 92 S.Ct 2182, 2195, 33 L.Ed.2d 101, 120-121 (White, J., concurring),

quoting United States v. Marion (1971), 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30

L.Ed.2d 468, 478.




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