[Cite as State v. Shoopman, 2017-Ohio-2612.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :  C.A. CASE NO. 27182
                                                     :
 v.                                                  :  T.C. NO. 15-CR-2670
                                                     :
 ROBERT T. SHOOPMAN                                  :  (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :
                                                ...........

                                               OPINION

                Rendered on the ___28th ___ day of _____April_____, 2017.

                                                ...........

ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering,
Ohio 45429
      Attorney for Defendant-Appellant

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

FROELICH, J.

        {¶ 1} Robert T. Shoopman appeals from a judgment of the Montgomery County

Court of Common Pleas, which found him guilty on his no contest plea of one count of

rape of a child under the age of 13. The trial court had previously overruled Shoopman’s
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motion to dismiss the charge, in which he had argued that his due process rights were

violated by the State’s pre-indictment delay. Shoopman was sentenced to three years

in prison for the rape and was classified as a sexually oriented offender.1

       {¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

       {¶ 3}   The indictment alleged that, between July 1996 and August 1998,

Shoopman raped his step-daughter, K.K., who was then under the age of 13, in

Montgomery County, Ohio. Shoopman, K.K., and K.K.’s mother and siblings moved to

North Carolina sometime thereafter, before the alleged rape was disclosed by the child.

       {¶ 4} In November 2009, when K.K. was 18, she and her sister contacted the

sheriff’s department of the county where they lived in North Carolina and reported sexual

abuse perpetrated by Shoopman. During the course of the investigation, North Carolina

officials learned that Shoopman had had sexual contact with K.K. more than a decade

earlier in Ohio. They reported this information to the local law enforcement authorities in

Ohio, who contacted K.K. However, by then, Shoopman had been sentenced to prison

in North Carolina, and K.K. indicated that she did not want to pursue charges in Ohio at

that time.

       {¶ 5} In the spring of 2015, Shoopman was released from prison in North

Carolina, and K.K. moved back to Ohio. The local police department reopened the case

against Shoopman and, on January 15, 2016, he was indicted on one count of rape of a

child under 13.

       {¶ 6} Shoopman pled not guilty and filed pretrial motions in the trial court,



1 Shoopman was sentenced under the “Senate Bill 2 sentencing,” and counsel agreed
to treat the offense as “a standard, F-1, three to ten years potential penalty” offense.
                                                                                      -3-


including a motion to dismiss. In the motion to dismiss, Shoopman alleged that he had

been prejudiced by the State’s failure to pursue the charge at an earlier date, because

the delay had prevented him from serving his North Carolina and Ohio sentences

concurrently.   The trial court overruled the motion.   On June 28, 2016, Shoopman

entered a guilty plea to rape of a child under the age of 13. He was sentenced as

described above.

      {¶ 7} Shoopman raises one assignment of error on appeal, in which he

challenges the trial court’s decision overruling his motion to dismiss the charge. He

again asserts that he suffered prejudice by the State’s pre-indictment delay, which

precluded the possibility of his serving the North Carolina and Ohio sentences

concurrently.

      {¶ 8} When a defendant alleges that he has been prejudiced by the State’s pre-

indictment delay in pursuing a case, the defendant must first produce evidence

demonstrating that the delay has caused actual prejudice to his defense. State v. Luck

15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984).         Then, if the defendant has

established actual prejudice, the State must produce evidence of a justifiable reason for

the delay. Id. at 158. The prejudice suffered by the defendant must be viewed in light

of the State’s reason for the delay. Id. at 154. See also State v. Whiting, 84 Ohio St.3d

215, 702 N.E.2d 1199 (1998).

      {¶ 9} Actual prejudice exists “when missing evidence or unavailable testimony,

identified by the defendant and relevant to the defense, would minimize or eliminate the

impact of the state’s evidence and bolster the defense.” State v. Jones, 148 Ohio St.3d

167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 28; Luck at 157-158.          Determining “actual
                                                                                        -4-


prejudice * * * involves ‘a delicate judgment’ and a case-by-case consideration of the

particular circumstances.” Jones at ¶ 20, quoting State v. Walls, 96 Ohio St.3d 437,

2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, and United States v. Marion, 404 U.S. 307, 325,

92 S.Ct. 455, 30 L.Ed.2d 468 (1971). A reviewing court must scrutinize a defendant’s

claim of prejudice in light of the particular evidence that was lost or is unavailable as a

result of the delay and, in particular, consider the effect of the lost evidence on the

defense; the mere possibility of faded memories, inaccessible witnesses, and lost

evidence, without more, does not sufficiently demonstrate actual prejudice. Jones at ¶

23, ¶ 27.

           {¶ 10} The demonstration of prejudice generally does not apply to sentencing

considerations.      See State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 32 (1st Dist.)

(finding that alleged prejudice from a period of pretrial delay, which allegedly deprived

defendant of an opportunity to serve concurrent sentences for offenses committed in

different counties, was speculative and insufficient to show prejudice); United States v.

White, 985 F.2d 271, 276 (6th Cir.1993) (holding that the loss of the opportunity to serve

concurrent sentences was “not sufficient to constitute ‘substantial prejudice’ to the

defendant”) (cases involving failure to bring a defendant to trial, rather than failure to

indict).

           {¶ 11}   Shoopman argues that he suffered actual prejudice due to the pre-

indictment delay in this case because the State’s delay in prosecuting him “robbed him of

the opportunity to negotiate for a sentence here [in Ohio] that would have run concurrent

with his sentence in North Carolina.”      The trial court found that this argument was

speculative and failed to demonstrate actual prejudice.        We agree.      Shoopman’s
                                                                                             -5-


argument is based on assumptions that the State would have entered into a plea

agreement with him at an earlier date and that, pursuant to such a plea agreement (or

even a conviction at trial), the trial court would have run its sentence concurrently with the

sentences in North Carolina.        These assumptions fail to demonstrate any actual

prejudice from pre-indictment delay which might warrant a dismissal.

       {¶ 12} Further, the trial court found that, even if Shoopman had demonstrated

actual prejudice, the State offered a sufficient reason to justify the delay. The trial court

found that “the delay in the indictment was justified by [K.K.’s] minority and her residence

in the State of North Carolina prior to January, 2016.” The court apparently credited the

State’s assertions that the victim was uninterested in pursuing charges in Ohio when Ohio

law enforcement officers first contacted her after Shoopman went to jail in North Carolina,

and that it could not have proceeded on the Ohio charge without the victim’s testimony

and appearance. Although Shoopman asserts that the State could have compelled the

victim’s participation at an earlier time, this possibility does not undermine the trial court’s

conclusion that the State had a justifiable reason for the delay.

       {¶ 13} The assignment of error is overruled.

       {¶ 14} The judgment of the trial court will be affirmed.



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

WELBAUM, J. and TUCKER, J., concur.

Copies mailed to:

Alice B. Peters
Jeffrey T. Gramza
Hon. Mary Katherine Huffman
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