[Cite as State v. Barnes, 2018-Ohio-86.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104910




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    RICHARD BARNES
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-09-524053-A and CR-16-604841-A

        BEFORE: Celebrezze, J., McCormack, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: January 11, 2018
ATTORNEY FOR APPELLANT

Gregory T. Stralka
6509 Brecksville Road
P.O. Box 31776
Independence, Ohio 44131


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Melissa Riley
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.

       {¶2} Defendant-appellant, Richard Barnes (“Barnes”), brings this appeal

challenging his conviction for sexual battery. Specifically, Barnes argues that he was

denied the effective assistance of counsel because his trial counsel failed to file a motion

to dismiss based on preindictment delay. After a thorough review of the record and law,

this court affirms.

                              I. Factual and Procedural History

       {¶3} The instant appeal arose from incidents that occurred between Barnes and a

former coworker, J.K. 1       The two had worked together at a nursing home in North

Royalton, Ohio. J.K. alleged that Barnes raped her on two separate occasions between

2006 and 2007.

       {¶4} On March 30, 2016, in Cuyahoga C.P. No. CR-16-604841-A, the Cuyahoga

County Grand Jury returned an eight-count indictment charging Barnes with (1) rape, in

violation of R.C. 2907.02(A)(2); (2) rape, in violation of 2907.02(A)(1)(c); (3)

kidnapping, in violation of R.C. 2905.01(A)(4); (4) rape, in violation of R.C.

2907.02(A)(2); (5) rape, in violation of R.C. 2907.02(A)(1)(c); (6) gross sexual

imposition, in violation of R.C. 2907.05(A)(1); (7) gross sexual imposition, in violation


       1   In its appellate brief, the state asserts that J.K. has “cognitive impairments and learning
disabilities[.]” Appellee’s brief at 1. The indictment alleged that the victim’s mental or physical
condition substantially impaired her ability to resist or consent to the sexual conduct with Barnes.
of R.C. 2907.05(A)(5); and (8) kidnapping, in violation of R.C. 2905.01(A)(4). All eight

counts contained a sexually violent predator specification; Counts 3 and 8 also contained

a sexual motivation specification.        The indictment alleged that the offenses were

committed between January 1, 2006, and November 13, 2007. Barnes pled not guilty to

the indictment during his April 15, 2016 arraignment.

          {¶5} The parties reached a plea agreement under which the state amended Count 1

to sexual battery, a third-degree felony in violation of R.C. 2907.03(A)(1), and deleted the

underlying sexually violent predator specification. On June 28, 2016, Barnes pled guilty

to sexual battery as amended in Count 1. The remaining counts and specifications were

nolled.

          {¶6} On August 2, 2016, the trial court sentenced Barnes to a prison term of three

years. The trial court designated Barnes a habitual sex offender and advised him of his

reporting requirements under R.C. Chapter 2950.

          {¶7} Barnes, acting pro se, filed notices of appeal on September 1, 2016 (8th Dist.

Cuyahoga No. 104910) and September 2, 2016 (8th Dist. Cuyahoga No. 104913). On

September 9, 2016, this court, sua sponte, dismissed App. No. 104913 as a duplicate of

App. No. 104910. On May 15, 2017, this court appointed appellate counsel to represent

Barnes.

          {¶8} In this appeal, Barnes challenges his sexual battery conviction. He assigns

one error for review:

          I. [Barnes’s] constitutional right to effective assistance of counsel was
          violated when such counsel failed to file a motion to dismiss for
       pre-indictment delay what [sic] would have resulted in a dismissal of the
       charges.

                                   II. Law and Analysis

       {¶9} In his sole assignment of error, Barnes argues that he was denied effective

assistance of counsel because trial counsel failed to file a motion to dismiss the case

based on preindictment delay. He contends that had counsel filed such a motion, it

would have resulted in a dismissal of the charges against him.

       {¶10} To establish a claim of ineffective assistance of counsel, a defendant must

demonstrate that (1) counsel’s performance fell below an objective standard of reasonable

representation, and (2) the defendant was prejudiced by that deficient performance.

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

 Prejudice is established when the defendant demonstrates “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland at 694.

       {¶11} A defendant’s failure to prove either prong of the Strickland two-part test

makes it unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio

St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a

court need not determine whether counsel’s performance was deficient before examining

the prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it

is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice * * * that course should be followed.” Strickland at id.
       {¶12} As noted above, Barnes pled guilty to sexual battery.

       A claim of ineffective assistance of counsel is waived by a guilty plea,
       except to the extent that the ineffective assistance of counsel caused the
       defendant’s plea to be less than knowing, intelligent and voluntary. State
       v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing
       State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992), citing
       Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235
       (1973). Where a defendant has entered a guilty plea, the defendant can
       prevail on an ineffective assistance of counsel claim only by demonstrating
       that there is a reasonable probability that, but for counsel’s deficient
       performance, he would not have pled guilty to the offenses at issue and
       would have insisted on going to trial. Williams at ¶ 11, citing State v. Xie,
       62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart, 474
       U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

State v. Vinson, 8th Dist. Cuyahoga No. 103329, 2016-Ohio-7604, ¶ 30. See State v.

Thompson, 8th Dist. Cuyahoga No. 104322, 2016-Ohio-8310, ¶ 4, quoting Tollett v.

Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (‘“When a criminal

defendant has solemnly admitted in open court that he is in fact guilty of the offense with

which he is charged, he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”’).

       {¶13} In the instant matter, Barnes does not contest the validity of his guilty plea.

Thus, by pleading guilty, Barnes waived any claim of ineffective assistance of counsel.

See State v. Ramos, 8th Dist. Cuyahoga No. 104550, 2017-Ohio-934, ¶ 2 (appellant’s

argument that he did not receive the effective assistance of counsel based on counsel’s

failure to seek dismissal of the indictment on grounds of preindictment delay was

summarily overruled because appellant did not contest the validity of his guilty plea, and

thus waived any claim of ineffective assistance of counsel).
          {¶14} Assuming, arguendo, that Barnes’s guilty plea did not waive his claim of

ineffective assistance of counsel, Barnes fails to demonstrate that he was actually

prejudiced by the state’s delay in bringing the case against him. As noted above, the

sexual battery offense to which Barnes pled guilty was committed between January 1,

2006, and November 12, 2007, and Barnes was indicted on March 30, 2016. Barnes

generally claims that he was prejudiced by this delay because (1) he was not able to

obtain hotel records, (2) he could not testify on his own behalf at trial, (3) he was not able

to form an alibi, and (4) witnesses from the nursing home where he and the victim

worked were unavailable.

          {¶15} First, Barnes argues that he was prejudiced by the eight-year delay because

he “lost any opportunity to obtain hotel records that would substantiate the police report’s

notation of prior acts of consensual sex between [him and the] victim.” Appellant’s brief

at 7.     “[A] defendant cannot rely upon broad assertions of missing evidence or an

unavailable witness to establish prejudice.       A defendant must demonstrate a viable,

tangible connection between the missing evidence or the unavailable witness to the

defense of the case.” State v. Richardson, 2016-Ohio-5843, 70 N.E.3d 1175, ¶ 13 (8th

Dist.).

          {¶16} Barnes could have asserted a defense of consent at trial, but instead elected

to enter a guilty plea. Furthermore, Counts 2, 5, and 7 alleged that the victim’s ability to

resist or consent to the sexual conduct was substantially impaired. Thus, even if the

victim consented to the sexual conduct with Barnes, her consent would not bolster
Barnes’s defense if she was not capable of legally consenting. See State v. Petkovic, 8th

Dist. Cuyahoga No. 97548, 2012-Ohio-4050, ¶ 23 (“Actual consent is distinct from the

ability to legally consent.”).

       {¶17} Second, Barnes contends that the preindictment delay deprived him of an

opportunity to testify on his own behalf at trial because he was convicted of sexual battery

and aggravated theft in an unrelated criminal case during the eight-year period between

the offense and the March 2016 indictment.2 Barnes does not identify the subject matter

of the testimony that he would provide on his own behalf at trial, nor explain how his

defense would be impaired if he did not exercise his constitutional right to testify at trial.

Nevertheless, Barnes brought any prejudice that he would suffer as a result of his

convictions in 2009 upon himself.

       {¶18} Third, Barnes argues that he was prejudiced by the preindictment delay

because he lost the ability to form an alibi. If Barnes did, in fact, have an alibi for the

offenses, he could have asserted the alibi at trial as a defense. See State v. Rosser, 8th

Dist. Cuyahoga No. 104624, 2017-Ohio-5572, ¶ 16. He did not, and instead chose to

plead guilty.

       {¶19} Fourth, Barnes argues that he was prejudiced by the eight-year delay

because witnesses from the nursing home where he and the victim worked “would, after

the passage of time, now be unavailable.” Appellant’s brief at 7.      “To establish a claim

of prejudice due to the unavailability of witnesses who would be able to testify on a


       2   Cuyahoga C.P. No. CR-09-524053.
defendant’s behalf, the defendant must identify the missing witnesses and the subject

matter of their testimony, and, further, must explain how the missing evidence has

impaired his defense.”        State v. Robinson, 6th Dist. Lucas No. L-06-1182,

2008-Ohio-3498, ¶ 126, citing State v. McClutchen, 8th Dist. Cuyahoga No. 81821,

2003-Ohio-4802, ¶ 13.         A defendant “bears the burden of demonstrating the

unavailability of specific witnesses.” (Emphasis added.) State v. Durham, 8th Dist.

Cuyahoga Nos. 103352 and 103382, 2017-Ohio-954, ¶ 6.

       {¶20} Barnes fails to identify any specific witness or witnesses from the nursing

home that were unavailable when he was indicted in 2016 or the subject matter of the

missing witness’s or witnesses’ testimony. Further, Barnes fails to explain how the

missing evidence impaired his defense. Accordingly, Barnes failed to meet his burden of

establishing the unavailability of specific witnesses.

       {¶21} Finally, Barnes fails to demonstrate that the state purposely delayed

prosecution to obtain a tactical advantage or for some other permissible reason.

       While the use of the actual prejudice standard sets a high bar to proving
       pre-indictment delay, the bar is set high because the statute of limitations
       unquestionably gives the state 20 years in which to commence a rape
       prosecution. See R.C. 2901.13(A)(3)(a). It is for this reason that the
       concept of pre-indictment delay is designed to protect defendants only from
       government abuses of the statute of limitations; hence the notion that
       pre-indictment delay exists not only when the defendant can show actual
       prejudice, but that the state has, in addition, purposely delayed bringing a
       prosecution to obtain a tactical advantage or for some other “impermissible”
       reason. The law requires a defendant to do more than offer mere
       speculation as to how he was prejudiced by any delay because requiring less
       would undermine the statute of limitations.

State v. Owens, 8th Dist. Cuyahoga No. 102276, 2015-Ohio-3881, ¶ 5.
         {¶22} In the instant matter, regarding the reason for the delay between the offense

and indictment, the state asserts that after the victim initially reported the incident to the

police, she became uncooperative; however, after the victim’s rape kit was tested and a

CODIS 3 hit matched Barnes’s DNA to the DNA sample from the victim’s rape kit,

investigators went back to interview the victim and she was willing to cooperate with the

police and the prosecution.

         {¶23} The record reflects that the victim filed a police report and a rape-kit

examination was conducted in 2007. The DNA sample from the victim’s rape kit was

tested by the Ohio Bureau of Criminal Investigation. In December 2015, a CODIS hit

matched Barnes’s DNA to the victim’s rape kit. Barnes was indicted shortly thereafter in

April 2016 — within the 20-year statute of limitations.

         {¶24} Based on the foregoing analysis, Barnes’s sole assignment of error is

overruled.

                                       III. Conclusion

         {¶25} After thoroughly reviewing the record, we find that Barnes waived any

claim of ineffective assistance of counsel by pleading guilty.         Furthermore, even if

Barnes did not waive his ineffective assistance of counsel claim, we find that defense

counsel was not deficient for failing to file a motion to dismiss based on preindictment

delay.

         {¶26} Judgment affirmed.


         3   Combined DNA Index System.
      It is ordered that appellee recover of 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.



FRANK D. CELEBREZZE, JR., JUDGE

TIM McCORMACK, P.J., and
ANITA LASTER MAYS, J., CONCUR
