[Cite as State v. Hicks, 2019-Ohio-4691.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                No. 18AP-915
v.                                                 :          (C.P.C. No. 18CR-723)

Francis M. Hicks,                                  :      (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                            D E C I S I O N

                                   Rendered on November 14, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
                 Swanson, for appellee. Argued: Seth L. Gilbert.

                 On brief: Yeura R. Venters, Public Defender, and George M.
                 Schumann, for appellant. Argued: George M. Schumann.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, Francis M. Hicks, appeals the October 30, 2018
judgment of the Franklin County Court of Common Pleas convicting appellant of felonious
assault. For the following reasons, we reverse the decision of the trial court and remand
the matter for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On February 13, 2018, appellant was indicted on a single count of felonious
assault pursuant to R.C. 2903.11, a second-degree felony. According to the indictment,
appellant, on or about October 16, 2012, knowingly caused serious physical harm to the
victim and/or did knowingly cause or attempt to cause physical harm to the victim by
means of a deadly weapon or dangerous ordinance, to wit: a cutting instrument. A warrant
No. 18AP-915                                                                                                2


on indictment for appellant's arrest was issued the same day and was returned served on
February 23, 2018.
        {¶ 3} Appellant initially entered a plea of not guilty, and the case was set for trial
April 19, 2018. Thereafter, the trial court ordered five continuances in 2018, including three
continuances on the motion of the parties (April 19, May 25, and June 14), one continuance
(July 3) on the court's own motion due to the judge being unavailable, and one continuance
(August 8) on appellant's motion. Ultimately, the case was set for trial September 10, 2018.
        {¶ 4} On August 14, 2018, appellant, represented by counsel, filed a motion to
dismiss the case because the "prosecution violates defendant's constitutional rights to a
speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution
and Article I, Section 10of the Ohio Constitution." (Aug. 14, 2018 Mot. at 1.) In the motion
to dismiss, appellant argued, pursuant to State v. Meeker, 26 Ohio St.2d 9 (1971), the
constitutional guarantees of a speedy trial are applicable to unjustifiable delays in
commencing prosecution, as well as to unjustifiable delays after indictment; and that,
under Supreme Court of the United States cases, the Sixth Amendment speedy trial
guarantee applies when a defendant is " 'accused' of a crime," which is triggered by the
"arrest, indictment, information, or other official accusation or charge" made against a
person. (Mot. to Dismiss at 3.)
        {¶ 5} Appellant argued, in this case, her speedy trial rights attached on the date an
initial complaint was filed in the municipal court and a warrant was issued—October 24,
2012. Appellant noted the 2012 complaint was dismissed, and a complaint was refiled in
municipal court on November 6, 2014 to comply with State v. Hoffman, 141 Ohio St.3d
428, 2014-Ohio-4795,1 and the 2014 municipal court case is referenced in the 2018
indictment. Appellant additionally noted records obtained from the Franklin County
Department of Job and Family Services ("FCJFS") evidence that between 2012 and 2018,
appellant had an address on record with the state. According to appellant, the delay of
nearly 64 months between the filing of the original complaint (October 24, 2012) and the
instant indictment (February 13, 2018) constituted a "presumptively prejudicial" delay
triggering application of the Barker v. Wingo, 407 U.S. 514 (1972), factors. (Aug. 14, 2018

1 Hoffman concerns, in pertinent part, the sufficiency of information set forth in a complaint or affidavit to

support probable cause to obtain a warrant. The parties agree the 2014 complaint was not dismissed and the
associated warrant remained active until late January 2018, when appellant was arrested.
No. 18AP-915                                                                                3


Mot. at 4.) Appellant further argued the four Barker factors weigh in her favor and, as a
result, her constitutional right to a speedy trial was violated, and the indictment must be
dismissed.
       {¶ 6} The memorandum contra of plaintiff-appellee, State of Ohio, argued the time
period subject to the speedy trial analysis under the Sixth Amendment begins on
February 13, 2018 (the indictment in common pleas court) and, with this date as the
starting point, no "presumptively prejudicial" delay triggers further analysis under Barker.
(Appellee's Memo. Contra at 3.) Appellee contended the time period pointed to by
appellant—the pre-indictment period between the original complaint and the formal
indictment—is not subject to the speedy trial analysis under the Sixth Amendment of the
U.S. Constitutionor Article I, Section 10 of the Ohio Constitution. Rather, according to
appellee, such a "pre-indictment" delay falls under the due process clause of the Fifth
Amendment of the U.S. Constitution, appellant failed to make a proper showing of actual
prejudice under such analysis, and, regardless, appellee used the time period between the
offense and 2018 for proper "investigatory purposes" on an active warrant for that time
period rather than an intentional delay to attempt to gain a tactical advantage over
appellant. (Appellee's Memo. Contra at 3, 5.)
       {¶ 7} The trial court addressed the motion to dismiss at a September 10, 2018
hearing. There, the trial court asked appellant, "I know you have a motion to dismiss for
statutory procedural due process on this matter. Do you want to admit any evidence?" (Tr.
at 3.) Appellant presented one exhibit consisting of FCJFS records, which was admitted by
the trial court, and both parties relied on their respective motion and memorandum contra
submitted to the court. The trial court then stated: "At this time I am going to deny the
dismissal for Constitutional procedural due process and statutory limitations." (Tr. at 4.)
       {¶ 8} Following the trial court's determination to not dismiss the case, appellant
entered a plea of no contest to felonious assault, a violation of R.C. 2903.11. On October 30,
2018, the trial court entered a judgment finding appellant guilty of the charge and imposing
five years of community control, including placement in the "Franklin County Community
Based Correctional Facility" for a period not to exceed six months, along with other
community control sanctions. (Oct. 30, 2018 Jgmt. Entry at 2.) Appellant filed a timely
appeal.
No. 18AP-915                                                                               4


II. ASSIGNMENT OF ERROR
       {¶ 9} Appellant assigns the following as trial court error:
               The trial court abused its discretion and erred as a matter of
               law by failing to apply any speedy trial law to the facts of the
               case, by failing to make any relevant factual determinations,
               and by failing to determine the reasons for the state's delay in
               commencing the prosecution against the defendant-
               appellant, as set forth in Barker v. Wingo, 407 U.S. 514, 92 S.
               Ct. 2182, 33 L.Ed.2d 101 (1972), where the defendant-
               appellant had established a presumptively prejudicial delay of
               63 months.
III. STANDARD OF REVIEW
       {¶ 10} "Generally, an appellate court's review of a trial court's decision regarding a
motion to dismiss based upon a violation of the speedy trial provisions involves a mixed
question of law and fact." State v. Squillace, 10th Dist. No. 15AP-958, 2016-Ohio-1038,
¶ 11, citing State v. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, ¶ 12, citing State v.
Fultz, 4th Dist. No. 06CA2923, 2007-Ohio-3619, ¶ 8. "We must give due deference to a
trial court's findings of fact if supported by competent, credible evidence, but we must
independently review whether the trial court properly applied the law to the facts of the
case." Squillace at ¶ 11, citing Fultz at ¶ 8. An appellate court may resolve legal questions
on a Sixth Amendment speedy trial claim if the facts required to resolve the legal issue are
undisputed. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 115.
IV. LEGAL ANALYSIS
       {¶ 11} In her assignment of error, appellant asserts that having established a
presumptively prejudicial delay of 63 months, the trial court abused its discretion and erred
as a matter of law by (1) failing to apply any speedy trial law to the facts of the case,
(2) failing to make any relevant factual determinations, and (3) failing to determine the
reasons for appellee's delay in commencing prosecution against her, as set forth in Barker.
       {¶ 12} As a preliminary issue, appellant argues that because the trial court stated it
was denying the dismissal for "Constitutional procedural due process and statutory
limitations," arguments not raised by appellant in support of dismissal, it is difficult to
presume the trial court applied the correct law and may have erroneously applied a Fifth
Amendment analysis to a Sixth Amendment claim. (Emphasis added.) (Appellant's Brief
at 14.) Therefore, appellant contends this court is essentially unable to apply our standard
No. 18AP-915                                                                                  5


of review "whether the trial court properly applied the law to the facts of the case."
(Appellant's Brief at 15.)
           {¶ 13} "A criminal defendant has a right to a speedy trial under the Ohio Revised
Code, the Ohio Constitution, and the Fifth and Sixth Amendments to the United States
Constitution." Adams at ¶ 80. Ohio courts employ a distinct analysis for speedy trial rights
afforded by statute, the Sixth Amendment to the U.S. Constitution and Article I, Section
10of the Ohio Constitution, and the due process clause of the Fifth Amendment to the U.S.
Constitution and Article I, Section 16of the Ohio Constitution. See, e.g., Adams at ¶ 80-111;
State v. Tate, 8th Dist. No. 103446, 2016-Ohio-5622, ¶ 17-28.
           {¶ 14} Here, appellant's motion to dismiss asserted her speedy trial rights were
violated under the Sixth Amendment to the U.S. Constitution, as applied to the states under
the Fourteenth Amendment to the U.S. Constitution, and Article I, Section 10of the Ohio
Constitution. The trial court addressed the motion to dismiss as, initially, one asserting
"statutory procedural due process" and later denied the motion "for Constitutional
procedural due process and statutory limitations." (Tr. at 3, 4.)
           {¶ 15} We recognize, as set forth in Adams at ¶ 114-15, a trial court is not required
to make factual findings in rejecting a Sixth Amendment speedy trial claim when the
evidence is undisputed, and an appellate court may resolve legal questions on a Sixth
Amendment speedy trial claim if the material facts are undisputed. However, based on the
trial court's affirmative statements in this case, it appears the trial court did not assess
appellant's motion under the Sixth Amendment or Article I, Section 10 of the Ohio
Constitution.
           {¶ 16} Resolution of a Sixth Amendment speedy trial issue, if presumptively
prejudicial delay is established, requires the trial court to weigh factors under Barker, 407
U.S. at 515. Adams at ¶ 88-89, citing State v. Selvage, 80 Ohio St.3d 465, 467 (1997);
Barker at 530. This analysis may include additional findings of fact, and, under our typical
standard of review on appeal, we afford the trial court's findings of fact deference when
reviewing whether the trial court properly applied the law to the facts of the case. Squillace
at ¶ 11.
           {¶ 17} Considering the Sixth Amendment speedy trial analysis involved, which
could involve additional factfinding and weighing of factors, and the record of this case, we
No. 18AP-915                                                                                     6


find it appropriate to remand the matter to the trial court to consider appellant's motion to
dismiss under the Sixth Amendment and Article I, Section 10 of the Ohio Constitutionin
the first instance. See Adair v. Norton, 9th Dist. No. 27474, 2015-Ohio-3444, ¶ 14, citing
Mourton v. Finn, 9th Dist. No. 26100, 2012-Ohio-3341, ¶ 9; Murphy v. Reynoldsburg, 65
Ohio St.3d 356, 360 (1992) (applying general proposition that an appellate court may
decline to resolve legal issues in the first instance so as to retain role as a "reviewing court").
       {¶ 18} Accordingly, we sustain appellant's assignment of error to the limited extent
discussed herein.
V. CONCLUSION
       {¶ 19} Having sustained appellant's sole assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas and remand the matter to the
trial court for proceedings consistent with this decision.
                                                                            Judgment reversed;
                                                                              cause remanded.
                        DORRIAN and BEATTY BLUNT, JJ., concur.
                                      _____________
