         [Cite as State v. Rice, 2015-Ohio-5481.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-150191
                                                        TRIAL NO. B-1404689
        Plaintiff-Appellee,                         :

  vs.                                               :      O P I N I O N.

JAMES RICE,                                         :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 30, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

John D. Hill, Jr., for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



F ISCHER , Judge.

        {¶1}    Defendant-appellant James Rice appeals his convictions, following a

jury trial, for aggravated burglary, aggravated robbery, and the accompanying three-

year firearm specifications. The trial court sentenced Rice to an aggregate sentence

of 25 years in prison. In this appeal, Rice challenges the trial court’s denial of his

motion to dismiss his indictment based on alleged violations of his constitutional and

statutory rights to a speedy trial. We affirm the trial court’s judgment.

                           Factual and Procedural Posture

        {¶2}   In August 2012, Rice, who was on parole to the Commonwealth of

Pennsylvania, met with his parole officer, James Hubbell, with the Adult Parole

Authority (“APA”) in Butler County.        During the course of the meeting, Rice

indicated that he needed to obtain a travel permit from his car. Hubbell and another

parole officer accompanied Rice to his car.    Rice then consented to a search of his

vehicle by Hubbell and his partner, who found a bag on the rear seat of the vehicle

which contained firearms, a holster, gloves, ski masks, zip ties, and a counterfeit

police badge. Rice was arrested and placed in the Butler County jail. Hubbell then

referred the matter to the city of Hamilton Police Department in Butler County,

Ohio.

        {¶3}   Shortly thereafter, Michael Waldeck, with the city of Hamilton Police

Department, took the information regarding Rice and placed it on the Southwestern

Ohio Police (“SWOP”) Intelligence Website. He also sent out an email to other police

agencies, which contained Rice’s photograph and detailed the items recovered from

Rice’s vehicle, in the event that Rice may have fit the description of a potential

suspect in any unresolved criminal case.




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        {¶4}     On August 31, 2012, Specialist Les Mendes with the Cincinnati Police

Department contacted Hubbell.        Mendes told Hubbell that Rice may have been

involved in a home invasion in Hamilton County on August 16, 2012. Mendes was

looking at charging Rice with aggravated burglary and impersonating a police officer.

Hubbell could not recall telling Mendes that Rice was in custody, and he testified

that his notes from their phone conversation did not reflect that any conversation to

that effect had taken place. Hubbell testified that he had a second phone call with

Mendes on September 10, 2012, when Mendes had relayed that two witnesses had

picked Rice out of a photo lineup.

        {¶5}   Hubbell’s supervisor, Teresa Williams, testified that Rice was arrested

on August 20, 2012, prosecuted by Butler County, and sentenced to the Ohio

Department of Rehabilitation and Correction (“ODRC”) for 24 months. Williams

testified that she took the initial phone call from Mendes on August 31, 2012.

Mendes was looking at Rice and possibly other people for a home invasion. Williams

testified that she had “specifically told Detective Mendes that [Rice] was in custody

for the new [Butler County] charges, and also the APA had a hold on him that, even if

he had posted bond, he wouldn’t be leaving jail because he was on supervision to [the

APA] for the Commonwealth of Pennsylvania,” which had not yet issued a warrant

for Rice’s arrest.

        {¶6}   On September 19, 2012, Williams had another conversation with

Mendes to relay some additional information that Hubbell had discovered. Mendes

had stated in his initial call with the Butler County APA that Rice had committed the

home invasion sometime between 11:30 p.m. and midnight on August 16th, but that

Rice had purportedly been in Cambria County, Pennsylvania the morning of August

17th.   So, Williams had shared with Mendes that there might be a time issue.



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Hubbell contacted the clerk of courts in Cambria County and determined that Rice

had been seen at a window making a payment at 9:06 a.m. and again at 9:28 a.m. on

the morning of August 17, 2012. Per their investigation with Google maps, Williams

and Hubbell determined that Rice could have made it from Cincinnati, Ohio, to

Cambria County in six hours and 20 minutes. Williams gave this information to

Mendes on September 19, 2012. Williams could not recall if she had mentioned

during the September 19, 2012 phone call whether Rice was in custody, but she

testified that there had been no change in Rice’s status at that point.

       {¶7}   Anthony Spinney, a civilian deputy with the Hamilton County Sheriff’s

Office, testified that before entering the complaint and warrant that had been sworn

out by Mendes into the computer system, he ran a Law Enforcement Automated

Data Systems (“LEADS”) check and a National Criminal Information Center

(“NCIC”) background check. On January 30, 2013, a complaint, affidavit, and arrest

warrant were entered into the clerk of court’s system. Spinney testified that he had

no information regarding the service of the warrant, and that he was unable to

determine if someone was currently incarcerated.

       {¶8}   Regina Cox testified that she is employed by ODRC. She testified that

Rice had been sentenced to two years in prison for having a weapon under a

disability and for possession of drugs.    She testified that a LEADS check had been

run when Rice was admitted to ODRC on October 31, 2012, and 30 days before he

was released from ODRC on August 19, 2014.

       {¶9}    Cox testified that ODRC notified the Hamilton County Sheriff’s Office

by letter on July 30, 2014, that Rice was in custody at the London Correctional

Institute (“LoCI”), that he had outstanding charges against him, and that he was




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being released on August 19, 2014. The letter referenced a Hamilton County case

number and a warrant against Rice that had been entered on January 30, 2013.

       {¶10}    Mendes testified that he was investigating a home-invasion burglary

on August 16, 2012. He first heard of Rice when he read an email by the Hamilton

Police Department to the SWOP Intel on August 21, 2012. He did a query on Rice

and then contacted the issuing department.        He looked over the report of the

burglary offense, checked it with the height and weight of Rice, and compiled a photo

lineup with Rice’s photo to show the victims. On August 25, 2012, three of the four

victims identified Rice as the perpetrator.

       {¶11} Mendes contacted the APA in Butler County and spoke with Hubbell

and Williams, who advised him that Rice was in custody. Mendes testified that he

waited until January 30, 2013, to swear out the complaint and warrant, because he

had lost contact with the victim. She was not returning his calls, and he wanted to

confirm that she wanted to move forward with the charges. He filed the charges after

he had heard back from her.

       {¶12} Mendes testified that he may have contacted the Butler County jail, but

he did not believe he had ever contacted the Butler County clerk’s office to determine

what had happened with Rice’s arrest in Butler County. He did not believe he had

ever contacted the ODRC to determine if Rice was incarcerated, but he did have

knowledge, based on his conversations with Hubbell and Williams, that Rice was

“doing some time for the prior offense, the probation violation.” He did not recall a

specific date when he learned this, but testified that it was probably prior to signing

the warrant. Mendes further testified that he never contacted the ODRC to let them

know an incarcerated person has a warrant. Instead, ODRC contacts him to let him

know when it is time to pick up the inmate.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} On August 19, 2014, Mendes traveled to LoCI where he arrested Rice.

A grand jury indicted Rice on August 28, 2014, for one count of aggravated burglary

and one count of aggravated robbery with firearm specifications arising out of the

August 16, 2012 incident. On December 1, 2014, Rice filed a motion to dismiss the

indictment against him on speedy-trial grounds. At the conclusion of the evidentiary

hearing, the trial court denied Rice’s motion, and his case proceeded to trial before

the jury, which found him guilty of the charges and specifications.

                                Speedy-Trial Rights

       {¶14} In a single assignment of error, Rice argues the trial court erred by

denying his motion to dismiss the charges against him based on the alleged violation

of his constitutional and statutory speedy-trial rights.

       {¶15} Reviewing a trial court’s ruling on a motion to dismiss based upon a

violation of the speedy-trial guarantees involves a mixed question of fact and law.

We give due weight to the inferences drawn from the facts found by the trial court as

long as they are supported by competent, credible evidence. With respect to the trial

court’s conclusions of law, we employ a de novo standard of review, to determine

whether the facts satisfy the applicable legal standard. State v. Terrell, 1st Dist.

Hamilton No. C-020194, 2003-Ohio-3044, ¶ 17.

       {¶16} Rice first argues the state violated his speedy-trial rights under the

Sixth Amendment to the United States Constitution and Section 10, Article 1 of the

Ohio Constitution by failing to timely indict him for the aggravated-burglary and

aggravated-robbery offenses.

       {¶17} The Sixth Amendment to the United States Constitution provides that

in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial * * *.” The United States Supreme Court has held this right to be applicable to



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                     OHIO FIRST DISTRICT COURT OF APPEALS



state criminal trials under the Fourteenth Amendment. See Klopfer v. North

Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Section 10, Article I of the

Ohio Constitution provides similar protection.

       {¶18} In State v. Meeker, 26 Ohio St.2d 9, 268 N.E.2d 589 (1971), paragraph

three of the syllabus, the Ohio Supreme 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.”    However, shortly

after Meeker, the United States Supreme Court held that a defendant’s constitutional

right to a speedy trial attaches only when a defendant is “indicted, arrested, or

otherwise officially accused” of a crime or crimes. See United States v. MacDonald,

456 U.S. 1, 6, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), citing United States v. Marion,

404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); see also Doggett v. United

States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

       {¶19} As a result, the Ohio Supreme Court held in State v. Luck, 15 Ohio

St.3d 150, 153, 472 N.E.2d 1097 (1984), that its ruling in Meeker was limited to those

cases that were factually similar to Meeker. The Luck court held that an unjustifiable

delay between the commission of an offense and a defendant’s indictment, when it

results in actual prejudice, is a violation of due process of law. Id. at paragraph three

of the syllabus. The Ohio Supreme Court adopted a two-part test to determine

whether such a delay constitutes a due-process violation. Under the first part of the

test, the defendant must demonstrate that the delay caused actual prejudice to his

defense. Id. at 157-158. If the defendant makes this showing, then the burden shifts

to the state to produce evidence justifying the delay. Id. at 158.

       {¶20} The state argues that Rice’s case is factually distinguishable from

Meeker, because Rice was incarcerated on separate charges, and he was not indicted



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                      OHIO FIRST DISTRICT COURT OF APPEALS



for the home invasion until August 28, 2014. Thus, the state asserts we must review

any preindictment delay under Luck’s due-process analysis. We agree with the state

that Rice’s case is factually dissimilar from Meeker. In Meeker, the defendant was

indicted in 1963 on one count arising from the robbery of a gas station. He had spent

six years in prison for the conviction, when the common pleas court granted his

motion to vacate the sentence and ordered a new trial. The grand jury then indicted

Meeker on four counts for offenses arising out of the same robbery. Meeker, 26 Ohio

St.2d at 10-11, 268 N.E.2d 589. The Supreme Court held that the speedy-trial clock

had begun to run when the state elected to charge Meeker with robbery in 1963. Id.

at 18.

         {¶21} Here, Rice was serving a separate sentence when he was charged in

this case. Thus, he had never been indicted for or charged with any offenses arising

out of the August 2012 home invasion until the January 30, 2013 complaint at issue

here. Thus, because Rice was not the subject of any official prosecution related to the

August 2012 home invasion prior to January 2013, Meeker does not apply, and he is

not protected by the Ohio Constitution’s speedy-trial guarantee for any delay arising

between the police investigation and the issuance of the criminal complaint. See

State v. Adams, __Ohio St.3d __, 2015-Ohio-3954, __N.E.2d ___, ¶ 93 (holding

that Meeker only applies when a defendant is subject to an official prosecution for at

least one related offense).

         {¶22} However, we cannot agree with the state that the due-process analysis

articulated in Luck applies to the entire time frame before Rice was indicted in this

case. See Luck, 15 Ohio St.3d at 157-58, 472 N.E.2d 1097. In State v. Selvage, 80

Ohio St.3d 465, 687 N.E.2d 433 (1997), the Ohio Supreme Court held that a criminal

complaint against a defendant was an “official accusation” of a crime against that



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                     OHIO FIRST DISTRICT COURT OF APPEALS



defendant that operated to trigger his speedy-trial rights under United States

Supreme Court case law. See id. at 466, citing Marion, 404 U.S. at 313, 92 S.Ct. 455,

30 L.Ed.2d 468. Given this statement in Selvage, we must conclude that Rice’s

speedy-trial rights attached on January 30, 2013, when the felony complaint,

affidavit, and arrest warrant were filed against him. See Adams, ___Ohio St.3d __,

2015-Ohio-3954, ___N.E.3d ___, at ¶ 93, citing Selvage at 466, fn. 1 (holding that

the speedy-trial clock began to run when the officer filed the criminal complaint); see

also State v. Williams, 10th Dist. Franklin No. 13AP-992, 2014-Ohio-2737, ¶ 28.

       {¶23} In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101

(1972), the United States Supreme Court established an ad hoc balancing test that

weighs the conduct of both the prosecution and the defendant to determine whether

a defendant has been deprived of his constitutional speedy-trial rights. The four

factors to be balanced are “the [l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.” Id. at 533. No

single factor is determinative; rather, the court should conduct a balancing test. Id.

       {¶24} Length of Delay. Case law provides that periods of delay shorter than

one year ordinarily are insufficient to justify inquiry under the remaining Barker

factors. See Doggett, 505 U.S. at 652, fn.1, 112 S.Ct. 2686, 120 L.Ed.2d 520. Delays

that exceed one year, however, generally require further investigation. Id. The

period between the filing of the complaint, affidavit, and warrant on January 30,

2013, and Rice’s indictment on August 28, 2014, was 18 months. This delay is

sufficient to justify inquiry into the remaining Barker factors.

       {¶25} Responsibility for the delay. The next Barker factor relates to the

reason for the delay. See Barker at 531. The inquiry into causation involves a sliding

scale. Deliberately dilatory tactics must be weighed much more heavily against the



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state than periods of delay resulting from mere negligence. Id. “A more neutral

reason such as negligence or overcrowded courts should be weighted less heavily but

nevertheless should be considered since the ultimate responsibility for such

circumstances must rest with the government rather than with the defendant.” Id.

To the extent that valid reasons cause the delay, such as missing witnesses, the delay

does not count against the state at all. Id. Delay that is caused by the defendant does

not count against the state. State v. Triplett, 78 Ohio St.3d 566, 570, 679 N.E.2d 290

(1997).

          {¶26} Here, the record reflects that the complaint was filed and a warrant

was issued to Rice at his home address. Officer Mendes testified that he did nothing

to locate Rice after the warrant had been issued, because he knew Rice had been

incarcerated. Mendes testified that he had never contacted the ODRC to let them

know that an incarcerated subject had a warrant against him. Instead, Mendes

waited for the ODRC to contact his department when the defendant was ready to be

transported or released. Williams testified that she had told Officer Mendes on

August 31, 2012, that Rice was incarcerated. Because the record reflects that Officer

Mendes knew Rice was incarcerated, yet made no attempt to serve Rice with the

criminal complaint, the state bears significant responsibility for the 18-month delay.

Thus, the second factor weighs slightly against the state and in favor of Rice.

          {¶27} Defendant’s assertion of his right to a speedy trial. The third factor

addresses the timeliness and frequency of the defendant’s assertions of his speedy-

trial right. See Barker, 407 U.S at 529, 92 S.Ct. 2182, 33 L.Ed.2d 101 (instructing

courts “to weigh the frequency and force of objections as opposed to attaching

significant weight to a purely pro forma objection”). Here, Rice knew of the charges

at the latest on August 19, 2014, when he was arrested for the offenses following his



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                      OHIO FIRST DISTRICT COURT OF APPEALS



release from the LoCI.     Yet he failed to assert his right to a speedy trial until

December 1, 2014, when he filed his motion to dismiss the indictment against him.

While “generally when the defendant has filed a motion to dismiss based on speedy

trial violations, Ohio courts [have] weigh[ed] the third Barker factor in the

defendant’s favor,” State v. Watson, 10th Dist. Franklin No. 13AP-148, 2013-Ohio-

5603, ¶ 29, there is a significant four-month gap in time for which Rice bears some

responsibility. See State v. Walker, 10th Dist. Franklin No. 06AP-810, 2007-Ohio-

4666, ¶ 31. Thus, we conclude that the third factor weighs slightly in the state’s

favor.

         {¶28} Prejudice caused by the delay. The fourth and final factor implicates

the extent to which the defendant was prejudiced by the delay attributable to the

state. Barker, 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d 101. Regarding this factor,

the United States Supreme Court has held that the inquiring court should assess

prejudice “in light of the interests the speedy trial right was designed to protect,”

including preventing oppressive pretrial incarceration, minimizing the accused’s

anxiety, and limiting the possibility that the passage of time will impair the accused’s

ability to mount a defense. Id. The latter concern is, by far, the most serious one.

Id. When witnesses “die or disappear during a delay, the prejudice is obvious.” Id.

In aggravated cases, involving excessive pretrial delay, prejudice may be presumed

despite the defendant’s inability to identify particular testimony or evidence that has

become unavailable due to the passage of time. Doggett, 505 U.S. at 655-56, 112

S.Ct. 2686, 120 L.Ed.2d 520.

         {¶29} In State v. Triplett, 78 Ohio St.3d 566, 679 N.E.2d 290 (1997), the

Ohio Supreme Court held that a 54-month delay was not excessively prejudicial to

justify dismissal of an indictment on speedy-trial grounds. Here, the delay to Rice is



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                     OHIO FIRST DISTRICT COURT OF APPEALS



significantly shorter than the 54-month delay in Triplett and the eight-and-a-half-

year delay in Doggett.      Thus, we decline to find the 18-month delay to be

automatically prejudicial to Rice. Compare State v. Williams, 10th Dist. Franklin

No. 13AP-992, 2014-Ohio-2737, ¶ 21-22 (holding a four-year delay between the filing

of the complaint and defendant’s arrest to be prejudicial, warranting dismissal of the

indictment); see State v. Stevens, 3d Dist. Logan No. 8-14-09, 2014-Ohio-4875, ¶ 24

(holding that, generally, courts “have found presumed prejudice only in cases in

which the post-indictment delay lasted at least five years”).

       {¶30} Rice argues, nonetheless, that because the 18-month delay cost him

the possibility to serve the Butler County sentence concurrently with the Hamilton

County sentence, he has shown prejudice. He relies on Smith v. Hooey, 393 U.S.

374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), which has been cited by the Eighth

Appellate District for this proposition. See State v. Boone, 8th Dist. Cuyahoga No.

81155, 2003-Ohio-996, ¶ 28, citing State v. Floyd, 8th Dist. Cuyahoga No. 39929,

1979 Ohio App. LEXIS 101949 (Oct. 25, 1979), and Smith.

       {¶31} In the Smith case, Smith was in federal prison, but he faced charges in

state court. Smith wanted to be brought to trial on the state charges, and he sought

repeatedly for six years to get a prompt trial. The state, however, refused to bring

Smith to trial, because he was already in prison serving another sentence. The

United States Supreme Court disagreed with the state. The Court noted that undue

delay may cause the person to lose forever the possibility of at least partially

concurrent sentences, that the conditions of his current custody may be harsher than

otherwise, that the threat of another pending charge may be as oppressive as for a

person who remains free and that long delays can impair a person’s ability to defend

against a pending charge. Smith at 378-379.



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       {¶32} But in Smith, the defendant’s loss of an opportunity to serve

concurrent sentences was but one of many circumstances over a six-year period

noted by the United States Supreme Court in explaining why the state prosecutor in

that case could not refuse to prosecute the defendant while he was serving the federal

sentence. Several federal and state courts have rejected the broad reading of Smith

that Rice asserts in this case. Those courts have refused to hold that an unjustified

delay in bringing a defendant to trial violates the defendant’s right to a speedy trial

where, as here, the only prejudice alleged is the theoretical and speculative loss of the

opportunity for the defendant to serve the sentence on the pending charge

concurrently with the sentence in another case. See 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”);

United States v. Cabral, 475 F.2d 715, 719-720 (1st Cir.1973) (holding defendant’s

allegation that he had lost the opportunity to serve concurrent sentences to be

“highly speculative” and to “fall short of a demonstration of actual prejudice”); see

also United States v. Gregory, 322 F.3d 1157, 1164 (9th Cir.2003) (holding

sentencing prejudice to be insufficient as speculative where the court could have

adjusted the subsequent sentence downward in light of time served for the previous

sentence); State v. Jones, 4th Dist. Ross No. 95CA2128, 1996 Ohio App. LEXIS 2386,

*7-8 (June 4, 1996) (holding the defendant’s lost opportunity to bargain for

concurrent sentences to be insufficient to show actual prejudice).

       {¶33} Here, Rice does not claim that the 18-month delay caused him to suffer

unduly oppressive incarceration, presumably because he was already serving a

sentence for the Butler County offenses at the time the Hamilton County complaint

was filed against him. Nor does he allege that he suffered any anxiety as a result of



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                     OHIO FIRST DISTRICT COURT OF APPEALS



the delay. Rice, moreover, did not argue in his motion to dismiss that the delay

prejudiced his defense.     Instead, he has asserted only that the period of pretrial

delay deprived him of an opportunity to serve concurrent sentences for the Butler

County and Hamilton County offenses. We agree with those courts that have held

that a speculative opportunity to serve concurrent sentences is insufficient by itself to

set forth the necessary prejudice under the fourth Barker factor. As a result, we

conclude that the fourth factor weighs in favor of the state.

       {¶34} A balancing of the four factors in the Barker-Doggett analysis shows

that two are weighted in Rice’s favor and two factors are weighted in the state’s favor.

Although we agree with Rice that the state was dilatory in its efforts to bring him to

trial, we find no evidence that its acts were willfully orchestrated to gain a tactical

advantage. While Rice made a somewhat delayed effort to assert his speedy-trial

right, he has not demonstrated any actual prejudice to his defense. We thus cannot

conclude that Rice’s constitutional speedy-trial rights were violated.

                          Statutory Speedy-Trial Rights

       {¶35} Rice next argues that the trial court erred in denying his motion to

dismiss, because the state violated his statutory speedy-trial rights under R.C. 2941.401.

       {¶36} R.C. 2941.401 protects the right of a criminal defendant who is

incarcerated to have other charges against him brought to trial. It provides in relevant

part as follows:

               When a person has entered upon a term of imprisonment in a

       correctional institution of this state, and when during the continuance

       of the term of imprisonment there is pending in this state any untried

       indictment, information, or complaint against the prisoner, he shall be

       brought to trial within one hundred eighty days after he caused to be



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       delivered to the prosecuting attorney and the appropriate court in

       which the matter is pending, written notice of the place of his

       imprisonment and a request for a final disposition to be made of the

       matter, except that for good cause shown in open court, with the

       prisoner or his counsel present, the court may grant any necessary or

       reasonable continuance. * * *

              The warden or superintendent having custody of the prisoner

       shall promptly inform him in writing of the source and contents of any

       untried indictment, information, or complaint against him, concerning

       which the warden or superintendent has knowledge, and of his right to

       make a request for final disposition thereof. * * *

              If the action is not brought to trial within the time provided,

       subject to continuance allowed pursuant to this section, no court any

       longer has jurisdiction thereof, the indictment, information, or

       complaint is void, and the court shall enter an order dismissing the

       action with prejudice.

       {¶37} Rice argues that the state violated R.C. 2941.401 by failing to exercise

reasonable diligence in attempting to notify him of the charges against him. He

relies on a series of appellate cases that have held that the state had an implied duty

of “reasonable diligence” under R.C. 2941.401 to apprise the warden of the relevant

institution of charges against an inmate before the defendant’s duty to request

disposition of the charges is triggered under the statute. See State v. Boone, 8th Dist

Cuyahoga No. 81155, 2003-Ohio-996, ¶ 28 (holding that R.C. 2941.401 imposed an

implied duty of reasonable diligence on the state and noting a split of authority

among Ohio appellate districts on the issue). But these cases predate the Ohio



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Supreme Court’s opinion in State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969,

804 N.E.2d 471.

       {¶38} In Hairston, the Ohio Supreme Court was asked to determine whether

R.C. 2941.401 places a duty of reasonable diligence upon the state to discover the

whereabouts of an incarcerated defendant against whom charges are pending.

Hairston had been indicted for aggravated robbery, kidnapping, and robbery in

October 2000. A summons was sent to Hairston’s home address, but Hairston did

not receive it, because he was in the county jail waiting to be transferred to ODRC

because his parole had been revoked. When Hairston failed to appear at his

arraignment, a capias was issued in November 2000 for his arrest. Finally, in June

2001, a detainer was served on Hairston, advising him of the charges in the October

2000 indictment. Hairston argued the state’s failure to exercise reasonable diligence

to discover his whereabouts required dismissal of the charges under R.C. 2941.401.

The trial court denied the motion, but the Tenth Appellate District reversed and

ordered that the charges be dismissed with prejudice. Id. at ¶ 7-9.

       {¶39} The Ohio Supreme Court disagreed with the Tenth Appellate District’s

interpretation of R.C. 2941.401. It found R.C. 2941.401 to be unambiguous and “[to]

place the initial duty on the defendant to cause written notice to be delivered to the

prosecuting attorney and the appropriate court advising of the place of his

imprisonment and requesting final disposition.” Id. at ¶ 20. Thus, the Supreme

Court held that the statute imposes no duty upon the state “until such time as the

incarcerated defendant provides the statutory notice.”         Id.    In reaching this

determination, the court held that the statute did not allow a defendant to avoid

prosecution simply because the state failed to locate him. Id. at ¶ 25.




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       {¶40} Thus, the Supreme Court in Hairston reversed the Tenth District’s

decision, finding that because Hairston did not provide the requisite notice to the

prosecuting attorney or the court, he never triggered the process that would have

caused him to be brought to trial within 180 days of his notice and request. The

Supreme Court acknowledged that under the facts of the case, it was apparent the

warden had never had knowledge of the charges pending against Hairston. Id. at ¶

21.

       {¶41} We similarly apply the wording of the statute as written. Because the

record reflects that the warden did not have any knowledge that charges had been

filed against Rice, and Rice did not exercise his rights under R.C. 2941.401, we hold

that R.C. 2941.401 can have no application in this case. Thus, the state violated no

statutory speedy-trial requirement under R.C. 2941.401. See State v. Savage, 12th

Dist. Madison Nos. CA 2014-02-002, CA2014-02-003, CA2014-03-006, and

CA2014-02-007, 2015-Ohio-574, ¶ 10-29; State v. Hubbard, 12th Dist. Butler No.

CA2014-Ohio-03-063, 2015-Ohio-646, ¶ 27-40; State v. Ondrusek, 9th Dist. Lorain

No. 09CA009673, 2010-Ohio-2811, ¶ 2-11.

       {¶42} Moreover, we find Rice’s reliance on State v. Williams, 4th Dist.

Highland No. 12CA12, 2013-Ohio-950, and Cleveland Metroparks v. Signorelli, 8th

Dist. Cuyahoga No. 90157, 2008-Ohio-3675, to be misplaced. As the Twelfth

Appellate District pointed out in State v. Hubbard, 12th Dist. Butler No. CA2014-03-

063, 2015-Ohio-646, ¶ 38-39,

       In both Williams and Signorelli, the Fourth and Eighth Appellate

       Districts, respectively, found that an incarcerated defendant’s speedy-

       trial rights had been violated. Williams at ¶ 21; Signorelli at ¶ 25.

       However,    in   both   those   cases,   the   inmates-defendants   had



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        substantially complied with the requirements of R.C. 2941.401 by

        notifying the prosecutor and the trial court of their incarceration. In

        Williams, the defendant sent a notice of incarceration and a request

        for disposition to the prosecutor prior to an indictment being filed

        against him. Williams at ¶ 3. In Signorelli, the defendant, who was

        imprisoned due to a conviction in an unrelated case, had his attorney

        appear before the trial court and inform the court and prosecutor of

        his incarceration. Signorelli at ¶ 5, 22. Additionally, the defendant in

        Signorelli filed “a time stamped R.C. 2941.401 notice of availability

        with motion with the Euclid Municipal Court, Clerk of Court,

        informing the court that he was currently in Lake County Jail.” Id. at ¶

        22. Unlike the defendants in Williams and Signorelli, Hubbard did not

        act or seek to comply with the requirements of R.C. 2941.401 as he did

        not inform either the trial court or the prosecutor of his incarceration.

        The 180-day jurisdictional limitation was, therefore, not triggered in

        the present case.

        {¶43} Similarly, here, Rice took no such steps, and we, like the Twelfth District

in Hubbard, find those cases to be inapplicable to Rice’s statutory speedy-trial claim.

We, therefore, overrule Rice’s sole assignment of error and affirm the judgment of the

trial court.
                                                                    Judgment affirmed.

DEWINE, J., concurs.
CUNNINGHAM, P.J., dissents.


CUNNINGHAM, P.J., dissenting.

        {¶44} I agree with the majority that Rice’s statutory speedy-trial rights were

not violated by the state’s failure to act with reasonable diligence. However, I cannot


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                     OHIO FIRST DISTRICT COURT OF APPEALS



agree with the majority’s conclusion that Rice’s constitutional speedy-trial rights

were not violated in this case under the four-factor analysis in Barker v. Wingo, 407

U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). I would reverse the trial court’s

decision because (1) the first three factors of the Barker analysis weigh heavily

against the state, and (2) existing precedent of the Ohio Supreme Court and this

court require a presumption of prejudice under the fourth Barker factor. Because I

am convinced all four factors favor Rice, I would hold that his convictions must be

reversed and the charges against him dismissed. I, therefore, respectfully dissent

from that part of the majority’s opinion that holds otherwise.

       {¶45} I agree with the majority that the 18-month delay in this case is

presumptively prejudicial and requires an inquiry into the remaining Barker factors.

And while I also agree with the majority that the second factor, the reason for the

delay, weighs against the state, I disagree with its conclusion that any delay weighs

only “slightly” against the state. The majority’s conclusion is clearly at odds with its

correct determination that the state bore “significant responsibility” for the 18-

month delay between issuance of the criminal complaint involving Rice and his

eventual arrest on criminal charges.

       {¶46} Here, the record reflects that the state, despite knowing Rice was

incarcerated in Ohio, waited 18 months to serve him with a copy of the complaint

charging him with the offenses. Teresa Williams with the APA testified that on

August 31, 2012, during a phone conversation with Police Specialist Mendes

concerning Rice, she specifically informed Mendes that Rice was in custody in Butler

County, and that because the APA had a hold on him, he would not be leaving the jail

even if he posted bond. Mendes testified that he was aware Rice was facing charges

in Butler County and prison time for those offenses, yet he filed the complaint and



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                     OHIO FIRST DISTRICT COURT OF APPEALS



issued the arrest warrant to Rice’s home address. When the warrant was returned

for lack of service, Mendes did nothing further to serve Rice with a copy of the

complaint. He offered no reason for the 18-month delay. He testified that in his ten

years as a police officer it was normal procedure to let criminally-accused prisoners

serve out an existing prison sentence before arresting them on any new charges.

       {¶47} I would conclude that such an 18-month delay is unnecessarily long in

the context of a relatively straightforward prosecution like this one, where the state

was able to rely solely on the evidence to which it had access shortly after developing

Rice as a suspect in the case, and where Rice did not act to cause the delay. See State

v. Grant, 103 Ohio App.3d 28, 34, 658 N.E.2d 326 (9th Dist.1995); State v. Smith,

Cuyahoga No. 83022, 2003-Ohio-7076, ¶ 12-20 (holding that an 18-month delay

weighed heavily against the state under the second Barker factor where the state had

failed to act with reasonable diligence, and the defendant had done nothing to evade

prosecution); Cleveland v. White, 8th Dist. Cuyahoga No. 99375, 2013-Ohio-5423, ¶

15 (holding that the state’s negligence weighed heavily in favor of the defendant

under the second Barker factor where the record reflected that the defendant was

unaware of the pending charges against him, and that the city had made no attempt

to locate the defendant until he was subsequently arrested on unrelated charges);

Compare State v. Walker, 10th Dist. Franklin No. 06AP-810, 2007-Ohio-4666, ¶ 28

(weighing the fact that the defendant had been informed by the victim’s mother on

more than one occasion that a warrant was supposed to have been sent to Toledo

authorities in the court’s discussion relating to the state’s negligence in causing the

delay under the second Barker factor). Consequently, I would conclude that the

second factor weighs heavily against the state, and that this conclusion directly

impacts an assessment of the fourth factor.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶48} I would also weigh the third factor in Rice’s favor. The record reflects

that Rice did not know of the impending charges in this case until he was arrested on

August 19, 2014, and thus could not have demanded a speedy trial during this time

frame. Rice, moreover, did nothing to precipitate the 18-month delay in this case.

Compare State v. Triplett, 78 Ohio St.3d at 570, 679 N.E.2d 290 (holding that the

defendant’s refusal to accept certified mail service contributed to a 54-month delay).

The majority weighs against Rice and in favor of the state the four-month delay that

elapsed from Rice’s arrest and indictment to his counsel’s filing of the motion to

dismiss. But the record reflects that Rice’s motion to dismiss contained numerous

exhibits that precipitated an evidentiary hearing on the motion. While his counsel

could have conceivably proposed his argument to the court at an earlier stage of the

proceedings, given the amount of evidence presented with the motion, this was “not

a case of last-minute maneuvering” by Rice. See State v. Page, 5th Dist. Fairfield No.

02CA69, 2003-Ohio-3856, ¶ 13 (holding that the defendant timely invoked his

speedy-trial right where he waited four and one-half months to file his motion to

dismiss). As a result, I would not hold this delay against Rice; I would, instead,

conclude that this factor also weighs in favor of Rice.

       {¶49} Finally, with respect to the fourth factor, the resulting prejudice to

Rice, the majority requires Rice to show actual prejudice.       But both the Ohio

Supreme Court in State v. Selvage, 80 Ohio St.3d 465, 687 N.E.2d 433 (1997), and

this court in State v. Sears, 166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060

(1st Dist.), have presumed prejudice where the state has failed to exercise reasonable

diligence in prosecuting a criminally-accused defendant, because “the 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.’ ” Selvage



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                    OHIO FIRST DISTRICT COURT OF APPEALS



at 469, quoting Doggett, 505 U.S. at 655; see also, Sears at ¶ 16, quoting Doggett,

505 U.S. at 655. In Selvage, the Ohio Supreme Court affirmed the trial court’s

dismissal of an indictment against a criminal defendant for a violation of her

constitutional speedy-trial rights. In that case, the state filed a criminal complaint

against Selvage, but it failed to act with reasonable diligence in commencing

prosecution against her. The Supreme Court held the ten-month delay from the

filing of the felony criminal complaint to her indictment was presumptively

prejudicial, and it credited the trial court’s finding that the ten-month delay in

prosecuting Selvage had “presumptively prejudiced” her defense. Id. at 468 and 471.

The Selvage court held that “[c]onsideration of prejudice is not limited to the

specifically demonstrable, and * * * affirmative proof of particularized prejudice is

not essential to every speedy trial claim.” Id. at 465, quoting Doggett, 505 U.S. at

655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

       {¶50} In Sears, this court affirmed the dismissal of charges against an

accused, holding that the nine-month delay from the filing of the complaint, which

had charged Sears with a first-degree misdemeanor, to the time of his arrest violated

Sears’ constitutional speedy-trial rights.     Following the Ohio Supreme Court’s

opinion in Selvage and the United States Supreme Court’s opinion in Doggett, we

held the nine-month delay to be presumptively prejudicial. Sears at ¶ 12. We found

the remaining Barker factors also weighed against the state. We held that the state’s

failure to serve the warrant and complaint upon Sears was the result of a lack of

diligence, and that, therefore, the second factor, the reason for the delay, should be

weighed against the state. Id. at ¶ 13-14. We further concluded that the third factor

weighed in Sears’s favor, since Sears knew nothing of the complaint or warrant prior

to his arrest. Id. at ¶ 15. Finally, with respect to the fourth Barker factor, we held



                                         22
                     OHIO FIRST DISTRICT COURT OF APPEALS



that “where, as here, the state has made an official accusation, but then fails to use

any reasonable diligence to let its accusation be known to the defendant, prejudice is

presumed.” Id. at ¶ 16. Accordingly, we affirmed the trial court’s dismissal of the

charges against Sears. Id. at ¶ 17-18.

       {¶51} Here, the 18-month delay is longer than the delay in either Selvage or

Sears. Moreover, the record in this case reflects that the state, rather than failing to

exercise reasonable diligence to locate Rice (as in Selvage and Sears), instructed the

sheriff to serve Rice at his home knowing Rice was in police custody. Rather than

ignore the holdings in these two cases, as the majority does, I would simply follow

them. I would hold that because the first three factors weigh heavily against the

state, under the facts of this case, Rice need not demonstrate actual prejudice.

Instead, prejudice may be presumed under the fourth factor. See State v. Grant,

12th Dist. Butler No. CA2003-05-114, 2004-Ohio-2810, ¶ 42 (acknowledging that

presumptive prejudice to a defendant and the state’s reason for the delay are directly

related to each other under the Barker analysis).

       {¶52} I recognize that presumptive prejudice cannot, by itself, carry a Sixth

Amendment claim without regard to the other Barker factors. Here, however, where

the other three Barker factors weigh strongly in Rice’s favor and against the state, I

would not condone the state’s prolonged and unjustifiable delay in prosecuting Rice.

Rather, I would find the delay presumptively prejudicial to Rice under Selvage and

Sears. As a result, I would reverse the trial court’s decision denying the motion to

dismiss, reverse Rice’s convictions, and dismiss the charges against him.



Please note:
       The court has recorded its own entry this date.



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