[Cite as State v. Long, 2018-Ohio-5163.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2017-CA-84
                                                 :
 v.                                              :   Trial Court Case No. 2015-CR-125
                                                 :
 JOHN W. LONG                                    :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                          Rendered on the 21st day of December, 2018.

                                            ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

S. TODD BRECOUNT, Atty. Reg. No. 0065276, 115 North Main Street, Suite A, Urbana,
Ohio 43078
      Attorney for Defendant-Appellant

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



TUCKER, J.
                                                                                          -2-




       {¶ 1} Defendant-appellant, John W. Long, appeals from his convictions for one

count of having a weapon while under disability, a third-degree felony pursuant to R.C.

2923.13(A)-(B), and one count of failure to comply with an order or a signal of a police

officer, a third-degree felony pursuant to R.C. 2921.331(B) and (C)(5)(a). Raising a

single assignment of error, Long contends that his convictions should be reversed

because the State violated his constitutional right to a speedy trial. We find that Long’s

right to a speedy trial was not violated, and therefore, we affirm his convictions.

                            I. Facts and Procedural History

       {¶ 2} On February 28, 2015, Long approached—on foot—two or three vehicles

queued in a service station’s drive-through lane.       Long demanded money from the

vehicles’ occupants, threatening them with a handgun. After striking two persons with

his gun and taking five dollars, Long fled in his own vehicle. Police officers responded

to the service station as Long climbed into his vehicle, and when he drove off, a high-

speed chase ensued. During the chase, Long crashed his vehicle but ran from the

scene. Police officers then apprehended him and placed him under arrest.

       {¶ 3} A Clark County grand jury issued an indictment against Long on March 9,

2015, charging him with five counts of aggravated robbery with a deadly weapon, in

violation of R.C. 2911.01(A)(1); one count of having a weapon while under disability, in

violation of R.C. 2923.13(A); one count of kidnapping, in violation of R.C. 2905.01(A)(2);

one count of failure to comply with an order or a signal of a police officer, in violation of

R.C. 2921.331(B); one count of improperly handling a firearm in a motor vehicle, in

violation of R.C. 2923.16(B); and one count of tampering with evidence, in violation of
                                                                                         -3-


R.C. 2921.12(A)(1). Each count of aggravated robbery included a firearm specification.

       {¶ 4} On May 20, 2015, Long pleaded guilty to two counts of aggravated robbery,

as well as to the charge of failure to comply with an order or a signal of a police officer,

and the remaining charges and specifications were dismissed.           Long appeared for

sentencing on June 9, 2015, and the trial court sentenced him to serve nine years in

prison for each of the two counts of aggravated robbery, to be served concurrently, and

to two years on the charge of failure to comply, with the latter to be served consecutively.

The aggregate sentence was 11 years.

       {¶ 5} Long appealed, and effective March 7, 2016, we reversed his convictions and

remanded the case to the trial court for further proceedings because, during his plea

hearing, the court had not fully advised him of his constitutional rights. State v. Long, 2d

Dist. Clark No. 2015-CA-64, 2016-Ohio-837, ¶ 1-2. Three months later, on June 6, 2016,

the trial court ordered that Long be transferred to the Clark County Jail for a review

hearing on June 22, 2016. At the review hearing, the trial court noted that discovery was

complete and summarized the arrangements that the parties had made during a pretrial

conference held before Long’s appeal; the State indicated its willingness to enter into the

same plea agreement that Long had previously accepted. Long’s counsel told the court

that he had not yet had a chance to confer with his client, meaning that he could not

respond to the plea offer on the spot, and he asked the court to set the matter for trial.

The court did not schedule a trial at that time.

       {¶ 6} On September 1, 2016, the parties appeared for a status conference. They

confirmed again that they had completed discovery and that the arrangements made

during the earlier pretrial conference were satisfactory; the State also indicated that it
                                                                                          -4-


remained willing to enter into the same plea agreement. The court set a trial date of

September 28, 2016.

       {¶ 7} On September 21, 2016, Long filed a motion to dismiss the indictment, noting

that he had been awaiting trial for 198 days (or approximately six and one-half months)

since March 7, 2016, when this court remanded his case to the trial court, and arguing

that the delay violated his constitutional right to a speedy trial. The trial court held a

pretrial conference the following day and continued the trial date to allow the State time

in which to respond to Long’s motion. On September 28, 2016, having continued the

trial, the court held a hearing on the motion to dismiss, and on October 26, 2016, the court

issued a decision overruling the motion.

       {¶ 8} From October 27, 2016, through August 6, 2017, the docket is devoid of any

activity, and the trial court did not reschedule Long’s trial.1 On August 7, 2017, Long filed

his second motion to dismiss the indictment on speedy trial grounds, noting that he had,

by that point, been awaiting trial for 518 days (or approximately 17 months) since his case

was remanded, and for 285 days (or approximately nine and one-half months) since the

trial court overruled his first motion to dismiss. The trial court overruled Long’s second

motion on August 16, 2017.

       {¶ 9} On August 21, 2017, the trial court docketed an entry indicating, in the



1 The online case information system used by the Clark County Court of Common Pleas
indicates that a pretrial conference was scheduled for August 7, 2017. Yet, no
corresponding scheduling entry appears on the docket, which further does not establish
whether the conference actually occurred. Similarly, the court’s online case information
system indicates that a trial was scheduled for September 26, 2017, but given that no
corresponding scheduling entry appears on the docket, the record does not allow us to
determine when, or even if, the court scheduled a trial on this date.
                                                                                           -5-


absence of a corresponding scheduling entry, that a trial had been set to begin on August

16, 2017, but was being continued because of a scheduling conflict with another jury trial.

Long then requested, in a motion filed on August 22, 2017, that the trial court reconsider

its decision on his second motion to dismiss. The trial court overruled the motion for

reconsideration on September 7, 2017.

       {¶ 10} Long appeared before the trial court on September 21, 2017, and pleaded

no contest to the charges of having a weapon while under disability and failure to comply

with an order or a signal of a police officer. The trial court sentenced Long to a term of

two years on the charge of having a weapon while under disability, and to a consecutive

term of three years on the charge of failure to comply, for an aggregate term of

imprisonment of five years. Long timely filed a notice of appeal on September 26, 2017.

                                        II. Analysis

       {¶ 11} In his single assignment of error, Long contends that:

              THE      TRIAL      COURT        ERRED       WHEN        IT    DENIED

       APPELLANT/DEFENDANT’S [SIC] MULTIPLE MOTIONS TO DISMISS

       BASED ON THE REASON THAT APPELLANT/DEFENDANT [SIC] HAD

       BEEN DENIED HIS RIGHT TO A SPEEDY TRIAL PURSUANT TO THE

       SIXTH AMENDMENT OF [SIC] THE UNITED STATES CONSTITUTION

       AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

       {¶ 12} Long argues that the delay of 518 days, or approximately 17 months, from

the date on which we remanded his case, March 7, 2016, until the date on which he filed

his second motion to dismiss, August 7, 2017, was unreasonable; that neither the trial

court nor the State has justified the delay; that he repeatedly asserted his right to a speedy
                                                                                            -6-

trial; and that the delay has caused him prejudice. See Appellant’s Br. 12-13. He posits

that we should evaluate the delay in bringing him to trial by reference to Ohio’s speedy

trial statute, R.C. 2945.71. Id. at 13.

       {¶ 13} The Sixth and Fourteenth Amendments to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, guarantee all criminal defendants the

right to a speedy trial. State v. Gatewood, 2d Dist. Clark No. 2010 CA 18, 2012-Ohio-

202, ¶ 16. Ohio’s speedy trial statute, R.C. 2945.71, “was [enacted] to [realize] the

constitutional protection of [this] right,” but the statute does not apply to criminal

convictions that have been overturned on appeal. Brecksville v. Cook, 75 Ohio St.3d 53,

55, 661 N.E.2d 706 (1996); State v. Large, 2015-Ohio-33, 26 N.E.3d 328, ¶ 10 (2d Dist.);

Gatewood at ¶ 18. Instead, when a defendant’s conviction has been reversed on appeal,

the time limitation for bringing the defendant to trial is a “ ‘reasonable period consistent

with constitutional standards.’ ” State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852

N.E.2d 706, ¶ 20, quoting Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 33 L.Ed.2d

101 (1972); State v. Kerby, 2d Dist. Clark No. 2006 CA 73, 2007-Ohio-3810, ¶ 17.

       {¶ 14} To determine whether an accused has been denied his right to a speedy

trial subsequent to appellate reversal, a court should assess four factors: (1) the length

of the delay; (2) the reason for the delay; (3) the defendant’s assertion, if any, of his right

to speedy trial; and (4) the prejudice, if any, to the defendant. See Hull at ¶ 22, citing

Barker at 530. This analysis is a “balancing test” that can only be applied “on an ad hoc

basis,” or in other words, in light of the circumstances of a given case. See Barker at

530.

       {¶ 15} Although none of the factors is controlling, the length of the delay is
                                                                                            -7-

particularly significant because it acts “to some extent [as] a triggering mechanism.” Id.

Absent a “delay [that] is presumptively prejudicial, there is no necessity for inquiry into the

other factors,” but because the right to a speedy trial is quantitatively imprecise, a court

must evaluate “the peculiar circumstances of [a] case” to decide whether the delay in that

case warrants further inquiry. See id.; see also Hull at ¶ 22-23. As a rule, a “delay

becomes presumptively prejudicial as it approaches one year.” State v. Adams, 144

Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 90, citing Doggett v. United States,

505 U.S. 647, 652 fn.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

       {¶ 16} Long and the State alike adopt the premise that the delay in the instant

matter began with our remand on March 7, 2016, and ended with Long’s filing of his

second motion to dismiss on August 7, 2017. The State concurs with Long that this

interval was of sufficient duration “to warrant * * * consideration of the [other] Barker

factors.” See Appellee’s Br. 7.

       {¶ 17} Initially, we find that the delay would more appropriately be calculated from

the date on which the trial court overruled Long’s first motion to dismiss, October 26,

2016, rather than from the date on which the case was remanded. Following remand on

March 7, 2016, the trial court held a review hearing on June 22, 2016, and a status

conference on September 1, 2016, at which time it scheduled a trial for September 28,

2016. Long then filed his first motion to dismiss on September 21, 2016. Having been

filed merely one week before the trial was set to begin, Long’s first motion to dismiss led

the court, not unreasonably, to continue the trial to allow time for the State to respond and

for the court itself to issue a decision.

       {¶ 18} Running from October 26, 2016, through the date on which Long filed his
                                                                                           -8-


second motion to dismiss, August 7, 2017, the length of the delay was 285 days, or

approximately nine and one-half months.         Long entered his pleas of no contest an

additional 45 days later, on September 21, 2017, which was 330 days, or approximately

11 months, after the trial court overruled his first motion. The delay, then, was less than

one year and was not so protracted that it should necessarily be deemed “presumptively

prejudicial.”2 We find accordingly that the first Barker factor weighs neither in Long’s

favor, nor the State’s.

       {¶ 19} The reason for the delay appears to be the inattention of the trial court and

the State. Inattention, or “negligence[,] is obviously to be weighed more lightly than a

deliberate intent to harm [an] accused’s defense, [though] it still falls on the wrong side of

the divide between acceptable and unacceptable reasons for delaying a criminal

prosecution once it has begun.” Doggett, 505 U.S. at 657, 112 S.Ct. 2686, 120 L.Ed.2d

520. Toleration “of such negligence varies inversely with its protractedness.” (Citation

omitted.) Id.

       {¶ 20} Here, the record includes no evidence that the State sought to gain an

advantage by actively maneuvering to extend Long’s wait for a trial, and of note, Long

himself took no action for more than nine months after the trial court overruled his first

motion to dismiss.        Yet, given that we view the delay itself as only bordering on

presumptively prejudicial, we find for purposes of the second Barker factor that the

collective inattention of the trial court and the State should weigh in Long’s favor, but only



2 The term “ ‘presumptive prejudice’ does not necessarily indicate a statistical probability
of prejudice; it simply marks the point at which” a court theoretically should “deem the
delay unreasonable enough to trigger the Barker [i]nquiry.” (Citation omitted.) See
Doggett, 505 U.S. 647, 652 fn.1, 112 S.Ct. 2686, 120 L.Ed.2d 520.
                                                                                         -9-


marginally so.

       {¶ 21} Long, of course, asserted his right to a speedy trial on two occasions—in

his first motion to dismiss in September 2016, and in his second motion to dismiss in

August 2017—following the remand of this case. Thus, the third Barker factor weighs in

Long’s favor.3

       {¶ 22} Regarding the possibility that the delay in this case has caused prejudice to

Long, “affirmative proof of particularized prejudice is not essential to every speedy trial

claim.” (Citations omitted.) Doggett, 505 U.S. at 655, 112 S.Ct. 2686, 120 L.Ed.2d 520.

A protracted delay in bringing a defendant to trial “threatens to produce more than one

sort of harm,” including the anxiety and concern of the accused, oppressive pretrial

incarceration, and the prospect of the defense being unfairly hampered by the passage

of time. See id. at 654. An excessive delay may give rise to presumptive prejudice, but

“presumptive prejudice alone cannot carry a Sixth Amendment claim” without

consideration of the other Barker factors.     (Citations omitted.)   See id. at 655-656.

Instead, presumptive prejudice “is part of the mix of relevant facts, and its importance

increases with the length of the delay.” Id. at 656. Long has suffered anxiety and

pretrial incarceration as a result of the delay in the instant case. Nevertheless, he did

not claim any particularized trial prejudice in his motions to dismiss, and the record does

not suggest that he has suffered prejudice of that kind.

       {¶ 23} To warrant relief for a speedy trial violation because of “negligence” on the

part of the government that is “unaccompanied by particularized trial prejudice,” the delay



3 Long also asserted his right to a speedy trial after he was indicted but before he entered
into his initial plea agreement with the State in May 2015.
                                                                                            -10-


caused by the negligence “must have lasted longer than [equivalent] negligence [that]

demonstrably caus[es] prejudice.” Doggett at 657. Though prejudice in the form of

anxiety and pretrial incarceration is real, the potential impairment of an accused’s ability

to mount a defense is the most important consideration in the analysis of this Barker factor

because “it skews the fairness of the entire system.” Barker, 407 U.S. at 532, 92 S.Ct.

2182, 33 L.Ed.2d 101. Hence, “where delay[s] attributable to the negligence of the State

[are] more than one year * * * but not exceedingly long,” courts “sometimes decline to find

* * * speedy trial violation[s] absent [demonstrations] of actual [trial] prejudice.”

(Emphasis added.) State v. Bailey, 2d Dist. Montgomery No. 20764, 2005-Ohio-5506,

¶ 19. Long’s pretrial incarceration was not exceedingly protracted, and the record does

not indicate that he has been made to endure unduly harsh degrees of anxiety or concern.

In the absence of any demonstration of particularized trial prejudice, we find that the fourth

Barker factor, like the second, weighs in Long’s favor, but only marginally in his favor.

       {¶ 24} Balancing all four of the Barker factors—none of which is controlling—we

conclude that the delay of 11 months, from October 26, 2016, when the trial court

overruled Long’s first motion to dismiss, until September 21, 2017, when Long pleaded

no contest to two charges, has not resulted in a violation of Long’s constitutional right to

a speedy trial. See Barker at 529-530 (indicating that the four-factor balancing test is

flexible and should be applied “on an ad hoc basis”). The bulk of the delay was caused

by governmental inattention, as opposed to strategic maneuvering for advantage, and

Long has not made a showing of any particularized trial prejudice. Bailey at ¶ 19; see

also State v. Cassell, 2d Dist. Clark No. 09 CA 0064, 2011-Ohio-23, ¶ 20-23. Moreover,

at 11 months in length, the delay was not so protracted that it must be treated as
                                                                                         -11-


presumptively prejudicial.

       {¶ 25} The trial court reached essentially the same conclusion in its decision on

Long’s second motion to dismiss, which we review for abuse of discretion. State v.

Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 26; see also, e.g., Cassell

at ¶ 12 (noting that a trial court’s ruling on a motion to dismiss based upon an alleged

violation of a defendant’s constitutional right to a speedy trial is reviewed for abuse of

discretion); State v. Perkins, 2d Dist. Clark No. 08-CA-0081, 2009-Ohio-3033, ¶ 7 (same);

Bailey at ¶ 7-8 and 21 (same). Despite its reliance on State v. Patton, 117 Ohio App.3d

86, 689 N.E.2d 1030 (2d Dist.1996), which is inapposite, it reached a conclusion that was

not arbitrary, unconscionable or unreasonable, irrespective of the foregoing flaw in its

reasoning process.4 See State v. Heisey, 2015-Ohio-4610, 48 N.E.3d 157, ¶ 23 (2d

Dist.) (noting that an abuse of discretion refers to “a decision that is unreasonable,

unconscionable, or arbitrary”). We find, then, that trial court did not abuse its discretion

by overruling Long’s second motion to dismiss.

       {¶ 26} The dissent proposes that we adopt what appears to be the prevalent

standard of review in this state for constitutional speedy trial claims, pursuant to which a

trial court’s ruling on a motion to dismiss based upon an alleged violation of a defendant’s

constitutional right to a speedy trial is deemed to present a mixed question of law and

fact. See, e.g., State v. Burks, 8th Dist. Cuyahoga No. 106639, 2018-Ohio-4777, ¶ 22.



4 A decision is unreasonable when it is made without the use of a sound reasoning
process.    State v. Heisey, 2015-Ohio-4610, 48 N.E.3d 157, ¶ 23 (2d Dist.).
Acknowledging that the Patton opinion is inapposite to the instant matter, the trial court’s
decision was not rendered entirely unreasonable as a result of its reliance on Patton,
even though that reliance was arguably unreasonable in isolation.
                                                                                            -12-


Accordingly, an appellate court reviews de novo the trial court’s resolution of legal issues

but “afford[s] great deference” to the trial court’s findings of fact—albeit only “if [they] are

supported by competent, credible evidence.” See id.

       {¶ 27} We decline to adopt this standard for two reasons.            First, the present

formulation of the abuse of discretion standard is virtually indistinguishable because “[n]o

court—not a trial court, not an appellate court, nor even a supreme court—has the

authority, within its discretion, to commit an error of law”; thus, even pursuant to the abuse

of discretion standard, a trial court’s application of law is reviewed de novo. See State

v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 70. A trial court’s decision,

furthermore, will be found to be an abuse of discretion when it is “unsupported by the

evidence”; consistent wtih this principle, a trial court’s findings of fact could hardly fail to

constitute an abuse of discretion in the absence of competent, credible evidence. See

State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-4671, 959 N.E.2d 1082, ¶ 16 (2d Dist.)

(describing the abuse of discretion standard). Second, the balancing test set forth in the

Barker opinion consists of “factors,” rather than elements, and in our view, the application

of a factor-based test is intrinsically discretionary. Barker, 407 U.S. at 530-534, 92 S.Ct.

2182, 33 L.Ed.2d 101.

       {¶ 28} Yet, even pursuant to the standard of review advocated by the dissent, we

would reach the same conclusion in this case. The trial court expressly incorporated no

findings of fact into its journalized decisions on Long’s motions, and the parties

themselves have neither raised nor contested any issues of fact. With respect to the

Barker factors, which the court likewise did not expressly incorporate into its decisions,

we have effectively found de novo that the trial court did not commit an error of law by
                                                                                        -13-


overruling Long’s motions. Long’s assignment of error is overruled.

                                        III. Conclusion

       {¶ 29} Long’s constitutional right to a speedy trial was not violated in this case.

The delay of 11 months—from the entry of the trial court’s decision overruling his first

motion to dismiss, until the hearing at which he pleaded no contest to two charges—was

caused by inattention rather than manipulation, and Long has not demonstrated that the

delay caused any particularized prejudice to his defense. Arguably, furthermore, the

length of the delay in this case was not of sufficient duration to be deemed presumptively

prejudicial.   We find accordingly that the trial court did not abuse its discretion by

overruling Long’s second motion to dismiss, and therefore, we affirm his convictions.



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



HALL, J. concurs.

FROELICH, J., dissenting:

       {¶ 30} For 18 months following the reversal of his convictions on direct appeal,

Long waited for his case to be resolved and did nothing to delay it, except, ironically, to

file two motions to dismiss on speedy trial grounds. I would conclude, with the facts

before us, that Long’s constitutional right to a speedy trial was violated.

       {¶ 31} A timeline of the relevant events is presented on the table below:

 DATE                      EVENT
 February 28, 2015         Date of offense and arrest
 March 9, 2015             Indictment
 May 9, 2015               Guilty plea to two counts of aggravated robbery and one
                                                                                         -14-


                          count of failure to comply
 June 9, 2015             Sentencing (11 years in prison)
 March 7, 2016            Conviction reversed on direct appeal; case remanded
                          Entry: Trial court ordered that Long be transferred to Clark
 June 6, 2016
                          Co Jail
 June 22, 2016            Review hearing

 September 1, 2016        Status Conference; final pretrial conference set for
                          September 22, 2016, and trial set for September 28, 2016
 September 21, 2016       Long’s first motion to dismiss on speedy trial grounds
 September 28, 2016       Hearing on motion to dismiss
 October 26, 2016         Decision: Motion to dismiss denied
 August 7, 2017           Long’s second motion to dismiss

 August 16, 2017          Decision: Long’s second motion to dismiss denied;
                          apparently trial was set for this date, but no scheduling entry
 August 21, 2017          Entry: continuing trial date from Aug 16 due to scheduling
                          conflict
 August 22, 2017          Long’s motion for reconsideration of denial of motion to
                          dismiss
 September 7, 2017        Decision: motion for reconsideration denied
 September 21, 2017       No contest plea ; Sentencing (5 years); New judgment entry



       {¶ 32} When a defendant’s conviction has been reversed on appeal, the time

limitation for bringing the defendant to trial is a “reasonable period consistent with

constitutional standards.” Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706;

Kerby, 2d Dist. Clark No. 2006 CA 73, 2007-Ohio-3810, ¶ 17. Four factors are to be

assessed in determining whether an accused has been constitutionally denied a speedy

trial: 1) the length of the delay; 2) the reason for the delay; 3) the defendant’s assertion

of his or her right to speedy trial; and 4) the prejudice to the defendant. Hull at ¶ 22,

citing Barker, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101.          No single factor

controls, but the length of the delay is particularly important. Id. Ohio’s speedy trial
                                                                                           -15-


statute, R.C. 2945.71, does not apply to criminal convictions that have been overturned

on appeal. E.g., State v. Gatewood, 2d Dist. Clark No. 2010 CA 18, 2012-Ohio-202, ¶

18.

       {¶ 33} As an initial matter, I would employ the following appellate standard of

review:

       Appellate review of a trial court’s decision on a motion to dismiss for a

       speedy trial violation raises a mixed question of law and fact. This court

       applies a de novo review to the legal issues, and independently determines

       whether the trial court correctly applied the law to the facts of the case.

       However, we afford great deference to the trial court’s findings of fact, if any,

       if the factual findings are supported by competent, credible evidence.

(Citations omitted.) State v. Burks, 8th Dist. Cuyahoga No. 106639, 2018-Ohio-4777,

¶ 22. We are the only appellate district not to do so.5 See, e.g., State v. Smith, 5th Dist.

Holmes No. 17CA0017, 2018-Ohio-3175, ¶ 46; State v. Jaeger, 9th Dist. Medina No.

17CA0072-M, 2018-Ohio-2994, ¶ 5; State v. Westerfield, 3d Dist. Crawford Nos. 3-17-15


5Our abuse of discretion standard appears to stem from State v. Jackson, 2d Dist.
Montgomery No. 15723, 1997 WL 24786, *3 (Jan. 24, 1997), in which we stated:
             In performing an analysis in accordance with Barker v. Wingo, supra,
     no single factor is either necessary or sufficient to establish a deprivation of
     the defendant’s constitutional right to a speedy trial. All four factors are
     related and must be considered together with other relevant circumstances,
     and weighed and balanced in what is often a difficult, sensitive process.
     Barker v. Wingo, at 533. See, also, State v. Tharp (June 22, 1994),
     Montgomery App. 14155, unreported.
             When a trial court is charged with considering a number of factors “in
     a difficult and sensitive balancing process,” it is involved in the exercise of
     discretion. Consequently, when the trial court’s decision is reviewed on
     appeal, the question is whether the trial court abused its discretion in
     reaching its conclusion.
                                                                                           -16-

and 3-17-16, 2018-Ohio-2139, ¶ 17; State v. Phillips, 2018-Ohio-1794, 111 N.E.3d 351,

¶ 9 (4th Dist.); State v. Gage, 2018-Ohio-480, 104 N.E.3d 994, ¶ 5 (1st Dist.); State v.

Keaton, 10th Dist. Franklin No. 16AP-716, 2017-Ohio-7036, ¶ 6; State v. Ingram, 2017-

Ohio-5685, 93 N.E.3d 1253, ¶ 22 (6th Dist.); State v. North, 2017-Ohio-492, 85 N.E.3d

112, ¶ 19 (12th Dist.); State v. Elkins, 11th Dist. Trumbull No. 2016-T-0035, 2017-Ohio-

2725, ¶ 23; State v. Farnsworth, 7th Dist. Monroe No. 07 MO 7, 2009-Ohio-4642, ¶ 31.

Regardless of the standard employed, I would conclude that Long’s speedy trial rights

were violated.

       {¶ 34} Addressing the length of the delay, the majority opinion focuses on the

period from October 26, 2016, the date that the trial court overruled Long’s first motion to

dismiss, and August 7, 2017, the date that Long filed his second motion to dismiss. In

doing so, it concludes that this delay – amounting to 285 days6 – was less than one year

and not “presumptively prejudicial,” resulting in the first Barker factor not weighing in favor

of either Long or the State.

       {¶ 35} I disagree that the speedy trial delay should be calculated from the date on

which the trial court overruled Long’s first motion to dismiss. Upon our reversal of Long’s

conviction on March 7, 2016, Long was again being held on these pending charges.

Long’s filing of his first motion to dismiss constituted a tolling event that stopped the

speedy trial calculation until that motion was resolved. To toll means to suspend or



6 R.C. 2945.71, Ohio’s speedy trial statute, was enacted to implement the constitutional
guarantee of a speedy trial. See, e.g., Brecksville v. Cook, 75 Ohio St.3d 53, 55, 661
N.E.2d 706 (1996).      As noted above, that statute does not apply to Long’s
circumstances. Nevertheless, it is instructive that the statute allows only 90 days to bring
a felony defendant who is in custody to trial, absent tolling events.
                                                                                         -17-


interrupt; tolling events do not reset the speedy clock back to zero.7 Even excluding the

time required for the trial court to resolve Long’s motions and the delay due to the August

2017 scheduling conflict, Long’s case was pending after remand for more than one year.8

I would conclude that the delay was presumptively prejudicial.9

       {¶ 36} Turning to the second Barker factor, Barker assigned different weights to

different reasons for the delay in bringing a defendant to trial. Barker, 407 U.S. at 531,

92 S.Ct. 218, 233 L.Ed.2d 101. It noted that neutral reasons, 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.

       {¶ 37} This case was remanded to the trial court on March 7, 2016, following the

reversal of Long’s conviction. Long remained incarcerated in prison (apparently on his

original overturned convictions) until June 6, 2016, when he was ordered back to the Clark

County Jail on this case. The record does not indicate a basis for the more than three-

month delay between the remand and the scheduled June 22, 2016 status conference.



7 Taking the resetting approach (where each tolling event reset the clock to zero) to its
logical extreme, a defendant could be held indefinitely in pretrial confinement without ever
reaching the one-year threshold for presumptive prejudice simply by filing a motion within
one year of a previous motion.
8
 With these exclusions, 483 days counted toward Long’s speedy trial time. Specifically,
198 days elapsed between the remand and Long’s first motion to dismiss, and an
additional 285 days elapsed between the denial of Long’s first motion and the filing of his
second motion to dismiss.
9 Although not binding on this appellate court, the State conceded in its appellate brief
that the time between the remand from Long’s prior appeal (March 2016) and the filing of
Long’s second motion (August 2017) was “sufficiently long to warrant further
consideration of the Barker factors.”
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At that status conference, the parties agreed that all discovery was complete, and Long

asked for a trial date. No trial was scheduled. Another status conference was held on

September 1, 2016, at which a trial was set for September 28, 2016.

       {¶ 38} The September 21 filing of Long’s first motion to dismiss on speedy trial

grounds prompted the court to vacate the scheduled September 28, 2016 trial date.

However, after the trial court overruled that motion on October 26, 2016, there is nothing

in the record to explain the delay between October 26, 2016 and August 7, 2017, when

Long filed another motion to dismiss. No demands for discovery were made (the parties

had already indicated that discovery was complete), and no motions were filed; there was

no scheduled trial date. If anything did happen with the case, it is not in the record.

       {¶ 39} As stated in Barker, it is the government’s ultimate obligation to ensure that

an accused is brought to trial within a reasonable time.        The State must act with

“reasonable diligence” in pursuit of the charges. There is nothing in the record to reflect

that the State made efforts to request a timely trial date from the court. And while a trial

court’s failure to act promptly is not “deliberate conduct” by the State, it nevertheless

weighs against the State since “the ultimate responsibility for such circumstances must

rest with the government rather than with the defendant.” Barker, 407 U.S. at 531, 92

S.Ct. 218, 233 L.Ed.2d 101. The second Barker factor weighs in Long’s favor.

       {¶ 40} Third, the record also reflects that Long diligently asserted his speedy trial

right. Long invoked his right to a speedy trial in March 2015 (prior to his initial guilty

pleas), when defense counsel entered an appearance and demanded, among other

things, a speedy trial for Long. At the September 28, 2016 hearing on Long’s first motion

to dismiss, defense counsel presented as an exhibit that March 2015 demand for a
                                                                                            -19-


speedy trial. Long asserted his right to a speedy trial in September 2016 – six months

after the remand -- when he filed his first motion to dismiss. Long asserted his right to a

speedy trial again in August 2017 -- 18 months after the remand. Long did not, at any

point, waive his speedy trial rights, and it cannot be said that Long sat on his rights.

       {¶ 41} The final factor is the prejudice to Long. Barker identified three interests

that the speedy trial right was designed to protect: (1) to prevent oppressive pretrial

incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the

possibility that the defense will be impaired.         Barker at 532.      “[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.” Doggett, 505 U.S.

647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). As stated in Barker:

       We have discussed previously the societal disadvantages of lengthy pretrial

       incarceration, but obviously the disadvantages for the accused who cannot

       obtain his release are even more serious. The time spent in jail awaiting

       trial has a detrimental impact on the individual. It often means loss of a

       job; it disrupts family life; and it enforces idleness. Most jails offer little or

       no recreational or rehabilitative programs. The time spent in jail is simply

       dead time. Moreover, if a defendant is locked up, he is hindered in his

       ability to gather evidence, contact witnesses, or otherwise prepare his

       defense. Imposing those consequences on anyone who has not yet been

       convicted is serious. It is especially unfortunate to impose them on those

       persons who are ultimately found to be innocent.            Finally, even if an

       accused is not incarcerated prior to trial, he is still disadvantaged by
                                                                                         -20-


       restraints on his liberty and by living under a cloud of anxiety, suspicion,

       and often hostility.

Barker at 532-533.

       {¶ 42} At the first status conference following remand, the parties confirmed

discovery had been completed, the parties anticipated no changes to their witnesses or

exhibits, and no pretrial motions were anticipated; there is no indication that Long’s

defense was impaired due to any delay in resolving his case. Consequently, the primary

interests to Long revolved around preventing oppressive pretrial incarceration and

minimizing the anxiety caused from the unresolved charges.

       {¶ 43} Long has been incarcerated on these charges since his arrest on February

28, 2015.10 Although Long originally pled guilty in May 2015, he was again presumed

innocent of the charges upon our reversal of his conviction on direct appeal. Following

our remand on March 7, 2016, the trial court set a trial date of September 28, 2016, which

was continued due to Long’s first motion to dismiss. After the denial of Long’s first motion

to dismiss, Long’s charges remained pending for more than nine additional months with

no explanation for the substantial delay.        The fact that Long had previously been

sentenced to a long prison term or that he might anticipate receiving a long prison term

again does not mitigate the prejudice that Long (while presumed innocent) experienced

from having charges pending for a significant length of time, particularly after the denial

of his first motion to dismiss, without apparent justification.

       {¶ 44} The only motions that were filed during that 518-day delay were Long’s two


10 Long’s incarceration between February 28, 2015 and September 25, 2018, the
submission date of this appeal, amounts to 1,304 days (approximately three years and
seven months), and obviously, he is still incarcerated.
                                                                                   -21-


motions to dismiss due to violations of his right to a speedy trial and one motion for

reconsideration of the denial of his second motion. Under these factual circumstances,

I would conclude that the length of the pretrial delay was prejudicial and that Long’s

constitutional right to a speedy trial was violated.


Copies sent to:

Andrew P. Pickering
S. Todd Brecount
Hon. Richard J. O’Neill
