[Cite as Cleveland v. White, 2013-Ohio-5423.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99375




                                CITY OF CLEVELAND
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     GEORGE WHITE
                                                      DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2008 CRB 023549

        BEFORE: E.T. Gallagher, J., Keough, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: December 12, 2013
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender

BY: Eric M. Hedrick
Asst. State Public Defender
250 E. Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Law Director
City of Cleveland
Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077

Victor R. Perez
Chief City Prosecuting Attorney

BY: Lorraine Coyne
Assistant City Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant George White (“White”) appeals a judgment of

conviction, rendered after a bench trial, convicting him of misdemeanor child

endangering. We find merit to the appeal and reverse.

       {¶2} In July 2008, White accompanied Debra Gardner (“Gardner”) and her two

children on a visit to U.S. Bank. White held ten-month old P.J., while Gardner and

four-year-old T.J. transacted business with a bank teller at the counter. Officer Philip

Hawkins (“Hawkins”), a Cleveland police officer who was working as a security guard at

the bank, observed White kissing P.J. on the cheek. Moments later, the baby screamed.

Gardner took her child from White in response to her cries and discovered bite marks on

her shoulder. Hawkins investigated the incident and also observed bite marks on P.J.’s

shoulder. As a result, Hawkins placed White under arrest for child endangering.

       {¶3} On July 22, 2008, White was charged with child endangering in violation of

Cleveland Codified Ordinances (“CCO”) 609.04.          The court issued a summons by

certified mail on July 24, 2008, notifying White that he was required to appear in court on

August 5, 2008. White failed to appear before the court, and the court sent him a letter

by certified mail informing him there was a capias for his arrest. It is undisputed that on

August 19, 2008, the certified mail receipt containing the summons was returned from the

U.S. Post Office indicating the summons was “unclaimed.”
       {¶4} In July 2012, White was arrested for an unrelated offense, and police

discovered the outstanding capias.       White was subsequently arraigned on the child

endangering charge, and the case proceeded to a bench trial where the court found him

guilty. White now appeals and raises five assignments of error.

       {¶5} We find the fifth assignment of error dispositive of this appeal. In this

assigned error, White argues he was denied his right to the effective assistance of counsel,

in part, because his trial counsel failed to file a motion to dismiss on grounds that his right

to a speedy trial had been infringed.

       {¶6} To prevail on a claim of ineffective assistance of counsel, a defendant must

show that counsel’s performance fell below an objective standard of reasonableness and

that prejudice arose from counsel’s performance. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraph two of the syllabus. A defendant must show that

counsel acted unreasonably and that but for counsel’s errors, there exists a reasonable

probability that the result of the proceeding would have been different.         Strickland at

696; Bradley at paragraph three of the syllabus.         In making this determination, the

reviewing court must presume that counsel’s conduct was competent. Id.

       {¶7} Although failure to raise the denial of a right to speedy trial in the trial court

generally constitutes a waiver of the defense on appeal, there is an exception where the

issue is raised as the ineffective assistance of counsel.        Cleveland v. Ali, 8th Dist.

Cuyahoga No. 88604, 2007-Ohio-3902, ¶ 10.            In determining whether White’s trial
counsel was ineffective in failing to argue the denial of his right to speedy trial in the trial

court, White must show that had his trial counsel moved for dismissal on speedy trial

grounds, the case would have likely been dismissed.

       {¶8} R.C. 2945.71(B)(2) provides that a person charged with a misdemeanor of

the first-degree shall be brought to trial “[w]ithin 90 days after his arrest or service of

summons.” The burden is on the state to bring the accused to trial within this statutory

period. State v. Singer, 50 Ohio St.2d 103, 106, 362 N.E.2d 1216 (1977). If a defendant

is not brought to trial within the speedy trial limits, the court, upon motion, must

discharge the defendant.      R.C. 2945.73(B).     At that point, the burden shifts to the

prosecution to demonstrate any tolling or extensions of time permissible under the law.

State v. McDonald, 153 Ohio App.3d 679, 2003-Ohio-4342, 795 N.E.2d 701, ¶ 27 (8th

Dist.); State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), paragraph six of the

syllabus.

       {¶9} It is undisputed that the city failed to bring White to trial within the statutorily

prescribed time for a speedy trial. The city asserts that its delay was permissible because

White’s location was unknown.          White, on the other hand, argues the delay was

excessive and unjustified and therefore constituted a speedy trial violation.

       {¶10} An accused is also guaranteed the constitutional right to a speedy trial

pursuant to the Sixth and Fourteenth Amendments of the United States Constitution and

Article I, Section 10, of the Ohio Constitution. State v. Taylor, 98 Ohio St.3d 27,

2002-Ohio-7017, 781 N.E.2d 72, ¶ 32.           Ohio’s speedy trial statutes, found in R.C.
2945.71, et seq., were implemented to enforce these constitutional guarantees. State v.

Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, ¶ 10.

       {¶11} In determining whether an accused was denied the right to a speedy trial as

guaranteed by the Sixth Amendment, the court must consider four factors: (1) length of

delay, (2) reason for the delay, (3) the accused’s assertion of his right, and (4) prejudice to

the accused. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972);

State v. Davis, 46 Ohio St.2d 444, 446, 349 N.E.2d 315 (1976). The length of the delay

is the “triggering mechanism” that necessitates inquiry into the other factors. Barker at

530. Until there is some delay that is presumptively prejudicial, “there is no necessity for

inquiry into the other factors that go into the balance.” Id.

       {¶12} A delay of more than one year between indictment and trial is

“presumptively prejudicial” and is generally considered the minimum amount of time

required to trigger a Barker analysis. Doggett v. United States, 505 U.S. 647, 112 S.Ct.

2686, 120 L.Ed.2d 520 (1992), fn.1; State v. Selvage, 80 Ohio St.3d 465, 468, 687 N.E.2d

433 (1997). In this case, there was a four-year delay between the time White was

arrested and brought to trial. Therefore, this factor weighs against the prosecution.

       {¶13} The weight given to the second factor, the reason for the delay, depends on

whether the government acted diligently, negligently, or in bad faith. Barker at 531. This

court has held that although negligence lies somewhere between “diligent prosecution”

and “bad faith delay,” it nevertheless “falls on the wrong side of the divide between

acceptable and unacceptable reasons for delaying a criminal prosecution.”             State v.
Smith, 8th Dist. Cuyahoga No. 86504, 2006-Ohio-2456, ¶ 25.            “The government is

‘under an obligation to exercise due diligence in attempting to locate and apprehend the

accused, even if he is a fugitive who is fleeing prosecution.’” State v. Kutkut, 8th Dist.

Cuyahoga No. 98479, 2013-Ohio-1442, ¶ 13, quoting Rayborn v. Scully, 858 F.2d 84, 90

(2d Cir.1988). See also State v. Triplett, 78 Ohio St.3d 566, 571, 679 N.E.2d 290 (1997)

(holding the prosecution is required to exercise reasonable diligence in order to defeat the

speedy trial claim).

       {¶14} In State v. Meyers, 8th Dist. Cuyahoga No. 87973, 2007-Ohio-279, we held

that a failure to make further attempts to serve a defendant after a summons was returned

“address unknown,” demonstrates a “failure to exercise any diligence, much less * * *

‘reasonable diligence.’” Id. at ¶ 14. In State v. Smith, 8th Dist. Cuyahoga No. 83022,

2003-Ohio-7076, we similarly held that a single attempt to serve a summons that is

returned “unclaimed,” was not enough to establish “reasonable diligence.”          Id. at ¶

12-20. In Smith, we also held that “a lack of ‘affirmative steps’ to locate a defendant

qualifies as ‘official negligence,’ when considering a motion to dismiss on speedy trial

grounds.” Id.

       {¶15} Although there is no evidence that the city acted in bad faith, the official

negligence in this case is significant. Like the defendant in Smith, White was arrested

and released before any charges were filed, and he was unaware he had been charged with

a crime. The city filed its complaint on July 22, 2008, and issued a summons by certified

mail on July 24, 2008. The certified mail was returned “unclaimed” on August 13, 2008.
 The city concedes that it made no additional attempts to locate White until he was

arrested for an unrelated crime, and it is not clear from the record whether White received

the letter the city sent advising him that a capias had been issued for his arrest. Thus, the

city’s negligence weighs heavily in favor of White.

       {¶16} The final factor to be examined is prejudice. “[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.” Selvage, 80 Ohio

St.3d at 465, 687 N.E.2d 433, quoting Doggett v. United States, 505 U.S. 647, 655, 112

S.Ct. 2686, 2691, 120 L.Ed.2d 520 (1992). In Doggett, the United States Supreme Court

explained that “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.’” Id. at 655, quoting Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 at 632.

Therefore, the Doggett court concluded:

       [E]xcessive delay presumptively compromises the reliability of a trial in
       ways that neither party can prove or, for that matter, identify. While such
       presumptive prejudice cannot alone carry a Sixth Amendment claim without
       regard to the other Barker criteria, * * * it is part of the mix of relevant
       facts, and its importance increases with the length of delay.

(Citations omitted.) Id.

       {¶17} The four-year delay in bringing White to trial is excessive. In Smith, 8th

Dist. Cuyahoga No. 83022, 2003-Ohio-7076, we held that an 18-month delay was

excessive where delay was caused by “official negligence.” Id. at ¶ 20-21. In State v.

Sears, 166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060 (1st Dist.), the court
held a nine-month delay warranted dismissal of a misdemeanor assault case. Id. at ¶ 17.

Therefore, even if White would have shown little or no demonstrable prejudice, the other

Barker factors weigh heavily in his favor and against the state.          Furthermore, “to

condone ‘prolonged and unjustifiable delays in prosecution would both penalize many

defendants for the state’s fault and simply encourage the government to gamble with the

interests of criminal suspects assigned a low prosecutorial priority.’”              Smith,

2003-Ohio-7076, at ¶ 19, quoting Doggett at 657.

       {¶18} Under the circumstances of this case, we are compelled to find that

counsel’s failure to file a motion to dismiss for violation of White’s right to speedy trial

constituted the ineffective assistance of counsel.

       {¶19} The fifth assignment of error is sustained.

       {¶20} Having determined that White was denied the effective assistance of trial

counsel and that he was denied his right to speedy trial, the remaining assignments of

error are moot.

       {¶21} Judgment reversed, case remanded for further proceedings consistent with

this opinion.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution.
        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR


                                       APPENDIX

                      REMAINING ASSIGNMENTS OF ERROR



I.     The city’s four-year delay in prosecuting George White for misdemeanor child
     endangering violated Mr. White’s constitutional speedy trial rights. Sixth and
     Fourteenth Amendments, United States Constitution; Article I, Section 10, Ohio
     Constitution.

II. George White was denied his right to due process and a fair trial when the trial court
    found him guilty of endangering children against the manifest weight of the evidence.
     Fifth and Fourteenth Amendments, United States Constitution; Article I, Section 10,
    Ohio Constitution.

III. The trial court erred and thereby prejudiced George White by denying him due
     process and a fair trial when it expressly relied on inadmissible hearsay evidence in
     its decision to find Mr. White guilty of endangering children. Fifth and Fourteenth
     Amendments, United States Constitution; Article I, Section 10, Ohio Constitution,
     Evid.R. 612, 801, 802, and 803.

IV. George White’s Sixth Amendment right of confrontation was violated. Sixth and
    Fourteenth Amendments, United States Constitution; Article I, Section 10, Ohio
    Constitution.
