[Cite as State v. Pierce, 2017-Ohio-5791.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                               :    APPEAL NO. C-160699
                                                  TRIAL NO. B-1500199
         Plaintiff-Appellee,                 :

   vs.                                       :
                                                     O P I N I O N.
KENNETH PIERCE,                              :

         Defendant-Appellant.                :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: July 12, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
                   OHIO FIRST DISTRICT COURT OF APPEALS


DETERS, Judge.

        {¶1}   Defendant-appellant Kenneth Pierce appeals from his convictions for

two counts of nonsupport of dependents, fourth-degree felonies. Pierce challenges

the trial court’s decision overruling his motion to dismiss the indictment against him

on constitutional speedy-trial grounds.       Because we determine that Pierce’s

constitutional right to a speedy-trial was violated, we reverse the judgment of the

trial court.

                         Facts and Procedural History

        {¶2}   The evidence in the record shows that the state indicted Pierce on

January 27, 2015, on two counts of nonsupport under R.C. 2919.21(B), for failing to

support two children from July 2014 to January 2015. The state also issued a

warrant for Pierce’s arrest on January 27, 2015. The parties agree that Pierce resided

at the time in Kentucky, although the parties dispute the exact location. The parties

also agree that Pierce was arrested in Kentucky on these charges on March 15, 2016.

On April 14, 2016, the arrest warrant was returned, and Pierce was in custody in

Hamilton County. On April 19, 2016, Pierce filed a motion to dismiss the indictment

on constitutional speedy-trial grounds, arguing that the 14½-month delay between

the filing of the indictment and completion of the warrant was unreasonable.

        {¶3}   At a hearing on Pierce’s motion, the prosecutor argued that the

Hamilton County Sheriff’s Office had taken appropriate steps in requesting warrant

service on Pierce in Kentucky, and that Kentucky’s delay in serving the warrant

should not be held against the state of Ohio. The prosecutor also argued that Pierce

had not kept a current address on file with the juvenile court or the Child Support

Enforcement Agency.      The state did not offer any evidence to support these


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                      OHIO FIRST DISTRICT COURT OF APPEALS


assertions. Defense counsel argued that Pierce’s address had remained current with

the juvenile court; however, Pierce offered no evidence to support this assertion

either.

          {¶4}   The trial court denied Pierce’s motion to dismiss, determining that the

state had acted with reasonable diligence when it forwarded the arrest warrant to

Kentucky authorities, and that Pierce did not suffer particularized prejudice. Pierce

pleaded no contest to the two charges, and the trial court sentenced Pierce to

community control. Pierce appeals.

                     Pierce’s Constitutional Speedy-Trial Right

          {¶5}   In his sole assignment of error, Pierce argues that the trial court erred

in overruling his motion to dismiss his indictment on constitutional speedy-trial

grounds. This court reviews a trial court’s judgment on a motion to dismiss an

indictment on constitutional speedy-trial grounds as a mixed question of law and

fact. State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 15 (1st Dist.).

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

“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial * * *.” The speedy-trial guarantee in the federal constitution applies to

state criminal trials through the Fourteenth Amendment. Klopfer v. North Carolina,

386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The Ohio Constitution also provides

speedy-trial guarantees. See Ohio Constitution, Article I, Section 10. The right to a

speedy trial applies “to unjustifiable delays in commencing prosecution, as well as to

unjustifiable delays after indictment.” State v. Meeker, 26 Ohio St.2d 9, 268 N.E.2d

589 (1971), paragraph three of the syllabus.




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                    OHIO FIRST DISTRICT COURT OF APPEALS


       {¶7}   The United States Supreme Court developed a four-factor balancing

test to apply to constitutional speedy-trial cases in Barker v. Wingo, 407 U.S. 514,

530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four Barker factors include the

“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and

prejudice to the defendant.” Id. The Barker court noted that none of the factors

were necessary or sufficient conditions, but “[r]ather, they are related factors and

must be considered together with such other circumstances as may be relevant. In

sum, these factors have no talismanic qualities; courts must still engage in a difficult

and sensitive balancing process.” Id. at 533. Ohio courts apply the Barker four-

factor test in analyzing constitutional speedy-trial challenges. See State v. Selvage,

80 Ohio St.3d 465, 467, 687 N.E.2d 433 (1997); State v. Triplett, 78 Ohio St.3d 566,

568, 679 N.E.2d 290 (1997). The trial court applied the Barker factors to Pierce’s

speedy-trial challenge—a task we now undertake.

       {¶8}   First Barker Factor – Length of Delay.         The length of delay is a

“particularly important factor.” See Selvage at 467. The length of delay operates as

a “ ‘triggering mechanism’ ” for inquiry into the remaining Barker factors. Id.,

quoting Barker at 530-531. “ ‘Until there is some delay which is presumptively

prejudicial, there is no necessity for inquiry into the other factors that go into the

balance.’ ” Selvage at 467, quoting Barker at 530-531. The length of delay tolerated

by the Sixth Amendment differs depending on whether the case involves “an

ordinary street crime,” to which less delay is tolerated, or “a serious, complex

conspiracy charge.”     Selvage at 467, quoting Barker at 530-531.             Delay in

commencing prosecution approaching one year has been considered presumptively

prejudicial. Selvage at 468, citing Doggett v. United States, 505 U.S. 647, 652, 112


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                   OHIO FIRST DISTRICT COURT OF APPEALS


S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1. This court has held that a nine-month

delay from the filing of the criminal complaint until the defendant’s arrest in a

misdemeanor-assault case amounted to presumptive prejudice. See State v. Sears,

166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060, ¶ 12 (1st Dist.); Rice, 2015-

Ohio-5481, 57 N.E.3d 84, at ¶ 24 (holding that an 18-month delay from the filing of

the criminal complaint until the date of indictment justified inquiry into the

remaining Barker factors).

       {¶9}   The trial court determined that the delay in Pierce’s prosecution

justified inquiry into the remaining Barker factors. The state does not concede that

the length of delay is presumptively prejudicial. Moreover, the state argues that the

length of delay should be calculated from the date of indictment to Pierce’s arrest on

March 15, 2016, when he first became aware of these charges, and not a month later

when the arrest warrant was returned.

       {¶10} Even if this court assumes a 13½-month delay, instead of a 14½-

month delay, the length of delay still exceeds one year—the threshold time period

identified in Doggett.    See Selvage, 80 Ohio St.3d at 468, 687 N.E.2d 433.

Furthermore, the state indicted Pierce on two charges of nonsupport of dependents,

which are not complex charges and are low-level felonies, meaning less delay will be

tolerated. Selvage, 80 Ohio St.3d at 467, 687 N.E.2d 433, quoting Barker, 407 U.S.

at 530-531, 92 S.Ct. 2182, 33 L.Ed.2d 101. Therefore, we determine that the length of

delay in prosecuting Pierce is presumptively prejudicial and requires this court’s

inquiry into the remaining Barker factors.

       {¶11} Second Barker Factor – Reason for the Delay. “Closely related to the

length of the delay is the reason the government assigns for the delay.” Barker at


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531. A neutral reason, such as negligence, should be weighted less heavily against

the government. Id. Deliberate delay tactics weigh in favor of the defendant and

against the state. Rice, 2015-Ohio-548, 157 N.E.3d 84, at ¶ 27. The Ohio Supreme

Court determined that a 54-month delay between indictment and trial did not violate

a defendant’s speedy-trial rights, despite the government’s lack of effort to find the

defendant, because a copy of the indictment had been sent by certified mail to an

address that the defendant had provided to police upon her initial arrest. Triplett, 78

Ohio St.3d 566, 679 N.E.2d 290.

       {¶12} The state argues that even if this court determines that the stated acted

negligently in prosecuting Pierce, the delay was not so long as to warrant relief

absent actual prejudice. See State v. Hubbard, 12th Dist. Butler No. CA2014-03-

063, 2015-Ohio-646, ¶ 20, 26 (determining that the state’s failure to locate the

defendant and serve him with the indictment and arrest warrant amounted to

prosecutorial negligence, which weighed only somewhat in favor of the defendant,

and the defendant suffered no actual prejudice); State v. Boyd, 4th Dist. Ross No.

04CA2790, 2005-Ohio-1228. However, the state failed to offer any evidence to

explain the delay. Although nothing in the record suggests that the state acted

intentionally to thwart service of the indictment on Pierce, this court cannot

definitively make that determination because of the lack of evidence in the record.

The state bears the burden to explain the reason for the delay under the second

Barker factor. See United States v. Brown, 169 F.3d 344, 349 (6th Cir.1999). Thus,

this factor weighs in favor of Pierce and against the state.

       {¶13} Third Barker Factor – Defendant’s assertion of the speedy-trial right.

“Whether and how a defendant asserts his right is closely related to the other


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                    OHIO FIRST DISTRICT COURT OF APPEALS


factors[.]” Barker, 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101. “The more serious

the deprivation, the more likely a defendant is to complain.” Id.

       {¶14} According to the record, the state brought Pierce into state custody on

April 14, 2016, and Pierce filed a motion to dismiss the indictment five days later, on

April 19, 2016. The state argues that Pierce could have filed a motion to dismiss one

month earlier upon his arrest on these charges in Kentucky on March 15, 2016.

Although the parties agree on Pierce’s arrest date, no evidence suggests when Pierce

had counsel appointed to represent him on these charges. Moreover, even if we were

to weigh this month-long delay in asserting his speedy-trial right against Pierce, it is

not enough to tip the balance of this factor in favor of the state. Therefore, we

determine that the third Barker factor weighs in favor of Pierce.

       {¶15} Fourth Barker Factor – Prejudice. A court should assess prejudice “in

light of the interests of defendants which the speedy trial right was designed to

protect.” Barker, 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d 101. These interests

identified in Barker are as follows: “(i) to prevent oppressive pretrial incarceration;

(ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility

that the defense will be impaired.” Id. However, affirmative proof of particularized

prejudice is not required in every speedy-trial case. Selvage, 80 Ohio St.3d 465, 687

N.E.2d 433, citing Doggett, 505 U.S. at 655, 112 S.Ct. 2686, 120 L.Ed.2d 520. In

Doggett, the United States Supreme Court determined that the defendant was

entitled to relief for violation of his speedy-trial rights for an eight-year delay in

prosecution where “the presumption of prejudice, albeit unspecified, is neither

extenuated, as by the defendant’s acquiescence, * * * nor persuasively rebutted.”




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                    OHIO FIRST DISTRICT COURT OF APPEALS


(Internal citations omitted.) Doggett, 505 U.S. at 658, 112 S.Ct. 2686, 120 L.Ed.2d

520.

       {¶16} In Sears, this court determined that when the state failed to use

reasonable diligence in notifying the criminal defendant of a complaint or

indictment, then prejudice was presumed under the fourth Barker factor. See Sears,

166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060, at ¶ 16. Therefore, the

Sears court did not discuss whether the defendant had suffered actual prejudice from

the state’s delay in prosecution. This court also determined that a defendant need

not demonstrate actual prejudice where the defendant suffered a four-year delay

brought about by the state’s inaction. See State v. Jackson, 2016-Ohio-5196, 68

N.E.3d 1278, ¶ 20 (1st Dist.).

       {¶17} The trial court and the state focus on the lack of actual prejudice to

Pierce brought on by the delay in his arrest and prosecution. But, because the state

offered no evidence to explain its delay in prosecuting Pierce, we presume that Pierce

has been prejudiced under the fourth Barker factor, and the state offered no

evidence to rebut this presumption of prejudice. See Doggett, 505 U.S. at 658, 112

S.Ct. 2686, 120 L.Ed.2d 520. Therefore, this factor weighs in favor of Pierce as well.

       {¶18} Balancing the Barker Factors.         Having determined that all four

Barker factors weigh in favor of Pierce, we determine that Pierce’s constitutional

speedy-trial right was violated. Therefore, we sustain Pierce’s assignment of error.

                                    Conclusion

       {¶19} In conclusion, we determine that the trial court erred in overruling

Pierce’s motion to dismiss the indictment on constitutional speedy-trial grounds.




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                    OHIO FIRST DISTRICT COURT OF APPEALS


The judgment of the trial court is reversed, and the cause is remanded for the trial

court to dismiss the indictment.


                                                Judgment reversed and cause remanded.


CUNNINGHAM, P.J., and ZAYAS, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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