[Cite as State v. Jackson,

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

STATE OF OHIO, : APPEAL NOS. C-150657 C-150658 Plaintiff-Appellant, : C-150659 C-150660 vs. : TRIAL NOS. 11CRB-17976 11CRB-17973 MARY JACKSON, : 11CRB-22815-A 11CRB-22815-B Defendant-Appellee. : O P I N I O N.

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: August 3, 2016

Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Jonathan Rengering, Assistant Prosecutor, for Plaintiff-Appellant,

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

D E W INE , Judge.

{¶1} These are appeals from a trial court’s dismissal of criminal charges on

speedy-trial grounds. There was a four-year delay between the issuance of warrants and

the defendant’s arrest. For more than a third of the time, the defendant was

incarcerated in Ohio. Because the state failed to exercise reasonable diligence to bring

the defendant to trial, we must presume that she was prejudiced by the lengthy delay.

Thus, we uphold the trial court's dismissal of the charges.

I. Background

{¶2} In June and July, 2011, warrants were issued for Mary Jackson’s arrest.

The state alleged that she had written bad checks to two businesses and failed to return a

chainsaw she had rented from one of the businesses. It wasn’t until nearly four years

later that Jackson was arrested on the charges. Following her arrest, she filed a motion

to dismiss, arguing that prosecution was barred by the statute of limitations and on

speedy-trial grounds.

{¶3} During the hearing on the motion, Detective Charles Zopfi recounted his

efforts to find Jackson. Detective Zopfi said that he had looked for Jackson at the

Bellevue, Kentucky address that was listed on the checks she had written and on a rental

agreement. When he didn’t find Jackson at the address, he asked around the

neighborhood with no success. Detective Zopfi was unable to come up with a different

address for Jackson: a query put to the LEADS system at the Regional Crime

Information Center returned the same Bellevue, Kentucky address. And several calls to

the phone number Jackson had provided yielded no results. Later, Detective Zopfi

asked Bellevue police officers to periodically check the address and apprehend Jackson if

possible.

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{¶4} After about a month of searching for Jackson, Detective Zopfi turned the

matter over to the warrants section in his district. According to Detective Zopfi, the

warrants section “take[s] it from there” and “send[s] out cards to any last known

addresses or any address that [it] might come up with in the future.” Detective Zopfi

further explained that the warrant officers “run queries routinely to see if [the] person

has been recently picked up * * * and to see if there’s any new addresses listed

anywhere.” As part of their job, warrant officers also send cards to the last known

address to inform the person about the outstanding warrants. Detective Zopfi had no

other involvement with the case until Jackson was stopped on June 29, 2015, for a

traffic violation and arrested for the open warrants.

{¶5} For her part, Ms. Jackson testified that she had not lived at the

Bellevue, Kentucky address listed on her checks since March 2011. For most of 2011,

Ms. Jackson lived in a hotel in Florence, Kentucky, in friends’ homes or in her car. In

2012, she began living at her grandfather’s house at another address in Bellevue. Ms.

Jackson was arrested in Butler County, Ohio, on May 21, 2012, on unrelated charges.

She was subsequently convicted and sentenced to 18 months in prison. For those 18

months, Ms. Jackson was incarcerated in the Ohio Reformatory for Women in

Marysville, Ohio and the Dayton Correctional Institute. When she got out of prison

on October 12, 2013, she returned to Bellevue, Kentucky.

{¶6} At the conclusion of the hearing, the trial court determined that

Jackson’s prosecution was not barred by the statute of limitations but that the state

had violated her constitutional speedy-trial rights. The court noted the lack of

reasonable diligence on the state’s part: “In this case there was an effort after the

warrant but that effort stopped within the 28 or 30 days that [Detective Zopfi]

aggressively tried to find her. And then the state did nothing. Even when she was

3 OHIO FIRST DISTRICT COURT OF APPEALS

within its borders, nothing would occur.” Thus, the court dismissed the charges

against Jackson.

II. Jackson’s Speedy-Trial Rights were Violated

{¶7} The state contends that the trial court erred when it dismissed the

charges on speedy-trial grounds. The gist of its argument is that because it acted

with reasonable diligence in pursuing the charges against Jackson, the state should

not be penalized for the four-year delay. Ms. Jackson responds that the four-year

delay was “presumptively prejudicial” and violated her rights.

{¶8} Our review of the trial court’s decision involves mixed questions 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.

Rice, 1st Dist. Hamilton No. C-150191,

, citing State v. Terrell,

1st Dist. Hamilton No. C-020194,

.

{¶9} The United States Supreme Court has instructed that determining

whether a defendant’s speedy-trial rights have been violated requires a flexible

approach considering four factors: the length of the delay, the reason for the delay,

the defendant’s assertion of her speedy-trial rights and the resulting prejudice to the

defendant from the delay. Barker v. Wingo,

,

,

(1972).

{¶10} The first factor—the length of the delay—is a threshold inquiry.

“Simply to trigger a speedy trial analysis, an accused must allege that the interval

between accusation and trial has crossed the threshold dividing ordinary from

‘presumptively prejudicial’ delay[.]” Doggett v. United States,

, 651-

4 OHIO FIRST DISTRICT COURT OF APPEALS

652,

,

(1992). The United States Supreme Court

clarified what is meant by “presumptive prejudice” when considering the first factor:

[A]s the term is used in this threshold context, ‘presumptive prejudice’

does not necessarily indicate a statistical probability of prejudice; it

simply marks the point at which courts deem the delay unreasonable

enough to trigger the Barker enquiry.

. In Doggett, the court indicated that the threshold for inquiry into

the other factors was somewhere around one year.

This court has concluded that

a nine-month delay prompts further inquiry. State v. Sears,

,

,

(1st Dist.). Thus, the four-year delay in this

case requires consideration of the remaining factors.

{¶11} The second factor—the reason for the delay—allocates fault for the

delay. It is the state’s burden to explain the reason for the delay:

The prosecutor and the court have an ‘affirmative constitutional

obligation’ to try the defendant in a timely manner. This

‘constitutional duty’ is not satisfied unless ‘a diligent good faith effort’

has been made to try the defendant promptly. On appeal, the

prosecution has the burden of explaining the cause for pre-trial delay.

Unexplained delay is weighed against the prosecution.

(Citations omitted.) Redd v. Sowders,

(6th Cir. 1987). The state

maintains that because it acted with reasonable diligence in pursuing the charges, it

should not be faulted for the delay.

{¶12} We are not convinced that the state’s actions in pursuing the charges

were reasonably diligent. True, the court found that Detective Zopfi’s efforts in the

first month after issuance of the warrants were reasonably diligent. That diligence

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was sufficient to end the inquiry into the statute-of-limitations claim: A case is

considered commenced for purposes of the statute of limitations upon issuance of

the warrants so long as the state has been reasonably diligent in executing the

warrants. See R.C. 2901.13(F). Beyond Detective Zopfi’s actions in the month after

the warrants were issued, however, the court found that there was no effort on the

part of the state.

{¶13} The state counters that it acted with reasonable diligence by turning

the warrants over to the warrant officers after its initial efforts were unsuccessful. In

considering a statutory speedy-rights challenge, the Twelfth Appellate District held

that merely entering a warrant into a database and sending a warrant to a

defendant’s county of residence does not constitute reasonable diligence under R.C.

2945.72. See State v. Baker, 12th Dist. Fayette No. CA2008-03-008, 2009-Ohio-

674, ¶ 17-19. See also State v. Hayman, 3d Dist. Seneca No. 13-09-22, 2010-Ohio-

1264. The same goes here. There was no evidence that the state did anything to

locate Ms. Jackson after the warrant officers took over. Notably, the state doesn’t

explain how, if its efforts were diligent, it was unaware that Jackson spent 18 months

of the delay in Ohio correctional facilities. Surely had the “routine” queries discussed

by Detective Zopfi actually been undertaken, the state would have discovered that

Jackson was sitting in its prisons. We agree with the trial court that, save for the one

month following the issuance of the warrants, the state was not reasonably diligent in

pursuing the charges against Jackson. The second factor weighs against the state.

{¶14} The third factor—assertion of speedy-trial rights—does not strongly

factor into this case. If a defendant sits on his speedy-trial rights, the factor weighs

against the defendant. See Barker,

,

,

OHIO FIRST DISTRICT COURT OF APPEALS

101. But that was not the situation here. Jackson promptly asserted her speedy-trial

rights upon her arrest.

{¶15} The Barker analysis culminates in a determination of whether the

delay considered in the preceding three factors resulted in prejudice to the

defendant. In Barker, the court analyzed prejudice in terms of the interests that

were protected by speedy-trial rights. The court identified three interests: (1) the

prevention of oppressive pretrial incarceration; (2) the minimization of the accused’s

anxiety and concern; and (3) the limitation of impairment of the accused’s defense.

Id. at 532. Neither the first nor second identified interest is at issue here: Ms.

Jackson was not incarcerated for a protracted time on her charges, and she suffered

no anxiety over the charges about which she had been unaware. The question boils

down to whether her defense was impaired.

{¶16} “[I]mpairment 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.’ ” Doggett,

,

,

.

Ms. Jackson contends that any delay beyond the nine-month threshold set by Sears

was prejudicial unless the state proved otherwise. But such a rule would eliminate

consideration of the other factors. Instead, we approach the prejudice element as

done in the closely analogous case Doggett.

{¶17} In Doggett, there was an eight-and-one-half-year delay between the

defendant’s indictment and arrest, and during six of those years, the government was

“negligent” in bringing the defendant to trial. The court explained the impact of the

long delay:

[W]e generally have to recognize that excessive delay presumptively

compromises the reliability of a trial in ways that neither party can

7 OHIO FIRST DISTRICT COURT OF APPEALS

prove or, for that matter, identify. While such presumptive prejudice

cannot alone carry a Sixth Amendment [speedy-trial] 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 the delay.

(Citation omitted.)

.

{¶18} The question becomes at what point prejudice to the defendant is

presumed so that she is relieved of showing actual prejudice to her defense. The

Doggett court answered the question by focusing on the culpability of the state in

failing to bring the defendant to trial:

Although negligence is obviously to be weighed more lightly than a

deliberate intent to harm the accused’s defense, it still falls on the

wrong side of the divide between acceptable and unacceptable reasons

for delaying a criminal prosecution once it has begun. And such is the

nature of the prejudice presumed that the weight we assign to official

negligence compounds over time as the presumption of evidentiary

prejudice grows. Thus, our toleration of such negligence varies

inversely with its protractedness.

.

{¶19} In Doggett, the six-year portion of the delay attributable to the

government’s negligence in pursuing the defendant’s arrest was sufficient to allow

the court to presume prejudice to the defense. Because the presumptive prejudice of

the delay had not been rebutted by the government nor mitigated by any

acquiescence on the part of the defendant, the defendant was entitled to relief for

violation of his speedy-trial rights.

. See Sears,

,

,

(prejudice caused by nine-month delay

8 OHIO FIRST DISTRICT COURT OF APPEALS

presumed where “the state [] made an official accusation, but fail[ed] to use any

reasonable diligence to let its accusation be known to the defendant”). Compare

State v. Triplett,

,

(1997) (54-month delay not

prejudicial where defendant knew about charges against her, gave her address to

police and then refused to accept certified mail at the address).

{¶20} As in Doggett, we have a lengthy delay brought on by the state’s lack of

reasonable diligence in the pursuit of charges. We conclude that Ms. Jackson was

not required to show actual prejudice where there was a four-year delay occasioned

by the state’s lack of diligence. While she hasn’t—and likely couldn’t have—shown

actual prejudice, the length of the delay and the state’s inaction leads us to presume

that Jackson was prejudiced. The court did not err in concluding that her speedy-

trial rights had been violated. The sole assignment of error is overruled, and we

affirm the trial court’s judgments.

Judgments affirmed.

C UNNINGHAM , P.J., and M OCK , J., concur.

Please note:

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

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