[Cite as State v. McDaniel,
2023-Ohio-3593.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
BRANDON W. McDANIEL,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 JE 0013
Criminal Appeal from the
Court of Common Pleas of Jefferson County, Ohio
Case No. 21-CR-56
BEFORE:
Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Jane M. Hanlin, Jefferson County Prosecutor and Atty. Bernard C. Battistel,
Assistant Prosecutor, Jefferson County Prosecutor’s Office, 16001 State Route 7,
Steubenville, Ohio 43952, for Plaintiff-Appellee
Atty. Eric M. Reszke, 100 North 4th Street, Suite 810, Sinclair Building, Steubenville, Ohio
43952, for Defendant-Appellant
Dated: September 28, 2023
–2–
WAITE, J.
{¶1} Appellant appeals a July 29, 2022 judgment entry of the Jefferson County
Court of Common Pleas convicting him on a single count of failure to comply with an order
or signal of a police officer. Appellant argues that the trial court erroneously denied his
motion to dismiss the matter based on multiple speedy trial grounds. Because Appellant
has not demonstrated prejudice, his argument is without merit and the judgment of the
trial court is affirmed.
Factual and Procedural History
{¶2} Due to a plea agreement, the details surrounding this incident are sparse.
Further complicating the factual history is the existence of what appears to be two different
cases arising from the same incident. However, the trial court provided limited details of
the incident when accepting Appellant’s plea of no contest.
{¶3} On February 21, 2021, Appellant was operating a vehicle on an unnamed
road in Dillonvale and failed to stop at a stop sign. Two local police officers were sitting,
stationary, nearby and began pursuit of Appellant’s vehicle by activating their siren and
emergency lights. The officers engaged in a high-speed chase with Appellant, reaching
speeds of up to seventy miles per hour. The officers pursued Appellant at high rates of
speed for approximately five or six minutes before Appellant, while weaving in and out of
traffic, lost control of his vehicle and crashed into a guardrail. When officers approached
the vehicle, Appellant was sitting in the driver’s seat unconscious.
{¶4} Appellant was arrested two days later, on February 23, 2021. The record
does not explain the gap in time that occurred between the incident and the arrest, or the
Case No. 22 JE 0013
–3–
location of Appellant’s arrest. However, the parties agree that Appellant was arraigned
the day after arrest, on February 24, 2021.
{¶5} The state filed a motion to voluntarily dismiss the charges, which the trial
court granted on March 3, 2021. The record is silent as to the reason for this dismissal
and whether anyone informed Appellant that new charges would be filed at a later date.
The trial court file provided to this Court on appeal does not include any documentation
regarding Appellant’s first indictment or the dismissal of those charges. Thus, we rely on
the dates provided in a stipulation filed by the parties pursuant to a later, second, motion
to dismiss.
{¶6} Charges were refiled against Appellant by the state and Appellant was
indicted on April 7, 2021. The Jefferson County Sheriff’s Department requested
assistance from the Tuscarawas County Sheriff’s Department in serving Appellant with
the new indictment. However, on April 8, 2021, a representative of the Tuscarawas
County Sheriff’s Department informed Jefferson County that Appellant did not live in that
county, but that he “lives in Martin [sic] Ferry area[.] He works at a gas station in Colerain.”
(4/8/21 Summons On Indictment.) Both Martins Ferry and Colerain are located in
Belmont County, adjacent to Jefferson County. On May 24, 2021, the Jefferson County
Sheriff’s Department obtained a warrant for Appellant’s arrest. However, it appears that
the Jefferson County Sheriff’s Department undertook no efforts to attempt to locate
Appellant, whether in Martins Ferry, Colerain, or some other location. The state conceded
at oral argument that only three gas stations operate in Colerain, which is a small town.
{¶7} On April 7, 2022, almost a year later, Appellant was arrested pursuant to
the warrant and was arraigned the following day. A series of pre-trial motions were filed
Case No. 22 JE 0013
–4–
by both sides, including: a request for discovery, a motion for bond reduction, a request
for reciprocal discovery, and a motion to continue. Appellant’s motion for reduced bond
was premised on the fact that, but for law enforcement’s failure to attempt to locate him
for a year after his indictment, he may have been released on his own recognizance
instead of being held on bail. The court sustained the motion and lowered Appellant’s
bond, however, it appears Appellant was unable to post even the modified bond.
{¶8} On June 7, 2022, Appellant’s counsel filed a motion to dismiss the charges
based on speedy trial grounds. However, counsel did not support the motion with any
kind of memorandum as is typically provided to the trial court in these matters. At some
time later, Appellant’s counsel did provide the court with a stipulated timeline of
Appellant’s incarceration, but no caselaw or accompanying arguments were ever filed.
According to the bare bones stipulation, Appellant was incarcerated as follows:
Date Event Jail Length
2/23/21 Arrested Yes 0 Days
2/24/21 Arraigned Yes 1 Day
3/3/21 Case Dismissed Yes 6 Days
4/5/22 Arrested Yes 0 Days
4/12/22 Discovery Yes 7 Days
5/19/22 Motion for Bond Yes 37 Days
5/23/22 Discovery Yes 4 Days
6/6/23 Motion to Continue Yes 14 Days
7/5/23 Motion to Dismiss Yes 29 Days
Total = 98 Days
Case No. 22 JE 0013
–5–
(7/20/22 Joint Stipulation.)
{¶9} On July 20, 2022, the court held a hearing on Appellant’s motion to dismiss.
The court was informed by the parties through joint stipulation that, as of the date of the
hearing, Appellant had been jailed for 112 days on the charges, with a trial date scheduled
for July 26, 2022, six days later. At hearing, counsel appeared unprepared, and while he
argued that Appellant believed his case was similar to State v. Hayman, 3rd Dist. Seneca
No. 13-09-22, 2010-Ohio-1264, counsel admitted that he did not attempt to locate or read
this case prior to the hearing. The following discussion occurred between the court and
counsel:
The Court: Do you want me to wait and see what case he’s going to give
you? I can’t imagine any case he’s going to give you that’s going to affect
this.
Mr. Martello: He’s telling me State versus Hayman, your Honor. It doesn’t
matter to me. If you’d like to rule, you can rule.
(Motion to Dismiss Hrg., pp. 8-9.)
{¶10} Counsel said Appellant had recited the facts of the case to him. Although it
was clear that Appellant had discussed this matter with counsel well in advance of the
hearing, counsel claimed that, although the facts of the case did seem on point, he never
read Hayman and could only speculate as to the reasons for the Hayman court’s decision.
(Motion to Dismiss Hrg., p. 9.) The court issued a judgment entry later that same day
denying Appellant’s motion to dismiss.
Case No. 22 JE 0013
–6–
{¶11} On July 25, 2022, Appellant signed “a change of plea” form that simply
stated he was changing his plea from “not guilty” to “no contest.” A formal Crim.R. 11
form is not in the record. On the same date, the court held a joint plea and sentencing
hearing. Appellant expressed his disappointment in his counsel’s failure to pursue
aspects of his case, particularly the viability of a speedy issue.
{¶12} On July 29, 2022, the trial court imposed a jointly recommended sentence
of nine months in jail with credit for 116 days served. Appellant’s driver’s license was
suspended for five years and he was informed he is subject to a mandatory postrelease
control term of one to three years. Appellant timely appealed the court’s sentencing entry.
{¶13} On January 24, 2023, we sua sponte acknowledged that the state’s
deadline to file a brief in this matter had expired almost a month prior and provided the
state another seventeen days to file a brief. Based on the confusing nature of this record
we set the matter for oral argument.
{¶14} As no stay was requested in this matter, we note that Appellant has
completely served his jail sentence. However, this matter is not moot as Appellant is
serving his mandatory term of postrelease control.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
OVERRULING THE APPELLANT'S MOTION TO DISMISS.
{¶15} Appellant actually raises a bifurcated argument under his sole assignment.
First, he argues that unreasonable delay by law enforcement caused him to be arrested
a year after his indictment issued. As a result, he not only faced uncertainty during this
Case No. 22 JE 0013
–7–
period but also suffered harm by being incarcerated following arrest, as he contends
another offender would typically be released on his own recognizance for a similar
offense. Second, he argues that several tolling events were delayed unreasonably by the
state and should have resulted in dismissal on speedy trial grounds.
{¶16} In response, the state focuses on the fact that Appellant was not jailed from
the time he was indicted (April 7, 2021) until he was ultimately arrested (April 5, 2022),
thus this time cannot be charged against the state in any statutory speedy trial analysis.
The state compares the matter to cases where a person is under investigation, but is not
charged, in a criminal proceeding. However, the state has failed to directly respond to
Appellant’s constitutional argument.
{¶17} Ohio recognizes both a constitutional and a statutory right to a speedy trial.
State v. King, 70 Ohio St.3d 158, 161,
637 N.E.2d 903 (1994). The Sixth Amendment to
the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defen[s]e.
{¶18} In addition to the Sixth Amendment, Ohio provides a statutory speedy trial
right. R.C. 2945.73(B) provides: “Upon motion made at or prior to the commencement of
Case No. 22 JE 0013
–8–
trial, a person charged with an offense shall be discharged if he is not brought to trial
within the time required by sections 2945.71 and 2945.72 of the Revised Code.” “A
person against whom a charge of felony is pending: … (2) Shall be brought to trial within
two hundred seventy days after the person's arrest.” R.C. 2945.71(C)(2). “For purposes
of computing time … each day during which the accused is held in jail in lieu of bail on
the pending charge shall be counted as three days.” R.C. 2945.71(E).
{¶19} Review of a trial court's decision regarding a motion to dismiss based on a
violation of the speedy trial provisions involves a mixed question of law and fact. State v.
High, 143 Ohio App.3d 232,
757 N.E.2d 1176 (7th Dist.2001), citing State v. McDonald,
7th Dist. Nos. 97 C.A. 146, 97 C.A. 148,
1999 WL 476253 (June 30, 1999). The trial
court's findings of fact are given deference if supported by competent, credible evidence.
Id. However, a reviewing court must independently review whether the trial court properly
applied the law to the facts of the case.
Id. Further, an appellate court must strictly
construe the relevant statutes against the state.
Id., citing Brecksville v. Cook,
75 Ohio
St.3d 53, 57,
661 N.E.2d 706 (1996).
{¶20} While the state focuses solely on statutory speedy trial law, Appellant’s
arguments are far more wide ranging and complicated. He not only raises statutory
speedy trial issues, but also alleges constitutional violations of his speedy trial rights.
{¶21} At the outset, we again note that this record is incomplete. We cannot
ascertain whether this matter has two separate case numbers, or whether certain
documents are simply missing from the file. Among the documents clearly missing are
the original indictment and the dismissal of the original charges, including the entry of
dismissal and any other documents that might have existed prior to dismissal. Also
Case No. 22 JE 0013
–9–
missing are documents pertaining to the second indictment showing the date of arrest
and any effort made to locate and serve Appellant after learning that he possibly resided
in Martins Ferry and worked at a gas station in Colerain. It is Appellant’s burden to ensure
the record on appeal is complete, or at least contains sufficient information to allow for
the appropriate review of the lower court proceedings. In the interest of justice, we will
review the matter as thoroughly as possible given the deficiencies that exist.
{¶22} The parties do not dispute that absent tolling events the state had 90 days
to bring Appellant to trial following arrest pursuant to the triple count provision. The
speedy trial clock begins to run the day after a defendant is arrested. State v. Brown, 7th
Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939. The parties appear to agree Appellant’s
first arrest counts towards his speedy trial calculation. Appellant was arrested for the first
time on February 23, 2021. Thus, the speedy trial clock began to run on February 24,
2021. Although the record is unclear, it appears from the parties’ stipulation that Appellant
was released on March 3, 2021 when the trial court sustained the state’s motion to
dismiss the charges. According to the stipulation, it appears Appellant was arrested for
the second time on April 5, 2022, and was incarcerated throughout the remainder of the
proceedings.
{¶23} In Hayman, the appellant was arrested and eventually released on his own
recognizance. Id. at ¶ 3. Later, he was indicted based on the conduct for which he was
arrested. Law enforcement made four attempts to serve him with the indictment at his
residence but failed. Id. at ¶ 17. The state then secured a bench warrant. The state also
successfully moved for a tolling of the speedy trial time to allow service of the indictment.
However, after the state obtained the tolling order, law enforcement apparently made no
Case No. 22 JE 0013
– 10 –
effort to serve either the indictment, the tolling order, or to execute the arrest warrant. On
appeal, the Third District held that any tolling of the speedy trial time must be reasonable,
and failure to attempt service of a document on a defendant for 114 days was not
reasonable. Id. at ¶ 27. Thus, law enforcement’s actions (or inaction) ran afoul of the
appellant’s statutory speedy trial rights.
{¶24} Hayman is distinguishable from the instant matter in several respects. The
Hayman court clearly relied on the existence of a speedy trial order in that case in
reaching its decision. The appellant’s charges were pending at the time of his release
without bond and appellant had apparently asserted his right to a speedy trial. No such
order existed in the instant case. It is acknowledged that the charges originally filed in
the instant matter were dismissed and then refiled approximately one month later. The
record is silent as to whether Appellant had reason to believe his charges would be refiled.
{¶25} Unlike Hayman, clearly the court in this matter did not order a continuance
tolling speedy trial time. This is so because when Appellant in this matter was released,
no charges against him were pending. Since a speedy trial analysis focuses on the time
that has passed since an arrest on criminal charges until time of trial on these charges, it
does not appear that Appellant can automatically apply the time that elapsed between his
first arrest and his second arrest pursuant to his second indictment towards his speedy
trial count. The question remains whether the state can avoid a speedy trial issue
altogether where a lengthy, and possible unnecessary, delay exists between an
indictment and an arrest.
{¶26} We have previously acknowledged that “the rule in Ohio is that a defendant
may only assert preindictment speedy trial rights if the state has actually initiated its
Case No. 22 JE 0013
– 11 –
criminal prosecution or has issued an official accusation prior to indictment.” State v.
Davis, 7th Dist. Mahoning No. 05 MA 235, 2007-Ohio-7216, ¶ 23, citing Selvage, supra,
80 Ohio St.3d at 466, 687 N.E .2d 433; State v. Luck,
15 Ohio St.3d 150, 153,
472 N.E.2d
1097 (1984). It appears that this is satisfied, as Appellant had previously been indicted
and arrested, although the charges were dismissed and Appellant was set free. We have
also recognized the Ohio Supreme Court’s holding that “[c]onsidering the basic purposes
of the constitutional right to a ‘speedy trial,’ we conclude that such constitutional
guarantees are applicable to unjustifiable delays in commencing prosecution as well as
to unjustifiable delays after indictment.” Id. at ¶ 24, citing State v. Meeker
26 Ohio St.2d
9, 16-17,
268 N.E.2d 589 (1971).
{¶27} The applicable law is more thoroughly addressed within a United States
Supreme Court case, Barker v. Wingo, 407 U.S. 514,
33 L.Ed.2d 101,
92 S.Ct. 2182,
2192 (1972). The issue arose when the state elected to try what it deemed to be the
stronger case against the appellant’s codefendant before attempting to try the appellant’s
much weaker case.
Id. at 516. After the conclusion of codefendant’s trial, a series of
continuances, all requested by the state, delayed the appellant’s trial for five years. The
appellant was then subjected to two separate trials involving multiple victims, and
ultimately convicted and sentenced to life in prison.
Id. at 518.
{¶28} The Barker Court considered and declined to adopt several suggested
bright line rules. The Court explained that there are troubling consequences for both
parties and the public resulting from both a lengthy trial process and also from a hurried
trial. More importantly, the court explained that “[w]e cannot definitively say how long is
too long in a system where justice is supposed to be swift but deliberate.” Id. at 521. With
Case No. 22 JE 0013
– 12 –
this in mind, the Court came to the conclusion that “[a] balancing test necessarily compels
courts to approach speedy trial cases on an ad hoc basis. We can do little more than
identify some of the factors which courts should assess in determining whether a
particular defendant has been deprived of his right. Though some might express them in
different ways, we identify four such factors: length of delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to the defendant.” Id. at 530.
{¶29} In reviewing these factors, the Barker Court ultimately determined, in a
close decision, that the delay was extraordinary. While the Court acknowledged that
some of the delay attributed to the state was appropriate and acceptable, “a good part of
that period was attributable to the Commonwealth’s failure or inability to try [the appellant]
under circumstances that comported with due process.” Id. at 534. However, this did not
end the analysis. The Barker Court held that even this extraordinary delay did not rise to
the level of a violation of the appellant’s speedy rights because the record demonstrated
that he did not want to be timely tried, mostly due to his desire to gamble on his
codefendant’s acquittal. The Court noted that he did not contest any of the continuances
until after the codefendant’s trial resulted in a conviction.
{¶30} The Court cautioned that its decision was governed by the applicable facts,
which were unique, and that “[t]here may be a situation in which the defendant was
represented by incompetent counsel, was severely prejudiced, or even cases in which
the continuances were granted ex parte.” Id. at 536.
Length of Delay
{¶31} Turning to these four factors, in regard to the first, the length of delay, the
Barker Court noted that it is “to some extent a triggering mechanism. Until there is some
Case No. 22 JE 0013
– 13 –
delay which is presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance.” Id. at 530. The Court noted that “the length of delay
that will provoke such an inquiry is necessarily dependent upon the peculiar
circumstances of the case. To take but one example, the delay that can be tolerated for
an ordinary street crime is considerably less than for a serious, complex conspiracy
charge.”
Id. at 530-531. This factor is looked at as a threshold issue.
{¶32} In the matter before us, the contested delay is a roughly one-year period
between the filing of the second indictment and Appellant’s arrest. We note the parties
stipulated there was also a delay of more than a month between the first and second
indictments, during which Appellant was jailed for only a small amount of time.
{¶33} The first incident at issue occurred on February 21, 2021. Law enforcement
did not arrest Appellant until February 23, 2021. We have no way of knowing why there
was a two-day delay. If Appellant was free to go following the incident and law
enforcement was able to quickly locate him for the arrest, it may provide some support
for his argument that the delay in locating him was unreasonable. However, Appellant
was unconscious after striking the guardrail. It is possible he was hospitalized, thus
somewhat hampering his immediate arrest.
{¶34} Regardless, it appears that Appellant was jailed from the time of his first
arrest until the court granted the state’s motion to dismiss the charges. Again, the parties
stipulated that the first charges were dismissed on March 3, 2021.
{¶35} The state secured a second indictment on the same charges on April 7,
2021. Appellant relies on the time between dismissal of the first indictment and filing of
the second in his timeliness argument: approximately one and one-half months. On April
Case No. 22 JE 0013
– 14 –
8, 2021, the Tuscarawas County Sheriff’s Department informed the Jefferson County
Sheriff’s Department that Appellant did not live in their jurisdiction, so they could not
perfect service of the second indictment on Jefferson County’s behalf. A Tuscarawas
representative alerted Jefferson County to the possibility that Appellant lived in the
Martins Ferry area and worked at a gas station in the town of Colerain. Again, the state
conceded at oral argument that only three gas stations operate in the small town of
Colerain.
{¶36} Similar to Hayman, there is no documented evidence that law enforcement
took any action to further locate Appellant. Instead, law enforcement obtained an arrest
warrant on May 24, 2021, approximately one and one-half months after receiving the tip
from Tuscarawas as to where Appellant might be found. At this point, approximately three
months had passed since Appellant’s original arrest. Ultimately, Appellant was arrested
during a traffic stop on April 5, 2022, a year after the second indictment was filed and
almost a year after obtaining the arrest warrant. There is no evidence that Appellant
attempted to evade prosecution.
{¶37} Several tolling events occurred after Appellant’s arraignment; motions for
discovery and a motion to reduce Appellant’s bond. Interestingly, counsel requested
bond because “the summons that was issued was sent to an incorrect address in
Tuscarawas County, which he has not lived at for over four years. Had [Appellant] been
served at his correct address, which will be submitted to the Court at the hearing on this
matter, the [Appellant] would have appeared on his own recognizance and been entitled
to such bond.” (5/19/22 Motion for Bond Reduction.) It is unclear whether the court
agreed with Appellant’s supposition, but the court granted the motion. However, it
Case No. 22 JE 0013
– 15 –
appears that Appellant was unable to post the modified bond and remained jailed on the
charges.
{¶38} Appellant later requested a continuance to clear discovery issues and
pursue a potential resolution of the case. On July 5, 2022, counsel filed a one-page bare-
bones motion to dismiss based on speedy trial grounds that included no caselaw or
argument. Counsel did not assist the court with any argument or evidence at the hearing,
either.
{¶39} We have previously reviewed a similar case in Davis, supra. In that case,
we discussed Doggett v. United States,
505 U.S. 647,
112 S.Ct. 2686,
120 L.Ed.2d 520
(1992). Doggett involved a delay of eight and one-half years between the indictment and
subsequent arrest, where attempts to serve the indictment had been unsuccessful
because the defendant had fled the country. The Doggett Court held that the delay was
presumptively prejudicial, triggering a complete Barker analysis. Davis at ¶ 30. We
distinguished Davis on the grounds that “presumptive prejudice only begins to arise when
the delay between indictment and arrest approaches one year” and Davis involved a
delay of only six months. Id. at ¶ 31. “Generally, a delay that approaches one year is
presumptively prejudicial.” (Emphasis added) State v. Slater, 8th Dist. Cuyahoga No.
111536,
2023-Ohio-608, ¶ 17.
{¶40} In the instant matter, the time between Appellant’s indictment and arrest
amounted to just two days shy of one year. (Second indictment on April 7, 2021 and
arrest on April 5, 2022.) Again, the length of delay is a threshold issue. Only if the delay
is unreasonable do we proceed with an analysis of the other Barker factors. The one-
year delay here appears sufficient to trigger a full Barker analysis.
Case No. 22 JE 0013
– 16 –
Reason for Delay
{¶41} Since the threshold issue appears to have been met, we must analyze the
significance of the second factor, the reason for the delay. The court explained that a
reason such as the state’s attempt to hamper the defense should weigh heavily in a
defendant’s favor, whereas negligence or an overcrowded court docket should be
afforded less weight, but ultimately must still be considered. Barker at 527. The court
rationalized that “the ultimate responsibility for such circumstances must rest with the
government, rather than with the defendant.”
Id. at 531. Based on the record before us,
it appears that law enforcement took no efforts to locate Appellant, despite having
information as to where he may possibly be found.
Assertion of Right
{¶42} The third factor is whether the defendant asserted his right to a speedy trial.
While the court cautioned that a defendant need not specifically raise that right to be
successful in a speedy trial challenge, it is a factor to consider. Id. 531-532.
{¶43} Again, we are unable to determine whether Appellant was aware that
criminal charges would be refiled after the dismissal of the initial charges. Once he was
arrested the second time, it is very clear that Appellant sought to raise his speedy trial
rights, although his counsel was less than enthusiastic about supporting his assertion.
Nonetheless, clearly Appellant raised speedy trial issues.
Prejudice
{¶44} The fourth and final factor is the prejudice caused to the defendant. This
appears to be the most important factor. In a lengthy analysis, the Barker Court
essentially held that courts are to consider three interests: (1) prevention of “oppressive
Case No. 22 JE 0013
– 17 –
pretrial incarceration,” (2) the ability to minimize the anxiety and concern of the defendant,
and (3) the ability to limit the potential impairment of the defense. Id. at 532. The court
noted that “even if an accused is not incarcerated prior to trial, he is still disadvantaged
by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often
hostility.”
Id. at 533.
{¶45} The trial court never addressed Appellant’s assertion that he would have
been released on his own recognizance pending trial if he had been timely served.
Regardless, Appellant was incarcerated approximately four months, counting time served
on the original indictment that was dismissed, and the time he was incarcerated on the
second indictment. We note that Barker stated that even time a defendant is not actually
incarcerated may be relevant when determining the reasonableness of a pretrial delay.
However, this record contains nothing to suggest Barker’s “oppressive pretrial
incarceration.”
{¶46} As to Appellant’s anxiety and concern, the state alleges that he was under
no additional stress when compared to any other person under investigation. This
assertion is somewhat misleading. Appellant had actually once been arrested, although
he was released when his indictment was dismissed. While the record is silent as to
whether Appellant expected to be reindicted after the dismissal of the first indictment, his
liberty would have been more in question than a person who may or may not face criminal
charges subsequent to an investigation, if Appellant had known he was subject to further
charges or to being recharged on the original charge. The record is devoid of any such
evidence, however, and the dismissal of the original indictment may have equally caused
Appellant to believe he was free of any cloud.
Case No. 22 JE 0013
– 18 –
{¶47} The charge (failure to comply) was not likely to require a complicated
investigation or trial. In fact, a trial probably would not have exceeded more than one
day. The reason for the delay had nothing to do with a state investigation, complex
issues, or an attempt by Appellant to elude prosecution. Instead, it appears that law
enforcement simply took no steps to locate Appellant for more than one year, even though
they had information which may have led to arrest much earlier. However, there was no
showing, or even suggestion of any impairment to the defense by any delay, here.
{¶48} This record then, is silent as to actual prejudice. Appellant has not shown,
or even alleged, that he was aware he would, or even could, be reindicted and that new
charges were possible or forthcoming. Appellant does not allege he was subject to any
cloud or concern as a result of delay, and does not allege his defense suffered from the
delay. Appellant has provided no specific instance of actual prejudice. He raises mere
speculation that he would have turned himself in had he known earlier that a warrant was
pending and that he would then have been released without bond, but we cannot
conclude that this conjecture is accurate, nor that it amounts to an allegation, let alone
proof, of prejudice.
General Analysis
{¶49} This record contains insufficient facts to support Appellant’s contentions
regarding his pretrial delay and trial counsel failed to preserve several arguments for
appeal. While appellate counsel attempted to allege prejudice, even when conducting a
plain error analysis the record contains no actual facts that would lead to a colorable
argument demonstrating prejudice. We may not speculate or extrapolate based on the
mere suggestions of appellate counsel. While law enforcement could have done more to
Case No. 22 JE 0013
– 19 –
effect Appellant’s arrest on the reindictment, this record reflects Appellant was able to live
his life with no, or very little restriction or cloud. His delayed apprehension caused no
actual prejudice.
Conclusion
{¶50} Appellant argues that the trial court erroneously denied his motion to
dismiss this case based on speedy trial grounds. While his arrest on the second
indictment does appear to have been delayed unreasonably, Appellant has not
demonstrated actual prejudice. His argument is without merit and the judgment of the
trial court is affirmed.
Robb, J. concurs.
Hanni, J. concurs.
Case No. 22 JE 0013
[Cite as State v. McDaniel, 2023-Ohio-3593.]
For the reasons stated in the Opinion rendered herein, Appellant’s assignment of
error is overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
