[Cite as State v. Johnson,
2024-Ohio-1700.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230439
C-230440
Plaintiff-Appellant, : C-230441
C-230442
vs. : TRIAL NOS. C-23TRC-4447-A
C-23TRC-4447-B
SHAVONNE JOHNSON, : C-23TRC-4447-C
C-23TRC-4447-D
Defendant-Appellee. :
: O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 3, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Plaintiff-appellant the state of Ohio appeals the judgments of the trial
court granting a motion to dismiss the traffic charges in these consolidated cases
against defendant-appellee Shavonne Johnson. We determine that the trial court
erred in granting Johnson’s motion to dismiss on constitutional speedy-trial grounds,
and we reverse the trial court’s judgments. We remand the matter to the trial court to
consider Johnson’s statutory speedy-trial claim in the first instance, and for any
further proceedings.
Background
{¶2} On November 12, 2021, the Springfield Township Police Department
filed a citation against Johnson for failure to maintain an assured clear distance, OVI,
driving under financial-responsibility-law suspension, and driving under suspension.
The state did not formally serve Johnson with the charges until February 17, 2023.
Johnson filed a motion to dismiss the charges against her for lack of a speedy trial.
Johnson argued that the state’s 15-month delay in serving her with notice of the
charges caused her prejudice. Johnson also filed a supplemental motion to dismiss,
arguing that the state violated her statutory speedy-trial rights by serving her with an
open-container violation on the day of the incident, which started the statutory
speedy-trial clock as to all charges.
{¶3} The trial court held a hearing on Johnson’s motion to dismiss, and the
state introduced testimony from a Springfield Township police officer who
investigated the traffic accident involving Johnson. According to the officer’s
testimony, he responded to a traffic accident in which Johnson’s vehicle had struck
the rear end of a police car that had been stopped alongside Hamilton Avenue assisting
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OHIO FIRST DISTRICT COURT OF APPEALS
another motorist. The officer observed that Johnson had an open alcoholic beverage
container in the vehicle, bloodshot eyes, and slurred speech. The officer also detected
an odor of marijuana emanating from the vehicle. Another police officer on the scene
issued a citation to Johnson for having an open container, and then Johnson was
transported to a local hospital.
{¶4} The investigating officer testified that he did not issue a citation to
Johnson that night for the underlying traffic charges, because he wanted to collect
more evidence from the hospital. The officer sought a search warrant for any of
Johnson’s blood evidence retained by the hospital. Approximately three days later,
the officer learned that the hospital did not retain any blood evidence for Johnson.
The state then charged Johnson with failure to maintain an assured clear distance,
OVI, driving under financial-responsibility-law suspension, and driving under
suspension. The record indicates that the citation for all four offenses was entered on
the docket the same night as the offense—November 12, 2021.
{¶5} The officer testified that he had attempted to serve Johnson at her
residential address three separate times in November and December 2021. The officer
also went to another address that he found in his records system, and he also
attempted to call her. The officer was unable to make contact with Johnson, but the
officer later learned that Johnson had a pending OVI case that predated the underlying
charges, which also involved Springfield Township. The officer asked a fellow
Springfield Township officer to serve Johnson in person at the next court hearing. The
fellow officer was unable to serve Johnson, however, because Johnson did not appear
for court.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} The officer testified that the warrant for Johnson’s underlying charges
“went back in the drawer,” and that, eventually, in February 2023, another police
jurisdiction conducted a traffic stop involving Johnson, and Johnson was then served
with the underlying charges.
{¶7} At the conclusion of the motion-to-dismiss hearing, Johnson requested
to file a written closing argument, which the trial court permitted. At the next hearing
date, the trial court stated on the record that it found the 15-month delay between the
filing of charges and service unreasonable, because the same police department had
“arrested and prosecuted the defendant on the subsequent OVI.” The trial court
granted Johnson’s motion to suppress.
{¶8} This appeal by the state ensued.
Constitutional Right to a Speedy Trial
{¶9} In its sole assignment of error, the state argues that the trial court erred
in dismissing the charges against Johnson.
{¶10} This court reviews a defendant’s speedy-trial claim as a mixed question
of law and fact, in which this court defers to the trial court’s factual findings if they are
supported by competent, credible evidence, and this court reviews the application of
the law to those facts de novo. State v. Long, 163 Ohio St.3d 179,
2020-Ohio-5363,
168 N.E.3d 1163, ¶ 15.
{¶11} A defendant has a constitutional right to a speedy trial under the Sixth
and Fourteenth Amendments to 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. In determining whether a defendant’s constitutional right to a speedy
trial has been violated, courts apply the four-factor balancing test laid out in Barker v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Wingo, 407 U.S. 514, 530-533,
92 S.Ct. 2182,
33 L.Ed.2d 101 (1972). Under Barker,
courts consider “(1) the length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of his speedy trial right; and (4) prejudice to the defendant.”
State v. Hull,
110 Ohio St.3d 183,
2006-Ohio-4252,
852 N.E.2d 706, ¶ 22, citing
Barker at 530. The four-factor test in Barker is a balancing test, meaning that no
factor is “either a necessary or sufficient condition to the finding of a deprivation of
the right of speedy trial. Rather, they are related factors and must be considered
together with such other circumstances as may be relevant.”
Barker at 533.
{¶12} As an initial matter, the state argues that the trial court failed to conduct
the required Barker analysis because the trial court only mentioned the length of the
delay and the reason for the delay in granting Johnson’s motion. The state relies on
State v. Wilson, 1st Dist. Hamilton No. C-210587, 2022-Ohio-2076. In Wilson, this
court determined that the record affirmatively demonstrated that the trial court did
not weigh all four Barker factors when determining whether the defendant’s delayed
arrest was constitutionally reasonable. Nevertheless, the Wilson court reviewed the
evidence before the trial court, applied the Barker multifactor test, and concluded that
the defendant’s constitutional rights were not violated.
{¶13} In this case, the record does not indicate that the trial court analyzed the
fourth factor in Barker, whether Johnson suffered prejudice from the delay in her
arrest. However, the state also did not object to the trial court’s lack of further
findings, and despite the trial court’s failure to affirmatively make factual findings on
all of the Barker factors, on this particular record, this court can review the evidence
before the trial court in analyzing the state’s appeal under Barker.
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OHIO FIRST DISTRICT COURT OF APPEALS
1. Length of Delay
{¶14} The first factor in Barker requires courts to consider the length of delay
between formal arrest and accusation. The length of delay is considered a threshold
requirement before proceeding with the remaining Barker factors. State v. Duncan,
1st Dist. Hamilton No. C-200079, 2021-Ohio-3229, ¶ 14. “Until there is some delay
which is presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance.” Long,
163 Ohio St.3d 179,
2020-Ohio-5363,
168
N.E.3d 1163, at ¶ 14, quoting Barker,
407 U.S. at 530,
92 S.Ct. 2182,
33 L.Ed.2d 101.
Courts have generally held that a delay approaching one year becomes “presumptively
prejudicial.” Id. at ¶ 14, citing Doggett v. United States,
505 U.S. 647, 651,
112 S.Ct.
2686,
120 L.Ed.2d 520 (1992), fn. 1. Here, the length of delay between the incident
and formal arrest of Johnson was 15 months, and therefore, enough to trigger
consideration of the remaining Barker factors.
{¶15} The length of delay in this case, 15 months, is not excessively past the
one-year, presumptively-prejudicial turning point. Moreover, the record reflects that
Johnson was unaware of the charges. Therefore, the length of delay weighs minimally
in favor of Johnson. See State v. Triplett, 78 Ohio St.3d 566, 569,
679 N.E.2d 290
(1997).
2. Reason for Delay
{¶16} The second factor under Barker examines the state’s justification for the
delay. Barker at 531. The state has the duty to pursue charges against a defendant in
a reasonably-diligent manner. State v. Jackson,
2016-Ohio-5196,
68 N.E.3d 1278, ¶
12 (1st Dist.). “The second factor attributes fault for the delay and operates on a
‘sliding scale’. … Deliberate dilatory acts are weighted heavily against the state, while
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OHIO FIRST DISTRICT COURT OF APPEALS
negligent acts are weighted less heavily against the state.” Duncan at ¶ 16, citing
Barker at 531. However, “intertwined within this Barker analysis is whether the
defendant shares any responsibility for the delay.” State v. Rentas,
2022-Ohio-2412,
191 N.E.3d 547, ¶ 32 (8th Dist.), citing
Triplett at 570.
{¶17} Here, the trial court determined that the state’s justification for delay
weighed against the state, because the Springfield Township Police Department
prosecuted Johnson on a “subsequent” OVI charge and still failed to serve her with a
warrant on the underlying charges. The state argues that the trial court erred in
relying on the unrelated OVI case as a reason to find the state’s actions in this case to
be unreasonable. First, the state contends that the OVI charge predated the current
charges, so it was not subsequent. Second, the state argues that nothing in the record
supports the notion that Johnson’s unrelated OVI charge had been prosecuted
through sentencing.
{¶18} The record shows that when the investigating officer’s attempts to reach
Johnson in November and December 2021 failed, the investigating officer requested a
fellow officer to serve Johnson at an upcoming court hearing in the already-pending,
unrelated OVI case, but Johnson failed to appear for that hearing. After Johnson
failed to appear for the hearing on the unrelated OVI charge, the warrants in the
underlying cases “went back in the drawer” at the police department. On cross-
examination, the officer acknowledged defense counsel’s statement that Johnson’s
unrelated OVI had been “resolved,” and the officer stated that he was surprised that
the court bailiffs in that case had not alerted police, so that Johnson could be served
with the underlying charges. Therefore, the trial court’s finding that the state did not
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OHIO FIRST DISTRICT COURT OF APPEALS
act with reasonable diligence, because the state failed to serve Johnson during the
unrelated OVI case is supported by competent, credible evidence.
{¶19} We conclude that the reason-for-delay factor weighs against the state.
3. Timely Assertion of Speedy-Trial Right
{¶20} The third Barker factor examines whether the defendant timely
asserted the right to a speedy trial. Doggett, 505 U.S. at 651,
112 S.Ct. 2686,
120
L.Ed.2d 520.
{¶21} The state concedes that Johnson timely asserted her right to a speedy
trial by filing her motion to dismiss one month after her arrest, so this factor weighs
in favor of Johnson.
4. Prejudice
{¶22} The fourth Barker factor requires the court to consider whether the
delay prejudiced the defendant. Long, 163 Ohio St.3d 179,
2020-Ohio-5363,
168
N.E.3d 1163, at ¶ 22, quoting Barker,
407 U.S. at 532,
92 S.Ct. 2182,
33 L.Ed.2d 101.
When considering prejudice, the court looks to three interests of the defendant that
the speedy-trial rights were designed to protect: (1) prevention of pretrial
incarceration, (2) minimization of anxiety and concern of the defendant, and (3)
limitation of possible defense impairment.
Barker at 532.
{¶23} In this case, Johnson was unaware that the underlying charges had not
been resolved, and she was not under pretrial incarceration. Therefore, the only factor
left to consider is prejudice. The state argues that Johnson failed to make an
affirmative showing of prejudice.
{¶24} Johnson argues that the officer’s inability to recall specific details
regarding his attempts to serve Johnson indicate that time lapse had affected his
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OHIO FIRST DISTRICT COURT OF APPEALS
memory; for instance, Johnson argues that the officer could not recall how many times
he tried to call Johnson’s phone number. However, nothing in the record supports the
notion that the officer’s memory as to the actual incident had been compromised. In
fact, the officer recalled many details regarding the incident at the motion-to-dismiss
hearing. The officer testified that Johnson struck the rear end of a marked police
cruiser that had been parked alongside Hamilton Avenue, just north of Springdale
Road. The officer recalled the other officers at the scene, and he recalled that Johnson
had bloodshot eyes and slurred speech. The officer noticed that Johnson had burnt
marijuana cigarettes in her vehicle, and the vehicle had an odor of marijuana
emanating from it. The officer also noticed an open alcoholic beverage container in
the vehicle. Johnson also argues that any body-worn-camera footage would have been
“long lost” due to short retention periods in Hamilton County. But, nothing in the
record indicates that any body-worn-camera footage existed in the first place or that
it was destroyed as the result of a short retention policy. Thus, Johnson has failed to
show that any evidence was lost or destroyed such that she would be actually
prejudiced by a prosecution.
{¶25} Therefore, the prejudice factor weighs in favor of the state.
{¶26} This court has held that where the first three Barker factors weigh in
favor of the defendant, “the mere negligence of the state is not enough to outweigh the
absence of some particularized trial prejudice.” State v. Rogers, 1st Dist. Hamilton
No. C-180120, 2019-Ohio-1251, ¶ 18. The record demonstrates that the state made
initial efforts to serve Johnson, including an attempt to serve her during another court
proceeding, but thereafter, the state failed to act with reasonable diligence. The state’s
delay in serving Johnson was not the result of a deliberate act, but was merely
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OHIO FIRST DISTRICT COURT OF APPEALS
negligent. Moreover, Johnson has not shown any particularized trial prejudice. As a
result, we conclude that Johnson was not deprived of her constitutional right to a
speedy trial.
Statutory Speedy-Trial Rights
{¶27} Johnson argues that even if the trial court erred in granting her motion
to dismiss on constitutional speedy-trial grounds, the trial court’s dismissal of the
charges against her may still be affirmed on the alternative basis that the state violated
Johnson’s statutory speedy-trial rights under R.C. 2945.71. Johnson argues that the
record shows the state served Johnson on the night of the incident, November 12,
2021, with an open-container violation, and therefore, because the four underlying
charges stem from the same traffic stop, the speedy-trial clock began to run on
November 12, 2021, and the state had 90 days from that date in which to bring her to
trial on the underlying charges.
{¶28} Although Johnson raised her statutory speedy-trial argument below,
the trial court did not make any findings or legal conclusions with regard to the
statutory speedy-trial argument, because the trial court determined Johnson’s
constitutional speedy-trial rights had been violated. We determine that the trial court
should decide in the first instance whether Johnson’s statutory speedy-trial rights
were violated. See State v. Doll, 9th Dist. Wayne No. 13CA0041, 2015-Ohio-1875, ¶ 14
(declining to resolve an issue on a motion to suppress in the first instance on appeal).
Conclusion
{¶29} In conclusion, we sustain the state’s sole assignment of error to the
extent that we determine the trial court erred in granting Johnson’s motion to dismiss
on constitutional speedy-trial grounds. We remand the matter for the trial court to
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OHIO FIRST DISTRICT COURT OF APPEALS
consider, in the first instance, whether Johnson’s statutory speedy-trial rights were
violated, and for any further proceedings consistent with this opinion and the law.
Judgments reversed and cause remanded.
BOCK, 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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