COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61319 STATE OF OHIO, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION DANNY PITTMAN, : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 27, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-226,410 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: James E. Valentine Assistant County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: Stuart A. Saferin 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, P.J.: On March 12, 1988, Danny Pittman, defendant-appellant, was arrested at the Red Baron bar for possession of cocaine and possession of criminal tools. Detectives George Santiago, Ronald Chismar, and Richard Presti, all of the Cleveland Police Department, made the arrest following a search of Pittman which revealed that he possessed a package of what appeared to be cocaine. Pittman was placed in custody and taken to the Second District Police Station where he was booked. Pittman remained in jail overnight; however, he was released the next day and not charged. Once the contents of the bag possessed by Pittman were returned from the police lab with a test of positive for cocaine, Det. Santiago took the case to the grand jury. On March 29, 1988, Pittman was secretly indicted on one count of drug abuse pursuant to R.C. 2925.11 and one count of possession of criminal tools pursuant to R.C. 2923.24. At a hearing pursuant to Pittman's motion to dismiss, Det. Chismar testified that the secret indictment was obtained in order to continue an investigation to locate Pittman's supplier. Under a secret indictment, the accused is not immediately picked up for arraignment. Detective Chismar revealed that he was assigned a new partner and lost track of Pittman's case. He also indicated that Det. Santiago, the lead detective on the case, retired sometime after the return of the secret indictment. Chismar further indicated that an attempt was made in 1988 to serve Pittman with the indictment, but that he could not be -3- located. However, the state of Ohio provided no evidence that any letters were sent to Pittman's home or any written reports made about attempts to arrest him. In September, 1990, some 30 months after the secret indictment, Pittman was arrested by members of the Cleveland Police Department pursuant to the indictment. On December 10, 1990, Pittman filed a motion to dismiss for violation of his right to a speedy trial. On December 14, 1990, a hearing was held and the trial court granted Pittman's motion on statutory and constitutional grounds. The state's timely appeal follows. I. Appellant's first assignment of error is: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO DISMISS ON STATUTORY SPEEDY TRIAL GROUNDS WHERE THE CASE WAS BROUGHT TO TRIAL WITHIN THE 270 DAY LIMIT. The state of Ohio asserts that the trial court improperly granted Pittman's motion to dismiss pursuant to the "speedy trial" statutes. R.C. 2945.71 - 2945.73. R.C. 2945.71(C)(2) provides that "[a] person against whom a felony is pending . . . shall be brought to trial within two hundred seventy days after his arrest". Pittman was arrested initially on March 12, 1988; he was secretly indicted on March 29, 1988. The trial court found that Pittman's speedy trial rights commenced when he was arrested on March 12, 1988, approximately 900 days before he was eventually arrested pursuant to the indictment in September, 1990. As a -4- result, the trial court granted Pittman's motion to dismiss since the time expired by which he should have been brought to trial. The state maintains that Pittman's speedy trial rights did not commence until he was arrested in September, 1990 pursuant to the indictment. Counting from this date, Pittman was brought to trial within the 270 day limit. The state contends that the initial arrest on March 12, 1988 was merely an investigative arrest since Pittman was not formally charged at such time. The right to a speedy trial arises when a person becomes an "accused". United States v. Marion (1971), 404 U.S. 307, 313. A person becomes an accused when prosecution is initiated against him, either through "formal indictment or information or [by] the actual restraints imposed by arrest and holding to answer a criminal charge . . . ." Marion, 404 U.S. at 320. In support of its position, the state cites State v. Basca (June 3, 1982), Cuyahoga App. No. 43997, unreported and State v. Todd (March 31, 1983), Cuyahoga App. No. 45383, unreported. In Todd, the defendant was arrested under investigation before the indictment and was released without formal charges. In such case this court held that the speedy trial period commenced from the date of indictment when no charges were pending. In Basca, the defendant was also arrested initially for investigative purposes and released without any charges; the defendant was arrested a second time about one month before the indictment was secured. This court found in Basca that defendant's speedy trial period began on the date of Basca's second arrest and not the date of -5- the indictment. The case at bar is distinguishable from Basca. Here, all the facts were in place at the time of the first arrest to secure the secret indictment. Pittman's first arrest could not be characterized as merely investigative. However, in Basca, all the facts necessary to secure the indictment were not in place at the time of Basca's first arrest. The fact that the police chose to pursue Pittman's alleged supplier did not render Pittman's arrest investigative. Following Marion and Todd, we believe that Pittman's speedy trial period ran from the time of his indictment on March 12, 1988. Pittman's second arrest, which came some 30 months later, violated the requirements of the speedy trial statutes. See. R.C. 2945.71(C)(2). The trial court's grant of Pittman's motion to dismiss was proper. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO DISMISS ON CONSTITUTIONAL SPEEDY TRIAL GROUNDS. The state maintains that the trial court erred by granting Pittman's motion to dismiss on constitutional grounds since Pittman made no showing that he was prejudiced by the delay in being brought to trial. The right to a speedy trial is encompassed within the Sixth Amendment to the United States Constitution, which provides that an "accused shall enjoy the right to a speedy and public trial -6- * * *". See also, Section 10, Article I of the Ohio Constitution. The United States Supreme Court has enumerated three basic goals of the Sixth Amendment's right to a speedy trial: 1) To prevent undue and oppressive incarceration prior to trial, 2) to minimize anxiety and concern accompanying public accusation, and 3) to limit the possibility that a long delay will impair the ability of an accused to defend himself. Smith v. Hooey (1969), 393 U.S. 374. The United States Supreme Court has set forth four factors in determining whether a defendant's constitutional right to a speedy trial has been violated. These factors include: the length of the delay; the reason for the delay; the defendant's assertion of his right; and prejudice to the defendant. Barker v. Wingo (1972), 407 U.S. 514, 537. No single factor is either necessary or sufficient to establish a violation. United States v. Turner (C.A. 9, 1991), 926 F.2d 883. Here, Pittman suffered a delay of approximately 30 months between the time of the secret indictment and his eventual arrest. The state provided no reason for the delay except that the lead investigator had retired during such time. There was no evidence that Pittman had fled the jurisdiction. In State v. Cornell (1975), 44 Ohio Misc. 29, 353 N.E.2d 891, a 35 month delay between the return of the indictment and defendant's arrest was -7- deemed presumptively prejudicial because the defendant could not prepare an adequate defense to a charge that he thought had been dismissed. Likewise, we believe that the substantial delay of 30 months would hamper Pittman's ability to defend himself since his ability to remember the incident or to locate witnesses would be impaired. As a result of the foregoing, the trial court's grant of Pittman's motion to dismiss on constitutional grounds was proper. Appellant's assignment of error is overruled. The judgment of the trial court is affirmed. -8- It is ordered that appellee recover of appellant his 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., and BLACKMON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .