COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67450 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION NARVETER TRIPLETT : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 7, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-238190 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: STEPHANIE TUBBS JONES, ESQ. JAMES DRAPER, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender WILLIAM TELZROW, ESQ. DONALD GREEN, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Plaintiff-appellant state of Ohio appeals from an order of the trial court dismissing the criminal charges against defendant-appellee Narveter Triplett in this case for violating her constitutional right to a speedy trial. Defendant was indicted by the Cuyahoga County Grand Jury with three codefendants on May 2, 1989, on the following two charges: (1) drug abuse of less than the bulk amount of cocaine in violation of R.C. 2925.11 and (2) possession of criminal tools in violation of R.C. 2923.24. The charges arose from an incident on March 7, 1989, when the four defendants were discovered by Warrensville Heights police officers with the cocaine and other items in their motel room at the Red Carpet Inn on Northfield Road. The record demonstrates that Triplett did not appear at her arraignment on the charges scheduled for May 19, 1989. The trial court thereafter issued a capias ordering that defendant be arrested and brought before the court. The Cuyahoga County Sheriff's Office received the capias on May 22, 1989, but made no attempt to arrest defendant. Defendant was subsequently arrested on October 26, 1993, approximately fifty-three months following her indictment, as part of a "sting" operation by the sheriff's office. The sheriff's office sent a letter to defendant's residence by ordinary mail informing her that she was entitled to recover - 3 - money as part of a class action lawsuit. Defendant was arrested when she appeared to collect the proceeds from the fictional class action litigation. Defendant pleaded not guilty to the charges at her arraignment and was appointed defense counsel. Defendant appeared in open court with counsel on November 10, 1993, for a hearing on a proposed plea agreement. During the course of the November 10, 1993, hearing, the trial court inquired concerning the extended delay between defendant's indictment and her appearance in the trial court. Defense counsel requested the trial court continue the hearing for an opportunity to file a written motion to dismiss for lack of a speedy trial. Defendant filed a written motion on November 17, 1993, to dismiss the charges. Defendant's motion to dismiss argued that her speedy trial rights under Ohio statute and the Sixth Amendment of the United States Constitution were violated in this case. The trial court conducted a hearing on defendant's motion to dismiss commencing December 20, 1993. The prosecution presented testimony from the following three witnesses during the hearing on defendant's motion to dismiss: (1) Warrensville Heights Police Officer, Richard Moeller; (2) Cuyahoga County Clerk of Court, Criminal Division Deputy Clerk, Terry Murphy; and (3) Cuyahoga County Sheriff Lieutenant Dan Pukach. Officer Moeller testified he responded to a complaint at approximately 3:00 a.m. on March 7, 1989, that persons in the Red Carpet Inn were repeatedly attempting to sell drugs to the - 4 - occupants of neighboring rooms. Defendant was arrested with three other persons at the motel on March 7, 1989, and detained for approximately six or seven hours prior to her release. Deputy clerk Murphy testified the clerk's office prepares original and carbon copies of each summons to be served following a criminal indictment. The clerk's office mails the original summons and an indictment to the defendant by certified mail. There was also testimony that the clerk's office, at the same time, sends the defendant by ordinary mail a carbon copy of the summons without a copy of the indictment. The deputy clerk testified that the carbon copy of the summons is a duplicate "as far as the address and everything goes," but "[t]he wording is a little different." The record does not contain a copy of what was sent by ordinary mail. Deputy clerk Murphy stated the certified mail containing the summons and indictment sent to defendant was returned "unclaimed" on May 25, 1989, after the post office made two attempts to deliver the item. The summons sent to defendant by ordinary mail was not returned to the clerk's office. When defendant did not appear at her arraignment scheduled for May 19, 1989, the clerk's office prepared a capias for her arrest. For almost 4 1/2 years, the state did not take any further steps to notify defendant of her arraignment. Sheriff Lieutenant Pukach testified defendant was arrested on October 26, 1993, following a "sting" operation conducted with the cooperation of the Ohio Attorney General's Office. The - 5 - sheriff's office mailed letters to approximately 2000 individuals with outstanding felony warrants to advise they were entitled to money as part of a class action lawsuit. The sheriff's office received approximately 1000 replies to the letter and made approximately 330 arrests when the individuals appeared to make their claims. Defendant was one of the 330 persons arrested by the sheriff's office in connection with this "sting" operation. Pukach testified the capias issued by the court for defendant's arrest following her failure to appear at the May 19, 1989, arraignment was not entered into the police computer network. The sheriff's office did not have a complete physical description of defendant. Pukach testified that because of the volume of such orders, the sheriff's office makes no attempt to execute every capias issued by the criminal courts. He stated that 12,000 arrest warrants were outstanding at any given time and that the sheriff received approximately 1000 capias orders each month. The eight deputies assigned to execute capias orders give priority to cases involving charges of murder, robbery, and rape. Defendant testified she did not receive the documents sent to her residence by the clerk's office by certified and ordinary mail. She stated she had no reason to believe she had been indicted for any offense. She further stated the police officer who released her informed her that the police did not have enough evidence to detain her any longer. Defendant made no effort to contact the police. - 6 - After hearing the arguments of the parties, the trial court marked the matter heard and submitted and thereafter granted defendant's motion to dismiss in a twelve-page, typewritten order journalized June 10, 1994. The trial court's journal entry concluded defendant was not denied her right to speedy trial under Ohio statute, but was denied her right to speedy trial as guaranteed by the Sixth Amendment. The prosecution timely appeals raising two assignments of error. The prosecution's first assignment of error follows: THE TRIAL COURT ERRED IN RAISING THE ISSUE OF SPEEDY TRIAL SUA SPONTE (PLEA TR. 5-8). The prosecution's first assignment of error lacks merit. The prosecution contends the trial court failed to act in an impartial manner by raising the speedy trial issue at the November 10, 1993, hearing on the proposed guilty plea agreement. The prosecution complains the trial court continued the hearing to permit defendant to file a written motion to dismiss the charges for lack of a speedy trial. Based on our review of the record, the prosecution has failed to show any error. As noted above, the record demonstrates that, while explaining defendant's rights during the hearing on the proposed plea agreement, the trial court inquired concerning the extended delay between defendant's indictment and her arraignment. The trial court denied defense counsel's request during the hearing to make an oral motion to dismiss the charges for lack of speedy trial. The trial court, however, subsequently granted defendant's motion to continue the hearing to permit defendant to - 7 - file a written motion to dismiss the charges. The record demonstrates that the prosecution did not object at any time to the trial court's action. It is well established, contrary to the prosecution's argument, that a trial judge is not a mere "umpire" during the proceedings. See Jenkins v. Clark (1982), 7 Ohio App.3d 93, 97-98. The trial judge has an affirmative obligation to serve the interests of justice and to ensure that the truth is developed. Id. Crim.R. 11(C), which specifically governs guilty and no contest pleas in felony cases, provides that the trial court is not a mere scrivener when accepting such pleas. Rather, the trial court has the duty to determine that the defendant knowingly, voluntarily, and intelligently enters the plea and thereby waives certain constitutional rights. The record sub judice demonstrates the trial court acted properly to discharge its duties during the hearing on the proposed plea agreement. Under the circumstances, the prosecution has failed to demonstrate the trial court was biased, abused its discretion, or committed any error. Accordingly, defendant's first assignment of error is overruled. The prosecution's second assignment of error follows: THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL HAD BEEN VIOLATED. (OPINION, PGS. 11-12). The prosecution's second assignment of error lacks merit. The prosecution argues the trial court improperly granted defendant's motion to dismiss the charges based on a violation of - 8 - her constitutional right to speedy trial under the Sixth Amendment to the United States Constitution. Based on our review of the record, the prosecution has failed to demonstrate the trial court committed reversible error. The Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 532, identified three interests which the speedy trial right was designed to protect: "(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. Of these the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." (Footnote omitted, emphasis added.) It is the third purpose that is invoked in the case at bar. The trial court entered an extensive and detailed opinion granting defendant's motion to dismiss based on the fifty-three- month delay between defendant's indictment and arraignment on the charges. The trial court's opinion expressly considered the factors established by the United States Supreme Court for evaluating this constitutional claim, including the following: (1) length of the delay, (2) reason for the delay, (3) defendant's assertion of her right to speedy trial, and (4) prejudice to defendant from the delay. Barker, supra, at 530. None of these factors, however, is a "necessary condition" to finding defendants deprived of their rights. Id. at 533; State v. Packard (1988), 52 Ohio App.3d 99, 101. - 9 - The trial court's opinion specifically found that each factor weighed in favor of defendant in the case sub judice. The trial court's findings, moreover, are entitled to "considerable deference." Doggett v. U.S. (1992), 112 S.Ct. 2686, 2688. Based on our review of the record, the prosecution has failed to demonstrate the trial court abused its discretion or that its judgment was not supported by the evidence. State v. Packard, supra. The trial court concluded that defendant's Sixth Amendment right to speedy trial was violated in this case since (1) service of the summons and indictment was never completed by certified mail, (2) the sheriff's office made absolutely no attempt to execute the subsequent capias for her arrest, (3) the sheriff's office thereafter waited for fifty-three months to conduct its "sting" operation by sending a letter to defendant by ordinary mail at the same address, and (4) the record did not indicate defendant attempted to avoid service at any time. The trial court concluded that dismissing the charges was warranted because of the state's negligence and failure to prosecute the charges diligently. A. Length of and Reason for Delay No one disputes that the state waited 53 months before bringing defendant to court on the charges in this case. This is an extraordinary delay. The state argued, however, that "since it fully complied with the requirements of Crim.R. 4(D) in sending defendant certified mail notice of summons, and actually - 10 - went beyond what is required by rule in issuing ordinary mail notice, the state exercised reasonable diligence in bringing defendant to trial." The record demonstrates that the clerk of court sent defendant a summons, along with a copy of the indictment, by certified mail, but the letter was returned unclaimed. Unclaimed certified mail does not satisfy the rules for notice. Further action is required by the state. There is testimony that the clerk also mailed a carbon copy of the summons by ordinary mail, which was not returned. The address listed no zip code, and the letter did not include a copy of the indictment. This carbon copy of the summons, moreover, was not identical to that sent by certified mail; the wording was different. How different cannot be known since the record contains no copy of this different summons. Furthermore, defendant Triplett testified that she never received the letter by ordinary mail and was never aware of the indictment. For purposes of service, the Rules of Criminal Procedure do not provide that ordinary mail is a valid alternative to certified mail. The only valid alternative is to serve a capias or a warrant. Moreover, what was sent by ordinary mail was never sufficiently described by exhibit or testimony to support a finding that the defendant had notice of her indictment. Under these circumstances the exercise of reasonable diligence in bringing a defendant to trial requires that the state serve a capias or warrant. - 11 - There was also testimony that the Cuyahoga County sheriff has a high volume of capias orders to serve and that the sheriff's office gives priority to cases involving charges of murder, robbery, and rape. The U.S. Supreme Court has already considered this point and placed no importance on the lack of priority the government might give to serving a defendant: "While the Government's lethargy may have reflected no more than Doggett's relative unimportance in the world of drug trafficking, it was still findable negligence and the finding stands." Doggett at 2691. Limited public resources, in other words, do not bar finding the state negligent for purposes of the speedy 1/ trial test. B. Defendant's Assertion of Her Rights Defendant asserted her constitutional right to a speedy trial when she filed a motion to dismiss on this basis. At no time did she waive that right. Waiver cannot be inferred from the unclaimed certified mail or from what the state sent by ordinary mail. As Judge Griffin properly observed, there is a significant difference between not claiming certified mail and refusing to receive it. "Refusing to receive certified mail requires an active act on the part of the person and such is noted on the endorsement. However, when certified mail service is unclaimed, 1/ See also Justice White's concurring opinion in Barker, at 538. - 12 - 2/ this only indicates that the person did not receive the mail." Thus the passive act of not claiming the letter cannot be deemed a voluntary and intelligent waiver of her right. The prosecution observed that defendant made no effort to contact the police and determine her status. Such an effort, however, is not necessary. As one court observed, "[i]t is commonly understood that the defendant will hesitate to disturb the hushed inaction by which dormant cases have been known to expire." U.S. v. Mann (1968), 291 F.Supp. 268. Moreover, "[a] defendant has no duty to bring herself to trial; the State has that duty ***." Barker, supra, at 527. The constitutional guarantee of a speedy trial places "the primary burden on the courts and the prosecutors to assure that cases are brought to trial." Id. at 527. C. Prejudice to the Defendant from the Delay The U.S. Supreme Court has given clear guidance on how to interpret the fourth criterion. "Barker explicitly recognized that impairment 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.' 407 U.S. at 532 ***." Doggett at 2692-2693. Because of the difficulty of proving what cannot be remembered, the Doggett court specified that the defendant is not required to provide "affirmative proof" of "particular prejudice" in every speedy 2/ Judge Griffin observed that Ohio Civ.R. 4.6(C)(D) draws a distinction between these separate acts. - 13 - trial claim. Id. at 2686. The presumption of prejudice may be inferred from the circumstances. What triggers the presumption of prejudice is extraordinary delay: Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment 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 delay. * * * 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 ***. Doggett at 2693. Two Ohio appellate courts in cases similar to the case sub judice have followed the reasoning in Doggett. In State v. Looper (1988), 61 Ohio App.3d 448, a copy of the indictment for manslaughter was mailed to the defendant by certified mail and returned. A warrant on the indictment was not filed until six years later. The Montgomery County Court of Appeals found this delay "presumptively prejudicial" and thus violated the Sixth Amendment. The Court of Appeals of Clermont County similarly has held that "it is not essential that accused affirmatively demonstrate prejudice in order to establish denial of constitutional right to - 14 - speedy trial." State v. Behymer (1992), 80 Ohio App.3d 791, 793. In Behymer, attempts were made to serve the defendant with the indictment the day after he was indicted for possession of marijuana and cocaine. Almost two years elapsed, however, before he was served with a summons and arrested, even though the defendant was available, as in the case at bar, for arrest on the charge. The appellate court interpreted "unnecessary" delay as "tantamount to 'unjustifiable'" delay and explained that "prejudice was but one factor to consider along with the question of whether the delay was unjustifiable." Id. at 793, citing State v. Brown (Oct. 29, 1990), Clermont App. No. CA 89-09-079, unreported. In his opinion, Judge Griffin properly viewed the case at bar as controlled by the Doggett line of authority: There is a conflicting line of authority, that of United States v. Loud Hawk (1986), 474 U.S. 302, 312 and United States v. MacDonald (1976), 456 U.S. 1, 8, which concluded the impairment of liberty is the primary concern of the Sixth Amendment right to a speedy trial. It is the Loud Hawk and MacDonald approach to prejudice that the Ohio v. Fitzgerald (March 3, 1994), Cuyahoga App. No. 65435, unreported, Court followed in its ruling. However, the Doggett Court rejected this same argument when it was presented by the government. Doggett, 112 S.Ct. at 2692. In Doggett, the delay that was prejudicial to the defendant occurred between indictment and arrest on the pending charges. This is contrasted with the defendants in Loud Hawk and MacDonald who were not indicted, and thus they were not subject to formal criminal proceedings during the lengthy period of delay prior to their trials. Therefore, the Doggett line of authority is more applicable in the present case because Triplett's delay is between her indictment and arrest fifty-three months later on the pending charges. - 15 - In Doggett, there was over an eight-year delay. Because he was out of the country for two years and therefore could not be served, the government, in effect, neglected to serve him with the warrant for six years. In the case at bar the government failed to serve the warrant for almost 4 1/2 years. In Doggett there were at least preliminary attempts to catch the defendant, whereas in the case at bar there was no attempt, either in the beginning or throughout, to execute the capias. Indeed the capias was not even entered into the police computer network. As the trial court found in the case sub judice, "Triplett, like the defendant in Doggett, has been working and living openly under her own name. However, unlike Doggett, Triplett has not attempted to flee the jurisdiction but has maintained the same address since the date of her original arrest. In addition, Triplett claims never to have received notice of her indictment." A delay of 53 months between indictment and arrest is an extraordinary delay sufficient to be deemed presumptively prejudicial. "The interests in maximum speed consistent with fairness, in fresh memories likely to approach full accounts of the facts, in prompt vindication and relief of the innocent, and in swift punishment of the guilty--such concerns are matters of broad public moment quite transcending the balance of personal advantage that understandably guides the steps of the individual defendant." U.S. v. Mann, supra, at 275. Balanced against the state's negligence in failing to serve a capias or warrant in the case at bar and to bring the matter to trial, the prejudice to - 16 - the defendant was sufficient for the trial court to find that her constitutional right to a speedy trial had been violated. To the list of interests which the Barker court stated the speedy trial right was designed to protect, the Doggett court added a fourth interest: "interruption of the defendant's building of a law-abiding life and assumption of responsibilities." Id. at 2692. Defendant in the case at bar has lived at the same residence since 1986. Her mother and four children also reside there. Since July of 1990, she has been employed as a factory worker. As Judge Griffin wrote: "*** there are the social and economic consequences on a mother of four children who has held steady employment and has tried to build a life for herself and her family. *** The defendant's effort to build a stable life for herself and her family over a four year period will be prejudiced by such a delayed prosecution." Since there was sufficient evidence for the trial court to determine the government was negligent in pursuing the accused and since this determination is to be reviewed on the speedy trial issue with "considerable deference," the prosecution's second assignment of error lacks merit. Accordingly, the prosecution's second assignment of error is overruled. Judgment affirmed. - 17 - 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. PATTON, C.J., CONCURS; NUGENT, J., DISSENTS (See Dissenting Opinion). DIANE KARPINSKI 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 the time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67450 STATE OF OHIO : : Plaintiff-appellant : : vs. : DISSENTING OPINION : NARVETER TRIPLETT : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 7, 1995 DONALD C. NUGENT, J., DISSENTING: Because I believe the trial court (and now the majority of this court) incorrectly applied the relevant criteria listed in Barker v. Wingo (1972), 407 U.S. 514 to determine that appellee's constitutional right to a speedy trial had been violated, I respectfully dissent. Keeping in mind the core concerns of the Sixth Amendment right to a speedy trial, I would reverse the decision of the lower court and find that appellee's constitution- al right to a speedy trial was not violated. - 2 - In Barker v. Wingo, supra, the Supreme Court formulated the following balancing test to determine whether an accused's right to a speedy trial had been violated: 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. Furthermore, in United States v. MacDonald (1982), 456 U.S. 1, 8, the Supreme Court held: The Sixth Amendment right to a speedy trial is *** not primarily intended to prevent pre- judice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. This principle was subsequently re-affirmed in United States v. Loud Hawk (1986), 474 U.S. 302, 312, wherein the Court noted that "the Speedy Trial Clause's core concern is impairment of liberty." Thus, "when defendants are not incarcerated or sub- jected to other substantial restrictions on their liberty, a court should not weigh that time toward a claim under the Speedy Trial Clause." Id. at 312; see, also, State v. Fitzgerald (Mar. 3, - 3 - 1984), Cuyahoga App. No. 65435, unreported; and State v. Stevens (Dec. 22, 1994), Cuyahoga App. No. 67400, unreported. Finally, in Doggett v. United States (1992), ____ U.S. ____, 112 S.Ct. 2686, the Supreme Court determined that a rebuttable presumption of prejudice arises where post-accusation delay approaches one year. Id. at fn. 1. In such case, the weight to be given post-accusation delay depends on the reasons for delay. Id. at ____, 112 S.Ct. at 2693. The Court noted that the government's bad faith in delaying trial would make relief virtually automatic whereas reasonable diligence in prosecuting an accused weighs against relief. More importantly, the Court noted that govern- ment's negligence is weighed against the state and compounds over time, as the presumption of prejudice grows. Id. Thus, the Court concluded: When the Government's negligence thus causes delay six times as long as that generally sufficient to trigger judicial review, see n. 1, supra, and when the presumption of preju- dice, albeit unspecified, is neither extenu- ated, as by the defendant's acquiescence, e.g., id., at 534-536, 92 S.Ct., at 2194-2195, nor persuasively rebutted, the defendant is entitled to relief. Therefore, while keeping in mind the Sixth Amendment's core concern, I would conclude that the criteria listed in Barker v. Wingo, supra, weigh against granting appellee relief. As for the first factor, I believe little weight is to be given appellee toward her speedy trial claim. The record shows that appellee (if she is to be believed) spent the fifty-four-month delay between - 4 - indictment and arrest in total ignorance of the charges against her. She was not subjected to lengthy incarceration prior to trial nor was her liberty otherwise impaired by imposition of bail. MacDonald, supra. Moreover, her life was not disrupted by the presence of unresolved criminal charges. Id. Therefore, I would give little to no weight to the length of delay as it affects her speedy trial rights. As for the second factor, based on the trial court's factual finding in its opinion and journal entry that appellee was not 1/ aware of the criminal charges against her, I would give some weight in favor of relief in that the government was more to blame than appellee. However, I believe the government's "negligence," standing alone, did not rise to the level in which appellee would be entitled to relief. 1/ This factual finding, in the trial court's opinion and journal entry, stands in contrast to the court's pronouncement from the bench that "*** the defendant was notified. That letter that was sent out by registered mail was just ignored. And that the other letter came to the house telling her to come down to court and she didn't respond." (Tr. 9.) Later, the court noted that "some of the reasons for the delay are her fault in my opinion. I'm satisfied here that the probabilities are that she got this first notice and ignored it." (Tr. 95.) Later, the court clarified that it was prepared to accept that appellant was notified by ordinary mail. (Tr. 108.) I, too, find it somewhat implausible that appellee claimed that she did not receive summons and a copy of the indictment by certified and ordinary mail in light of her enthusiastic receipt of notice, to the same address, from the attorney general's office that she was entitled to a "consumer refund" as the result of a class action lawsuit. Thus, it readily appears from the record that appellee bears significant responsibility for the delay. - 5 - The record reveals that the government complied with Crim.R. 4(D) by sending summons and a copy of the indictment via certified mail and, at the same time, via ordinary mail. Moreover, the government instituted the sting operation which ultimately led to appellee's arrest. I pause to add that the trial court (and now the majority) attributes the full fifty-four-month delay between indictment and arrest to the government's neglect. The trial court (and now the majority) suggests that the government should have contacted local police to inform them of the outstanding capias warrant but fails to give any guidance when this should have been accomplished; i.e., within one year, two years, etc. Exactly what constitutes "due diligence" under this approach is left unanswered and is open to speculation. More importantly, it is only that portion of delay which is attributed to the government's neglect which is to be weighed in appellee's favor. Doggett, supra, at 2694. The trial court (and now the majority) fails to take this into account. Accordingly, I would not weigh the full fifty-four-month delay in appellee's favor. First, I believe, based on the record, that appellee bears some responsibility for her failure to respond to the certified and ordinary mail notices. Next, I would only attribute a portion of the fifty-four-month delay between indict- ment and arrest to the government's neglect. Bearing this in mind, I would hold that the government's lack of due diligence does not weigh in favor of granting appellee the requested relief. - 6 - Moreover, I would disagree with the trial court's conclusion 2/ that appellee asserted her right to a speedy trial in due course. The record reflects that appellee was about to enter a guilty plea to the charges in the indictment when the trial court sua sponte raised the speedy trial issue. Thus, the third Barker v. Wingo criterium should be weighed against appellee. Finally, it is the trial court's (and now the majority's) resolution of the final Barker v. Wingo criteria for which I reserve my strongest disagreement. First, the trial court (and now the majority) allows the presumption of prejudice to carry appellee's Sixth Amendment claim. Doggett, supra and Loud Hawk, supra, warn against this contingency. Furthermore, I would give less weight to this factor since, as stated in MacDonald, supra, the Sixth Amendment's core concern is to minimize the possibility of a lengthy incarceration prior to trial, to reduce impairment of liberty imposed on an accused while released on bail and to short- en the disruption of life imposed upon an accused by the presence of unresolved criminal charges. As previously stated, none of these concerns has been implicated sub judice. Accordingly, I would conclude that any weight to be given in appellee's favor does not tip the scales of justice in favor of according appellee the requested relief. As a final concern, I would note that the presumption of prejudice is rebuttable, see, Doggett, supra at 2694, and that the 2/ See fn. 1. - 7 - trial court sustained appellee's objection to the prosecution's efforts in rebutting such presumption. At the very least, then, this cause should be reversed and remanded to afford the govern- ment the opportunity to rebut the presumption of prejudice. To this end, I find it very significant that appellee failed to assert actual prejudice to her defense or otherwise in her motion or at the hearing. More importantly, the record reveals that the prosecution attempted to develop this issue on cross-examination of appellee. Significantly, however, the trial court sustained appellee's objection to such questioning. (Tr. 74, 82-83.) In sum, I would reverse the decision of the trial court as there exists no factual findings or conclusions as to the actual length of delay attributable to the government's neglect and because the government was prevented from rebutting any presump- tive prejudice which appellee may be afforded. It is to be noted that appellee has never asserted actual prejudice sub judice. Moreover, I would afford little weight to the length of delay between indictment and arrest since the core concerns of the Sixth Amendment can hardly be said to be implicated, nor can much weight be afforded to appellee based on a finding that the government lacked due diligence in bringing appellee to trial. Finally, a .