COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71576 STATE OF OHIOACCELERATED DOCKET: : Plaintiff-Appellee : JOURNAL ENTRY : vs. : AND : NELLIE CONNOR : OPINION : Defendant-Appellant : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-233402 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES, ESQ. DONALD GREEN, ESQ. Cuyahoga County Prosecutor Assistant Public Defender RANDI OSTRY, ESQ. 100 Lakeside Place Assistant County Prosecutor 1200 W. Third Street 8th Floor Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 PER CURIAM: This is an accelerated appeal arising out of Nellie Connor's pleas of no contest to charges of Theft and Trafficking in Food 2 Stamps which resulted from her receipt of almost Twelve Thousand Dollars in welfare benefits from April, 1985 through November, 1986, when she concealed her employment at the Cleveland Clinic Foundation. Connor began receiving welfare benefits in 1984, and on April 1, 1985, she became employed at the Cleveland Clinic Foundations earning an annual income in excess of $27,000; however, by concealing her employment from welfare officials, she continued to receive monthly welfare payments until November, 1986. In February, 1987, after her welfare benefits had been terminated, Connor moved and left a forwarding address with the U.S. postal authorities, but they only kept it active for one year. Although the Department of Human Services learned of the fraud in June, 1986, officials there inexplicably delayed forwarding the matter for prosecution until October, 1988, and when doing so, listed Connor's former address as her current residence. The grand jury indicted Connor on February 21, 1989, and when the clerk's certified mail service of summons was returned, not deliverable as addressed , unable to forward , the court at that time issued a capias and police arrested her on August 30, 1995. Following her arraignment on September 5, 1995, Connor moved to dismiss the case alleging violations of her Sixth Amendment right to speedy trial and claiming the statute of limitations barred prosecution. On October 19, 1995, following the court's denial of that motion, Connor plead no contest to the charges, the court found her guilty, and placed her on probation, ordering 3 restitution and community service. She now appeals from that order and raises the following assignment of error for our consideration: THE TRIAL COURT ERRED IN FINDING THAT NELLIE CONNOR'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL HAD NOT BEEN VIOLATED. Connor urges that the trial court erred by denying her motion to dismiss because the state's delay in prosecuting this case presumptively prejudiced her. The State contends that the trial court properly denied Connor's motion to dismiss because she failed to show the delay in prosecution actually prejudiced her. The issue presented for our review is whether the trial court erred when it denied Connor's motion to dismiss for lack of a speedy trial. In State v. Triplett (1997), 78 Ohio St.3d 566, the court determined that a fifty-four month delay between indictment and trial did not violate Triplett's constitutional rights. In that case, the court cited with approval United States v. MacDonald (1972), 465 U.S. 1, at 8: ***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. That court, citing Barker v. Wingo (1972), 407 U.S. 514, next reviewed the four part test to determine whether a state violated an accused's speedy trial rights: The four factors include (1) the length of the delay, (2) 4 the reason the government assigns to justify the delay, (3) the defendant's responsibility to assert his right to a speedy trial, and (4) the prejudice to the defendant.*** In Baker, supra, at 533, the United States Supreme Court elaborated on this test, stating in pertinent part: We regard none of the four factors identified above as 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. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process * * *. Regarding the first factor, the length of the delay between indictment and arrest here is in excess of six years and, hence, triggers the inquiry into the other factors. Regarding the second factor, the reasons the government assigns to justify the delay, the court stated in Barker, supra, at 531: A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered * * *. In Triplett, supra, at 569, the court stated: Only the portion of the delay which is attributed to the government's neglect is to be weighed in a defendant's favor. Here, the welfare department did not forward this case to the prosecutor's office until October, 1988. Following her indictment in February, 1989, the clerk's office sent a summons to her last known address, but because she had moved and the change of address 5 forwarding notice expired, it was returned, not deliverable as addressed , unable to forward . In response, the court issued a capias for her arrest. Hence, this factor weighs in favor of both the state and Connor. The third factor, assertion of the speedy trial right, also weighs in Connor's favor, as she timely asserted her right to a speedy trial by filing her motion to dismiss. Regarding the fourth factor, prejudice to the defendant, the court stated in Barker, supra at 532: Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (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. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown. (Emphasis added). Here, since Connor did not know of her indictment until 1995, she experienced neither an oppressive pretrial incarceration nor anxiety or concern during the delay. Hence, the delay did not affect these interests. Regarding the inquiry into whether the delay prejudiced Connor by impairing her defense, we examine analyses used by the federal courts to resolve this question. In Barker, supra, the United 6 States Supreme Court rejected Barker's speedy trial violation claim stating in relevant part at 534: * * * [P]rejudice was minimal. Of course, Barker was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker's witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory--one on the part of a prosecution witness--which were in no way significant to the outcome. (Emphasis added). Likewise, in United States v. Mundt (1994), 29 F.3d 233, 237, the Sixth Circuit Court of Appeals wrote in relevant part: Defendant's defense was not dependent upon exculpatory evidence that might be lost or thrown away or the testimony of witnesses whose memories might fade with time. Defendant's position was and continues to be that he is not subject to the federal tax laws. The delay did not harm defendant's ability to present his defense * * *. (Emphasis added). Accordingly, neither Barker, supra or Mundt, supra, requires us to reverse a conviction, based upon a mere presumption that a delay caused by the state impaired the defendant's defense. This is also the position of the court in United States v. Loud Hawk (1986), 474 U.S. 302, 315, where the court stated in relevant part: [The] possibility of prejudice is not sufficient to support respondents' position that their speedy trial rights were violated * * *. (Emphasis added). In her motion to dismiss, Connor asserted that the delay substantially impaired defendant's ability to accurately recall 7 any relevant or exculpatory information from the period in question. However, due to the nature of this case, evidence is available from documents such as welfare department records and Cleveland Clinic Foundation employment files and, thus, the delay has not been shown to have prejudiced the defense. Since Connor did not experience any incarceration prior to trial, nor impairment of liberty since she was not on bail, and experienced very little disruption of life due to arrest and unresolved criminal charges, and because the delay in causing her arrest did not impair her defense, this assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. 8 It is ordered that appellee recover of appellant 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. _______________________________________ JAMES M. PORTER, JUDGE _______________________________________ TERRENCE O'DONNELL, JUDGE _______________________________________ PATRICIA ANN BLACKMON, PRESIDING JUDGE, DISSENTING. SEE DISSENTING OPINION ATTACHED. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71576 STATE OF OHIO : : Plaintiff-Appellee : D I S S E N T I N G : vs. : O P I N I O N : NELLIE CONNOR : : Defendant-Appellant : : DATE: SEPTEMBER 4, 1997 BLACKMON, PATRICIA ANN, DISSENTING: I respectfully dissent from the Majority Opinion. In my opinion, a 6-1/2 year delay between indictment and arrest is presumptively prejudicial. Doggett v. United States (1992), 505 U.S. 647 (the United States Supreme Court held after applying the Barker v. Wingo (1972), 407 U.S. 514 four-factor analysis that the accused speedy trial rights had been violated when the delay between the indictment and arrest was 8-1/2 years. The Majority writes since Connors didn't know of the indictment she could not have been prejudiced; thus, factors two and four weighed heavily in favor of the State. The what you don't know can't hurt you analysis, in my opinion undermines the 6th Amendment to the Constitution and is wrong under the Barker- Doggett analysis. The Majority admits that the first and third factors of Barker-Doggettweighed heavily in Connor's favor. The delay was 6- 2 1/2 years which was unreasonable, and she did raise her speedy trial right timely. The only issues for this court were whether the government was justified in the delay and whether the delay prejudiced Connor. The government was unable to justify the delay. Connor was alleged to have defrauded the Welfare Department of $12,000 over a period from April 1985 to November 1986. When her benefits terminated, she moved from her address and left no forwarding address. Welfare notified the prosecutor's office in October 1988, even though they knew of the fraud in June 1986. Connor was indicted February 21, 1989, and the indictment was mailed to the address provided by Welfare. The mail was returned not deliverable as addressed/unable to forward. The state did nothing to locate Connor except to issue a warrant for her arrest. She was arrested 6-1/2 years later. The state reasoned since she was unaware of the indictment she was not harmed by the delay. Recently, the Ohio Supreme Court held an accused who precipitated the delay was a justification that the state could use in its favor. State v. Triplett. (1997), 78 Ohio St.3d 566, 570. Here, Connor did nothing to precipitate her delay. The state did nothing to locate her. This factor weighed heavily in her favor. As the Ohio Supreme Court recently pointed out if the state wishes to prosecute small-time offenders like Triplett, it ought to expend the resources to do so. Id. As for the fourth factor, the Majority says Connor was not prejudiced because she didn't know of the indictment. The U.S. 3 Supreme Court has held we generally have recognized that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or for that matter identify. Doggett at 655. Furthermore, the longer the delay due to official negligence the less tolerable the delay becomes. Id. at 657. The prejudice is the delay and if the state cannot rebut that presumption of prejudice, this factor weighs against them. To urge forgiveness of their neglect because Connor did not know of the indictment misapplies Barker-Doggett. It is the delay that causes the prejudice regardless of the knowledge. Doggett did not know of the indictment until his arrest 8-1/2 years later. The U.S. Supreme Court held this to be prejudicial. Consequently, I believe Connor has shown that all four factors weighed heavily in her favor. Thus, I believe the Majority's what you don't know can't hurt you analysis on the second and fourth prong undermines the 6th Amendment to the Constitution and .