COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72163 STATE OF OHIO : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION PATRICIA KENDRICKS : : PER CURIAM : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 18, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-286105. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Gina M. Villa, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Green, Esq. Assistant Public Defender Cuyahoga County 100 Lakeside Place 1200 W. Third Street Cleveland, OH 44113 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the 2 Cuyahoga County Court of Common Pleas, oral argument and the briefs of counsel. Patricia Kendricks, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CR-286105, in which the trial court denied defendant-appellant's motion to dismiss the underlying criminal indictment based upon an alleged violation of her constitutional right to a speedy trial. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. On February 11, 1993, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a two-count indictment. The first count charged defendant-appellant with theft, in violation of R.C. 2913.02, with a furthermore clause for a prior conviction of two counts of receiving stolen property, in violation of R.C. 2913.51. The second count charged defendant-appellant with trafficking in food stamps, in violation of R.C. 2913.46(A). Count two contained the identical furthermore clause as the first count. The indictment stated that these offenses allegedly took place from November of 1988 to May of 1990. On February 22, 1993, the state sent a copy of the indictment to defendant-appellant at 13502 Coit Road, Cleveland, Ohio, by certified mail, (13502 Coit Road was the address at which defendant-appellant admittedly received welfare benefits). The summons was returned unclaimed and the state sent a second summons by regular mail. On March 1, 1993, a capias was issued for defendant-appellant. 3 On November 22, 1996, the trial court recalled the capias. On November 27, 1996, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to both counts contained in the indictment. On December 19, 1996, defendant-appellant filed a motion to dismiss the indictment based upon an alleged violation of her right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Constitution of the State of Ohio. In her motion, defendant- appellant maintained that the state failed to make a diligent effort to bring her case to trial in a timely manner. It was defendant-appellant's position that, had the state made even a minimal effort, it could have located defendant-appellant at her new address, 1027 East 145th Street, Cleveland, Ohio, and properly served the summons at the correct location. On January 6, 1997, the trial court conducted a hearing on defendant-appellant's motion to dismiss. At the hearing, the parties entered a number of stipulations into the record including the following: defendant-appellant was indicted on February 11, 1993; a capias was issued for defendant-appellant on March 1, 1993; the capias was recalled on November 22, 1996 when defendant- appellant contacted the Cuyahoga County Public Defender's Office and expressed a desire to turn herself in; an investigator from the public defender's office was given defendant-appellant's social security number and date of birth from which he was able to determine that defendant-appellant's address was 1027 East 145th 4 Street, Cleveland, Ohio; defendant-appellant had been living at that address since March of 1991; and while defendant-appellant was living at 1027 East 145th Street, she had a telephone, gas and electric bill as well as a driver's license. In addition, the trial court determined that, while living at 1027 East 145thStreet, defendant-appellant's utility bills were in the name of Patricia Baker. However, the name under which defendant-appellant applied for and received welfare benefits was Patricia Kendricks. Both names appeared on the underlying criminal indictment. At the conclusion of the hearing, the trial court denied defendant-appellant's motion to dismiss. Defendant-appellant then withdrew her formerly entered plea of not guilty and entered a plea of no contest to the underlying indictment as charged. On January 31, 1997, the trial court sentenced defendant- appellant to the Lorain Correctional Institution for a term of one and one-half years on counts one and two, sentences to be served consecutively. The trial court then suspended the execution of sentence and placed defendant-appellant on five years probation during which defendant-appellant was to pay restitution in the amount of $10,051.00 plus court costs. On March 7, 1997, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. On appeal, defendant-appellant's sole assignment of error states: 5 THE TRIAL COURT ERRED IN FINDING THAT PATRICIA KENDRICKS' CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL HAD NOT BEEN VIOLATED. It is defendant-appellant's position that the trial court improperly denied her motion to dismiss the underlying indictment since a review of the record reveals that the state did not diligently pursue defendant-appellant in an effort to bring her to trial during the three year period between indictment and arraignment. The state maintains that defendant-appellant's right to speedy trial was not violated as the delay in this case was attributable to defendant-appellant by virtue of the fact that she failed to provide law enforcement officials with a proper address where notice of the indictment could be received. The state argues further that, given the nature of the underlying criminal charges, the mere passage of time did not unduly prejudice defendant- appellant as it would have in a case where an affirmative defense or alibi testimony was considered. R.C. 2945.71(C)(2) requires that any person against whom a felony charge is pending shall be brought to trial within 270 days after his arrest. R.C. 2945.72 permits the speedy trial time to be extended by: (A) Any period during which the accused is unavailable for hearing or trial ***; (D) any period of delay occasioned by the neglect or improper act of the accused; (E) any period of delay occasioned by the neglect or improper act of the accused; (E) any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused; *** 6 In Barker v. Wingo (1972), 407 U.S. 514, the United States Supreme Court identified three main interests that the right to a speedy trial 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. Id. at 532. The factors set forth by the Supreme Court in Barker v. Wingo, supra, have been utilized by Ohio court's in determining whether a defendant has been denied his constitutional right to a speedy trial. State v. Behymer (1992), 80 Ohio App.3d 791, 792; State v. Looper(1988), 61 Ohio App.3d 448, 449; State v. Packard (1988), 52 Ohio App.3d 99, 101. In the case sub judice, a review of the record demonstrates that the trial court did not err in denying defendant-appellant's motion to dismiss the pending indictment on speedy trial grounds. Applying the factors set forth in Barker v. Wingo, supra, to the facts of the present case, it is readily apparent that defendant- appellant did not experience oppressive pretrial incarceration as a result of the delay between her indictment and eventual plea of no contest. In fact, defendant-appellant was not incarcerated at all on the pending charges at any time during the underlying prosecution. In addition, defendant-appellant maintained throughout the lower court proceedings that she never received summons of the indictment against her due to a change in her 7 address from 13502 Coit Road to 1027 East 145th Street. Therefore, it was not possible for her to have experienced anxiety and concern over the indictment during that time period. Accordingly, the only factor which has any bearing on this case is whether the defense was possibly impaired by the delay. Given the fact that defendant- appellant was charged with welfare fraud and trafficking in food stamps, two offenses based almost entirely upon the relation between an alleged offender's social security number, tax records and the records of the welfare department, it is highly unlikely that a delay such as the one in this case impaired defendant- appellant's defense to these changes. Defendant-appellant relies heavily upon the United States Supreme Court case of Doggett v. United States (1992), 505 U.S. 647, and State v. Triplett (July 7, 1995), Cuyahoga App. No. 67450, unreported, in support of her position that the indictment against her should have been dismissed on speedy trial grounds. In Doggett, supra, the court determined that an eight year delay between indictment and prosecution of an alleged drug dealer was sufficient to constitute an unjustifiable delay and require dismissal of the indictment on speedy trial grounds. In Triplett, this court found that a four and one-half year delay constituted an unreasonable delay requiring dismissal of the indictment. However both Doggettand Triplett are distinguishable from the case at bar in that defendant-appellant not only changed her residence from the address she had provided to the welfare department originally but, 8 while residing at her new address, used the name Patricia Baker to contract for her utilities. More importantly, the Ohio Supreme Court recently overruled this court's decision in State v. Triplett (1997), 78 Ohio St.3d 566, in which the court determined that the four and one-half year delay between indictment and trial did not, in fact, violate Triplett's constitutional rights where Triplett was found to be at fault for causing the delay in the prosecution by failing to accept certified mail or provide the police with a suitable address where she could be reached. See also, State v. Connor (Sept. 4, 1997), Cuyahoga App. No. 71576, unreported. These factors support the trial court's conclusion in this case that defendant-appellant's constitutional right to a speedy trial had not been violated since she had played a significant role in causing the delay in prosecution. Defendant-appellant's failure to make herself readily available for service of summons and subsequent appearance by providing a valid address extends the speedy trial time limits pursuant to R.C. 2945.72(D). See, State v. Harrison (Aug. 22, 1996), Cuyahoga App. No. 69821, unreported, at 6; State v. Booth (Oct. 22, 1992), Cuyahoga App. No. 61601, unreported; and State v. McClain (Sept. 15, 1983), Cuyahoga App. No. 46969, unreported. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. 9 It is ordered that appellee recover of appellant its 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. DAVID T. MATIA, JUDGE, CONCURS TERRENCE O'DONNELL, JUDGE, CONCURS PATRICIA BLACKMON, PRESIDING JUDGE, CONCURS IN JUDGMENT ONLY N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .