COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 64616 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION THOMAS MANOS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 15, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-246,209 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor ARTHUR A. ELKINS, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOHN P. PARKER Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 44103 TIMOTHY E. McMONAGLE, J.: -2- In State v. Manos, Cuyahoga County Court of Common Pleas Case No. CR-246209, appellant was indicted on December 5, 1989 on fifteen counts of making a false return (R.C. 5703.26) and three counts of theft (R.C. 2913.02). He pled guilty to four counts of making a false return and three counts of theft. The court of common pleas found him guilty and imposed a sentence of twelve years as well as a fine in the amount of $25,000.00. This court affirmed that judgment in part in State v. Manos (Feb. 10, 1994), Cuyahoga App. No. 64616, unreported, but vacated the fine because appellant was indigent. The state appealed to the Supreme Court of Ohio but ultimately withdrew that appeal. See Entry No. 50484 dated April 4, 1994. Appellant did not appeal. On April 29, 1996, appellant filed with the clerk of this court an application for reopening (Motion No. 72558) pursuant to State v. Murnahan (1992), 63 Ohio St.3d 60, 66, 584 N.E.2d 1204, and App.R. 26(B). By entry dated September 13, 1996, this court granted the application (Dyke, J., dissenting), assigned counsel, and set a schedule for supplementing the record and filing briefs on the merits. By entry dated August 6, 1997, this court granted the parties leave to file supplemental briefs discussing State v. Triplett(1997), 78 Ohio St.3d 566, __ N.E.2d __. Having reviewed all of the briefs filed by the parties as well as the record in this appeal, we reverse the judgment of conviction and remand this case to the court of common pleas for further proceedings. Appellant asserts as his first assignment of error: THE APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AND FOUR- -3- TEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND TRIAL COUNSEL'S FAILURE TO RAISE SUCH ISSUE DEPRIVED THE APPELLANT OF EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITU- TION. The state filed the indictment naming appellant on December 5, 1989. The original papers reflect that appellant was arrested on July 13, 1992. More than thirty-one months elapsed between the filing of the indictment and appellant's arrest. Prior to appellant entering a plea of guilty, the parties did not demon- strate on the record any reasons for the delay. The record does reflect that the Criminal Record Bureau pink slip in Case No. CR-246209 listed appellant's address as 4091 Pleasant Valley, Canfield, Ohio. Nevertheless, the original summons (which remains in the file in Case No. CR-246209) lists appellant's address as 5100 Pearl or 4091 Pleasant Valley, Cleveland, Ohio 44134. The original, returned envelope postmarked December 8, 1989 (which is also in the file in Case No. CR-246209) is marked NSN, i.e., no such number. By entry received for filing by the clerk on January 3, 1990, the court of common pleas ordered that a capias be issued. Otherwise, the record does not reflect any attempt to serve the summons on appellant prior to his arrest on July 13, 1992. The first indication that appellant received a copy of the indictment is an entry--dated July 15, 1992 and received for filing on July 17, 1992--pertaining to his arraignment. In light of these facts, appellant asserts that: a) he was denied his right to a speedy trial as guaranteed by the Sixth and -4- Fourteenth Amendments of the Constitution of the United States; and b) his trial counsel was ineffective for failing to move to dismiss the indictment in violation of the Sixth and Fourteenth Amendments of the Constitution of the United States. In Triplett, supra, the supreme court considered whether the fifty-four-month delay between Triplett's indictment and trial constituted a violation of her Sixth Amendment right to a speedy trial. Triplett, supra,at 568. The supreme court summarized the standards for evaluating a constitutional speedy trial claim. In United States v. MacDonald (1982), 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696, 704, the United States Supreme Court stated the purpose of the Sixth Amendment's Speedy Trial clause: The Sixth Amendment right to a speedy trial is *** not primarily intended to prevent prejudice 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 in- carceration 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. In Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the court set forth a four-part test to determine whether the state has violated an accused's right to a speedy trial. The four factors include (1) the length of the delay, (2) 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. Id. at 530-532, 92 S.Ct. at 2192-2193, 33 L.Ed.2d at 116-118. -5- * * * *** The first factor, the length of delay, is a triggering mechanism, determining the necessity of inquiry into the other factors. [Barker, supra,] 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. *** [O]ne year is generally considered enough. [Doggett v. United States (1992), 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, 120 L.Ed.2d 520, 528, fn. 1.] Id. at 568-569. Clearly, the one-year-delay triggering mechanism is present in this case. As a result, we must consider the other factors in the Barker test. The state correctly observes in its supplemental brief that it has not had an opportunity to present its reasons for the delay on the record because there has never been a hearing on appellant's speedy trial claim. Likewise, the state argues that the evidence would have weighed heavily against appellant relative to the third factor [i.e., appellant's responsibility to assert his right to a speedy trial]. Appellee's Supplemental Brief, at 5. Addition- ally, the record does not provide a basis for determining the prejudice to appellant from the delay. In Tripl ett, the trial court held a hearing in which the parties presented facts pertaining to the delay. Indeed, it was from this record that the supreme court could conclude, "Because Triplett precipitated the delay by failing to claim certified mail informing her of her indictment, we find that the delay did not violate Triplett's constitutional rights. Id. at 568. The record in this appeal does not, however, permit us to make a conclusive determination. -6- Nevertheless, the absence of this record requires that we consider the quality of representation provided to appellant by his trial counsel. That is, appellant asserts that trial counsel's failure to file a motion to dismiss the indictment asserting the speedy trial claim constitutes the ineffective assistance of counsel. In order to maintain his claim of ineffective assistance of trial counsel, appellant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052. The record in this appeal reflects that the summons was initially misdirected to an address in a different city than that on the Criminal Record Bureau pink slip in the file. The record does not reflect, however, that any action was taken to locate appellant after the certified mail envelope containing the summons was returned to the clerk indicating no such number. As noted above, the delay of more than one year between indictment and arrest should serve as a triggering mechanism for further inquiry regarding the constitutionality of the delay. As a consequence, we are required to conclude that--based on the record in this appeal-- the performance of trial counsel was deficient because trial counsel did not file a motion to dismiss the indictment on the ground that the delay between the filing of the indictment and service of the summons on appellant violated appellant's right to a speedy trial. -7- Furthermore, appellant was prejudiced by trial counsel's failure to assert the speedy trial claim. That is, when appellant agreed to enter a plea of guilty, that plea could not be knowing and voluntary because appellant did not have the benefit of having the trial court make a determination on an issue which--given the limited record in this case--could result in the dismissal of the indictment. The state argues, however, that appellant waived his right to speedy trial when he entered his plea of guilty. As a result of the ineffectiveness of trial counsel, however, the state's argument that appellant waived his right to a speedy trial fails. Cf. United States v. Broce (1989), 488 U.S. 563, 574, 109 S.Ct. 757, 764-765, 102 L.Ed.2d 927. Accordingly, we hold that appellant's first assignment of error is well taken to the following extent: Appellant was denied the effective assistance of trial counsel because trial counsel did not file a motion to dismiss the indictment based on the delay between the filing of the indictment and the service of the summons. As a consequence, we reverse appellant's conviction, vacate his plea of guilty and remand this case for further proceedings. Appellant asserts as his second assignment of error: THE APPELLANT WAS DENIED DUE PROCESS AS GUAR- ANTEED BY THE FOURTEENTH AMENDMENT WHEN THE GOVERNMENT FAILED TO EXERCISE DUE DILIGENCE IN NOTIFYING HIM OF PENDING CRIMINAL CHARGES WHEN THE CRIMINAL RECORDS BUREAU HAD THE APPEL- LANT'S CORRECT ADDRESS AND NEITHER THE SUMMONS NOR THE CAPIAS WAS SERVED BEFORE 32/ MONTHS HAD ELAPSED. COUNSEL WAS INEFFECTIVE UNDER -8- THE SIXTH AND FOURTEENTH AMENDMENT FOR FAILING TO FILE A MOTION TO DISMISS. Through this assignment of error, appellant asserts that the delay in notifying appellant constitutes a due process violation. In light of the limited record in this, we cannot determine whether appellant's right to due process was violated. By not filing a motion to dismiss, appellant's trial counsel did not afford appellant the opportunity to demonstrate on the record the prejudice to the defense caused by passage of time ***. MacDonald, supra. Accordingly, we hold that appellant's second assignment of error is well taken to the following extent: Appellant was denied the effective assistance of trial counsel because trial counsel did not file a motion to dismiss the indictment based on the delay between the filing of the indictment and the service of the summons. As a consequence, we reverse appellant's conviction, vacate his plea of guilty and remand this case for further proceedings. -9- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, J. CONCURS (With attached opinion) ANN DYKE, J. DISSENTS (With attached opinion) JUDGE TIMOTHY E. McMONAGLE 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)(1). COURT OF APPEALS OF OHIO COUNTY OF CUYAHOGA NO. 64616 STATE OF OHIO : : Plaintiff-Appellee : -10- : D I S S E N T I N G -vs- : O P I N I O N : THOMAS MANOS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 DYKE, J., DISSENTING: I respectfully dissent. As a threshold matter, it is my view that the application for reopening was improvidently granted as the proceedings of record fail to demonstrate that the performance of appellate counsel was deficient and the applicant was prejudiced by that deficiency. App.R. 26(B)(9). The essence of this inquiry necessarily focuses upon appellate counsel's review and presentation of those matters contained in the record on appeal. Conversely, contentions which are dependent upon extrinsic evidence not in the record on appeal are not properly raised on direct appeal. State v. Azcuy (May 26, 1994), Franklin App. No. 88AP-529, unreported. The Azcuy court stated: Defendant's memorandum indicates that the basis for the contention of inadequate assistance of trial counsel involved matters not in the record on appeal, namely, inadequate investigation, inadequate conferring with defendant, and failure to object or file adequate motions both before and during trial. Specifically, defendant raises seven reasons why trial counsel was inadequate, namely: *** (2) failure to file a motion to dismiss when the `trial went over ninety (90) day limit.' *** All of the foregoing involve conduct of trial counsel, not appellate counsel. Most of what defendant contends could not appear in the record on appeal since these involve matters not in the record and which were not -11- presented at trial. Appellate counsel is limited to presenting to the appellate court on appeal only those matters contained in the record on appeal, that is matters which were presented to the trial court. Extrinsic evidence not in the record on appeal would be necessary for most of the contentions raised by defendant with respect to ineffective assistance of trial counsel. Accordingly, appellate counsel was not ineffective for failure to raise those issues on appeal since they do not appear in the record on appeal. *** By his third assignment of error, defendant contends that he was denied his right to a speedy trial. If that be the case, it was ineffective assistance of trial counsel, not appellate counsel. Since the issue was not raised in the trial court, it was not appropriate to be raised on appeal. Thus, the purported third assignment of error raises no issue that would justify the opening of the appeal for further consideration by this court. *** Accordingly, defendant has raised no issue tending to indicate ineffective assistance of trial counsel which was, and could not have been, raised on appeal since the basis for the contention of ineffective assistance of trial counsel does not appear in the record on appeal. Accord State v. Cooperrider (1983), 4 Ohio St.3d 226, 228, ( [I]t is impossible to determine whether the attorney was ineffective in his representation of appellant where the allegations of ineffec- tiveness are based on facts not appearing in the record. )1 1The record reveals that defendant did in fact file a motion to vacate and set aside his conviction, pursuant to R.C. 2953.21 on December 3, 1992. In his Rebuttal to the state's motion to dismiss the petition, defendant asserted for the first time, that the delay in serving the indictment violated his speedy trial rights. No supporting evidence was offered, however, and the trial court denied the motion. He then filed two other motions for post- conviction relief; one dated August 11, 1994, and December 8, 1994. The August 11, 1994 motion included as supporting evidence copies of defendant's indictment and defendant's affidavit which provided in relevant part as follows: *** There was a twenty-two month delay between indictment and arrest. 5. I believe my Court Appointed Attorney was ineffective *** 6. Affiant did bring this -12- Likewise in this instance, there was no record on direct appeal to exemplify the claimed error of appellate counsel. Further, with regard to the majority's reversal and remand of defendant's criminal conviction, it is also clear that the court of appeals' inquiry is limited to the record on appeal and cannot address issues which were previously waived by the defendant. State v. Kelley (1991) 57 Ohio St.3d 127, 130. In examining the record in order to determine whether defendant has been denied effective assistance of trial counsel, it is clear that a defendant must make a two-part showing: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amend- ment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington (1986), 466 U.S. 668, 687. In discussing the error component of this showing, the Strickland Court explained: matter to the attention of his Court Appointed Attorney on August 12, 1992. The motion filed on December 8, 1994, had for its support a copy of the transcript of the plea proceedings, the indictment, the docket entries, a search warrant prepared by the Ohio Department of Taxation directed to 4091 Pleasant Valley, Canfield, Ohio, the bill of particulars, and an affidavit from defendant stating that he raised the issue of the delay in serving the indictment with his trial counsel but it seemed to have no effect on him. The trial court denied both motions and this court affirmed. State v. Manos (December 28, 1995), Cuyahoga App. No. 68547, unreported. -13- Judicial scrutiny of counsel's performance must be highly deferential. *** A fair assessment of attorney perfor- mance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defen- dant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' As to whether an error occurred in this instance, it is clear, as the majority notes, that the heart of this inquiry requires consideration of the factors set forth in Barker v. Wingo (1972), 407 U.S. 514, 530-532. In applying these factors, the majority observes that the state has not had an opportunity to present its reasons for the delay on the record, that the record does not provide a basis for determining the prejudice to appellant from the delay, and that the record in this appeal does not *** permit us to make a conclusive determination. Majority Opinion at 6. The majority then concludes that it is these very deficiencies in the appellate record which demonstrate the ineffectiveness of trial counsel. In my view, the majority's finding of error from a record which they admit fails to address essential components of our inquiry cannot be reconciled with the Strickland Court's instruc- tion that judicial scrutiny must be highly deferential and that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, supra, at 689. -14- The majority notes that the original summons lists defendant's address as 5100 Pearl or 4091 Pleasant Valley, Cleveland, Ohio 44134. The return envelope is marked NSN. A data sheet from the Criminal Record Bureau indicates that defendant's home address is 4091 Pleasant Valley, Canfield, Ohio.2 The majority also notes that the record is devoid of other attempts to serve the summons prior to appellant's arrest on July 13, 1992. From this, the majority has determined that defendant has satisfied the require- ments of Barker v. Wingo, supra. Barker v. Wingo, supra, however, indicates that the claim must be measured by the quality of the evidence going to each of the four factors enunciated by the Court together with such other circumstances as may be relevant. The Barker Court explained: The length of the delay is to some extent a triggering mechanism. Until there is a delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, *** the length of the delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstancesof the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspir- acy charge. Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. 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 since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. 2This form also indicates that defendant used the alias Tasi Vulu. -15- Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. We have already discussed the third factor, the defen- dant's responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. A fourth factor is prejudice to the defendant. Preju- dice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court had 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. Id., at 531-523. Thus, it is clear that the delay is in fact a triggering mechanism. Nonetheless, the state's explanation for the delay is key, with deliberate attempt[s] to delay *** weighted heavily against the government [and] a more neutral reason such as negligence *** weighted less heavily. Accord Doggett v. United States(1992), 505 U.S. 647, ( negligence in bringing an accused to trial occupies the middle ground. ) In this instance, however, the state has never been given the opportunity to provide any explana- tion for the delay, and the reason relied upon by the majority is -16- relatively neutral under the plain language of Barker v. Wingo, supra. As to the failure to assert the speedy trial violation, the plain language of Barker v. Wingo, supra, indicates that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. Essential to this inquiry is whether the defendant knew that charges were pending against him; for if the defendant knew of the charges, this factor would weigh heavily against him. Doggett v. United States, supra, at 653; State v. Triplett, supra, at 570. Again, we simply do not know this from the record. Moreover, the majority concludes that counsel violated an essential duty in failing to file the motion, yet there is no reasonable way to exclude the possibility that counsel made a good faith, professional decision which reasonably reflected all of the information disclosed in preparing the matter, or that counsel's actions were influenced by defendant's own statements or actions. Moreover, the record demonstrates that the state agreed to nolle eleven of the eighteen charges against defendant and there is no way to discount that this resulted from bargaining which used speedy trial as an issue. As to the prejudice to defendant which resulted from the delay, it is essential to note that the term presumptive preju- dice mentioned in Barker v. Wingo, supra and Doggett v. United States, supra, simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry. Id., at 652, fn. 1. It does not necessarily indicate a statistical -17- probability of prejudice. Id. Indeed, the Barker Court ex- plained: *** deprivation of the right may work to the accused's advantage. Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecu- tion, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Id., at 521. In applying this factor, the majority notes that the record does not provide a basis for determining the prejudice to appellant from the delay. The record fails to demonstrate that defendant experienced anxiety or concern over the matter prior to being served or that the delay hampered the presentation of his defense, but it is clear that defendant was not incarcerated during the delay. Thus, I am unable to accept the majority's determination that application of the standards set forth in Barker v. Wingo, supra, indicates that defendant's trial counsel committed an error. Finally, in determining whether the second prong of the Strickland test has been satisfied, i.e., whether the specified error resulted in the required prejudice, id., at 694, it is beyond dispute that [t]he governing legal standard plays a critical role in *** assessing the prejudice from counsel's errors. Strickland v. Washington, supra, at 695. With this in mind, a threshold point is that there is no indication that the offenses were prosecuted outside of the applicable limitations -18- period. R.C. 5703.26; R.C. 5703.99(B); R.C. 2901.13(A)(1). As the Packard Court noted: In this case, however, specific time periods have been set within which an accused must be brought to trial. R.C. 2901.13(a)(1) set that limit at six years. We must presume that in setting a six-year time period within which a felony prosecution must be commenced, the legislature felt that such a length of time would not hinder a defendant in putting on a defense. To find otherwise would be to assume that the legislature failed to consider the speedy trial statutes in promulgating this code section. Where the legislature has set such a time period for the commencement of prosecution in a case such as this one, we must find that a delay of three years, which is within the six-year time frame, is not prejudicial in the absence of evidence to the contrary. Moreover, as the Supreme Court noted in Barker v. Wingo, supra, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself. Id., at 521 (emphasis added). Indeed, the Barker Court noted that We cannot say how long is too long ... Id. Finally, case law from this state indicates that a thirty-one month delay is not so egregious that counsel should have reasonably predicted that his client would have been discharged on this basis that his speedy trial speedy trial rights were violated. See State v. Triplett (1997), 78 Ohio St.3d 566 (fifty-four month delay did not justify dismissal of indictment); State v. Packard (1988), 52 Ohio App.3d 99 (three year delay did not justify dismissal of indictment). In summary, the uncertainty in the record does not provide sufficient information from which to conclude that there was either a deficient performance or prejudice. For the foregoing reasons, I dissent from the judgment rendered this day by the majority. -20- COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 64616 STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING v. : : OPINION THOMAS MANOS : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 KARPINSKI, J., CONCURRING: I concur in the lead opinion. I write separately to respond to the dissent. Initially, the dissent criticizes the prior decision of this court to grant appellant's application for reopening. App.R. 26(B)(7) provides, in part: If the application is granted, the case shall proceed as on an initial appeal ***. Our only appropriate inquiry at this stage of the proceedings is, therefore, whether the law requires that we affirm, reverse, or modify appellant's conviction. In my judgment, the lead opinion correctly addresses only that inquiry. Appellant assigns as error that his trial counsel was ineffective because trial counsel did not file a motion to dismiss the indictment--a motion based on the delay between the filing of -21- the indictment and appellant's arrest. The majority and the dissent agree that the merits of appellant's position must be evaluated in light of Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The dissent, however, incorrectly asserts that the majority has determined that defendant has satisfied the requirements of Barker v. Wingo, supra. Dissent, at 6. On the contrary, the lead opinion observed that the record did not permit a conclusive determination as to all the Barker factors. The context, especially the last sentence on page five, makes clear the lead opinion was speaking of the Barker factors when it stated this observation. The lead opinion does conclude, however, that the record is sufficient to demonstrate that appellant's counsel should have filed a motion to dismiss the indictment. Ignoring this distinction, the dissent argues that--other than the delay--the record lacks proof of the Barker factors. The dissent then ignores the necessity of inquiry into the other factors --an inquiry triggered by the Barker criterion of a delay of more than thirty-one months. State v. Triplett (1997), 78 Ohio St.3d 566, 569, 679 N.E.2d 290 (citations deleted). Despite the necessity of inquiry, the dissent concludes that trial counsel was not deficient in his representation. That is, because the record is silent regarding those facts which could have been elicited if trial counsel had filed a motion to dismiss, the dissent insists that we cannot hold that counsel was ineffective. By this -22- standard, a party could never prove that counsel who took no action was ineffective. The record as it now stands contains evidence of extended delay to warrant a Barker hearing based on presumptive prejudice, with no evidence to justify or excuse such delay. When appellant claimed ineffective assistance of trial counsel in a petition for post-conviction relief based on these facts, this court held, consistent with the state's argument, that he was barred from doing so because the issue could fairly have been determined [on direct appeal] without resort to evidence dehors the record. State v. Manos(Dec. 28, 1995), Cuyahoga App. No. 68547, unreported at p. 2. This court specifically indicated that appellant should raise his claim in a petition for delayed reopening of his direct appeal. Id. at p. 3; citing State v. Murnahan (1992), 63 Ohio St.3d 60. Now that appellant has done so, the dissent ignores this specific holding and the fact that the state made the exact opposite argument about the adequacy of the record in the prior proceeding. The interests of justice dictate that the parties be afforded a hearing on this issue, regardless of whether this court character- izes the record as half-full or half-empty in successive appeals. Trial counsel's failure to file a motion to dismiss, despite facts satisfying the Barker triggering mechanism, was demonstrably ineffective and prejudicial to appellant. Appellant should have had the opportunity to make a record in the trial court regarding all the Barker factors. The remand ordered by the majority will -23- provide that opportunity for both appellant and the state. The trial court will then be able to determine whether the delay .