State v. Duncan ( 2012 )

[Cite as State v. Duncan, 2012-Ohio-3683.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97208
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES DUNCAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-544823
BEFORE: Jones, P.J., S. Gallagher, J., and Rocco, J.
RELEASED AND JOURNALIZED: August 16, 2012
FOR APPELLANT
James Duncan, Pro se
Inmate #603-472
Lebanon Correctional Institution
P.O. Box 56
Lebanon, Ohio 45036
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Jennifer A. Driscoll
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant James Duncan appeals from the trial court’s judgment of
conviction, contending that his speedy trial rights were violated. We affirm.
I.
{¶2} In December 2010, Duncan was charged in a 13-count indictment with
sexually oriented offenses and specifications. During the pretrial proceedings, defense
counsel sought and was granted several continuances, primarily for the purpose of further
discovery. Although Duncan was represented by counsel throughout the entirety of the
trial court proceedings, in May 2011, he filed pro se a motion to dismiss based on speedy
trial grounds and a motion for discovery; the trial court did not rule on the motions.
{¶3} In June 2011, Duncan pleaded guilty to an amended Count 1, rape, and an
amended Count 3, sexual battery. The remaining charges and specifications were
dismissed. In July 2011, the trial court sentenced Duncan to an eight-year term,
consisting of an eight-year sentence on the rape to be served concurrent with a four-year
sentence on the sexual battery. Duncan now appeals, contending that his speedy trial
rights were violated.
II.
{¶4} Motions not ruled on when a trial court enters final judgment are deemed
denied; thus, Duncan’s motion to dismiss based on speedy trial grounds is deemed denied.
Jarrett v. Cuyahoga Cty. Common Pleas Court, 8th Dist. No. 87232, 2006-Ohio-222, ¶
2.
{¶5} Ohio recognizes both a constitutional right to a speedy trial and a statutory
right to a speedy trial. In his motion to dismiss, Duncan contended that both of his
speedy trial rights had been violated. In regard to his statutory rights, Duncan waived
them by pleading guilty. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1990),
paragraph one of the syllabus; State v. Branch, 9 Ohio App.3d 160, 162, 458 N.E.2d 1287(8th Dist.); State v. Compton, 8th Dist. No. 97959, 2012-Ohio-2936, ¶ 11.
{¶6} We therefore only consider Duncan’s constitutional right to a speedy trial.
The analysis for consideration of a defendant’s constitutional speedy trial rights is set
forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In
Barker, the United States Supreme Court identified four factors to be assessed in
determining whether an accused had been constitutionally denied a speedy trial: (1) the
length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right
to a speedy trial, and (4) the prejudice to the defendant. Id. at 530; see also State v. Hull,
110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 22-23, citing Barker at 530-531.
{¶7} In Barker, the United States Supreme Court stated that the length of the delay
is particularly important:
The length of the delay is to some extent a triggering mechanism. Until
there is some delay which is presumptively prejudicial, there is no necessity
for inquiry into the other factors that go into the balance. Nevertheless,
because of the imprecision of the right to speedy trial, the length of delay
that will provoke such an inquiry is necessarily dependent upon the peculiar
circumstances of the case.
(Footnote omitted.) Id. at 530-531.
{¶8} The United States Supreme Court has described the length of the delay as a
double inquiry. Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120
L.Ed.2d 520 (1992). First, the defendant must make a threshold showing of a
“presumptively prejudicial” delay in order to trigger the application of the Barker
analysis. Doggett at 651-652, citing Barker. Second, after the initial threshold
showing of “presumptively prejudicial” delay, the court again considers the length of
delay with the other Barker factors. Doggett at 652, citing Barker.
{¶9} Courts have generally found postaccusation delay to be “presumptively
prejudicial” as it approaches one year. Doggett at fn. 1. Here, approximately six
months elapsed from the beginning of the case until the plea. We do not find that time
frame to be presumptively prejudicial. Duncan was charged with 13 crimes, which
included four charges of rape against two different victims. During the six month period
that the case was pending, discovery and pretrial negotiations were ongoing and included
in camera inspections by the court of files from the Cuyahoga County Department of
Children and Family Services relative to the two victims.
{¶10} Because the delay in this case did not meet the threshold requirement of
presumptive prejudice, Duncan was not deprived of his constitutional right to a speedy
trial. The sole assignment of error is therefore overruled and the trial court’s judgment
is affirmed.
It is ordered that appellee recover from 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.
LARRY A. JONES, SR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR