State v. Rogers , 2019 Ohio 1251 ( 2019 )

[Cite as State v. Rogers, 2019-Ohio-1251.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180120
TRIAL NO. B-1706575
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ALLEN ROGERS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Opinion on Appeal: April 5, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
[Cite as State v. Rogers, 2019-Ohio-1251.]
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Allen Rogers appeals his conviction for felonious
assault. Rogers challenges the trial court’s denial of his motion to dismiss the
indictment based on an alleged violation of his constitutional right to a speedy trial.
For the reasons set forth below, we affirm his conviction.
I. Facts and Procedure
{¶2} On July 15, 2016, the Cincinnati Police Department (“CPD”) filed a felony
complaint and issued an arrest warrant against Rogers for one count of felonious
assault. CPD attempted to serve the warrant on July 20, 2016, July 26, 2016, and
October 8, 2016. All three attempts were unsuccessful. Approximately 15 months after
the issuance of the arrest warrant, on November 3, 2017, Rogers was arrested pursuant
to an unrelated investigation.
{¶3} After his arrest, Rogers was indicted on one count of felonious assault.
Approximately 20 days later, Rogers asserted his right to a speedy trial and moved to
dismiss the indictment. The trial court denied Rogers’s motion and Rogers entered a
plea of no contest. This appeal followed.
{¶4} In his sole assignment of error, Rogers contends that the trial court erred
in denying his motion to dismiss. He argues that the delay of 15 months between the
issuance of the warrant and his arrest violated the Sixth Amendment to the United
States Constitution and Article I, Section 10 of the Ohio Constitution.
II. Standard of Review
{¶5} Our review of the trial court’s ruling involves mixed questions of fact and
law. We give due weight to the facts found by the trial court as long as they are supported
by competent, credible evidence. State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 15 (1st
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[Cite as State v. Rogers, 2019-Ohio-1251.]
OHIO FIRST DISTRICT COURT OF APPEALS
Dist.). We review the trial court's conclusions of law de novo to determine whether the
facts satisfy the applicable legal standard. Id.
III. Constitutional Right to Speedy Trial
{¶6} The Sixth Amendment to the United States Constitution provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy * * * trial.”
The Ohio Constitution provides similar speedy-trial guarantees. See Article I, Section 10,
Ohio Constitution. In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972), the United States Supreme Court set forth a four-part balancing test to
determine whether a defendant has been deprived of his right to a speedy trial. The
factors to be weighed are “length of the delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.” Id. No single factor is
determinative. Id. at 533. “Rather, they are related factors and must be considered
together with such other circumstances as may be relevant.” Id.
1. Length of Delay
{¶7} The first factor acts as a triggering mechanism. “Until there is some delay
which is presumptively prejudicial, there is no necessity for inquiry into the other
factors.” Id. Courts have generally found delays over one year to be presumptively
prejudicial. State v. Selvage, 80 Ohio St. 3d 465, 468, 687 N.E.2d 433 (1997); State v.
Pierce, 1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, ¶ 8.
{¶8} Rogers’s speedy-trial rights attached on July 15, 2016, when the felony
complaint was filed against him. See Rice, 2015-Ohio-5481, 57 N.E.3d 84, at ¶ 22 (“[A]
criminal complaint against a defendant [is] an ‘official accusation’ of a crime against that
defendant that operate[s] to trigger his speedy trial rights.”). Approximately 15 months
later, on November 3, 2017, Rogers was arrested. This 15-month delay is presumptively
prejudicial and requires this court to consider the remaining factors.
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[Cite as State v. Rogers, 2019-Ohio-1251.]
OHIO FIRST DISTRICT COURT OF APPEALS
2. Reason for Delay
{¶9} Closely related to the length of delay is the reason for the delay. The
weight of this factor operates on a sliding scale. Deliberate dilatory acts should be
weighted heavily against the state, while negligence or overcrowded systems should be
weighted less heavily against the state. Barker, 407 U.S. at 531, 92 S. Ct. 2182, 33
L. Ed. 2d 101. To the extent the defendant caused the delay, it does not count against the
state. State v. Triplett, 78 Ohio St. 3d 566, 570, 679 N.E.2d 290 (1997).
{¶10} Here, the state’s inaction largely caused the delay between the filing of the
complaint and Rogers’s arrest. During the first month after issuance of the arrest
warrant, CPD’s efforts were reasonably diligent. However, when those efforts were
unsuccessful, the police did not continue to actively search for Rogers. Sergeant
Vogelpohl attributed this inaction to CPD’s prioritization of newer warrants, stating
“[Rogers’s warrant] just became another warrant in our book.” Such inaction must be
weighted against the state “since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant.” Barker at 531. See State v.
Jackson, 2016-Ohio-5196, 68 N.E.3d 1278, ¶ 13 (1st Dist.) (holding that the second
Barker factor weighed against the state because, “save for the one month following the
issuance of the warrants, the state was not reasonably diligent in pursuing the charges”).
{¶11} The state maintains that it had a problem locating Rogers. However, CPD
knew where Rogers resided, and Sergeant Vogelpohl was able to enter the building and
knock on the door to Rogers’s apartment on his first two attempts to serve the warrant.
The record contains no evidence that Rogers knew about the charges against him and
attempted to avoid service. To the contrary, the record shows that Rogers continuously
lived at his residence for over four years. Rogers also testified that he never made any
attempt to conceal his whereabouts or evade execution of the warrant. While the state
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[Cite as State v. Rogers, 2019-Ohio-1251.]
OHIO FIRST DISTRICT COURT OF APPEALS
points to evidence that a man inside the building told an officer attempting to serve the
warrant that Rogers had not been in his apartment for two weeks, there is no evidence in
the record that Rogers put him up to it. But for the unrelated investigation in November
2017, it does not appear that Rogers would have been served with the warrant at that
time. Therefore, the state was not reasonably diligent in pursuing Rogers and the second
factor weighs slightly in Rogers’s favor.
3. Assertion of Right to Speedy Trial
{¶12} The parties agree that Rogers asserted his constitutional right to a speedy
trial within a month after indictment. This factor weighs in favor of Rogers.
4. Prejudice Caused by Delay
{¶13} A court should assess prejudice “in light of the interests the speedy trial
right was designed to protect.” Barker, 407 U.S. at 533, 92 S. Ct. 2182, 33 L. Ed. 2d 101. In
Barker, the United States Supreme Court identified three such interests: (1) to prevent
oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused;
and (3) to limit the possibility that the defense will be impaired. Id. Rogers was not
incarcerated during the post-accusation delay, so the first interest is not at issue. The
second interest is also not at issue. According to his own testimony, Rogers suffered no
anxiety or concern during the delay because he was not aware of the pending charges
until his arrest. With respect to the last interest, Rogers does not allege any
particularized trial prejudice. Instead, he relies on Doggett v. United States, 505 U.S.
647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992), to argue that the state’s negligence created
a presumption of prejudice which relieved him of any duty to show actual prejudice.
{¶14} Rogers’s reliance on Doggett is misplaced. Doggett does not stand for the
proposition that courts should always presume prejudice if the delay was caused by
official negligence. Rather, Doggett holds that some speedy-trial claims do not require
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[Cite as State v. Rogers, 2019-Ohio-1251.]
OHIO FIRST DISTRICT COURT OF APPEALS
“affirmative proof of particularized prejudice.” Id. at 655. This is because “excessive
delay presumptively compromises the reliability of a trial in ways that neither party can
prove, or, for that matter, identify.” Id. at 656. Doggett instructs that “toleration of * * *
negligence varies inversely with its protractedness * * * and its consequent threat to the
fairness of the accused’s trial.” Id. at 657. Therefore, “negligence unaccompanied by
particularized trial prejudice must have lasted longer than negligence demonstrably
causing such prejudice.” Id.
{¶15} In Doggett, the Court held that an eight-and-a-half-year delay was
presumptively prejudicial due to “the Government’s egregious persistence in failing to
prosecute Doggett.” Id. The Court noted that the delay was over six times as long as that
generally sufficient to trigger the Barker analysis. Id. at 658. In other words, Doggett
would have gone to trial six years earlier if not for “the Government’s inexcusable
oversights.” Id. at 657.
{¶16} We do not find the length of delay in Rogers’s case to be as egregious as
the delay in Doggett. Rogers’s 15-month delay is significantly shorter than the eight-
and-a-half-year delay, and barely stretches “beyond the bare minimum needed to trigger
judicial examination of the claim.” See id. at 652. Accordingly, Rogers’s case is readily
distinguishable from Doggett.
{¶17} This court has stated that prejudice may be presumed only in aggravated
cases involving excessive delay. Rice, 2015-Ohio-5481, 57 N.E.3d 84, at ¶ 28,
citing Doggett, 505 U.S. at 655-656, 112 S. Ct. 2686, 120 L. Ed. 2d 520. Here, Rogers was
arrested approximately 15 months after CPD filed a complaint against him. This is not so
egregious to presume prejudice. Accordingly, the fourth factor weighs in favor of the
state.
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[Cite as State v. Rogers, 2019-Ohio-1251.]
OHIO FIRST DISTRICT COURT OF APPEALS
IV. Summary
{¶18} The first, second, and third factors weigh in favor of Rogers. However, the
first and second factors carry negligible weight. In contrast, the fourth factor weighs
heavily against Rogers. Under the circumstances of this case, the mere negligence of the
state is not enough to outweigh the absence of some particularized trial prejudice.
Therefore, after weighing all the Barker factors, we cannot conclude that Rogers was
deprived of his constitutional right to a speedy trial.
{¶19} In sum, the trial court did not err in denying Rogers’s motion to dismiss.
Consequently, we overrule his sole assignment of error and affirm the trial court’s
judgment.
Judgment affirmed.
MYERS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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