State v. Clemons

• Decision Date: 21 November 2013
• Docket Number: No. 99754.,99754.
• Citation: 2 N.E.3d 930
• Parties: STATE of Ohio, Plaintiff–Appellant v. Marlon CLEMONS, Defendant–Appellee.
• Court: Ohio Court of Appeals

2 N.E.3d 930

STATE of Ohio, Plaintiff–Appellant

v.Marlon CLEMONS, Defendant–Appellee.

No. 99754.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Nov. 21, 2013.

Timothy J. McGinty, Cuyahoga County Prosecutor, By Milko Cecez, Assistant County Prosecutor, Cleveland, OH, for appellant.

Mary Elaine Hall, Cleveland, OH, for appellee.

Before: McCORMACK, J., STEWART, A.J., and BOYLE, J.

TIM McCORMACK, J.

{¶ 1} The state of Ohio appeals the trial court's dismissal of the case against Marlon Clemons for want of prosecution. For the following reasons, we reverse the decision of the trial court.

Procedural Facts and Substantive History

{¶ 2} This appeal stems from an incident on July 25, 2009, where Clemons allegedly engaged in felonious assault against Villard Bradley. According to the police report filed by the Cleveland Police Department, Clemons fired a weapon several times at Mr. Bradley and his home. The Cleveland police issued a warrant for Clemons's arrest on August 6, 2009, for discharging a firearm into a habitation. According to the state, Clemons eluded capture.

{¶ 3} In 2010, while the outstanding warrant that was issued in August 2009 remained active, the Cleveland police apprehended and arrested Clemons for two different crimes. Clemons was prosecuted in Cuyahoga C.P. No. CR–530392 for escape, purportedly occurring on August 28, 2009. He was indicted in November 2009, and he was in custody beginning on March 12, 2010. On March 30, 2010, Clemons pleaded guilty to attempted escape and he was sentenced to one year incarceration, with credit for time served.

{¶ 4} While incarcerated, Clemons was indicted in Cuyahoga C.P. No. CR–536887 for aggravated robbery, kidnapping, and having weapons while under a disability for alleged criminal activity that approximately occurred on January 19, 2010. A jury found Clemons not guilty of these charges, and he was returned to the Lorain Correctional Institution to serve out the balance of his sentence in Case No. CR–530392.

{¶ 5} On March 11, 2011, the day Clemons was released from prison after serving the one-year term in Case No. CR–530392, he was arrested by the Cleveland police for the crimes that allegedly occurred nearly two years earlier on July 25, 2009, and is the subject of this appeal. He was indicted on March 21, 2011, and charged with three counts of improper discharging into a habitation, in violation of R.C. 2923.161(A)(1), and two counts of felonious assault, in violation of R.C. 2903.11(A)(2). All counts included firearm specifications. According to the state, Clemons posted bond and went capias on April 6, 2011, until he was ultimately apprehended and arrested again on July 10, 2012. He was arraigned on July 11, 2012.¹

{¶ 6} On March 15, 2013, Clemons filed a motion to dismiss for want of prosecution. The trial court granted Clemons's motion without a hearing or a written decision on March 29, 2013, and the case was dismissed with prejudice. The state's appeal follows.

Assignment of Error

{¶ 7} “The trial court erred in dismissing the case with prejudice when there was no preindictment delay and the defendant did not demonstrate actual prejudice.”

Law and Analysis

{¶ 8} Clemons's motion to dismiss was based upon the premise that his constitutional speedy trial rights were violated where almost two years had passed between the alleged incident in July 2009, which formed the basis for his arrest warrant issued in August 2009, and his indictment in March 2011. The state contends that Clemons's speedy trial time did not begin until he was indicted on March 21, 2011, and he failed to show he was prejudiced by any preindictment delay.

{¶ 9} The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The Ohio Constitution provides this same right. SeeSection 10, Article I of the Ohio Constitution; State v. Eicher, 8th Dist. Cuyahoga No. 89161, 2007-Ohio-6813, 2007 WL 4442647, ¶ 28. The time requirements of R.C. 2945.71 to 2945.73 concerning a defendant's statutory speedy trial rights “are not relevant to a determination of whether a defendant's constitutional right to a speedy trial has been violated by an unjustified delay in prosecution.” State v. Kutkut, 8th Dist. Cuyahoga No. 98479, 2013-Ohio-1442, 2013 WL 1461989, ¶ 10, quoting State v. Carmon, 8th Dist. Cuyahoga No. 75377, 1999 WL 1044603, *2 (Nov. 18, 1999).

{¶ 10} The right to a speedy trial does not arise until a person has been “accused” of a crime. State v. Copeland, 8th Dist. Cuyahoga No. 89455, 2008-Ohio-234, 2008 WL 192311, ¶ 9. The United States Supreme Court held that the speedy trial clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Similarly, the Ohio Supreme Court held that where the defendant is not subjected to any official prosecution, a delay between the offense and the commencement of prosecution is not protected by the speedy trial guarantee contained in Section 10, Article I of the Ohio Constitution. State v. Luck, 15 Ohio St.3d 150, 153, 472 N.E.2d 1097 (1984).

{¶ 11} In Ohio, however, a defendant may assert preindictment speedy trial rights where the state has actually initiated its criminal prosecution or has issued an official accusation prior to indictment. State v. Davis, 7th Dist. Mahoning No. 05 MA 235, 2007-Ohio-7216, 2007 WL 4696960, ¶ 23, citing State v. Selvage, 80 Ohio St.3d 465, 466, 687 N.E.2d 433 (1997); Luck at 153, 472 N.E.2d 1097. In this case, Clemons was not prosecuted for, or accused of, the crimes now under review prior to his indictment on March 21, 2011. Therefore, the facts of this case do not indicate any speedy trial violation.

{¶ 12} It is well settled, however, that preaccusation delay constitutes a violation of the constitutional guarantees of due process of law where the delay violates the “fundamental conceptions of justice which lie at the base of our civil and political institutions” and define “the community's sense of fair play and decency.” United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); see Copeland. An “unjustifiable delay” between the commission of an offense and the defendant's indictment, which results in “actual prejudice” to the defendant, is a violation of the right to due process of law under Section 16, Article I of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. Luck at paragraph two of the syllabus.

{¶ 13} Because the alleged delay in this case occurred prior to Clemons's indictment and the state had not initiated an official accusation prior to indicting Clemons, we consider Clemons's argument under a due process analysis. In reviewing the trial court's decision on a motion to dismiss for preindictment delay, we apply a de novo standard of review to the legal issues but afford great deference to the findings of fact made by the trial judge. ²State v. Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, 2008 WL 4174867, ¶ 45, citing State v. Henley, 8th Dist. Cuyahoga No. 86591, 2006-Ohio-2728, 2006 WL 1495219.

{¶ 14} In order “[t]o warrant dismissal on the basis of preindictment delay, a defendant must present evidence establishing substantial prejudice.” State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 51, citing State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). If the defendant establishes prejudice, the state then has the burden of producing evidence of a justifiable reason for the delay. Id. We, therefore, must consider the reasons for the delay as well as the prejudice to the accused. Lovasco at 790, 97 S.Ct. 2044, 52 L.Ed.2d 752.

{¶ 15} The determination of “actual prejudice” that results from preindictment delay, “involves ‘a delicate judgment based on the circumstances of each case.’ ” Walls at ¶ 52, quoting Marion, 404 U.S. at 325, 92 S.Ct. 455, 30 L.Ed.2d 468. Courts must consider “the evidence as it exists when the indictment is filed and the prejudice the defendant will suffer at trial due to the delay.” Id. The defendant must show the exculpatory value of the alleged missing evidence. Copeland, 8th Dist. Cuyahoga No. 89455, 2008-Ohio-234, 2008 WL 192311, at ¶ 13, citing State v. Gulley, 12th Dist. Clinton No. CA99–02–004, 1999 WL 1238427, *3 (Dec. 20, 1999). The defendant, in other words, “must show how lost witnesses and physical evidence would have proven the defendant's asserted defense.” Wade at ¶ 48, quoting State v. Robinson, 6th Dist. Lucas No. L–06–1182, 2008-Ohio-3498, 2008 WL 2700002, ¶ 121. The possibility that memories will fade, witnesses will become inaccessible, or evidence will be lost is not sufficient, in and of itself, to establish actual prejudice to justify the dismissal of an indictment. State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, 2013 WL 1501034, ¶ 25. Moreover, when asserting preindictment delay, prejudice may not be presumed from a lengthy delay. Copeland, citing Gulley, 1999 WL 1238427 at *3.

{¶ 16} In this case, the state issued an arrest warrant for Clemons on August 6, 2009, for an incident that allegedly occurred on July 25, 2009. The state arrested Clemons on the outstanding warrant on March 11, 2011, and indicted him on March 21, 2011, 20 months after the date of the alleged offense. Clemons claims that he was prejudiced by the state's delay in charging him. In support of this claim, Clemons provides the following: (1) the passage of “almost three years” has prejudiced his ability to prepare an adequate defense; (2) any physical evidence “that might have been discoverable” around the time of the alleged criminal conduct would no longer be available; (3) the memories of any potential witnesses have surely faded with such extreme passage of time; and (4) he “might have...