[Cite as State v. Keaton, 2017-Ohio-7036.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 16AP-716 

v. : (C.P.C. No. 14CR-1542)

David M. Keaton, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on August 1, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie 

Swanson, for appellee. Argued: Valerie Swanson. 

On brief: Yeura Venters, Public Defender, and George M. 

Schumann, for appellant. Argued: George M. Schumann. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Defendant-appellant, David M. Keaton, appeals from a judgment of 

conviction entered by the Franklin County Court of Common Pleas. For the following 

reasons, we affirm that judgment. 

I. Factual and Procedural Background 

{¶ 2} On March 25, 2014, a Franklin County Grand Jury indicted appellant with 

two counts of nonsupport of dependents in violation of R.C. 2919.21. Both counts 

concerned periods of alleged nonsupport of his child between March 2012 and March 

2014. On that same day, an arrest warrant was issued for appellant with an address on 

Fornoff Road in Columbus, Ohio. 
No. 16AP-716 2 

{¶ 3} Almost two years later, on February 8, 2016, appellant was arrested on 

those charges after an unrelated traffic stop. Two days later, he appeared before the trial 

court, entered a not guilty plea to the charges and was released on bond. Shortly 

thereafter, appellant filed a change of address form to indicate an address on North Harris 

Avenue. 

{¶ 4} On August 2, 2016, appellant filed a motion to dismiss the counts against 

him due to the state's failure to timely prosecute him in violation of the speedy trial 

protections in both the United States and Ohio Constitutions. The trial court held a 

hearing on the motion, at which neither the state nor appellant presented witnesses. At 

the end of the hearing, the trial court denied appellant's motion to dismiss. As a result of 

the trial court's decision, appellant entered no contest pleas to both of the counts and the 

trial court sentenced him accordingly. 

II. The Appeal 

{¶ 5} Appellant appeals and assigns the following error: 

The trial court abused its discretion and erred as a matter of 

law by failing to determine any reasons for the state's delay in 

commencing the prosecution against the defendant-appellant 

as set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 

33 L.Ed.2d 101 (1972). 

A. Standard of Review 

{¶ 6} In his assignment of error, appellant argues the trial court erred in denying 

his motion to dismiss. An appellate court's review of a trial court's decision regarding a 

motion to dismiss based upon a violation of the right to a speedy trial involves a mixed 

question of law and fact. State v. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, ¶ 12, 

citing State v. Fultz, 4th Dist. No. 06CA2923, 2007-Ohio-3619, ¶ 8. We must give due 

deference to a trial court's findings of fact if supported by competent, credible evidence, 

but we must independently review whether the trial court properly applied the law to the 

facts of the case. Id., citing Fultz at ¶ 8; State v. Jackson, 1st Dist. No. C-150657, 2016-

Ohio-5196, ¶ 8 (de novo standard of review for legal conclusions). 

B. The Constitutional Right to a Speedy Trial 

{¶ 7} "In all criminal prosecutions, the accused shall enjoy the right to a speedy 

and public trial, by an impartial jury of the state and district wherein the crime shall have 
No. 16AP-716 3 

been committed." Sixth Amendment to the U.S. Constitution. The Sixth Amendment 

applies to the states through the Due Process Clause of the Fourteenth Amendment to the 

United States Constitution. Barker v. Wingo, 407 U.S. 514, 515 (1972). The Ohio 

Constitution separately guarantees the right to a speedy trial in Article I, Section 10. State 

v. Decola, 11th Dist. No. 2016-A-0037, 2017-Ohio-4232, ¶ 11. 

{¶ 8} In Barker, the United States Supreme Court set forth four factors to 

consider when evaluating whether an appellant's right to a speedy trial was violated: 

(1) whether the delay before trial was uncommonly long; (2) whether the government or 

the criminal defendant is more to blame for the delay; (3) whether in due course, the 

defendant asserted his right to a speedy trial; and (4) whether he suffered prejudice as a 

result of the delay. These factors are balanced in a totality of the circumstances with no 

one factor controlling. Id. The Supreme Court of Ohio has adopted this test to determine 

if an individual's constitutional speedy trial rights have been violated. State v. Adams, 

144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 88, citing State v. Selvage, 80 Ohio St.3d 465, 467 

(1997). 

{¶ 9} The first of these factors, 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." Barker at 530; 

Doggett v. United States, 505 U.S. 647, 651 (1992). Therefore, the Barker analysis is only 

triggered once a "presumptively prejudicial" delay is shown. Id. at 651-52; State v. Yuen, 

10th Dist. No. 03AP-513, 2004-Ohio-1276, ¶ 10. Generally, delay is presumptively 

prejudicial as it approaches one year. State v. Miller, 10th Dist. No. 04AP-285, 2005-

Ohio-518, ¶ 12; State v. Loel, 10th Dist. No. 13AP-874, 2014-Ohio-3045, ¶ 15. The state 

does not dispute that the 22-month delay between indictment and arrest triggers a full 

inquiry into the Barker factors in this case. 

C. The Barker Test 

{¶ 10} Appellant argues that the trial court erred by not conducting a proper 

balancing of the Barker factors because it failed to determine or consider the reason for 

the delay. To remedy that failure, he argues that we must remand the matter for the trial 

court to include that factor as part of a proper Barker analysis. We disagree, because after 

this court's independent review of the Barker factors, we conclude that appellant has not 
No. 16AP-716 4 

demonstrated a violation of his speedy trial rights. State v. Williams, 10th Dist. No. 13AP992, 2014-Ohio-2737, ¶ 22; State v. Quinnie, 10th Dist. No. 12AP-484, 2013-Ohio-1208, 

¶ 17. 

1. The Length of the Delay 

{¶ 11} The trial court found the length of the delay to be "troublesome." (Tr. at 6.) 

We agree that a 22-month delay in serving an arrest warrant is excessive. The weight of 

this factor in favor of appellant, however, is negligible because the record does not reflect 

that appellant knew of the indictment before his arrest. Such a delay, therefore, was not 

an "infringement on [appellant's] liberty." State v. Triplett, 78 Ohio St.3d 566, 569 (1997) 

(weight of 54-month delay in defendant's favor was negligible because the delay did not 

result in infringement of defendant's liberty as she was completely unaware of the 

charges); State v. Tate, 8th Dist. No. 103446, 2016-Ohio-5622, ¶ 23 (16-month delay 

weighed negligibly in defendant's favor where delay occurred before arrest and defendant 

was not aware of charges); State v. McClain, 9th Dist. No. 15AP0055, 2016-Ohio-4992, 

¶ 14 (18-month delay during which defendant had no idea of pending charges). 

2. The Reason for the Delay 

{¶ 12} This factor, the focus of appellant's argument, looks to the reason for the 

delay and whether the government or the defendant is more to blame for the delay. 

Quinnie at ¶ 14, citing Doggett at 651; State v. Brown, 10th Dist. No. 12AP-292, 2012-

Ohio-5903, ¶ 19. The inquiry into causation involves a sliding scale. Deliberately dilatory 

tactics must be weighed much more heavily against the state than periods of delay 

resulting from mere negligence. McClain at ¶ 15, citing Barker at 531. "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." Id. To the 

extent that valid reasons cause the delay, such as missing witnesses, the delay does not 

count against the state at all. Id. Delay that is caused by the defendant does not count 

against the state. Id., citing Triplett at 570. 

{¶ 13} The record contains no evidence of the steps the state took, if any, to serve 

the warrant on appellant. At the hearing, the prosecutor argued that the delay was "not 

deliberate," implying that the state could not or had difficulty finding appellant by 
No. 16AP-716 5 

pointing to appellant's motion to dismiss which stated that appellant "did not always live 

at that address that he had provided long ago." (Tr. at 4.) Indeed, appellant did not argue 

that the state acted deliberately in not serving the arrest warrant in a more timely fashion. 

Thus, it appears that the state did not act deliberately but, rather, negligently in failing to 

timely arrest appellant. This factor weighs in appellant's favor. 

3. Appellant's Assertion of His Rights 

{¶ 14} The third factor concerns whether appellant asserted his right to a speedy 

trial in due course. Appellant did file a motion to dismiss the charges based on his speedy 

trial rights; however, he did so six months after his arrest. This factor weighs slightly in 

the state's favor. State v. Walker, 10th Dist. No. 06AP-810, 2007-Ohio-4666, ¶ 31 

(defendant's "two-month delay must be weighted, at least to some extent, against 

defendant's claim of a serious deprivation of his right to a speedy trial"); State v. Scott, 

10th Dist. No. 09AP-611, 2009-Ohio-6785, ¶ 27 (delay of three months from arrest and six 

months after indictment); State v. Rice, 1st Dist. No. C-150191, 2015-Ohio-5481, ¶ 27 

(four-month delay weighed slightly in favor of the state); McClain at ¶ 17 (three-month 

delay). 

4. Prejudice to Appellant 

{¶ 15} The final factor is prejudice. In assessing prejudice in this context, we 

consider the specific interests the right to a speedy trial was designed to protect: 

oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility 

that the defendant's defense will be impaired by dimming memories and loss of 

exculpatory evidence. Doggett at 654; Walker at ¶ 32; Brown at ¶ 21. Appellant does not 

identify any specific prejudice resulting from the delay, and, upon review of the record, we 

find none. Appellant did not spend any time in jail while the felony indictment was 

pending, and it appears that he did not even know about the pending charges until his 

arrest. McClain at ¶ 19. Additionally, as noted by the prosecutor at the hearing, the case 

against appellant was largely based on preserved records such as payment history and tax 

forms, which would not be impacted by a delay, and appellant does not point out how the 

delay would have impaired his defense. This factor weighs in favor of the state. 
No. 16AP-716 6 

D. Conclusion 

{¶ 16} After this court's independent review of the Barker factors, we conclude 

that the delay in this case did not violate appellant's constitutional right to a speedy trial. 

Brown at ¶ 22. Accordingly, the trial court did not err by denying appellant's motion to 

dismiss and we overrule appellant's assignment of error. 

III. Conclusion 

{¶ 17} Having overruled appellant's assignment of error, we affirm the judgment of 

the Franklin County Court of Common Pleas. 

Judgment affirmed. 

DORRIAN and BRUNNER, JJ., concur.