[Cite as State v. Williams, 2014-Ohio-2737.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellant, : No. 13AP-992 

 (C.P.C. No. 13CR-1459) 

v. : 

 (REGULAR CALENDAR)

Benjamin O. Williams, Jr., : 

 

 Defendant-Appellee : 

 

D E C I S I O N 

Rendered on June 24, 2014 

 

Ron O'Brien, Prosecuting Attorney, Michael P. Walton, and 

Seth L. Gilbert, for appellant. 

Yeura R. Venters, Public Defender, and Timothy E. Pierce, for 

appellee. 

 

APPEAL from the Franklin County Court of Common Pleas 

LUPER SCHUSTER, J. 

{¶ 1} Plaintiff-appellant, state of Ohio, appeals from a decision and entry of the 

Franklin County Court of Common Pleas granting the motion to dismiss of defendantappellee, Benjamin O. Williams, Jr., due to a violation of appellee's constitutional right to a 

speedy trial. Because the trial court did not err in dismissing Counts 1, 2, and 3 of the 

indictment but the trial court erred in dismissing Counts 4 and 5 of the indictment, we 

affirm in part and reverse in part.

I. Facts and Procedural History 

{¶ 2} The material facts are not in dispute. On March 30, 2009, the Columbus 

Police Department filed a complaint in the Franklin County Municipal Court alleging 

appellee committed a robbery at a CVS Pharmacy on North High Street ("High Street 
No. 13AP-992 2 

CVS") earlier that day. The municipal court issued a warrant related to the single charge. 

On April 10, 2009, a second robbery occurred at a CVS Pharmacy on Parsons Avenue 

("Parsons Avenue CVS"), but law enforcement officials never filed a complaint in 

connection with this second robbery.

{¶ 3} On June 24, 2009, the Columbus Police Department received notification 

that appellee was in pretrial incarceration in Georgia awaiting trial for armed robbery, but 

the Columbus Police Department did not communicate this information to the prosecutor's 

office. In May 2012, appellee entered a guilty plea to armed robbery in Georgia where he 

received a sentence of 20 years in prison, including credit for the nearly three years he 

spent in pretrial incarceration.

{¶ 4} On February 13, 2013, appellee filed a letter with the Franklin County 

Municipal Court seeking a final disposition of the March 2009 case related to the High 

Street CVS. Upon learning of appellee's letter, an assistant county prosecutor contacted the 

Columbus Police Department's robbery division and requested the felony packet related to 

the case, which the county prosecutor's office received on March 4, 2013.

{¶ 5} The state indicted appellee on March 15, 2013 on five felony counts: one 

count of escape, in violation of R.C. 2911.01, and four counts of robbery, in violation of R.C. 

2911.02. The escape count alleged appellee was out of range and/or removed an electronic 

monitor on or about the day of the High Street CVS robbery. Counts 2 and 3 were 

alternative robbery charges related to the High Street CVS robbery, while Counts 4 and 5 

were alternative robbery charges related to the Parsons Avenue CVS robbery. 

{¶ 6} Following an extradition request, the state of Georgia transferred appellee to 

Ohio for further proceedings. Appellee entered a plea of not guilty to all five charges on 

June 26, 2013. On August 19, 2013, appellee filed a motion to dismiss the entire 

indictment based on an alleged violation of appellee's constitutionally guaranteed right to a 

speedy trial.

{¶ 7} The trial court conducted a hearing on appellee's motion on October 10, 2013. 

At the conclusion of the hearing, the trial court indicated it would grant appellee's motion 

to dismiss all five counts of the indictment. The trial court journalized its dismissal of the 

entire indictment in a November 13, 2013 decision and entry. The state timely appeals.
No. 13AP-992 3 

II. Assignments of Error 

{¶ 8} On appeal, the state assigns the following two assignments of error for our 

review: 

[1.] The trial court erred in dismissing counts one, four, and five 

of the indictment, as [appellee's] constitutional right to a 

speedy trial was not violated. 

[2.] The trial court erred in dismissing counts two and three of 

the indictment, as [appellee's] constitutional right to a speedy 

trial was not violated. 

For ease of discussion, we address the state's assignments of error out of order. 

III. Standard of Review and Applicable Law 

{¶ 9} An appellate court's review of a trial court's decision regarding a motion to 

dismiss based upon a violation of the speedy-trial provisions 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. 

{¶ 10} "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 

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

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

{¶ 11} In analyzing a claim that the state violated a defendant's constitutional 

speedy-trial rights, courts utilize a two-pronged inquiry. "First, the defendant must make a 

threshold showing of a 'presumptively prejudicial' delay to trigger application of the Barker

analysis." State v. Sellers, 10th Dist. No. 08AP-810, 2009-Ohio-2231, ¶ 14, citing Doggett 

v. United States, 505 U.S. 647, 651-52 (1992). If a presumptively prejudicial delay exists, 

then the second inquiry requires the court to consider (1) the length of the delay, (2) the 

reason for the delay, (3) the defendant's assertion of the speedy-trial right, and (4) the 

resulting prejudice to the defendant. Doggett at 651. 
No. 13AP-992 4 

IV. Second Assignment of Error – Counts 2 and 3 

{¶ 12} In its second assignment of error, the state asserts the trial court erred in 

dismissing Counts 2 and 3 of the indictment, which are alternative robbery charges related 

to the High Street CVS robbery. More specifically, the state argues the trial court 

erroneously weighed the factors in the Barker analysis. 

{¶ 13} As noted above, in analyzing a defendant's claim of a violation of his 

constitutional speedy-trial rights, we must first look to whether there was a "presumptively 

prejudicial" delay sufficient to trigger application of the Barker analysis. Sellers at ¶ 14, 

citing Doggett at 651-52. Generally, a delay approaching one year is presumptively 

prejudicial. State v. Vasquez, 10th Dist. No. 13AP-366, 2014-Ohio-224, ¶ 43, citing State v. 

Glass, 10th Dist. No. 10AP-558, 2011-Ohio-6287, ¶ 20, citing State v. Miller, 10th Dist. No. 

04AP-285, 2005-Ohio-518, ¶ 12. 

{¶ 14} Here, the Columbus Police Department filed the municipal court complaint 

for the High Street CVS robbery on March 30, 2009 but the felony indictment did not issue 

until March 15, 2013, nearly four years later. By the time appellee filed his motion to 

dismiss on August 19, 2013, more than four years had passed since the initial municipal 

complaint. Thus, appellee demonstrated a "presumptively prejudicial" delay sufficient to 

trigger the application of the Barker analysis for Counts 2 and 3 of the indictment. 

{¶ 15} Once a defendant makes the threshold showing of a presumptively 

prejudicial delay, we must consider and weigh the four Barker factors to determine 

whether there was a violation of defendant's constitutional speedy-trial rights. We balance 

the factors in a totality of the circumstances framework, and no one factor is controlling. 

Watson at ¶ 26, citing Barker at 530. 

{¶ 16} Although the state argues that the period of delay is merely a threshold 

inquiry, this court has consistently held that we again consider the length of the delay in 

weighing the Barker factors, and a longer delay weighs more heavily against the state. 

Sellers at ¶ 14 (noting the length of the delay is a "double inquiry"), citing Doggett at 651; 

State v. Scott, 10th Dist. No. 09AP-611, 2009-Ohio-6785, ¶ 25. See also Doggett at 655-56 

(noting that "[w]hile such presumptive prejudice cannot alone carry a Sixth Amendment 

claim without regard to the other Barker criteria * * *, it is part of the mix of relevant facts, 
No. 13AP-992 5 

and its importance increases with the length of delay"). We agree with appellee that the 

four-year delay here is significant. 

{¶ 17} The second Barker factor focuses on the reasons for the delay, and we must 

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

at ¶ 28. As the trial court noted, the state conceded that the police department "simply did 

not follow up once they discovered [appellee] was in jail in Georgia." (Decision and 

Entry, 6.) Even though the government knew where appellee was located for the nearly 

four years following the municipal complaint, the government elected not to pursue him. 

Where the state does not act "with reasonable diligence in commencing prosecution against 

appellee," the length of the delay can be attributed to the state. State v. Selvage, 80 Ohio 

St.3d 465, 470 (1997). 

{¶ 18} Though there was some discussion at the hearing about whether it would 

have been feasible for the state to secure appellee's transfer to Ohio while he was awaiting 

trial in Georgia, the fact remains that the state never attempted to initiate the procedures to 

bring appellee to Ohio for trial. Further, to the extent the state suggests appellee is at fault 

for being incarcerated in another state, there was no evidence in the record that appellee 

"was absconding from the jurisdiction or eluding prosecution in any way, shape or form." 

(Decision and Entry, 7.) The state offered no explanation for its failure to pursue appellee 

despite knowing his precise whereabouts since June 2009. Thus, we agree with the trial 

court that the second prong of the Barker test weighs against the state. 

{¶ 19} The third Barker factor looks to appellee's assertion of his right to a speedy 

trial. Appellee filed a motion to dismiss the indictment based on his speedy-trial rights on 

August 19, 2013. "Generally, when the defendant has filed a motion to dismiss based on 

speedy trial violations, courts will weigh the third Barker factor in the defendant's favor." 

Watson at ¶ 29, citing State v. Johnson, 12th Dist. No. CA2011-09-169, 2013-Ohio-856, 

¶ 40; State v. Hilyard, 4th Dist. No. 05CA598, 2005-Ohio-4957, ¶ 19; State v. Turner, 7th 

Dist. No. 93 CA 91, 2004-Ohio-1545, ¶ 38. Additionally, the trial court noted the state 

conceded appellee was not even aware of the charges against him until he requested 

disposition of the municipal complaint on February 13, 2013. See State v. Walker, 10th 

Dist. No. 06AP-810, 2007-Ohio-4666, ¶ 20 (noting " '[w]hether and how a defendant 
No. 13AP-992 6 

asserts his right is closely related to the other factors' "), quoting Barker at 531. Thus, the 

third factor also weighs against the state. 

{¶ 20} The fourth Barker factor concerns prejudice to the accused. We must assess 

prejudice in light of the interests that the speedy-trial right intends to protect: 

(1) preventing oppressive pretrial incarceration, (2) minimizing a defendant's anxiety and 

concern, and (3) limiting the possible impairment of a defense. Id. at ¶ 32, citing Barker at 

532. Appellee concedes he was incarcerated in Georgia anyway and acknowledges that he 

cannot simultaneously claim unawareness of the pending charges and anxiety. 

Nonetheless, appellee argues the third consideration weighs in his favor because the length 

of the delay is attributable to the state and " 'excessive delay presumptively compromises 

the reliability of a trial in ways that neither party can prove, or for that matter, identify.' " 

State v. Triplett, 78 Ohio St.3d 566, 570 (1997), quoting Doggett at 655. The state 

responds that because appellee cannot point to any actual, identifiable prejudice and, 

instead, only speculates at possible harm to his defense, the fourth prong of the Barker

analysis weighs against appellee. 

{¶ 21} However, for a post-indictment or post-complaint delay, proof of actual 

prejudice is not dispositive. "[F]or purposes of the right to a speedy trial, 'consideration of 

prejudice is not limited to the specifically demonstrable, and * * * affirmative proof of 

particularized prejudice is not essential to every speedy-trial claim.' " Selvage at 469, 

quoting Doggett at 655. We are mindful that " 'impairment of one's defense is the most 

difficult form of speedy trial prejudice to prove because time's erosion of exculpatory 

evidence and testimony "can rarely be shown." ' " Id., quoting Doggett at 655, quoting 

Barker at 532. 

{¶ 22} Although there is not a showing of particularized prejudice, we agree with 

appellee and the trial court that the state's "excessive delay is sufficient reason to 

compromise the reliability of the trial in ways that neither party can prove or identify in 

advance" especially where "the passage of time is wholly attributable to the [s]tate's 

inactivity." (Decision and Entry, 9-10.) See State v. Sears, 166 Ohio App.3d 166, 2005-

Ohio-5963, ¶ 16 (1st Dist.). When we weigh all four of the Barker factors, then, we 

conclude the trial court did not err in determining appellee's right to a speedy trial had 
No. 13AP-992 7 

been violated with respects to Counts 2 and 3 of the indictment. Accordingly, we overrule 

the state's second assignment of error. 

V. First Assignment of Error – Counts 1, 4, and 5 

{¶ 23} In its first assignment of error, the state asserts the trial court erred in 

dismissing Counts 1, 4, and 5 of the indictment. Because there was never a municipal court 

complaint related to Counts 1, 4, and 5, the state argues speedy-trial rights did not attach to 

those counts until appellee was formally indicted. 

A. Waiver 

{¶ 24} Appellee first argues the state never asserted in the trial court that Counts 1, 

4, and 5 of the indictment were subject to a different speedy-trial analysis than Counts 2 

and 3 of the indictment. To the contrary, appellee argues the state conceded all five counts 

qualified as being "presumptively prejudicial" to meet the threshold inquiry for the Barker

analysis, so the state should be precluded from arguing otherwise here. 

{¶ 25} "Well established in law is the principle that a party cannot raise new issues 

or legal theories for the first time on appeal." State v. Pilgrim, 184 Ohio App.3d 675, 2009-

Ohio-5357, ¶ 19 (10th Dist.), citing State v. Atchley, 10th Dist. No. 07AP-412, 2007-Ohio7009, ¶ 8, citing Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43 (1975). See also State 

v. Barrett, 10th Dist. No. 11AP-375, 2011-Ohio-4986, ¶ 13, citing State v. Totten, 10th Dist. 

No. 05AP-278, 2005-Ohio-6210, ¶ 9, citing State v. Comen, 50 Ohio St.3d 206, 211 (1990). 

Appellee urges us to conclude that because the state did not advance this specific legal 

argument in the trial court, the waiver doctrine precludes the state from arguing alternative 

legal principles for the first time on appeal. 

{¶ 26} After reviewing the record, we agree with appellee that the state did not 

advance this particular legal argument in the trial court. Therefore, the state has waived 

this issue except for plain error. Pilgrim at ¶ 58, citing State v. Diar, 120 Ohio St.3d 460, 

2008-Ohio-6266, ¶ 139. An appellate court recognizes plain error with the utmost caution, 

under exceptional circumstances, and only to prevent a miscarriage of justice. Id., citing 

Diar at ¶ 139. 

{¶ 27} For an error to be a "plain error" under Crim.R. 52(B), it must satisfy three 

prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the error must 

be "plain," meaning an "obvious" defect in the trial proceedings, and (3) the error must 
No. 13AP-992 8 

have affected "substantial rights," meaning the error must have affected the outcome of the 

trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). 

{¶ 28} This court has previously held "that the Sixth Amendment's speedy trial 

provision has no application until the putative defendant becomes an 'accused,' " which can 

be either upon indictment or upon the filing of a criminal complaint. State v. Jenkins, 10th 

Dist. No. 93AP-859 (Jan. 18, 1994), citing United States v. Marion, 404 U.S. 307, 313 

(1971). Here, the trial court analyzed all five counts of the indictment as being subject to 

the four-year delay in prosecution. The four-year time frame, however, relates to the 

March 30, 2009 municipal complaint for the High Street CVS robbery. Both parties 

concede only Counts 2 and 3 of the indictment reflect the allegations in the municipal court 

complaint. 

{¶ 29} Because Counts 1, 4, and 5 of the indictment were never charged in municipal 

court, those counts should be subject to their own analyses to determine when appellee 

became an "accused" as that term relates to each individual charge for purposes of Sixth 

Amendment speedy-trial protections. See State v. Baker, 78 Ohio St.3d 108, 112 (1997) 

(holding that "[w]hen additional criminal charges arise from facts distinct from those 

supporting an original charge, or the state was unaware of such facts at that time, the state 

is not required to bring the accused to trial within the same statutory period as the original 

charge"). Accordingly, it was error for the trial court to analyze all five counts together 

without regard to the distinct time frame applicable to each charge. The result of the trial 

court's analysis was the dismissal of the entire indictment, thereby preventing the state 

from continuing with its prosecution; thus, this error amounts to plain error because it was 

an obvious deviation from a legal rule that affected the outcome of the trial, and we will 

consider it accordingly. 

B. Count 1 – Escape 

{¶ 30} Appellee next asserts that, even if we conclude waiver does not bar 

consideration of the separate analysis, we must consider the indictment as a whole. 

According to appellee, all five counts of the indictment are so factually interrelated, as 

evidenced by the state's decision to include all five counts in a single indictment, that we 

must analyze all five counts according to when the High Street CVS robbery was charged in 

municipal court. 
No. 13AP-992 9 

{¶ 31} Appellee relies on Crim.R. 8(A), which states "[t]wo or more offenses may be 

charged in the same indictment * * * in a separate count for each offense if the offenses 

charged * * * are of the same or similar character, or are based on the same act or 

transaction, or are based on two or more acts or transactions connected together or 

constituting parts of a common scheme or plan, or are part of a course of criminal 

conduct." By combining all five counts into a single indictment, appellee argues the state 

inherently acknowledged that the offenses were so related as to constitute a course of 

criminal conduct and a common scheme. Thus, according to appellee, the municipal court 

complaint from March 30, 2009 commenced the speedy trial clock for all five counts in the 

indictment. 

{¶ 32} Appellee cites multiple cases for the proposition that when "the events are so 

factually and logically related[,] * * * different crimes must be treated together for speedy 

trial purposes." State v. Grover, 11th Dist. No. 97-A-0021 (Sept. 25, 1998); see also State v. 

Clay, 9 Ohio App.3d 216, (11th Dist.1983); State v. DeLong, 70 Ohio App.3d 402, 406 

(10th Dist.1990). However, "[t]he relevant question is whether the state, based upon the 

facts known to it when it filed the original charge, could have brought the additional 

charges at the same time." State v. Brumley, 4th Dist. No. 04CA785, 2005-Ohio-2226, 

¶ 14, citing State v. Rockwell, 82 Ohio App.3d 44, 45 (10th Dist.1992). 

{¶ 33} Here, the Parsons Avenue CVS robbery occurred 11 days after the High Street 

CVS robbery. Because the municipal complaint regarding the High Street CVS robbery was 

filed before the Parsons Avenue CVS robbery occurred, there is no way the state could have 

brought charges related to the Parsons Avenue CVS robbery at the same time. Thus, we do 

not agree with appellee that Counts 4 and 5 of the indictment, which are alternative 

robbery charges for the Parsons Avenue CVS robbery, are so factually and logically related 

to Counts 2 and 3 of the indictment that they must be considered together. 

{¶ 34} Count 1, however, relates to the escape charge. Although the record before us 

lacks factual development related to this charge, the terms of the indictment, itself, indicate 

the escape occurred March 30, 2009, the same day as the High Street CVS robbery. 

{¶ 35} The state argues there is no way to determine from the record when the state 

knew of the escape so we should not assume the state could have brought the escape charge 

at the same time it filed the municipal complaint. See State v. Parker, 113 Ohio St.3d 207, 
No. 13AP-992 10 

2007-Ohio-1534, ¶ 19, quoting Baker at 110 (noting that " 'in issuing a subsequent 

indictment, the state is not subject to the speedy-trial timetable of the initial indictment, 

when * * * the state did not know of these facts at the time of the initial indictment' "). 

However, the state does not, and cannot, allege it was unaware appellee was under 

detention at the time of the High Street CVS robbery. If the state was able to identify 

appellee in order to file the municipal complaint, that identification should have provided 

sufficient information that appellee, who was under detention, must have eluded detention 

in order to commit the robbery. See id. at ¶ 20 (stating "speedy-trial time is not tolled for 

the filing of later charges that arose from the facts of the criminal indictment that led to the 

first charge"). 

{¶ 36} The state could have filed the escape charge contemporaneously with the 

robbery charge for the High Street CVS, so we will analyze Count 1 of the indictment as 

having a speedy trial start date of March 30, 2009. As such, it is subject to the same 

analysis outlined above in our resolution of the state's second assignment of error in which 

we concluded the state's excessive delay and lack of reasonable diligence in pursuing 

appellee are enough for us to conclude that appellee's speedy-trial rights have been 

violated. Thus, it was not error for the trial court to dismiss Count 1 of the indictment. 

C. Counts 4 and 5 – Parsons Avenue CVS Robbery 

{¶ 37} We must next determine whether the trial court's dismissal of Counts 4 and 5 

of the indictment was plain error sufficient to warrant reversal. Counts 4 and 5 are 

alternate robbery charges related to the Parsons Avenue CVS. 

{¶ 38} As we stated above, Counts 4 and 5 are not so factually related to Counts 2 

and 3 such that they must be considered under the same speedy-trial analysis. The fact 

that the counts were in a single indictment does not change our analysis. We note 

appellee's argument that if the state wished to apply a separate speedy-trial analysis to each 

count of the indictment, the state should have moved to sever the indictment pursuant to 

Crim.R. 14. See State v. Collins, 91 Ohio App.3d 10, 14-15 (6th Dist.1993) (holding that 

where the prosecution elected to indict the defendant in a single indictment, did not move 

to sever under Crim.R. 14, and treated all counts as part of the same case, "the prosecution 

may not choose, on appeal, to treat the offenses as having been severed" for purposes of 

computing the time under a statutory speedy-trial analysis). See also State v. Thompson, 
No. 13AP-992 11 

2d Dist. No. 20114, 2004-Ohio-1320, ¶ 45. However, appellee is unable to point to any 

controlling authority in support of this argument. Under the facts here, where a multiplecount indictment contains charges related to separate instances that are not so factually 

related that all charges arose from the same conduct, we will examine each count of the 

indictment individually to determine whether there has been a violation of the defendant's 

speedy-trial rights. See Baker at 112. 

{¶ 39} Because the speedy-trial protections do not apply until the defendant 

becomes an "accused," we look to the date of filing of the indictment for Counts 4 and 5 to 

determine when the speedy-trial clock begins to run. The state filed the indictment on 

March 15, 2013, and appellee filed his motion to dismiss on August 19, 2013. Only five 

months had elapsed from the time of indictment to the time appellee sought dismissal. As 

we explained above, a threshold inquiry to the Barker analysis is whether there has been a 

presumptively prejudicial delay, which this court has consistently construed to mean delays 

approaching one year. Glass at ¶ 20, citing Miller at ¶ 12. On the facts of this case, we do 

not find a five-month delay to be sufficient to meet the threshold inquiry to trigger the full 

Barker analysis for Counts 4 and 5 of the indictment. On Barker grounds, then, it was 

error for the trial court to dismiss Counts 4 and 5. See Vasquez at ¶ 45 (appellate court 

need not weigh the remaining Barker factors where there has not been a threshold showing 

of a presumptively prejudicial delay). 

{¶ 40} In certain situations, speedy-trial protections can apply to a pre-indictment 

delay in commencing prosecution when the defendant demonstrates actual prejudice. 

State v. Luck, 15 Ohio St.3d 150 (1984), paragraph two of the syllabus. Appellee 

erroneously relies on the Supreme Court of Ohio's decision in State v. Meeker, 26 Ohio 

St.2d 9 (1971), which held at paragraph three of the syllabus that "[t]he [state and federal] 

constitutional guarantees of a speedy trial are applicable to unjustifiable delays in 

commencing prosecution, as well as to unjustifiable delays after indictment." However, the 

Supreme Court subsequently limited the holding of Meeker to cases that are factually 

similar. Luck at 153. 

{¶ 41} The defendant in Meeker was initially indicted in 1963 for one of four 

offenses arising from a single sequence of events. It was not until 1969, when the 

defendant's conviction on the 1963 indictment was overturned by a post-conviction order, 
No. 13AP-992 12 

that the state obtained a new indictment charging the defendant with the three other 

crimes, all of which related to acts the defendant committed at the same time and place as 

the offense in the 1963 indictment. The facts in Meeker are distinguishable from the facts 

here. As we have already explained, Counts 4 and 5 of the indictment related to conduct 

that did not occur at the same time and place as Counts 1, 2, and 3 of the indictment. 

Because this case is not factually similar to Meeker, we find Meeker inapplicable here. 

Instead, we turn to the Supreme Court of Ohio's holding in Luck to determine whether the 

pre-indictment delay here amounted to a violation of appellee's constitutional speedy-trial 

rights. 

{¶ 42} In Luck, the Supreme Court held that "[a]n unjustifiable delay between the 

commission of an offense and a defendant's indictment therefor, 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. "When a defendant moves to 

dismiss an indictment by presenting evidence establishing substantial prejudice resulting 

from pre-indictment delay, the burden shifts to the state to produce evidence of a justifiable 

reason for the delay." State v. Tullis, 10th Dist. No. 04AP-333, 2005-Ohio-2205, ¶ 14, 

citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998), citing Luck and United States v. 

Lovasco, 431 U.S. 783 (1977). "Proof of actual prejudice to the defendant must be specific 

and non-speculative; the defendant bears the burden of demonstrating the exculpatory 

value of the evidence of which he was deprived due to the delay." Id., citing State v. 

Peoples, 10th Dist. No. 02AP-945, 2003-Ohio-4680, ¶ 30. 

{¶ 43} Appellee here has not demonstrated specific, non-speculative prejudice 

sufficient to shift the burden to the state to provide a justifiable reason for its delay in the 

context of pre-indictment prosecution. Instead, appellee asserted generalized prejudice 

based almost entirely on the length of the state's delay in commencing prosecution. While 

the Barker analysis allows for a totality of the circumstances approach in which the length 

of the delay carries more weight for a post-indictment delay, the Luck analysis requires 

specifically articulated prejudice in order to find a constitutional violation of a defendant's 

speedy-trial rights based on a pre-indictment delay. Though the passage of time 

undoubtedly presents challenges in ways that are difficult to quantify, even an assertion of " 
No. 13AP-992 13 

'the absence of witnesses is insufficient to constitute a showing of actual prejudice,' " and 

the Luck analysis instead requires " 'the defendant must be able to show in what specific 

manner missing witnesses would have aided his defense to establish actual prejudice.' " 

Tullis at ¶ 15, quoting State. v. Bass, 10th Dist. No. 02AP-547, 2003-Ohio-1642, ¶ 71. 

{¶ 44} The only specific prejudice appellee asserts is his supposed inability to 

negotiate for a sentence that would run concurrent with his Georgia prison sentence. We 

do not find this argument sufficient to establish specific, non-speculative prejudice. 

Appellee's Georgia prison sentence is for 20 years with 13 years guaranteed, and he has yet 

to be convicted of, or sentenced on, Counts 4 and 5 here, so this argument is merely 

speculative. Even assuming his ultimate conviction, appellee will still have the opportunity 

at that time to negotiate for an Ohio prison term that runs concurrent with his Georgia 

prison term. 

{¶ 45} Thus, because appellee cannot demonstrate actual prejudice from the preindictment delay related to Counts 4 and 5, it was error for the court to dismiss those 

counts of the indictment. Because we conclude this error amounted to plain error, we 

sustain the state's first assignment of error in part as it relates to Counts 4 and 5 and 

overrule the state's first assignment of error in part as it relates to Count 1 of the 

indictment. 

VI. Disposition 

{¶ 46} Based on the foregoing reasons, the trial court did not err in granting 

appellee's motion to dismiss as to Counts 1, 2, and 3 of the indictment, but the trial court 

erred in granting appellee's motion to dismiss Counts 4 and 5 of the indictment. Having 

sustained in part and overruled in part the state's first assignment of error and having 

overruled the state's second assignment of error, we affirm in part and reverse in part the 

judgment of the Franklin County Court of Common Pleas and remand this matter to that 

court for further proceedings in accordance with law and consistent with this decision. 

Judgment affirmed in part and reversed in part; 

 cause remanded. 

KLATT and DORRIAN, JJ., concur.