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State v. Boone3/3/2003
JUDGMENT: Reversed, vacated and remanded.
. Defendant-appellant Bridgette Boone appeals her jury trial conviction for felonious assault and domestic violence. Because she was not brought to trial within the statutorily required time limit, we vacate her conviction.
. When she was indicted on the charges in the case at bar, defendant was incarcerated in Ohio for another crime. She was indicted on May 4, 2001 and a capias was issued on May 22, 2001. The summons was mailed to an east side address. There is no evidence that the state took any further action to notify her of the charges against her.
. On October 31, 2001, 179 days after her indictment, defendant filed a notice with the court that she would not waive her right to a speedy trial. She was arraigned on November 20, 2001, 200 days after her indictment. Although the first pretrial was held on December 14, 2001, her counsel did not make an appearance until December 20, 2001.
. Defendant's trial finally was held on January 28, 2002. The jury convicted her on both counts in the indictment. On appeal, defendant states ten assignments of error. Because the first assignment of error is dispositive of the case, we address only that one. For her first assignment of error, defendant states:
. "I. MS. BOONE WAS DENIED HER RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BY VIRTUE OF HER COUNSEL'S FAILURE TO MOVE TO DISMISS THE INSTANT CASE FOR WANT OF SPEEDY TRIAL."
. Trial counsel did not raise the speedy trial issue below. Unless defendant can demonstrate plain error, this court need not review an issue which was not raised at trial. State v. Smith, Cuyahoga App. No. 76692, 2001 Ohio App. LEXIS 4213, at *5. Plain error requires a two-part analysis. First, did the speedy trial deadline expire before defendant was arraigned, much less tried, and, second, does counsel's failure to raise the issue at the trial court constitute ineffective assistance.
. Assistance of counsel is considered ineffective if it was deficient and also that deficiency prejudiced defendant. Strickland v. Washington (1984), 466 U.S. 668; State v. Bradley (1989), 42 Ohio St.3d 137; State v. Lytle (1976), 48 Ohio St.2d 391. If the outcome of defendant's case probably would have been different but for counsel's error, counsel's assistance was ineffective. Id.
. This court has held that counsel's failure to file a motion to dismiss the indictment-a motion based on the delay between the filing of the indictment and the service of the summons-constitutes ineffective assistance of counsel. State v. Manos (Jan. 15, 1998), Cuyahoga App. No. 64616. See also State v. Taylor (Oct. 5, 2001), Lucas App. No. L-98-1375, 2001 Ohio App. LEXIS 4503. In Manos, the record showed only one summons for defendant, which was returned as "no such number." The state took no further action in Manos.
. In the case at bar, defendant was indicted on May 4, 2001. Appellant and appellee agree that a summons was issued for an arraignment date of May 22, 2001 and that service of the summons was returned to the court as non-delivered. The record shows that a capias was issued against defendant when she failed to respond to the summons.
.The record also contains a letter defendant sent, dated October 25, 2001, indicating that her husband received the summons, but that she had "just become aware of this summons" and had "little knowledge" of its contents. The letter was sent from Northeast Pre-Release Center. The letter further states that she had been inca
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