State v. Miku

[Cite as State v. Miku, 2018-Ohio-4404.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. John W. Wise, P.J. Respondent - Appellee : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. -vs- : : MATHEW NICHOLAS MIKU : Case No. 2018CA00094 : Petitioner - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2016- CR-0458

JUDGMENT: Affirmed DATE OF JUDGMENT: October 29, 2018 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO MATHEW NICHOLAS MIKU, pro se Prosecuting Attorney Inmate # A693-135 Belmont Correctional Instituion By: RONALD MARK CALDWELL P.O. Box 540 Assistant Prosecuting Attorney St. Clairsville, Ohio 43950-0540 Appellate Section 110 Central Plaza South – Suite 510 Canton, Ohio 44702-1413

Stark County, Case No. 2018CA00094 2 Baldwin, J.

{¶1} Petitioner-appellant Mathew Nicholas Miku appeals from the June 27, 2018 Judgment Entry of the Stark County Court of Common Pleas denying his Petition for Post-Conviction Relief and Motion for Summary Judgment and granting appellee’s Motion to Dismiss and for Summary Judgment. Respondent-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} The relevant facts leading to this appeal are as follows.

{¶3} On the late morning of March 4, 2016, paramedics from the Canton Fire Department were dispatched to a residence on Dewalt Ave. NW in response to a report of an adult woman needing medical assistance.

{¶4} Appellant lived there with Hailey Miku, his young daughter, and his girlfriend Jessica Bender (who is not the child's mother). The paramedics instead discovered the body of three-year-old Hailey on a mattress in the living room. Paramedic John Huff later testified that appellant appeared “frantic” at the scene. Appellant then stated that Hailey had tripped over a cat and had fallen down a flight of carpeted stairs the previous week. Trial Tr. at 254, 256. Appellant told Huff that he had brought Hailey downstairs after discovering her in an unresponsive state. Id. Sergeant Robert Smith and Officer Dave Wolgamott of the Canton Police Department were also dispatched to the scene. According to Sgt. Smith, when he made contact with appellant, his response was: “I'm going to jail, ain't I?” Tr. at 267.

{¶5} Harry Campbell, the chief investigator for the Stark County Coroner, also came to the scene. He observed that rigor mortis had set in, and he observed inter alia “numerous injuries * * * across [Hailey's] scalp, the forehead, the bridge of the nose, and Stark County, Case No. 2018CA00094 3 the right cheek.” Tr. at 293. Campbell also noted additional injuries, including abrasions and bruises, about the girl's head and body.

{¶6} Appellant was interviewed by Detective Joseph Mongold at Canton Police headquarters, after signing a written waiver of his Miranda rights. Tr. at 455. Appellant told him that the girl's mother, Justina Longwell, had asked him around Thanksgiving of 2015 to watch Hailey for a few days, but that she thereafter avoided resuming physical custody. Tr. at 460–461. Appellant initially maintained his claim that Hailey had fallen down the stairs. As Mongold continued the questioning, he pointed out that the girl's numerous injuries were not consistent with a single fall down the carpeted stairs. Appellant at some point in the process added that she had also fallen off the toilet. Appellant further suggested that the girl may have had a reaction to Tylenol or Ibuprofen. Tr. at 464. At some point, appellant began to concede that he had “severe anger issues,” that he usually took his frustration out on Hailey, and that he had a hard time controlling himself when he acted violently. Tr. at 465. He then admitted that he had hit her in the face with an open hand, causing her ear to bleed, and that he had beat her with a curtain rod. Tr. at 467. Ultimately, appellant confessed to the detective that he had gone too far and killed her. Tr. at 468. When asked about Jessica Bender's role in the abuse of Hailey, appellant stated Bender “didn't have a hard bone in her body and wouldn't hurt a fly.” Id. Appellant also asked Det. Mongold to tell some of the neighbors that he knew what he had done was wrong. Tr. at 470.

{¶7} On July 26, 2016, the Stark County Grand Jury indicted appellant on one count of murder (R.C. 2903.02(B)), a special felony, specifically for knowingly causing the death of another as a proximate result of committing the second-degree felony of child Stark County, Case No. 2018CA00094 4 endangering. Appellant was also indicted on one count of child endangering in violation of R.C. 2919.22(B)(1)(E)(2)(d) and/or (B)(2)(E)(3), a felony of the second degree, specifically for recklessly abusing a child that resulted in serious physical harm to the child, or for recklessly torturing or cruelly abusing the child that resulted in serious physical harm to the child. The State's theory of the case was that appellant beat the child over a three-month period without seeking medical attention for her, resulting in her death.

{¶8} Appellant subsequently pled not guilty to the above charges. On November 21, 2016, appellant filed a Motion to Suppress the statements he made to Detective Mongold during the recorded interview at the Canton Police Department. He argued, in his motion, that his waiver of his constitutional rights and agreement to speak was induced by improper promises made by the detective. Following a hearing on December 1, 2016, the trial court overruled the Motion to Suppress.

{¶9} The case proceeded to a trial by jury commencing on February 6, 2017. During the trial, Dr. Renee Robinson, forensic pathologist at the Stark County Coroner's Office, testified that she had performed the autopsy of Hailey Miku. Dr. Robinson testified that she determined that homicide was the manner of death concerning Hailey. Tr. at 559. However, upon cross-examination, Dr. Robinson could not point to a specific single injury that caused the death of Hailey. Tr. at 566.

{¶10} Later during the trial proceedings, appellant moved the court to instruct the jury on the lesser included offense of involuntary manslaughter. The trial court overruled the motion.

{¶11} The jury ultimately found appellant guilty of the charged offenses, and the trial court, as memorialized in a Judgment Entry filed on March 6, 2017, sentenced him Stark County, Case No. 2018CA00094 5 to an aggregate prison term of 23 years-to-life in prison (15 years-to-life for murder and a consecutive eight-year prison term for child endangering).

{¶12} On April 3, 2017, appellant filed a Notice of Appeal, raising the following seven assignments of Error:

{¶13} “I. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELANT'S [SIC] MOTON [SIC] TO SUPPRESS.

{¶14} “II. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶15} “III. THE TRIAL COURT ERRED IN ADMITTING PHOTOS WHICH WERE

INFLAMMATORY AND HIGHLY PREJUDICIAL.

{¶16} “IV. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY OF PRIOR

BAD ACTS.

{¶17} “V. THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE

JURY ON INVOLUNTARY MANSLAUGHTER.

{¶18} “VI. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND OF

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTIONS 10 AND 16 OF THE OHIO CONSITUTION (SIC), BECAUSE HIS TRIAL

COUNSEL PROVIDED INEFFECTIVE ASSITANCE [SIC].

{¶19} “VII. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE APPELLANT'S CONVICTIONS AS ALLIED OFFENSES.”

{¶20} On January 2, 2018, appellant filed a Petition for Post-Conviction Relief Pursuant to R.C. 2953.21. In his petition, he alleged that his trial counsel was ineffective Stark County, Case No. 2018CA00094 6 in failing to investigate an insanity defense. Appellant claimed that there was sufficient evidence of his insanity presented during the police interrogation during which he claimed he heard voices and through past medical reports that stated that appellant had an “unspecified mood disorder.” On February 16, 2018, appellant filed a Motion for Summary Judgment.

{¶21} Pursuant to an Opinion filed on April 20, 2018 in State v. Miku, 5th Dist. Stark No. 2017 CA 00057, 2018-Ohio-1584, ––– N.E.3d ––––, this Court affirmed the judgment of the trial court.

{¶22} Appellee, on May 23, 2018, filed a response to appellant’s Petition for Post-Conviction Relief and a Motion to Dismiss and for Summary Judgment. Appellant filed a reply to the Motion to Dismiss on June 11, 2018.

{¶23} The trial court, as memorialized in a Judgment Entry filed on June 27, 2018, denied appellant’s Petition for Post-Conviction Relief and Motion for Summary Judgment and granted appellee’s Motion to Dismiss and for Summary Judgment without a hearing. The trial court held that appellant was not entitled to a hearing because he had failed to meet his burden in demonstrating ineffective assistance of trial counsel and that appellant had not asserted or proven that he was insane at the time of the offenses

{¶24} Appellant now appeals from the trial court’s June 27, 2018 Judgment Entry, raising the following assignments of error on appeal:

{¶25} “I. A TRIAL COURT ABUSES ITS DISCRETION WHEN IT

UNREASONABLY APPLIES STRICKLAND V. WASHINGTON TO THE FACTS OF

PETITIONER’S CASE.” Stark County, Case No. 2018CA00094 7

{¶26} “II. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE INTO MIKU’S MENTAL HEALTH HISTORY SO THAT SHE COULD

MAKE AN INFORMED DECISION AS TO WHETHER SHE SHOULD MOVE THE

COURTS (SIC) FOR A MENTAL HEALTH EXPERT/ AND OR ASSERT A NGRI

DEFENSE.”

I, II

{¶27} Appellant, in the case sub judice, argues that the trial court erred in denying his Petition for Post-Conviction Relief and erred in failing to hold a hearing on the same.

{¶28} As in initial matter, we note that appellant contends that a pro-se, incarcerated inmate is entitled to have pleadings liberally construed. In support of this contention, appellant cites to Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 59430 L.Ed.2d 652 (1972). However, Haines, supra, was based on the federal Civil Rights Act of 1871 and is not precedent for Ohio post-conviction proceedings. “‘It is well established that pro se litigants are presumed to have knowledge of the law and legal procedures and that they are held to the same standard as litigants who are represented by counsel.’ ” (Italics sic.) State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept. of Job & Family Serv., 145 Ohio St.3d 651, 654, 763 N.E.2d 1238.

{¶29} In Ohio, R.C. 2953.21 governs petitions for post-conviction relief. Subsection (A)(1) states the following:

(A)(1)(a) Any person who has been convicted of a criminal offense or

adjudicated a delinquent child and who claims that there was such a denial

or infringement of the person's rights as to render the judgment void or Stark County, Case No. 2018CA00094 8

voidable under the Ohio Constitution or the Constitution of the United

States, any person who has been convicted of a criminal offense and

sentenced to death and who claims that there was a denial or infringement

of the person's rights under either of those Constitutions that creates a

reasonable probability of an altered verdict, and any person who has been

convicted of a criminal offense that is a felony and who is an offender for

whom DNA testing that was performed under sections 2953.71 to 2953.81

of the Revised Code or under former section 2953.82 of the Revised Code

and analyzed in the context of and upon consideration of all available

admissible evidence related to the person's case as described in division

(D) of section 2953.74 of the Revised Code provided results that establish,

by clear and convincing evidence, actual innocence of that felony offense

or, if the person was sentenced to death, establish, by clear and convincing

evidence, actual innocence of the aggravating circumstance or

circumstances the person was found guilty of committing and that is or are

the basis of that sentence of death, may file a petition in the court that

imposed sentence, stating the grounds for relief relied upon, and asking the

court to vacate or set aside the judgment or sentence or to grant other

appropriate relief. The petitioner may file a supporting affidavit and other

documentary evidence in support of the claim for relief.

{¶30} In State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus, the Supreme Court of Ohio held the following: Stark County, Case No. 2018CA00094 9

{¶31} “In a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness.”

{¶32} A defendant may only seek post-conviction relief for violations of his State and Federal Constitutional rights. Both the United States Constitution and the Ohio Constitution provide for the right to assistance of counsel. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show a defendant has been prejudiced by counsel's deficient performance, the defendant must demonstrate, but for counsel's errors, the result of the trial would have been different. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

{¶33} In order for an indigent petitioner to be entitled to an evidentiary hearing in a post-conviction relief proceeding on a claim that he was denied effective assistance of counsel, the two-part Strickland test is to be applied. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180(1993); Bradley, supra, 42 Ohio St.3d 136. The petitioner must therefore prove that: 1) counsel's performance fell below an objective standard of reasonable representation; and 2) there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Id.

{¶34} Furthermore, before a hearing is granted in proceedings for post-conviction relief upon a claim of ineffective assistance of trial counsel, the petitioner bears the initial Stark County, Case No. 2018CA00094 10 burden to submit evidentiary material containing sufficient operative facts that demonstrate a substantial violation of any of defense counsel's essential duties to his client and prejudice arising from counsel's ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999); State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus; see, also Strickland v. Washington, supra, 466 U.S. at 687.

{¶35} We have previously held that our standard of review is de novo when reviewing a trial court's dismissal or denial of a petition for post-conviction relief without a hearing. State v. Johnson, 5th Dist. Guernsey No. 12 CA 19, 2013-Ohio-1398, ¶ 27, citing State v. Volgares, 4th Dist. Lawrence No. 05CA28, 2006-Ohio-3788, ¶ 8, internal citation omitted.

{¶36} The Ohio Supreme Court has also recognized: “In post-conviction cases, a trial court has a gatekeeping role as to whether a defendant will even receive a hearing.” State v. Gondor, 112 Ohio St.3d 377, 388, 860 N.E.2d 77, 2006–Ohio–6679, ¶ 51. A petition for post-conviction relief does not provide a petitioner a second opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition. State v. Wilhelm, 5th Dist. Knox No. 05–CA–31, 2006–Ohio–2450, ¶ 10, citing State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980). As an appellate court reviewing a trial court's decision in regard to the “gatekeeping” function in this context, we apply an abuse-of-discretion standard. See Gondor, supra, at ¶ 52, citing State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999); accord State v. Scott, 5th Dist. Stark No.2006CA00090, 2006–Ohio–4694, ¶ 34. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary Stark County, Case No. 2018CA00094 11 or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶37} Appellant argues that his trial counsel was ineffective in failing to investigate his mental health history and pursue an insanity defense. In general, a trial counsel's failure to seek a competency evaluation or to pursue an insanity defense is not, per se, ineffective assistance of counsel. See State v. Decker (1986), 28 Ohio St.3d 137. It is only where the facts and circumstances indicate that a plea of not guilty by reason of insanity would have had a reasonable probability of success that it is ineffective assistance of counsel to fail to pursue such a defense strategy. See State v. Brown (1992), 84 Ohio App.3d 414, 421-22.

{¶38} The insanity defense is set forth in R.C. 2901.01(A)(14), which provides:

{¶39} “A person is ‘not guilty by reason of insanity’ relative to a charge of an offense only if the person proves * * * that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person's acts.”

{¶40} Thus, for appellant to demonstrate that he was entitled to a hearing and/or post-conviction relief, he was required to make some facial showing that he would have had a reasonable probability of proving that at the time he commitetd the offenses, he “did not know, as a result of a severe mental disease or defect, the wrongfulness of [his] acts.”

{¶41} The trial court found, and we concur, that appellant has not proven that he was insane at the time he committed the offenses against his daughter. While appellant has submitted materials in support of his petition indicating that he had an “unspecified Stark County, Case No. 2018CA00094 12 mood disorder” and allegedly heard voices, as noted by appellee and the trial court, they did not demonstrate insanity as defined by law. Appellant has not presented any evidence that he suffered from a mental defect or disease that prevented him from understanding the wrongfulness of his criminal conduct. As noted by the trial court, appellant “has thus failed to present a prima facie case of insanity. He has failed in demonstrating that his trial counsel was ineffective in failing to request the appointment of an expert witness in order to assist with a possible insanity defense. Counsel did not violate a duty of legal representation by failing to present a defense to a criminal charge without any evidence in support of that defense. Accordingly, [appellant] was not prejudiced by counsel’s failure to pursue the insanity defense.”

{¶42} Moreover, the evidence presented at trial did not demonstrate a possible insanity defense. As is stated above, there was testimony that appellant lied to paramedics and law enforcement about the cause of his daughter’s death. He initially claimed that she fell down the stairs or off of the toilet and then claimed that she had an allergic reaction to Tylenol or Ibuprofen. There was thus evidence that he tried to conceal his criminal conduct. At some point, appellant began to concede that he had “severe anger issues,” that he usually took his frustration out on Hailey, and that he had a hard time controlling himself when he acted violently. Tr. at 465. He then admitted that he had hit her in the face with an open hand, causing her ear to bleed, and that he had beat her with a curtain rod. Tr. at 467. Ultimately, appellant confessed to the detective that he had gone too far and killed her. Tr. at 468. When asked about Jessica Bender's role in the abuse of Hailey, appellant stated Bender “didn't have a hard bone in her body and Stark County, Case No. 2018CA00094 13 wouldn't hurt a fly.” Id. Appellant also asked Det. Mongold to tell some of the neighbors that he knew what he had done was wrong. Tr. at 470.

{¶43} Based on the foregoing, we find that the trial court did not err in denying appellant’s Petition for Post-Conviction Relief without a hearing. We find that appellant has not presented evidentiary quality materials supporting his allegation that his trial counsel was ineffective and that, therefore, his petition was properly dismissed by the trial court without a hearing.

{¶44} Appellant’s two assignments of error are, therefore, overruled.

{¶45} Accordingly, the judgment of the Stark county Court of Common Pleas is affirmed. By: Baldwin, J. Wise, John, P.J. and Gwin, J. concur.