State v. Mathis , 2022 Ohio 2291 ( 2022 )

[Cite as State v. Mathis, 2022-Ohio-2291.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1184
Appellee Trial Court No. CR0201701128
v.
Robert Mathis DECISION AND JUDGMENT
Appellant Decided: June 30, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
ZMUDA, J.
{¶ 1} This matter is before the court on appeal of the October 7, 2021, judgment of
the Lucas County Court of Common Pleas, sentencing appellant, Robert Mathis, to a
prison term of 9 years after his no contest plea to involuntary manslaughter in violation of
R.C. 2903.04(A) and (C), a felony of the first degree. Finding no error, we affirm.
I. Procedural History and Background
{¶ 2} This is Mathis’ second appeal in this case. In reviewing the trial court’s
judgment, we must first address the procedural history and background of the case.
{¶ 3} On or about June 8, 2011, Mathis’ girlfriend, J. M., died in his home.
Mathis claimed he brought J.M. home the evening before, but had not seen her since
10:00 a.m. and assumed she left. He claimed he left the house and returned around 3:00
p.m., and when he tried using the water, he noticed problems with the water pressure.
Mathis claimed he went to the basement to check the water heater and discovered J.M.
lying prone in standing water, near the water heater.
{¶ 4} According to Mathis, he carried J.M. upstairs, placed her on an air mattress,
and called his mother, who urged him to call 911. His mother came to the home, and
neither Mathis nor his mother immediately called for help. Eventually, after an
appreciable delay, Mathis called 911. He reported that J.M. was not conscious and
appeared dead, indicating she was cold and stiff. Emergency responders arrived within
minutes of the call and pronounced her dead at 8:57 p.m. without attempting any medical
intervention, based on their determination that there “was irreversible absence of vital
signs. She was passed.”
{¶ 5} Police interviewed Mathis at the scene and he consented to a search of his
home. Police seized a ball peen hammer, a wire hanger, and J.M.’s cell phone from the
home. The detective assigned to the case subpoenaed Mathis’ phone records, but did not
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remember receiving any records. Due to his belief that he lacked sufficient evidence, the
detective did not arrest Mathis.
{¶ 6} An autopsy was performed as part of the investigation. J.M. had bruising
and cuts all over her body, scalding on her face, and cigarette burns on her neck and
body. Some of the bruising had distinctive markings, consistent with a round hammer
head or a bent, wire hanger. J.M. also had significant internal injuries. DNA was
recovered from the hammer head, but the sample was insufficient for testing.
{¶ 7} After the assigned detective retired in 2016, Detective Jay Gast of the cold
case unit took over the handling of the case. Detective Gast re-interviewed Mathis and
reviewed the file, including interviews and documents, and identified new leads and
witnesses. One of these new witnesses was Sheri Marshall, who was one of the last
people to see J.M. alive. Shortly before J.M. died, Mathis called Marshall to come over
and clean up broken glass and dishes in the kitchen and dining room of his home.
Marshall saw J.M. lying on a couch in the living room, and when Marshall tried to give
her a drink of water, J.M. was unable to talk or sit up. Despite Marshall’s concerns,
Mathis did not think J.M. needed medical attention. Marshall learned of J.M.’s death the
next day, after she approached the house and ran into news reporters.
{¶ 8} The matter was presented to the grand jury, and Mathis was indicted on
January 20, 2017. The state charged Mathis in a two-count indictment, charging
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aggravated murder in violation of R.C. 2903.01(A) and (F),1 and murder in violation of
R.C. 2903.02(B).
{¶ 9} Despite the time between the offense and indictment, Mathis never filed a
motion to dismiss based on this delay prior to his 2018 trial, as provided under Crim.R.
12(C). The matter proceeded to trial, and a jury found Mathis guilty of both charges in
the indictment. The state elected to proceed to sentencing on the aggravated murder
count, and the trial court sentenced Mathis to life in prison without the possibility of
parole.
{¶ 10} In his first appeal, Mathis challenged the conviction and life sentence
arguing the trial court erred in permitting “other acts” evidence for purposes of
demonstrating a modus operandi of the crime. See State v. Mathis, 6th Dist. Lucas No.
L-18-1192, 2020-Ohio-3068 (Mathis I). During the trial, the trial court permitted
evidence of other incidents of domestic violence by Mathis against J.M. and another
woman. We reversed his conviction, finding the testimony that indicated Mathis
committed domestic violence against his partners did not “contain the same distinctive
characteristics that would rise to the level of a behavioral fingerprint.” Mathis I at ¶ 68.
We reversed and remanded for a new trial. Id. at ¶ 86.
{¶ 11} On July 9, 2021, prior to a second trial on remand, Mathis filed a motion to
dismiss the indictment arguing preindictment delay. Although Mathis did not request
leave to file the motion, the trial court considered the motion. Within his motion, Mathis
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Effective March 20, 2019, R.C. 2903.02(F) has been re-codified as R.C. 2903.02(G).
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referenced the delay between the 2011 death of J.M. and his indictment in 2017, and as
support for dismissal, Mathis primarily argued the loss of evidence to rebut testimony
admitted during his first trial. Mathis argued that his own phone records, lost or
misplaced prior to Detective Gast’s involvement, would have refuted testimony regarding
his activities around the time of J.M.’s death. He also argued that, but for his mother’s
advanced age, she could have provided exculpatory testimony regarding J.M.’s condition
in the hours preceding his call to 911, refuting the coroner’s testimony regarding time of
death.
{¶ 12} The trial court considered the merits of Mathis’ argument and denied the
motion to dismiss in a ruling from the bench, journalized on August 20, 2021. After plea
negotiations, Mathis withdrew his prior plea and entered a no contest plea to the lesser
included offense of involuntary manslaughter in Count 2. The state agreed to dismiss
Count 1 and recommended a nine-year cap to the sentence. The trial court accepted the
plea, found Mathis guilty, and proceeded directly to sentencing. The trial court imposed
a nine-year prison term and entered a nolle prosequi as to Count 1. Mathis filed a timely
appeal.
II. Issues on Appeal
{¶ 13} Mathis now asserts the following as error for our review:
1. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT,
WHEN IT DENIED APPELLANT’S MOTION TO DISMISS ON
GROUNDS OF PREINDICTMENT DELAY.
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2. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, §10 OF THE OHIO CONSITTION.
A. Motion to Dismiss
{¶ 14} In his first assignment of error, Mathis argues the trial court erred in
denying his motion to dismiss based on preindictment delay. “An 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.” State v. Luck, 15 Ohio St.3d 150, 472
N.E.2d 1097 (1984), paragraph two of the syllabus.
{¶ 15} Mathis’ motion to dismiss was problematic, given its timing and lack of
evidentiary support. First, based on the record, the trial court could have summarily
denied the motion. Pursuant to Crim.R. 12(C)(2) and (D), the time for Mathis to
challenge the indictment was “within thirty-five days after arraignment or seven days
before trial, whichever is earlier.” Additionally, Crim.R. 12(F) required the trial court to
rule on a motion to dismiss “before trial.” While the Rule permits a trial court to consider
untimely motions, for good cause, Mathis did not seek leave to challenge the indictment
prior to his trial, and the failure to raise an objection or seek dismissal prior to trial is
deemed as waiver under Crim.R. 12(H).
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{¶ 16} While Mathis did not assert preindictment delay prior to his 2018 jury trial,
upon reversal of his conviction and remand for a new trial, the case returned to the trial
court in a pre-trial posture. See, e.g., State v. Nichter, 2019-Ohio-279, 129 N.E.3d 984(10th Dist.), ¶ 22 (effect of reversal is to reinstate the case in “precisely the same
condition” it was in prior to the error) (citations omitted.). Therefore, while Mathis’
challenge to the indictment was well beyond the time permitted by Crim.R. 12(D), he
arguably raised the issue prior to trial. However, the record contains no indication that
Mathis sought leave to challenge the indictment, and while the trial court could permit
the motion “for good cause shown,” the record demonstrates no explanation for the
untimely motion or the basis for a good cause determination. Therefore, regardless of the
merits of Mathis’ challenge, the trial court could have summarily denied the motion as
untimely. See State v. Ross, 9th Dist. Lorain No. 09CA009742, 2012-Ohio-536, ¶ 15 (if
motion not properly before the trial court, it need not reach the merits). After the trial
court addressed the merits, Mathis appealed its judgment.
{¶ 17} Additionally, we find a separate basis to reject Mathis’ argument relative to
preindictment delay. Mathis failed to raise the issue in his first appeal. He did not
attempt to argue preindictment delay as error, meriting plain error review. State v.
Figueroa, 11th Dist. Trumbull No. 2018-T-0071, 2019-Ohio-3151, ¶ 19, citing Crim.R.
52; see also State v. Greathouse, 2017-Ohio-6870, 94 N.E.3d 1083 (9th Dist.), ¶ 9
(failure to raise the issue before the trial court waives all but plain error review). He also
did not raise the issue as part of a claim of ineffective assistance of counsel. Generally, a
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failure to raise an issue that is apparent on the record bars later consideration of that same
issue under the doctrine of res judicata. See State v. Saxon, 109 Ohio St.3d 176, 2006-
Ohio-1245, 846 N.E.2d 824, ¶ 18 (Res judicata bars a defendant from raising, in a
subsequent appeal, “any defense or any claimed lack of due process that was raised or
could have been raised”). Therefore, the trial court could have summarily denied the
motion as barred by res judicata, but instead addressed the motion on its merits.
{¶ 18} Accordingly, we review the denial of Mathis’ motion to dismiss, despite
Mathis’ failure to pursue preindictment delay as error in his first appeal. In reviewing the
trial court’s determination, we give deference to the trial court’s factual findings while
applying de novo review to the court’s application of the law to the facts. State v. Adkins,
2018-Ohio-2588, 115 N.E.3d 887 (6th Dist.), ¶ 11, quoting State v. Reynolds, 6th Dist.
Lucas No. L-16-1080, 2018-Ohio-40, ¶ 37 (additional citation omitted.).
{¶ 19} Due to the timing of Mathis’ motion to dismiss, there is a robust record for
our review. Based on this record, J.M. died from serious injuries while in Mathis’ home,
he and the victim were alone in the home prior to J.M.’s death, and Mathis waited hours
before calling for help. When help arrived, J.M.’s body was cold and stiff. To the extent
Mathis argues that the phone records or his mother’s testimony would have established
an alibi or disputed the time of death, the trial court rejected this argument.
{¶ 20} As to the phone records, the trial court noted that a “mirror image” of the
evidence Mathis hoped to produce was mostly in police custody, on J.M.’s phone. As to
evidence that might impeach Marshall’s claim that Mathis called her to come over right
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before J.M.’s death, Marshall testified and was subject to cross examination, and the trial
court determined a phone record would only indicate whether a particular phone was
used, not whether a call was made. Mathis’ own records, furthermore, could have been
subpoenaed prior to his trial, but based on his own inaction, were not. As to his mother’s
potential testimony, police interviewed her immediately following J.M.’s death, and the
prosecutor produced notes of the interview to Mathis during discovery. The trial court
further noted the lack of any evidence that Mathis’ mother was not competent to testify,
and questioned what benefit his mother’s testimony would have provided as the second
person to see J.M.’s lifeless body, after Mathis called her to the house. Based on these
facts, the trial court found that Mathis failed to demonstrate actual prejudice.
{¶ 21} We find no error in the trial court’s determination. To merit dismissal
based on preindictment delay, Mathis must demonstrate actual prejudice. Luck, 15 Ohio
St.3d 150, 472 N.E.2d 1097, paragraph two of the syllabus. The statute of limitations
permitted indictment in this case, and as a result, the actual prejudice standard sets a high
bar, requiring Mathis to demonstrate evidence of substantial prejudice, rather than what
he might have shown had the state indicted him sooner. See State v. Owens, 8th Dist.
Cuyahoga No. 102276, 2015-Ohio-3881, ¶ 5. “The law requires a defendant to do more
than offer mere speculation as to how he was prejudiced by any delay because requiring
less would undermine the statute of limitations.” Id.{¶ 22} “The determination of ‘actual prejudice’ involves ‘a delicate judgment
based on the circumstances of each case.’” State v. Walls, 96 Ohio St.3d 437, 2002-
9.
Oiho-5059, 775 N.E.2d 829, ¶ 52, quoting United States v. Marion, 404 U.S. 307, 325,
92 S.Ct. 455, 30 L.Ed.2d 468 (1971). A court weighing the circumstances 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.” Walls at ¶ 52, citing Luck at 154, citing
Marion at 326.
{¶ 23} Here, Mathis argues “lost” evidence that largely duplicates evidence
already part of the record, or testimony of dubious value, such as his mother’s opinion
regarding the time of death. He also argues the loss of potential impeachment evidence
to refute whether he made a particular phone call from his cell phone, but based on the
record, this was evidence of little import considering Marshall’s testimony placing her at
Mathis’ home the night before the media showed up at his house, regardless of any phone
call, with the timing of the visit fixed in Marshall’s memory as the day before she met
news media at Mathis’ door step.
{¶ 24} Considering Mathis’ argument of actual prejudice against this record,
Mathis failed to demonstrate actual prejudice and the trial court correctly denied the
motion to dismiss. We therefore find Mathis’ first assignment of error not well-taken.
B. Ineffective Assistance
{¶ 25} In his second assignment of error, Mathis argues his trial counsel was
ineffective for failing to present medical records, demonstrating Mathis’ mother was not
competent to testify.
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{¶ 26} “The right to counsel includes the right to effective assistance of
counsel[,]” as guaranteed by the Sixth Amendment of the United States Constitution and
Article I, Section 10 of the Ohio Constitution. State v. Mick, 2018-Ohio-999, 108 N.E.3d
1149 (6th Dist.), ¶ 17, citing Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d
379 (2012).
{¶ 27} To prevail on his claim of ineffective assistance of counsel, Mathis must
first establish his trial counsel’s performance fell below an objective standard of
reasonableness. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). To do so, he “must overcome the ‘strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance * * *.” State v.
Lawson, 64 Ohio St.3d 336, 341, 595 N.E.2d 902 (1992), quoting Strickland at 689. If
Mathis succeeds in demonstrating deficiencies in his representation, he must next
demonstrate prejudice, or show that, “but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland at 694.
{¶ 28} In this case, Mathis argues his counsel was deficient for failing to proffer
his mother’s medical records to the trial court in support of his argument that she was no
longer competent to testify due to the passage of time between J.M.’s death in 2011 and
his indictment in 2017. While the standard for dismissal based on preindictment delay
required evidence of actual prejudice, and therefore trial counsel was arguably deficient
in proceeding without evidence, Mathis fails to demonstrate a resulting prejudice based
on this lapse. In arguing this conduct as ineffective assistance, Mathis casts this omission
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as the reason the trial court denied his motion to dismiss, ignoring the rest of the trial
court’s findings.
{¶ 29} In reviewing the record, it is clear that a lack of medical records was but
one consideration factoring into the trial court’s decision. In fact, the trial court seemed
more concerned with the potential value of the mother’s testimony, had the prosecution
begun in 2012 rather than 2017. When asked whether the mother’s testimony would
matter, counsel had no argument beyond unsupported speculation. A review of the
record, moreover, fails to demonstrate the mother’s testimony would have been of
consequence, considering police interviewed her at the scene, provided a summary of her
statement in discovery, and she was not called to testify in the 2018 trial. Additionally,
Mathis never claimed his mother was present before he discovered J.M.’s lifeless body,
and based on the assessment of the first responders regarding body temperature and rigor
mortis, Mathis’ mother likely arrived at his home after J.M. had passed.
{¶ 30} Therefore, after careful review of the record, we find that failing to proffer
medical records did not rise to the level of deficient representation that changed the
outcome of the proceedings. Mathis’ second assignment of error, accordingly, is not well
taken.
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III. Conclusion
{¶ 31} Based on the foregoing, we affirm the judgment of the Lucas County Court
of Common Pleas. Mathis is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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