State v. Miku ( 2018 )

[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.