[Cite as State v. McKinley, 2016-Ohio-191.]


                                          COURT OF APPEALS
                                      DELAWARE COUNTY, OHIO
                                      FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                :       JUDGES:
                                              :       Hon. John W. Wise, P.J.
         Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                              :       Hon. Craig R. Baldwin, J.
 -vs-                                         :
                                                  :
 WILLIAM D. MCKINLEY                          :       Case No. 15 CAA 06 0048
                                                  :
         Defendant - Appellant                :       OPINION



 CHARACTER OF PROCEEDING:                             Appeal from the Delaware County
                                                      Court of Common Pleas, Case No.
                                                      13-CR-I-05-0253



 JUDGMENT:                                            Affirmed



 DATE OF JUDGMENT:                                    January 20, 2016



 APPEARANCES:

 For Plaintiff-Appellee                               For Defendant-Appellant

 CAROL HAMILTON O'BRIEN                               BRIAN G. JONES
 Delaware County Prosecutor                           ELIZABETH E. OSORIO
                                                      The Law Office of Brian Jones, LLC
 By: DOUGLAS DUMOLT                                   2211 U.S. Highway 23 North
 Assistant Prosecuting Attorney                       Delaware, Ohio 43015
 140 N. Sandusky Street, 3rd Floor
 Delaware, Ohio 43015
Baldwin, J.

        {¶1}   Defendant-appellant William D. McKinley appeals from the May 18, 2015

Judgment Entry of the Delaware County Court of Common Pleas denying his Petition for

Post-Conviction Relief. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

        {¶2}   On May 31, 2013, the Delaware County Grand Jury indicted appellant on

one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the

third degree, eight counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies of the first

degree, and four counts of kidnapping in violation of R.C. 2905.01(A)(4), felonies of the

second degree. The indictment alleged that the victim was under the age of thirteen during

each of the incidents. At his arraignment on July 11, 2013, appellant entered a plea of not

guilty to the charges.

        {¶3}   Thereafter, on May 22, 2014, appellant withdrew his former not guilty plea

and pleaded guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970),

to an amended count of gross sexual imposition and an amended count of rape. The

remaining counts were dismissed. On the same date, appellant signed a Crim.R. 11(F)

agreement and a formal journalized plea of guilty with an acknowledgment of the Alford

plea.

        {¶4}   Pursuant to a Judgment Entry filed on July 8, 2014, appellant was

sentenced to an indefinite prison term of life with parole eligibility after ten years on the

count of rape and to 42 months in prison on the count of gross sexual imposition. The trial

court ordered that the sentences be served consecutively.

        {¶5}   Appellant then filed an appeal, which was assigned Case No. 14 CAA 08

0045. While his appeal was pending, appellant, on March 30, 2015, filed a Petition for

Post-Conviction Relief, arguing that he received ineffective assistance of trial counsel. A

hearing on appellant’s petition was held on May 12, 2015. Pursuant to a Judgment Entry
filed on May 18, 2015, the trial court denied the petition.

       {¶6}   Pursuant to an Opinion filed on June 18, 2015 in State v. McKinley, 5th Dist.

Delaware No. 14 CAA 08 0045, 2015-Ohio- 2436, this Court affirmed the judgment of the

trial court in appellant’s underlying case.

       {¶7}   Appellant now raises the following assignments of error on appeal:

       {¶8}    I.    THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

DENYING THE DEFENDANT-APPELLANT’S PETITION FOR POST-CONVICTION

RELIEF.

       {¶9}   II.    THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

DENYING A BRIEF CONTINUANCE OR SUPPLEMENTAL HEARING TO SECURE THE

TESTIMONY           OF   THE   ATTENDING       PHYSICIAN;       SUBPOENAED        BY    THE

DEFENDANT-APPELLANT IN SUPPORT OF HIS APPLICATION FOR POST-

CONVICTION RELIEF.

                                                  I

       {¶10} Appellant, in his first assignment of error, argues that the trial court abused

its discretion in denying his Petition for Post-Conviction Relief.

       {¶11} An appellate court reviews a trial court's denial of a petition for post-

conviction relief under an abuse-of-discretion standard. State v. Gondor, 112 Ohio St.3d

377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion implies more than an

error of law; rather it connotes that the trial court's attitude was unreasonable, arbitrary,

or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).


       {¶12} A post-conviction hearing is a civil proceeding governed by the Rules of

Civil Procedure. State v. Nichols, 11 Ohio St.3d 40, 42-43, 463 N.E.2d 375 (1984). In

such a hearing, the petitioner bears the burden of proof. State v. Aldridge, 120 Ohio
App.3d 122, 136, 697 N.E.2d 228 (2nd Dist. 1997). However, because post-conviction

hearings are civil in nature, the petitioner needs only to prove the claim by a

preponderance of the evidence. Id.

       {¶13} Appellant’s petition was based on allegations of ineffective assistance of

trial counsel. A defendant who asserts an ineffective assistance of counsel claim in a

petition for post-conviction relief “has the burden of meeting the test set forth in Strickland

v. Washington (1984), 466 U.S. 668.” State v. Starks, 9th Dist. Summit No. 25617, 2011–

Ohio–2772, ¶ 6. Thus, in order to prevail on a claim of ineffective assistance of counsel,

a defendant is required to “show, first, that counsel's performance was deficient and,

second, that the deficient performance prejudiced the defense so as to deprive the

defendant of a fair trial.” State v. Smith, 89 Ohio St.3d 323, 327, 2000-Ohio-166, 731

N.E.2d 645, citing Strickland at 687. In order to establish prejudice, a defendant is

required to prove that “there exists a reasonable probability that, were it not 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), paragraph three of the syllabus.

       {¶14} Appellant, in his petition in the trial court, argued, in part, that his trial

counsel was ineffective in failing to file a Motion to Suppress. Appellant argued that his

statements were coerced through an intense custodial interrogation in violation of

Miranda v Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and that his

confession should have been suppressed because the State relied on a non-

governmental agent to interrogate him. Appellant now argues that the trial court erred in


finding that any Motion to Suppress that appellant might have been filed would not have

been granted and that failure to file such a motion, therefore, did not constitute ineffective

assistance of trial counsel.

       {¶15} There is no dispute that appellant was not Mirandized prior to being
questioned in this case. Appellant maintains that he was in custody and that his

statements were taken in violation of Miranda.

      {¶16} In order for an accused's statement to be admissible at trial, police must

have given the accused a Miranda warning if there was a custodial interrogation. Miranda,

supra. If that condition is established, the court can proceed to consider whether there

has been an express or implied waiver of Miranda rights. Id., at 476.

      {¶17} Custodial interrogation has been defined as “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way. Miranda at 444. The relevant inquiry is

whether a reasonable person under those circumstances would have felt they were under

arrest. State v. Schlupp, 5th Dist. Coshocton No.2012CA0007, 2012–Ohio–6072.

      {¶18} In Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995), the Court offered the following description of the Miranda custody test:

                    Two     discrete   inquiries   are   essential   to   the

             determination: first, what were the circumstances surrounding

             the interrogation; and second, given those circumstances,

             would a reasonable person have felt he or she was not at

             liberty to terminate the interrogation and leave. Once the

             scene is set and the players' lines and actions are

             reconstructed, the court must apply an objective test to


             resolve the ultimate inquiry: was there a formal arrest or

             restraint on freedom of movement of the degree associated

             with a formal arrest.

      {¶19} 516 U.S., at 112, 116 S.Ct. 457 (internal quotation marks omitted). Accord,

Yarborough v. Alvarado, 541 U.S. 652, 653, 124 S.Ct. 2140, 158 L.Ed.2d 938(2004). The
police and courts must “examine all of the circumstances surrounding the interrogation,”

Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293(1994),

including those that “would have affected how a reasonable person” in the suspect's

position “would perceive his or her freedom to leave,” Id., at 325, 114 S.Ct. 1526.

However, the test involves no consideration of the particular suspect's “actual mindset.”

Yarborough, 541 U.S. 652, 667, 124 S.Ct. 2140, 158 L.Ed.2d 938. Accord, State v.

Mason, 82 Ohio St .3d 144, 153, 1998–Ohio–370, 694 N.E.2d 932; State v. Gumm, 73

Ohio St.3d 413, 429, 1995–Ohio–24, 653 N.E.2d 253(1995).

      {¶20} At the hearing on May 12, 2015, Detective Christina Burke of the Delaware

County Sheriff’s Office testified that her office contacted appellant and asked him to come

to the Sheriff’s Office to speak with them about the complaint that was filed against him

by the victim’s mother, Jacquelyn, who is a close friend of appellant. Appellant drove

himself there in his own vehicle. Initially, Detective Burke and Detective Gannon were

present during the interview, which took place during approximately 4:00 p.m. and 6:00

p.m., but later Jacquelyn came into the room. While Jacquelyn and Detective Burke were

in the room with appellant, appellant, who was upset, ultimately confessed. Because they

were concerned about appellant’s emotional deterioration during the interview, at the

conclusion of the interview, appellant was referred to Grady Memorial Hospital. Jacquelyn

accompanied appellant there and stayed with him. Appellant then went home.


      {¶21} Detective Burke testified that at the beginning of the interview and during

the interview, she told appellant that he was free to leave and that when she came into

the interview, she told him that he was not in custody. She agreed that she repeated again

at approximately 4 minutes into the interview that no matter what he said, appellant was

not going to be placed in custody that day. A review of the DVD of the interrogation

confirms her testimony and further shows that appellant, who had not yet confessed, was
told that he could leave approximately 50 minutes into the interrogation. Detective Burke

also testified that, during the interview, she took a couple of breaks to allow appellant to

compose himself and at that at no point did appellant ask or try to leave. When asked by

the trial court if she had Mirandized appellant on the day of the interview, Detective Burke

testified that she did not because appellant was not in custody. According to her, the

interview lasted between one and two hours and appellant became emotional, which she

attributed to the relationship that he had with Jacquelyn and the information that he had

disclosed during the interview.

       {¶22} At the hearing, appellant testified that after Jacquelyn left and one of the

detectives came back into the room, he asked to have Jacquelyn come back in because

he “needed a friend and she was the only one available.” Transcript of May 12, 2015

hearing at 118.   He admitted that, while in the interrogation room, he was told that he

was free to leave and testified that it was not unreasonable for them to ask him to go to

the hospital afterwards because it calmed him down, as did Jacquelyn’s presence.

Appellant was fee to go after a couple of hours and was not taken into custody until after

sentencing, which was months after the interrogation. Appellant, when asked, testified

that he never got up and tried to leave during the interrogation or told them that he wanted


to leave. He further testified that he was never threatened by anyone. The following is an

excerpt from this testimony:

       {¶23} Q: At no point did [Jacquelyn] threaten you, did she?

       {¶24} A: No.

       {¶25} Q:     In fact, given the allegations, she was being very encouraging of,

understanding I guess I should say that you had, what you had done to her daughter?

       {¶26} A: Yes, She encouraged me.

       {¶27} Q:       And she even after you admitted to placing your mouth on her
daughter’s vagina, she still went to the hospital with you because she was your friend,

correct?

       {¶28} A: Yes.

       {¶29} Q:    And in fact you told them that you’d be more comfortable during the

interrogation if she would come back in because you wanted a friend I think as you told

your counsel?

       {¶30} A: Yes.

       {¶31} Transcript of May 12, 2015 hearing at 123-124.

       {¶32} Based on the foregoing, we find that the trial court did not err in finding that

appellant was not in custody when he confessed and that no Miranda violation occurred.

We concur with the trial court that a reasonable person in appellant’s circumstances

would have felt free to leave.

       {¶33} Appellant also contends that his confession was not voluntary. Whether a

confession is voluntary is an issue independent of whether there was formal compliance

with Miranda. State v. Chase, 55 Ohio St.2d 237, 378 N.E.2d 1064 (1978). “In deciding

whether a defendant's confession is involuntarily induced, the court should consider the


totality of the circumstances, including the age, mentality, and prior criminal experience

of the accused; the length, intensity, and frequency of interrogation; the existence of

physical deprivation or mistreatment; and the existence of threat or inducement.” State v.

Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus,

vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). As

noted by the Ohio Supreme Court in State v. Osie, 140 Ohio St.3d 131, 2014–Ohio–2966,

16 N.E.3d 588 at paragraph 93:

                     Nevertheless, “the use of an inherently coercive tactic

              by police is a prerequisite to a finding of involuntariness.”
             State v. Perez, 124 Ohio St.3d 122, 2009–Ohio–6179, 920

             N.E.2d 104, ¶ 71, citing Colorado v. Connelly, 479 U.S. 157,

             167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Consequently,

             unless the detectives used a coercive tactic, we need not

             assess the totality of the circumstances. State v. Treesh, 90

             Ohio St.3d 460, 472, 739 N.E.2d 749 (2001); Perez at ¶ 71.

             “Evidence of use by the interrogators of an inherently coercive

             tactic (e.g., physical abuse, threats, deprivation of food,

             medical treatment, or sleep) will trigger the totality of the

             circumstances analysis.” State v. Clark, 38 Ohio St.3d 252,

             261, 527 N.E.2d 844 (1988).

      {¶34} We concur with the trial court that there is no evidence that appellant was

subjected to “the kind of coercion or duress that might have made his inculpatory

statements involuntary and therefore excludable.” As noted by the trial court, appellant,

who had more than four years of college, was never in custody during the approximately


two hour interview and was provided with water. Appellant testified that he was never

threatened and, while he now contends that the use of Jacquelyn was a “pre-planned,

coercive tactic”, there is no evidence of coercion on the DVD. No one raised their voices

at appellant or threatened him. Moreover, as is stated above, appellant testified that he

asked to have Jacquelyn, who had left the room, come back in. We further agree with

the trial court that the Detective’s suggestion that appellant, who appeared downcast, go

to a hospital for an evaluation after the interrogation was evidence of lack of coercion

rather than of police misconduct. There is no evidence of coercive police activity.

      {¶35} Based on the foregoing, we find that the trial court did not err in finding that

any Motion to Suppress that appellant might have filed would not have been granted and
there was no ineffective assistance of trial counsel in failing to file one.

       {¶36} Appellant, in his first assignment of error, also argues that the trial court

erred in finding that appellant’s trial counsel gave him sound advice about the elements

of the rape charge at issue. Appellant, in his petition in the trial court, had argued that his

trial counsel was ineffective in failing to advise appellant that the State must prove

penetration or stimulation of the female sex organ to establish sexual conduct under Ohio

law.

       {¶37} Appellant was convicted of rape in violation of R.C. 2907.02(A)(1)(b). Such

section prohibits a person from engaging in “sexual conduct” with a person who is less

than thirteen years of age. R.C. 2907.01(A) states as follows: “(A) “Sexual conduct”

means vaginal intercourse between a male and female; anal intercourse, fellatio, and

cunnilingus between persons regardless of sex; and, without privilege to do so, the

insertion, however slight, of any part of the body or any instrument, apparatus, or other


object into the vaginal or anal opening of another. Penetration, however slight, is sufficient

to complete vaginal or anal intercourse”.

       {¶38} However, as stated by this Court in our Opinion in State v. McKinley, 5th

Dist. Delaware No. 14 CAA 08 0045, 2015 -Ohio- 2436 at paragraph 41: “…as noted by

this Court in State v. Dillon, 5th Dist. Musk No. 2008–CA–37. 2009 –Ohio-3134 at

paragraph 95: “Penetration is not required to commit cunnilingus. Rather, the placing of

one's mouth on the female's genitals completes the act of cunnilingus. See State v.

Ramirez (1994), 98 Ohio App.3d 388, 393, 648 N.E.2d 845; State v. Bailey (1992), 78

Ohio App.3d 394, 395, 604 N.E.2d 1366.” See also State v. Lynch, 98 Ohio St.3d 514,

2003 -Ohio- 2284, 787 N.E.2d 1185 and State v. Henry, 9th Dist. Summit No. 27392,

2015-Ohio-5095.

       {¶39} Based on the foregoing, we find that the trial court did not err in finding that
appellant’s trial counsel did give appellant sound advice about the elements of the rape

charge at issue and that trial counsel was not ineffective.

       {¶40} Based on our determination that the trial court did not abuse its discretion

in denying appellant’s petition, appellant’s first assignment of error is, therefore,

overruled.

                                                II

       {¶41} Appellant, in his second assignment of error, argues that the trial court

abused its discretion in denying a brief continuance or supplemental hearing to secure

the testimony of the attending hospital physician at Grady Memorial Hospital, Dr.

Cachapero, who was subpoenaed by appellant in support of his petition.

       {¶42} The decision whether to grant or deny a continuance rests in the sound

discretion of the trial court. State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981). An


abuse of discretion requires a finding that the trial court's decision was unreasonable,

arbitrary, or unconscionable, and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When determining whether

the court's discretion to grant a continuance has been abused, a reviewing court must

balance the interests of judicial economy and justice against any potential prejudice to

the moving party. State v. Battle, 5th Dist. Morgan No. 09AP0001, 2010–Ohio–4327.

       {¶43} Prior to the commencement of the hearing, defense counsel indicated to the

court that he had subpoenaed Dr. Cachapero and that the physician was present on the

date of the hearing, but left. Counsel indicated that they were attempting to secure his

return and asked for a continuance “at least until we can get the doctor back in order to

examine him as we’ve subpoenaed him and it becomes a critical issue in the case.”

Transcript of May 12, 2015 hearing at 7. Counsel noted that one of the issues in this case

was appellant’s state of mind at the time of his interrogation and that the doctor saw
appellant and evaluated him the same night. Appellant was held four hours at the hospital

before being released. The trial court, in response, stated as follows: “Well, why don’t we

see whether you can contact him while we’re having this hearing today and then I’ll decide

whether or not I want to have a hearing another day, but we can at least make some

headway today, I presume proceed with some other witnesses.” Transcript of May 12,

2015 hearing at 7. Appellant’s counsel agreed. Appellee stipulated to the admissibility of

appellant’s medical records and the records were admitted. Appellant was discharged the

same day.

       {¶44} There is no affidavit or other information indicating exactly what Dr.

Cachapero would have said about appellant’s mental condition on the date of the

interrogation. Appellant, as noted by appellee, was free to testify with respect to his


medical treatment or diagnosis while at the hospital. Moreover, we find that any testimony

that the doctor could have offered to be irrelevant since the issue before the trial court

was whether or not appellant’s confession was voluntary. The trial court had a copy of the

interrogation to review as well as appellant’s medical records, which indicated that

appellant was depressed.

       {¶45} Based on the foregoing, appellant’s second assignment of error is

overruled.

       {¶46} Accordingly, the judgment of the Delaware County Court of Common Pleas

is affirmed.


By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.
