[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.
