State v. Kacmarik , 2014 Ohio 2264 ( 2014 )

[Cite as State v. Kacmarik, 2014-Ohio-2264.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100177
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL KACMARIK
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-566852
BEFORE: Rocco, J., S. Gallagher, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: May 29, 2014
-i-
ATTORNEY FOR APPELLANT
Patricia J. Smith
9442 State Route 43
Streetsboro, Ohio 44241
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Melissa Riley
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Michael Kacmarik appeals from his convictions after a
jury found him guilty of felonious assault and vandalism, both with furthermore clauses.
{¶2} Kacmarik presents three assignments of error. He claims that: (1) his
convictions are against the manifest weight of the evidence, (2) his defense attorneys
rendered ineffective assistance by stipulating to an evaluation that he was competent to
stand trial and by failing to request another evaluation, and (3) the trial court should have
ordered another evaluation prior to sentencing him.
{¶3} After a thorough review of the record, this court cannot conclude that
Kacmarik’s convictions are against the manifest weight of the evidence. In addition, the
record does not support his claim that his attorneys were ineffective with respect to his
competency to stand trial. Finally, the trial court had neither a duty nor a reason to
question Kacmarik’s competency before the court imposed sentence. Consequently,
Kacmarik’s convictions are affirmed.
{¶4} Kacmarik’s convictions stem from an incident that occurred on the afternoon
of September 10, 2012. The state’s witnesses provided the following testimony of the
circumstances that surrounded the incident.
{¶5} On July 17, 2012, Kacmarik purchased a 1997 Dodge Caravan from Thomas
McCutcheon. McCutcheon owned and operated a used car business located on Lorain
Road in Cleveland, Ohio. Although McCutcheon priced the vehicle at $2,000, because
Kacmarik was an acquaintance and appeared to be in need of transportation, McCutcheon
permitted Kacmarik to take the vehicle for $1,400 in cash along with Kacmarik’s promise
to pay the remaining $600 within three weeks. McCutcheon kept title to the vehicle in
the interim.
{¶6} However, as the third week approached, Kacmarik brought the Caravan back
to McCutcheon’s business premises. Kacmarik requested that McCutcheon place the
vehicle back on his lot for sale on consignment. McCutcheon agreed; he and Kacmarik
executed a contract that provided McCutcheon would refund Kacmarik his down payment
when the vehicle had been resold. McCutcheon intended to ask for the original price.
{¶7} In the next two months, McCutcheon made three attempts to sell the vehicle
but, each time, the prospective buyer had been unable to obtain financing for the
purchase. Thus, when Kacmarik appeared at McCutcheon’s business on the afternoon of
September, 10, 2012, seeking the money from the Caravan’s sale, McCutcheon informed
him that, as yet, none was forthcoming. McCutcheon also informed Kacmarik that
several catalytic converters recently had been stolen from some of the vehicles on the lot,
and the Caravan had been one of the affected vehicles. McCutcheon assured Kacmarik
that the business would cover the replacement.
{¶8} Kacmarik was unhappy with this news. The two men engaged in an
exchange that became loud enough to attract the attention of the owner of the tavern next
door to McCutcheon’s lot. McCutcheon invited Kacmarik into the trailer used as a
business office to discuss the matter. From what the tavern owner observed,
McCutcheon was handling the situation.
{¶9} At approximately 4:30 p.m., McCutcheon’s wife, Maureen, arrived at her
husband’s business; she was driving a friend’s car because McCutcheon was in the
process of repairing Maureen’s car. She noticed Kacmarik approaching her car. He was
“yelling” and appeared to be “angry.” McCutcheon hurried over to his wife and told
her to leave the lot. She obeyed.
{¶10} Maureen parked at a store across the street. She watched her husband and
Kacmarik “walking back and forth” in the lot. Kacmarik entered the Caravan and started
it. He gave the engine a lot of gas. Without the catalytic converter, the Caravan made a
great deal of noise. Its volume caused several persons in the tavern, including the
bartender, DiAnn Josso, to take notice and to come to the open doors to satisfy their
curiosity about the reason for it.
{¶11} In the driver’s seat of the Caravan, Kacmarik began shouting that the vehicle
was “malfunctioning.” McCutcheon called to Kacmarik to turn the vehicle off. Instead,
Kacmarik put it into reverse, drove backward so that he nearly “took off” the tavern’s
front door, and then put the transmission into drive. When the Caravan went forward, it
smashed into one of the used cars in McCutcheon’s lot. The crash caused a passing
driver on Lorain Road to stop to observe the goings-on.
{¶12} After crashing into the first car, Kacmarik reversed the Caravan and backed
up. Then he “stomped on the brakes,” so that “the van stopp[ed] on a dime.” He
“angled” his vehicle “towards another car” in the lot, stopped to “rev the engine,” then
put his vehicle “in drive, and [went] after the next car.” He repeated this process,
“screaming” that he could not control the Caravan and that the brakes were
“malfunctioning.”
{¶13} From her observation, however, Josso believed that Kacmarik “was
deliberately going in reverse, banging [into] a car,” then “putting it in drive, going into
another car.” Both she and Maureen believed Kacmarik mainly appeared to be “going
after” McCutcheon, because Kacmarik aimed the Caravan at any car McCutcheon stood
“closest to.” Josso described the incident as “a demolition derby.” She called out to
McCutcheon to “get out of the way.”
{¶14} Several people, including McCutcheon and Kacmarik himself, telephoned
the police as the incident unfolded. In all, 12 cars were damaged in McCutcheon’s lot by
the time Kacmarik stopped the Caravan and exited the driver’s seat. The police arrived
shortly thereafter. They arrested Kacmarik.
{¶15} Kacmarik subsequently was indicted on two counts. He was charged with
felonious assault with a furthermore clause that he used a motor vehicle as a deadly
weapon, and with vandalism with a furthermore clause that the value of the property
damaged was between $7,500 and $150,000. Kacmarik pleaded not guilty to the charges
and was assigned counsel.
{¶16} By November 2012, defense counsel made the trial court aware that
Kacmarik had “medical issues.” Kacmarik told the court that he suffered from high
blood pressure, thyroid disease, and severe back pain. The court requested of the county
jail medical director that he examine Kacmarik to evaluate his ability “to stand trial
physically.” Following that examination, the doctor determined that Kacmarik’s “vital
signs [were] near normal” and that he merely required some pain medication.
{¶17} Kacmarik’s case proceeded to a jury trial. After the state presented its case
in chief, Kacmarik presented the testimony of three witnesses and testified in his own
behalf.
{¶18} The jury ultimately found Kacmarik guilty on both counts as indicted. Prior
to conducting the sentencing hearing, the trial court ordered the preparation of a
presentence report and referred Kacmarik to the court psychiatric clinic for a
“disposition” assessment.
{¶19} In the interim, Kacmarik filed numerous motions pro se; among others, he
sought to “dismiss” his defense counsel and to represent himself. The trial court held
another hearing to address the outstanding issues.
{¶20} In reading from the results of the first assessment, the court stated that the
psychiatrist determined Kacmarik was suffering from “bipolar disorder not otherwise
specified,” but that this disorder “was not a factor in the crime.” The court noted,
however, that in light of Kacmarik’s wish to proceed pro se, the court had decided that an
additional referral of Kacmarik to the psychiatric clinic would be made to determine
whether he was capable of doing so.
{¶21} When the court next convened, it noted that the second psychiatrist who
examined Kacmarik determined that he was not capable of proceeding pro se. The court
granted the state’s motion for an independent evaluation of Kacmarik’s competency to
represent himself and assigned an additional attorney to Kacmarik’s case.
{¶22} As the independent evaluation was being prepared, the original trial judge
recused herself. The administrative judge took over Kacmarik’s case. A new date for
the competency hearing and sentencing was set.
{¶23} When Kacmarik’s case was next called, Kacmarik informed the court that he
had changed his mind about representing himself and would proceed with new counsel.
The court nevertheless stated for the record that the third psychiatrist had determined
Kacmarik was competent. Both the prosecutor and defense counsel stipulated to this
finding. The trial court accepted the finding and declared that Kacmarik was “competent
to proceed.”
{¶24} The trial court sentenced Kacmarik to a prison term that totaled four years.
Kacmarik appeals from his convictions with three assignments of error.
I. The jury clearly lost its way in finding the appellant guilty against
the manifest weight of the evidence when it found that the appellant
attempted to hit the victim and the other cars with the vehicle when in fact
the vehicle malfunctioned and was unable to be controlled.
II. It was ineffective assistance of trial counsel to fail to request a
competency evaluation where the appellant’s behavior before and during
the trial evidenced competency issues; and failure to request that the verdict
be set aside when the report found the appellant incompetent to stand trial
or assist in his defense immediately following trial; it was ineffective
assistance of secondary counsel to stipulate to the second competency
evaluation and to appellant’s competency where there was substantial
evidence to conclude that the appellant was not competent, specifically a
prior report determining him to be incompetent only one month prior to the
second report finding him to be competent and failure to request a hearing
on competence or a third evaluation.
III. It was an abuse of discretion for the sentencing judge to
sentence the appellant without holding a hearing on his competency where
there were two divergent reports regarding his competence and where the
sentencing judge had no prior interaction with the appellant prior to the
sentencing hearing.
{¶25} Kacmarik argues in his first assignment of error that his convictions should
be reversed because his version of what took place on September 10, 2012, was based
upon evidence that was more “credible and consistent” than the evidence presented by the
state. This court does not agree.
{¶26} The manifest weight of the evidence standard of review requires this court
to review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice that the
convictions must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d
380, 386, 678 N.E.2d 541 (1997). The use of the word “manifest” means that the jury’s
decision must be “plainly or obviously contrary” to all of the evidence. State v. Masci,
8th Dist. Cuyahoga No. 96851, 2012-Ohio-359, ¶ 17. This is a difficult burden for an
appellant to meet; this court must remain mindful that the weight of the evidence and the
credibility of the witnesses are matters primarily for the jury to assess. State v. DeHass,
10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; State v. Bruno,
8th Dist. Cuyahoga No. 84883, 2005-Ohio-1862.
{¶27} In this case, McCutcheon’s description of the incident found corroboration
in the testimony of Josso and a passing motorist. Both of these witnesses observed that
Kacmarik seemed deliberately to be targeting McCutcheon and the used cars on his lot in
driving the Caravan. Neither woman had a connection to McCutcheon that would bias
her recollection. In addition, the police detective drove the Caravan immediately after
the incident and “found nothing wrong with the gears” and nothing wrong with the
operation of either the brake pedals or the brakes.
{¶28} Kacmarik’s testimony, on the other hand, was confusing; his recollection of
dates relevant to his ownership of the Caravan was contrary to his documentary evidence.
Moreover, on cross-examination, he contradicted not only his own witnesses, but also his
own direct testimony.
{¶29} Similarly, although one of Kacmarik’s friends testified that his inspection of
the Caravan led him to believe that it was in “very dangerous” condition, he admitted that,
when Kacmarik asked for his opinion, he told Kacmarik only that, “if he was going to
drive it to make sure he kept an eye on the gauges.” None of Kacmarik’s evidence
demonstrated that the Caravan was uncontrollable.
{¶30} Consequently, the manifest weight of the evidence supports Kacmarik’s
convictions. His first assignment of error is overruled.
{¶31} Kacmarik’s second and third assignments of error present a similar issue;
therefore, they will be addressed together.
{¶32} In his second assignment of error, Kacmarik asserts that both his original
and his “secondary” defense attorneys provided ineffective assistance with respect to his
competency. He argues that his behavior and medical problems during the proceedings
should have prompted his original attorney to file a motion for a mistrial, and that his
secondary attorney should have declined to stipulate to the independent psychiatric report.
In his third assignment of error, Kacmarik further argues that the administrative judge
who presided over his competency and sentencing hearing erred in accepting the
determination made by the independent psychiatrist that he was competent. Neither his
second nor his third assignment of error has merit.
{¶33} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel’s performance fell below an objective standard of
reasonable representation; the second is whether the appellant was prejudiced by
counsel’s deficient performance. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989), paragraph two of the syllabus, citing Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶34} In determining whether counsel’s representation fell below an objective
standard of reasonableness, judicial scrutiny of counsel’s performance must be highly
deferential. Id. at 142. Because of the difficulties inherent in determining whether
effective assistance of counsel was rendered in any given case, a strong presumption
exists that counsel’s conduct fell within the wide range of reasonable, professional
assistance. Id. This court cannot second-guess a decision that could be a matter of
defense strategy. Strickland.
{¶35} A defendant is legally incompetent only if he is “incapable of understanding
the nature and objective of the proceedings against [him] or of assisting in [his]
defense[.]” R.C. 2945.37(G); State v. Tibbetts, 92 Ohio St.3d 146, 164, 749 N.E.2d 226(2001). A defendant is presumed to be competent to stand trial unless proof by a
preponderance of the evidence is presented otherwise. State v. Berry, 72 Ohio St.3d 354,
360, 650 N.E.2d 433 (1995).
{¶36} A defendant has the right to a hearing on the issue of competency only when
“the record contains ‘sufficient indicia of incompetence,’ such that an inquiry into the
defendant’s competency is necessary to ensure the defendant’s right to a fair trial.” Id. at
359, quoting Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
Defense counsel cannot be faulted for failing to raise meritless issues. State v. Taylor, 78
Ohio St.3d 15, 31, 676 N.E.2d 82 (1997). Therefore, if defense counsel does not
consider that his client demonstrates sufficient indicia of incompetence, he renders no
disservice by conceding the matter. State v. Brown, 8th Dist. Cuyahoga No. 95481,
2011-Ohio-2285, ¶ 26.
{¶37} Kacmarik contends that his competence should have been an issue before
sentencing based on his interactions with the trial court, his counsel’s awareness of his
health issues, and his prior mental health history. A review of the record with a focus on
Kacmarik’s interactions with his attorneys and the court, however, fails to display
“sufficient indicia of incompetence” that would either require his defense counsel to ask
for a competency assessment or lead the court to inquire into the matter. Id. at ¶ 24.
{¶38} Kacmarik’s deportment, questions, answers to questions, and demeanor
were all entirely appropriate and coherent. When he requested of the court that he
receive special attention for his various medical problems, the trial court expressed
empathy and ensured that Kacmarik’s concerns were addressed. Karmarik testified in his
own behalf at trial, and was subject to a thorough cross-examination. State v. Bock, 28
Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986). Thus, Kacmarik’s original attorney had
no basis to question his client’s competency.
{¶39} It was only after the jury convicted him, when Kacmarik decided that he
wanted to “dismiss” his first attorney and proceed with his defense pro se, that the matter
of his competency to represent himself became a matter for the trial court to address.
Kacmarik’s first psychiatric assessment did not address this specific issue.
{¶40} The second assessment opined only that Kacmarik was not competent to
proceed pro se with his defense after trial. By the time the independent psychiatric
assessment was completed, Kacmarik had changed his mind and decided that his
secondary attorney could provide effective representation for sentencing purposes.
Under these circumstances, secondary counsel had no reason to reject the independent
assessment.
{¶41} With respect to the administrative judge’s handling of the case, a trial
court’s decision whether to hold a competency hearing after the trial has taken place is a
matter within the trial court’s discretion. State v. Rahman, 23 Ohio St.3d 146, 156, 492
N.E.2d 401 (1986). At the outset of the competency and sentencing hearing, the judge
reviewed the psychiatric report and asked the parties for their reaction. Both the defense
attorney and the prosecutor stipulated to the psychiatrist’s determination that Kacmarik
was competent. Kacmarik simply wanted to proceed.
{¶42} In light of the fact that Kacmarik’s bipolar disorder was obviously well
managed by his prescription medication, the judge lacked any “indicia of incompetency”
that would necessitate any further inquiry into Kacmarik’s mental state. State v. Peeples,
7th Dist. Mahoning No. 10 MA 132, 2012-Ohio-1149, ¶ 24. The trial court did not abuse
its discretion in this matter. State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790
N.E.2d 303, ¶ 33.
{¶43} Accordingly, Kacmarik’s second and third assignments of error also are
overruled.
{¶44} Convictions affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, JUDGE
SEAN C. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR