STATE OF OHIO v. RONALD MANGO, JR.
No. 103146
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 12, 2016
2016-Ohio-2935
JOURNAL ENTRY AND OPINION; PLAINTIFF-APPELLEE vs. DEFENDANT-APPELLANT; JUDGMENT: AFFIRMED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-14-589808-A
P. Andrew Baker
11510 Buckeye Road
Cleveland, OH 44104
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Joan M. Bascone
Mary M. Dyczek
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Ronald Mango, Jr., appeals his conviction for felonious assault. For the reasons that follow, we affirm.
{¶2} On October 2, 2014, Mango was indicted, along with codefendants, in a six-count indictment: Count 1 — aggravated robbery in violation of
{¶3} Mango waived his right to a jury trial, and the case was tried to the bench on April 23, 2015.1 At trial, thе state presented the testimony of the victim, Thomas McGill (“McGill“), Cleveland Police Detective Steven Loomis, Cleveland Police Officers Timothy Angelone and Daniel Smith, and Registered Nurse Chris Seabold.
{¶4} The case stems from an incident that occurred on September 25, 2014. On this evening, McGill entered the Home Town Grocery store in Cleveland to purchase cigarettes and other items. McGill testified that when he stood at the counter tо pay for his purchase, a man approached McGill, placed his hand in McGill‘s front shirt pocket, and removed his cash. He did not say anything for fear of causing trouble. He testified
{¶5} Detective Loomis testified that he received a call to respond to Homе Town Grocery regarding an incident that occurred that evening. Upon arriving on the scene, Detective Loomis viewed video surveillance from the grocery store that captured an assault on McGill by several individuals. Detective Loomis identified Ronald Mango as one of the individuals participating in the attack. The detective stated that the video shows Mango standing in an “aggressive boxer‘s stance,” punching McGill in the face two times. The first punch knocked McGill to the ground, while the second punch was rendered while McGill was lying on the ground. McGill did not fight back; rather, he attempted to stand up and walk away. The video shows that when McGill attempted to get off the ground and walk away, he staggered, lost his balance, and fell twice, hitting his head on the surface of the parking lot. McGill is also seen on the video repeatedly wiping blood away from his face. Finаlly, the video shows McGill stagger toward a path, or a “cut,” in the northeast corner of the parking lot toward his home.
{¶7} Offiсer Angelone and his partner, Officer Smith, proceeded to the apartment complex in search of McGill. They received permission to enter the apartment complex from a crowd of people gathered outside the building. The officers testified that the group of people advised the officers that they saw a middle-aged, white man, who was bleeding very badly, enter the building. The officers followed a trail of blood inside the complex that led to McGill‘s apartment door. Officer Angelone testified that when McGill approached him at the door, McGill was “holding his face with a rag and blood was dripping from his face” and he appeared to be in shock. Officer Smith testified that McGill seemed “disoriented” and was bleeding very badly. The officers called for an emergency medical technician to examine McGill because his condition was severe.
{¶8} After EMS transported McGill to the hospital, Officers Angelone and Smith continued to search for the suspects. After receiving good descriptions from Detective Loomis, the officers successfully located and arrested three of the suspects, one of whom was Ronald Mango.
{¶9} Detective Loomis further testified that after the suspects were arrested, he drove to St. Vincent Charity in order to interview McGill; however, upon arriving at the
{¶10} Chris Seabold, the nurse assigned to the triage area at MetroHealth hospital the evening EMS transported McGill for treatment, testified that McGill presented with bruising and swelling of the eye and multiple abrasions, and he complained of pain in the head, face, elbow, and rib. Seabold‘s notes also indicate that McGill had a hematoma on the top of his head and there was tenderness around his right eye. Seabold also stated that in reviewing the notes from the emergency room doctor at St. Vincent Charity, he noted that there was some concern regarding the likelihood of a loss of consciousness.
{¶11} McGill testified that he remains in “a lot of pain most of the time” and he is “paranoid to go outside anymore.” He stated that he is now “messed up in the head * * * I stay in the house. I don‘t want to go anywhere. I don‘t want to go outside,” and he asks someone to get his food or he asks someone to walk with him to the grocery store. He still experiences pain on the entire left side of his body and his lower back just above his waist. He cannot work because of the pain. He testified that after a few minutes of working, he cannot move, and he cannot stand up straight if he has been bent over doing
{¶12} The state presented the following exhibits at trial: medical records from St. Vincent Charity Medical Center and MetroHealth Medical Center; pictures of McGill‘s face and arm, indicating injuries McGill sustained; and videotape recording of three scenes at the Home Town Grocery store.
{¶13} After the state rested, the court granted Mango‘s
{¶14} Mango now appeals his conviction, assigning three errors for our review:
I. The trial court erred in allowing a conviction when there was ineffective assistance of counsel under Strickland v. Washington.
II. The trial court erred in allowing a conviction when there was ineffective assistance of counsel due to defense counsel‘s failure to file a response to discovery.
III. The trial court erred in allowing a conviction for felonious assault when a conviction is against the manifest weight of the evidence.
Ineffective Assistance of Counsel
{¶15} In his first assignment of error, Mango contends that trial counsel wаs ineffective for failing to file a motion to dismiss for violation of his speedy trial rights.
{¶16} In order to establish a claim of ineffective assistance of counsel, the defendant must show that his trial counsel‘s performance was deficient in some aspect of his representation and that deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990). Counsel‘s performance will be considered deficient only when that performance falls below an objective standard of reasonableness. Strickland at 688. Under Strickland, our scrutiny of an attorney‘s representation must be highly deferential and we must indulge “a strong presumption that counsel‘s conduct falls within the range of reasonable professional assistance.” Id. at 689. And in Ohio, every properly licensed attorney is presumed to be competent and, therefore, a defendant claiming ineffective assistance of counsel bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
{¶17} In order to show prejudice, a defendant must demonstrate that there is a reasonable probability that but for counsel‘s errors, the result of the proceeding would have been different. State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 12. “Reasonable probability” is “probability sufficient to undermine confidence in the outcome” of the proceeding. Strickland at 694.
{¶19} Under
{¶21} The Ohio Supreme Court has held that the failure of a criminal defendant to respond within a reasonable time to a prosecution‘s request for reciprocal discovery constitutes neglect that tolls the running of speedy-trial time pursuant to
{¶23} Here, Mango was arrested on September 26, 2014, indicted on Octobеr 2, 2014, and in custody on October 8, 2014. On October 9, 2014, Mango‘s counsel filed a demand for discovery, request for evidence, and motion for bill of particulars. On October 15, 2014, the state responded to Mango‘s discovery and filed its own demand for discovery. The record demonstrates that Mango never responded to the state‘s discovery request. There is no indication in the record as to why Mango failed to respond to the state‘s reciprocal discovery, thus offering no extenuating circumstances for the court to consider. Therefore, in allowing for a reasonable response time of 30 days, Mango‘s speedy trial time was tolled after November 15, 2014, until the time of trial. Accordingly, Mango‘s statutory speedy trial rights were not violated. And because there was no speedy trial violation, trial counsel was not ineffective for failing to move the court for dismissal оf the charges against Mango based upon speedy trial grounds. White, 8th Dist. Cuyahoga No. 99375, 2013-Ohio-5423, at ¶ 7; State v. Andrews, 8th Dist. Cuyahoga No. 92695, 2010-Ohio-3499, ¶ 50 (where there was no violation of defendant‘s speedy trial rights, defense counsel‘s decision not to file a motion to dismiss based upon
{¶24} Mango also contends that trial counsel was ineffective for failing to respond to the stаte‘s request for discovery. In support, he claims that counsel‘s failure to respond prevented counsel from raising a viable speedy trial argument, as Mango‘s trial commenced well beyond his speedy trial time. In making this argument, Mango provides, in effect, that had counsel responded to discovery, this tolling event would have ceased and, therefore, his speedy trial time would have expired before trial. Mango‘s argument, hоwever, is pure speculation.
{¶25} First, Mango assumes that there would have been no other tolling events that would have extended the speedy trial clock beyond the scheduled trial date. The record in this case, however, demonstrates that there was ongoing discovery and numerous tolling events. The state filed supplemental discovery responses on six different occasions: October 23, 2014, November 10, 2014, November 17, 2014, February 2, 2015, February 4, 2015, and March 2, 2015. Pretrials were continued at the defendant‘s request on six occasions: October 20, 2014, October 31, 2014, November 5, 2014, November 13, 2014, December 9, 2014, and February 2, 2015. The reasons stated for the continuances included plea negotiations and ongoing discovery. On February 3, 2015, Mango viewed a video with counsel. And on March 31, 2015, and April 15, 2015, Mango filed a total of five different pro se motions, which also tolled the speedy trial clock. See State v. Pipkins, 8th Dist. Cuyahoga No. 101624, 2015-Ohio-1823, ¶ 25.
{¶27} Accordingly, we find that Mango has failed to show prejudice. We cannot say that there was a strong probability that but for counsel‘s failure to respond to the state‘s discovery request, the outcome would have been different, i.e. his speedy trial time would have expired before trial and the charges against him would have been dismissed.
{¶28} Mango‘s first and second assignments of error are overruled.
Manifest Weight of the Evidence
{¶30} A claim that a conviction is against the manifest weight of the evidence questions whether the prosecution met its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). This type of challenge necessarily raises a factual issue:
“The court, reviewing the entire recоrd, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidencе weighs heavily against the conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).
{¶31} “[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. And a factfinder is free to believe all, some, or none of the testimony of each witness appearing before it. State v. Ellis, 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 18.
{¶32} Mango was convicted of felonious assault in violation of
“Serious physical harm” includes any of the following:
- Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
- Any physical harm that carries a substantial risk of death;
- Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
- Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
- Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain._
{¶33} “The degree of harm that rises to the level of ‘serious’ physical harm is not an exact science, particulаrly when the definition includes such terms as ‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.‘” State v. Miller, 8th Dist. Cuyahoga No. 98574, 2013-Ohio-1651, ¶ 18, quoting State v. Irwin, 7th Dist. Mahoning No. 06MA20, 2007-Ohio-4996, ¶ 37.
{¶34} “Where injuries to the victim are serious enough to cause him or her to seek medical treatment, the finder of fact may reasonably infer that the force exerted on the victim caused serious physical harm as defined by
{¶36} Additionally, the investigating officers testified that they followed a trail of blood in the apartment building to McGill‘s apartment door in order to locate him. Further, McGill‘s injuries resulted in treatment at two different hospitals, and there was a concern regarding head trauma and the possible loss of consciousness. Nurse Seabold testified that McGill‘s eye was swollen and bruised and he had multiple abrasions on his face and elbow. McGill testified that he has no memory from the time of the assault to awaking in the hospital; he is in constant pain; he is unable to work because of the pain; and he is afraid to leave his apartment.
{¶37} In light of the above, we will not disturb the trial court‘s finding that Mango caused serious physical harm to the victim. This case is not one of the exceptional cases in which the evidence weighs heavily against the conviction.
{¶38} Mango‘s third assignment of error is overruled.
It is ordered that аppellee recover of 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 conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for executiоn of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, P.J., and MELODY J. STEWART, J., CONCUR