STATE OF OHIO, Plaintiff-Appellee, v. MARK WISNIEWSKI, Defendant-Appellant.
No. 110092
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 2, 2021
[Cite as State v. Wisniewski, 2021-Ohio-3031.]
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 2, 2021 Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-623494-A and CR-18-628167-A
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Patrick J. Lavelle and Jeffrey Schnatter, Assistant Prosecuting Attorneys, for appellee.
The Law Office of Jaye M. Schlachet, and Jaye M. Schlachet and Eric M. Levy, for appellant.
MARY EILEEN KILBANE, P.J.:
{1} Defendant-appellant Mark Wisniewski (“Wisniewski“) appeals from his conviction for involuntary manslaughter. Specifically, Wisniewski argues that his convictions were not supported by sufficient evidence and were against the
Factual and Procedural History
{2} The charges in this case resulted from a drug overdose on March 11, 2015. At that time, 59-year-old Jack Heaton (“Heaton” or “the victim“) was living with his mother in Bedford, Ohio. Around 10 a.m. on March 11, 2015, Heaton‘s mother found him unresponsive in the basement of their home. She called her daughter, also Heaton‘s sister, and asked her to come over because she could not wake Heaton up. Heaton‘s sister called 911 and headed to her mother‘s house. When Heaton‘s sister arrived, police and paramedics were already there. Police prevented her from going into Heaton‘s basement room and directed her to wait upstairs with her mother.
{3} Firefighter Stephanie Balochko (“Balochko“) responded to the scene in her capacity as a firefighter and paramedic for the city of Bedford. Balochko found Heaton unresponsive in a chair near a computer desk in his basement. Heaton had no pulse, was cool to the touch, and an EKG confirmed that he was deceased. After calling the hospital and the coroner and relaying that Heaton was deceased, Balochko left the scene.
{4} Officer Andrew DiMatteo (“DiMatteo“) and Lieutenant Paul Kellerman (“Kellerman“) also responded to the scene in their capacity as police officers in the city of Bedford. DiMatteo arrived at the home, observed Heaton
{5} Detectives Tamika Agnew (“Agnew“) and Douglas Jopek (“Jopek“) responded to the scene in their capacity as narcotics detectives with HIDI. Agnew oversaw the investigation and interviewing of the family members on the scene. Jopek assisted the medical examiner on the scene, took photographs of the scene, and collected evidence around Heaton‘s body. The evidence Jopek collected included a cell phone, a razor blade with residue, and one unfolded square of paper with residue. The razor blade and square of paper subsequently tested positive for heroin residue.
{6} Justin Wilson (“Wilson“), a death investigator with the Cuyahoga County Medical Examiner‘s office, responded to the scene as well. Wilson took photographs of evidence on the scene and also collected various pieces of evidence, including prescription pills. Wilson also prepared a report, noting that he had learned from family members that Heaton had a history of prescription drug abuse and multiple suicide attempts within the last five years.
{7} Heaton‘s brother arrived at the house after his sister called him and told him that Heaton had died. After the responding officers and paramedics had left, and Heaton‘s body had been removed from the home, Heaton‘s brother went
{8} The two packets were subjected to forensic testing and it was determined that they contained heroin and they tested positive for Wisniewski‘s DNA. No DNA testing was done on the square of paper that tested positive for heroin residue. Additionally, as part of the investigation in this case, Detective Agnew went through Heaton‘s cell phone. She observed 54 telephone calls between Heaton and a number that belonged to Wisniewski in March 2015. The last phone call before Heaton‘s death was a 23-second phone call on March 10, 2015, the day before Heaton died.
{9} The deputy medical examiner, David Dolinak, M.D., (“Dolinak“), ultimately determined that Heaton died as a result of acute heroin, clonazepam, amphetamine, and fluoxetine toxicity, and the death was deemed accidental.
{10} As a result of Heaton‘s death and the subsequent investigation, on September 17, 2018, a Cuyahoga County Grand Jury indicted Wisniewski on the following five counts, relating to events that took place on March 11, 2015: Count 1, involuntary manslaughter in violation of
{11} On March 21, 2019, Wisniewski filed a motion captioned “Defendant Invokes Right to Self-representation.” At a hearing on April 8, 2019, the court discussed the right to counsel with Wisniewski, informed him of the charges and potential penalties he was facing, and advised him as to the perils of representing himself at trial. The court confirmed that Wisniewski was waiving his right to counsel knowingly, intelligently, and voluntarily, and appointed standby counsel.
{12} Over the next year, multiple pretrial hearings were held and discovery was exchanged. On June 16, 2020, Wisniewski filed a motion to dismiss for lack of speedy trial. On July 20, 2020, the state filed a response to that motion. On August
{13} Between August 18 and September 15, 2020, Wisniewski filed multiple pretrial motions. On September 29, 2020, prior to trial, the court heard arguments and ruled on these motions. In connection with the arguments on his motions, Wisniewski stipulated that the papers found at the scene, but not the heroin inside them, came from him. He also stipulated as to the expert reports identifying the drugs found at the scene as heroin.
{14} Wisniewski waived his right to a jury trial, and the case proceeded to a bench trial on September 29, 2020. Heaton‘s sister and brother both testified as to the events surrounding their brother‘s March 2015 death. They both testified that Heaton had struggled with drug and alcohol addiction since high school. The responding officers, detectives, and medical examiner testified at trial as to the events described above.
{15} At the close of the state‘s case, Wisniewski objected to photographs of the two packets found in Heaton‘s wallet, as well as the packets themselves, on the basis that they were not found by police on the scene and there was a break in the chain of custody. The court overruled this objection and the exhibits were admitted into evidence. Wisniewski then renewed his motion to dismiss based on a violation of his speedy trial rights, and the court denied that motion. Finally, Wisniewski moved for a
{16} On October 8, 2020, the court returned a verdict of guilty on the involuntary manslaughter, corrupting another with drugs, and drug possession counts, as well as one of the drug trafficking counts, in violation of
{17} On October 20, 2020, the court held a sentencing hearing. The court heard statements from Wisniewski, the assistant prosecuting attorney, and Heaton‘s sister. The state acknowledged that the involuntary manslaughter, corrupting another with drugs, and drug possession counts would merge for sentencing and elected to proceed with sentencing on the involuntary manslaughter charge. The court sentenced Wisniewski to 11 years on the involuntary manslaughter charge and 12 months on the drug possession charge, to be served concurrently, for a total sentence of 11 years. At sentencing, the court stated that it intended to credit Wisniewski for the time he spent in custody during the pendency of the case. The state argued that because Wisniewski was already serving a sentence related to an involuntary manslaughter conviction from Summit County stemming from a heroin overdose, he would not be entitled to jail-time credit for the time spent in custody awaiting trial in the instant case. The court stated that it would take the issue under advisement and indicate its decision on jail-time credit in the sentencing journal entry.
{18} In the October 20, 2020 sentencing journal entry, the court described the sentence imposed on the involuntary manslaughter charge, but neglected to include the sentence imposed on the drug possession charge. A separate journal entry issued the same day read:
At the time of sentencing, the state opposed the court‘s granting of jail-time credit to the defendant as he was incarcerated on another, unrelated case — Summit County Case No. CR-2017-09-3481-A (“Summit County Case“). The state relies on the decision of the Ohio Supreme Court in State v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, which held that: “A defendant is not entitled to jail time credit for pre-sentence detention time when held on bond if, during the same period of time, he is serving a sentence on an unrelated case.” Id. at ¶ 24. The court finds the state‘s argument persuasive on this issue and awards defendant no jail credit on this case prior to today‘s entry.
On November 13, 2020, Wisniewski appealed.
{19} On April 20, 2021, this court sua sponte remanded the case to the trial court to issue a nunc pro tunc sentencing entry to correct the omission of the sentence on the drug possession charge. On April 30, 2021, the trial court issued a nunc pro tunc entry correcting the error in its original sentencing journal entry.
{20} Wisniewski presents three assignments of error for our review:
- The evidence was insufficient to sustain a conviction for involuntary manslaughter through either predicate offense. The resulting conviction deprived appellant Wisniewski of procedural and substantive due process of law as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
- Appellant Wisniewski‘s conviction for involuntary manslaughter for drug trafficking or corrupting another with drugs is against the manifest weight of the evidence. This deprived appellant of due process of law as guaranteed by the Fifth and Fourteenth Amendments of the
United States Constitution and Article I, Section 10 of the Ohio Constitution. - The trial court erred in violation of Appellant‘s right to equal protection or otherwise [erred] where it did not award credit for time served pending sentencing in Appellant‘s Summit County Case.
Legal Analysis
I. Sufficiency of the Evidence
{21} In Wisniewski‘s first assignment of error, he argues that the state presented insufficient evidence to sustain his involuntary manslaughter conviction. Specifically, he argues the state failed to present sufficient evidence that Wisniewski was guilty of either drug trafficking or corrupting another with drugs. Without sufficient evidence of either of the possible predicate offenses for the involuntary manslaughter charge, Wisniewski argues that the involuntary manslaughter conviction should be vacated.
{22} A sufficiency challenge requires a court to determine whether the state has met its burden of production at trial and to consider not the credibility of the evidence but whether, if credible, the evidence presented would sustain a conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{23} “Proof of guilt may be made by circumstantial evidence, real evidence, and direct evidence, or any combination of the three, and all three have equal probative value.” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 35 (8th Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 2011-Ohio-1060, ¶ 18. Although circumstantial evidence and direct evidence have obvious differences, those differences are irrelevant to the probative value of the evidence, and circumstantial evidence carries the same weight as direct evidence. Id., citing State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Further, circumstantial evidence is not only sufficient, “but may also be more certain, satisfying, and persuasive than direct evidence.” Id., quoting State v. Hawthorne, 8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
{24} Wisniewski was charged with involuntary manslaughter in violation of
{25}
{26}
{27} Wisniewski relies on the exemptions in
{28} The exemptions in
{29} Our review of the record shows that the state presented sufficient evidence of the essential elements of each offense. Here, with respect to corrupting another with drugs, the state was required to prove beyond a reasonable doubt that Wisniewski knowingly, by any means, furnished heroin to Heaton and thereby caused him serious physical harm. While Wisniewski is correct that there is no direct evidence that Wisniewski provided Heaton with the heroin he ingested immediately prior to his death, there is ample circumstantial evidence.
{30} The state presented evidence that Heaton was buying drugs from a long-time friend who lived in his neighborhood in the form of testimony from Heaton‘s sister. The state also presented evidence that Heaton and Wisniewski were in regular phone contact, including a phone call the day before Heaton‘s death. Evidence found at the scene included three similar packets of magazine-like paper. Two of these packets were unopened, contained heroin, and tested positive for Wisniewski‘s DNA. Wisniewski conceded that the packets — but not the heroin inside — came from him. The third packet was opened, had creases showing that it had been folded in the same way as the other packets, and contained heroin residue.
{31} The corrupting another with drugs offense also required the state to establish that by furnishing the victim with drugs, the defendant caused the victim serious physical harm.
{32} With respect to the drug trafficking charge, the state was required to prove beyond a reasonable doubt that Wisniewski knowingly sold or offered to sell heroin to Heaton. In addition to the physical evidence described above, the state presented evidence that Heaton had known the person he was purchasing drugs from for years and lived in the same neighborhood as this person; likewise, the evidence at trial established that Wisniewski had known him for years and lived around the corner from him. Taking into consideration Wisniewski‘s stipulation that he was “the source of the packaging material” that contained the heroin, and viewing all of the evidence in the light most favorable to the state, it is reasonable to
{33} Having determined that both of the possible predicate offenses for involuntary manslaughter were supported by sufficient evidence, we also conclude that the involuntary manslaughter charge was supported by sufficient evidence. To establish that Heaton committed involuntary manslaughter, the state was required to prove beyond a reasonable doubt that he caused Heaton‘s death as a proximate result of either corrupting another with drugs or drug trafficking.
{34} Wisniewski argues that the evidence was insufficient to show that Heaton‘s death was the proximate result of either offense here. Specifically, he argues that Heaton‘s abuse of prescription pills could have caused his death. We disagree. The deputy medical examiner, Dolinak, testified that the cause of Heaton‘s death was acute heroin, clonazepam, amphetamine, and fluoxetine toxicity, and that the manner of death was accidental. Although Dolinak testified that Heaton appeared to be abusing prescription drugs, he also testified that even without the other drugs, the heroin toxicity would have been sufficient to result in Heaton‘s death. Further, he testified that the specific levels of heroin metabolites found in Heaton‘s blood were consistent with levels he has seen in fatal heroin overdoses, and that other characteristics of Heaton‘s body were characteristic of fatal heroin overdoses. Therefore, the state presented sufficient evidence of proximate causation required for the involuntary manslaughter charge. For the foregoing reasons, we
II. Manifest Weight of the Evidence
{35} In his second assignment of error, Wisniewski argues that his convictions were against the manifest weight of the evidence. Unlike a challenge to the sufficiency of the evidence, a manifest weight challenge attacks the quality of the evidence and questions whether the state met its burden of persuasion at trial. State v. Hill, 8th Dist. Cuyahoga No. 99819, 2014-Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. In our manifest weight review of a bench trial verdict, we recognize that the trial court is serving as the factfinder. Accordingly, to warrant reversal from a bench trial under a manifest weight of the evidence claim, this court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving conflicts in evidence, the trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41, citing State v. Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25 (8th Dist.)
{36} In support of his manifest weight argument, Wisniewski argues that Heaton was suicidal and abused multiple prescription opiates. He emphasizes both the presence of other drugs in Heaton‘s system and the trial court‘s reference to the other drugs in rendering its verdict. Wisniewski also reiterates his arguments
{37} Wisniewski characterizes Heaton‘s death as an opiate overdose and not specifically a heroin overdose. He points to one particular exchange with Dolinak, in which Dolinak was asked, with respect to one particular compound, if there was any way of telling if that compound was from heroin or from other opiates, and Dolinak confirmed that there was not. Viewing this exchange in the greater context of Dolinak‘s testimony, however, we are not persuaded by Wisniewski‘s argument. Dolinak testified that heroin was the primary cause of Heaton‘s death as follows:
DEFENSE: As you stated, the cause of death was acute heroin, clonazepam, amphetamine, and fluoxetine toxicity, correct?
DOLINAK: That‘s right.
DEFENSE: Can you say for sure if any one of those caused the death more than the other?
DOLINAK: I can single out the heroin as being the main factor here, and the others just provided some contributory toxicity.
DEFENSE: So can you say for sure that without the other drugs he would have died?
DOLINAK: I think so, yes.
DEFENSE: You can say that positively?
DOLINAK: Yes.
III. Jail-Time Credit
{38} In his third assignment of error, Wisniewski argues that the trial court erred in failing to award him credit for time served pending his sentence in a separate case from Summit County.
{39} This court reviews the trial court‘s determination as to the amount of jail-time credit under the “clearly and convincingly” contrary-to-law standard. State v. Claggett, 8th Dist. Cuyahoga No. 108742, 2020-Ohio-4133, ¶ 30, citing State v. Perkins, 11th Dist. Lake Nos. 2018-L-084 and 2018-L-098, 2019-Ohio-2288, ¶ 12. It is Wisniewski‘s burden to establish that the trial court erred in its award of jail-time credit. Id., citing State v. Haworth, 11th Dist. Portage Nos. 2019-P-0047, 2019-P-0048, and 2019-P-0049, 2020-Ohio-1341, ¶ 29, citing State v. Corpening, 2019-Ohio-4833, 137 N.E.3d 116, ¶ 27 (11th Dist.)
{41} On March 7, 2018, Wisniewski was sentenced in Summit County Case No. CR-2017-09-3481 to eight years in prison for charges unrelated to the instant case. At that time, Wisniewski was credited with 149 days of jail-time credit for the time in jail awaiting trial and sentence in Summit County.
{42} Wisniewski was indicted in the instant case on September 17, 2018, at which point he was serving his sentence for the Summit County case. On October 20, 2020, Wisniewski was sentenced in this case to 11 years, to be served concurrently with the Summit County case, with no credit for time served. Because the sentence in this case was longer than the Summit County sentence, the 11-year sentence in this case subsumed the Summit County sentence. Wisniewski argues that this improperly eliminated his 149 days of jail-time credit.
{43} The state correctly points out that Wisniewski is not entitled to jail-time credit for time served awaiting trial in the instant case because he was simultaneously serving a sentence on an unrelated case. State v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, ¶ 24. Wisniewski is not arguing that he is entitled to jail-time credit for the time between his September 2018 indictment and October 2020 sentence, however. Instead, he is arguing that he should still be
{44} The practice of awarding jail-time credit, although now covered by state statute, has its roots in the Equal Protection Clauses of the Ohio and United States Constitutions. State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7. Because the Equal Protection Clause does not tolerate disparate treatment of defendants based on their economic status, the United States Supreme Court has repeatedly struck down rules and practices that discriminate against defendants based solely on their ability to pay fines and fees. Id.
{45} Wisniewski relies heavily on Fugate, in which the Ohio Supreme Court addressed the application of jail-time credit where a defendant is sentenced to concurrent as opposed to consecutive sentences:
When a defendant is sentenced to consecutive terms, the terms of imprisonment are served one after another. Jail-time credit applied to one prison term gives full credit that is due, because the credit reduces the entire length of the prison sentence. However, when a defendant is sentenced to concurrent terms, credit must be applied against all terms, because the sentences are served simultaneously. If an offender is sentenced to concurrent terms, applying credit to one term only would, in effect, negate the credit for time that the offender has been held. To deny such credit would constitute a violation of the Equal Protection Clause. Therefore we hold that when a defendant is sentenced to concurrent prison terms for multiple charges, jail-time credit pursuant to
R.C. 2967.191 must be applied toward each concurrent prison term.
Fugate at ¶ 22. In Fugate, however, the defendant was held on each of the charges before his sentencing, and thus was entitled to a reduction of each concurrent prison term.
{46} Wisniewski‘s case is more akin to State ex rel. Rankin v. Mohr, in which the Ohio Supreme Court found that the Ohio Department of Rehabilitation and Correction “had no duty to reduce [a prisoner‘s] 13-year sentence by the number of days that the prisoner was confined for other crimes before he received the 13-year sentence.” State ex rel. Rankin v. Mohr, 130 Ohio St.3d 400, 2011-Ohio-5934, 958 N.E.2d 944, ¶ 2. The court went on to say that the fact that the 13-year sentence was ordered to be served concurrently with his prior sentences did not affect the determination that the prisoner was not entitled to a reduction of his 13-year sentence. Id. Therefore, applying this rationale to Wisniewski, neither the fact that he served 149 days for his Summit County crimes before he received his 11-year sentence in the instant case nor the fact that the trial court here ordered his 11-year sentence to be served concurrently with his eight-year Summit County sentence does not entitle Wisniewski to a reduction of his 11-year sentence. Further, the court in Rankin specifically found that the holding in Fugate did not require a different result because in Fugate, the defendant was held on each of the charges before his sentencing, and he was thus entitled to a reduction of each concurrent prison term. Id. For these reasons, the trial court appropriately declined to award Wisniewski jail-time credit. Wisniewski‘s third assignment of error is overruled.
{47} Judgment 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 conviction having been affirmed, any bail pending 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.
MARY EILEEN KILBANE, PRESIDING JUDGE
LISA B. FORBES, J., and EMANUELLA D. GROVES, J., CONCUR