[Cite as State v. McQuistan, 2019-Ohio-3612.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

STATE OF OHIO                                         C.A. No.       18CA0104-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
KEIR MCQUISTAN                                        COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   16CR0075

                                 DECISION AND JOURNAL ENTRY

Dated: September 9, 2019



        CALLAHAN, Presiding Judge.

        {¶1}    Appellant, Keir McQuistan, appeals an order of the Medina County Court of

Common Pleas that denied his petition for postconviction relief. This Court affirms.

                                                 I.

        {¶2}    On February 13, 2016, Mr. McQuistan rear-ended a sedan at the intersection of

Greenwich Road and Hubbard Valley Road near Seville, Ohio. The force of the impact pushed

the sedan through the intersection, across the oncoming lane of traffic, and into a ditch. Five-

year-old B.R. sustained life-threatening injuries as a result of the collision. After Mr. McQuistan

waived his right to a jury trial, the trial court found him guilty of aggravated vehicular assault in

violation of R.C. 2903.08(A)(1)(a) and vehicular assault in violation of R.C. 2903.08(A)(2)(b).

The trial court merged the counts and sentenced Mr. McQuistan to three years in prison. Mr.

McQuistan appealed, and this Court affirmed his convictions. State v. McQuistan, 9th Dist.

Medina No. 17CA0007-M, 2018-Ohio-539.
                                                 2


       {¶3}    On March 7, 2018, Mr. McQuistan petitioned the trial court for postconviction

relief. In his four claims for relief, Mr. McQuistan argued that trial counsel was ineffective by

virtue of failing to investigate potentially exculpatory evidence and by virtue of other alleged

errors in preparing for trial. He also argued that he was charged by means of a defective

indictment and that he was denied the right to a trial before an impartial jurist. The trial court

concluded that his third claim for relief was barred by res judicata and dismissed it on that basis.

The trial court concluded that the remaining claims for relief failed to set forth sufficient

operative facts to establish substantive grounds for relief and dismissed those claims without a

hearing. Mr. McQuistan appealed.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO PROVIDE
       PETITIONER MR. MCQUISTAN WITH A HEARING ON HIS PETITION TO
       VACATE.

       {¶4}    In his first assignment of error, Mr. McQuistan argues that the trial court erred by

dismissing his petition without a hearing even though he filed two expert reports in support of

the petition. This Court disagrees.

       {¶5}    Under R.C. 2953.21(A)(1)(a), a convicted criminal defendant may petition the

trial court to vacate or set aside a judgment or sentence because it is void or voidable under the

Constitution of the United States or the Ohio Constitution. The petitioner may file documentary

evidence in support of the petition. Id. A petitioner “is not automatically entitled to a hearing.”

State v. Calhoun, 86 Ohio St.3d 279, 282 (1999).           In that respect, the trial court has a

“gatekeeping” function. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 51. “[A] trial

court properly denies a defendant’s petition for postconviction relief without holding an
                                                3


evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the

files, and the records do not demonstrate that petitioner set forth sufficient operative facts to

establish substantive grounds for relief.” Calhoun at paragraph two of the syllabus. The trial

court’s gatekeeping function is not merely a matter of determining whether some evidence

supporting the petition has been submitted and considering the credibility of that evidence,

although it must do so. See id. at paragraph one of the syllabus and 283-285. Instead, the trial

court must determine whether that evidence establishes substantive grounds for relief. Id. at

paragraph two of the syllabus.

       {¶6}    Mr. McQuistan was not guaranteed a hearing on his petition, even though he filed

some documentation that purported to support his claims. R.C. 2953.21(D) permitted the trial

court to dismiss Mr. McQuistan’s petition without a hearing if, having considered the petition,

the record, and any supporting documentation, it determined that he did not set forth sufficient

operative facts to establish any substantive grounds for relief. Calhoun at paragraph two of the

syllabus.

       {¶7}    Mr. McQuistan’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

       TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE OF
       COUNSEL TO MR. MCQUISTAN AND SUCH FAILURE PREJUDICED HIM.

                              ASSIGNMENT OF ERROR NO. 3

       MR. MCQUISTAN HAD A RIGHT TO A FAIR AND IMPARTIAL JURIST
       AT TRIAL AND SENTENCING.

       {¶8}    Mr. McQuistan’s second and third assignments of error argue that the trial court

abused its discretion by dismissing his petition. This Court disagrees.
                                                  4


        {¶9}    When a trial court exercises its gatekeeping function by determining that the

petitioner has not alleged sufficient operative facts that would establish substantive grounds for

relief, this Court reviews the trial court’s findings of fact to determine whether they are

supported by competent, credible evidence, but we review the trial court’s ultimate decision for

an abuse of discretion. See State v. Wesson, 9th Dist. Summit No. 25874, 2012-Ohio-4495, ¶ 11,

rev’d in part on other grounds, 137 Ohio St.3d 309, 2013-Ohio-4575, citing Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, at ¶ 52. An abuse of discretion is present when a trial court’s

decision “‘“is contrary to law, unreasonable, not supported by evidence, or grossly unsound.”’”

State v. A.V., 9th Dist. Lorain No. 18CA011315, 2019-Ohio-1037, ¶ 6, quoting Menke v. Menke,

9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan

No. 8-14-24, 2015-Ohio-1999, ¶ 25.

        {¶10} Mr. McQuistan’s petition argued four grounds for relief. His first and second

claim for relief—and portions of his fourth—argued that trial counsel was ineffective. Because

these claims for relief all argue ineffective assistance of counsel, this Court will address them

together. The balance of his second claim for relief argued that he was denied the right to be

tried by an impartial jurist. His third claim, which the trial court dismissed as res judicata, is not

at issue in this appeal.

        {¶11} Courts apply the same standard for assessing ineffective assistance of counsel

when considering a petition for postconviction relief as is applied when the issue is raised on

direct appeal. See Gondor at ¶ 61. Thus, in order to demonstrate ineffective assistance of

counsel, a defendant must show (1) deficiency in the performance of counsel “so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”

and (2) that the errors made by counsel were “so serious as to deprive the defendant of a fair
                                                 5


trial[.]” Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must demonstrate

prejudice by showing that, but for counsel’s errors, there is a reasonable possibility that the

outcome of the trial would have been different. Id. at 694. “A defendant’s failure to satisfy one

prong of the Strickland test negates a court’s need to consider the other.” State v. Madrigal, 87

Ohio St.3d 378, 389 (2000), citing Strickland at 697. In applying this test, “a court must indulge

a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance[.]” Strickland at 689.

       {¶12} Three of Mr. McQuistan’s ineffective assistance arguments related to trial

counsel’s alleged failure to investigate evidence that, in Mr. McQuistan’s estimation, was

potentially exculpatory: In his first claim for relief, he asserted that trial counsel failed to

investigate and introduce into evidence the crash data obtained from his vehicle. In his fourth

claim for relief Mr. McQuistan, asserted that trial counsel failed to investigate whether there

were other fact witnesses present at the scene of the accident and whether there were other

accidents in the vicinity on the date in question that could be attributed to weather conditions.

Each of these arguments relates to the same question at issue at trial: whether Mr. McQuistan

caused serious physical harm to B.R. as the proximate result of driving under the influence of

alcohol. See R.C. 2903.08(A)(1)(a).

       {¶13} When a defendant challenges the effectiveness of trial counsel based on decisions

regarding the scope of investigation in support of the defense, courts presume that the decisions

made by counsel amount to sound trial strategy under the circumstances. Strickland at 689.

Consequently, courts must be mindful that “[i]n any ineffectiveness case, a particular decision

not to investigate must be directly assessed for reasonableness in all the circumstances, applying
                                                  6


a heavy measure of deference to counsel’s judgments.” Strickland at 691. As the Supreme

Court noted in Strickland,

       [S]trategic choices made after thorough investigation of law and facts relevant to
       plausible options are virtually unchallengeable; and strategic choices made after
       less than complete investigation are reasonable precisely to the extent that
       reasonable professional judgments support the limitations on investigation. In
       other words, counsel has a duty to make reasonable investigations or to make a
       reasonable decision that makes particular investigations unnecessary.

Id. at 690-691.

       {¶14} In support of his first claim for relief, Mr. McQuistan filed an eleven-page

document that purported to be crash data obtained from his vehicle. Shortly thereafter, he filed

an affidavit by Andrew S. Rich, an accident reconstructionist who interpreted the crash data to

determine the speed of Mr. McQuistan’s vehicle at impact and the timeframe during which Mr.

McQuistan applied the brakes. He also filed an expert report authored by Attorney Joseph C.

Patituce regarding whether trial counsel’s performance fell below a standard of objective

reasonableness. It is important to note, however, that the evidence submitted by Mr. McQuistan

does not actually demonstrate that counsel failed to investigate the crash data.1

       {¶15} With respect to the investigation and introduction of the crash data report, the trial

court concluded that trial counsel’s decision “was classic trial strategy that cannot and should not

be second-guessed[.]” The trial court determined that the crash data demonstrated that Mr.

McQuistan did not apply his brakes “until the very last second or two” before impact, noting that

only two seconds before the collision, Mr. McQuistan’s vehicle was traveling 55 miles per hour.

The trial court also noted that trial counsel’s defense strategy was to challenge the State’s


       1
         It is unclear from his petition whether Mr. McQuistan maintains that counsel obtained
the crash data and chose not to use it or failed to obtain and investigate the crash data in the first
instance. In any event, as explained below, the crash data and accompanying expert report that
he submitted with his petition do not support his claim for relief.
                                                 7


evidence tending to demonstrate that Mr. McQuistan was driving under the influence of alcohol

at the time of the crash and concluded that “[t]he idea that [Mr.] McQuistan may have applied

the brakes two seconds prior to impact would not change the evidence that [Mr.] McQuistan was

at fault in causing the accident. It also would not change the evidence that [Mr.] McQuistan was

under the influence of alcohol and would not change the fact that [Mr.] McQuistan caused

serious physical harm to [B.R.].”

         {¶16} The trial court’s conclusion that neither the crash data report itself nor the

corresponding affidavit of Andrew S. Rich set forth sufficient operative facts to establish

substantive grounds for relief does not reflect an abuse of discretion. The State’s theory of the

case at trial was that the observations of first responders and the mechanics of the accident itself

demonstrated that Mr. McQuistan was under the influence of alcohol. As the trial court noted,

trial counsel’s defense strategy was to challenge that theory.

         {¶17} To that end, counsel introduced evidence that contradicted the State’s witnesses,

who testified that the roadway was only partially covered with snow and treated with salt or

brine.    J.R., for example, testified that after snowfall earlier in the day, the roads had been

plowed and salted, and there were no problems with driving conditions before the accident. In

contrast, Mr. McQuistan and his wife testified that road conditions were poor and driving was

hazardous. J.R. testified that the elevation of Greenwich Road is at its maximum as you leave

Seville and, from that vantage point, a driver can see clearly down the rest of the slope to the

intersection of Hubbard Valley Road approximately a mile away. On the other hand, Mr.

McQuistan testified that there is a second small incline near the bottom of Greenwich Road and

that he was surprised to see J.R.’s vehicle stopped at the intersection. He also testified that he
                                                 8


saw the sedan three to five seconds before impact and applied the brakes aggressively, but

obtained no traction.

       {¶18} The crash data, as the trial court noted, does not support Mr. McQuistan’s

testimony, nor does it tend to demonstrate that the accident was caused not by his intoxication,

but by road conditions and geography. According to Mr. Rich’s interpretation of the data, there

was no evidence that Mr. McQuistan’s vehicle veered from a straight line of travel. The data

also indicated that Mr. McQuistan was traveling between 38 to 45 miles per hour at the moment

of impact. Mr. Rich explained that the brakes were applied only 1.0-1.2 seconds before impact

and that the antilock braking mechanism engaged only .08-.06 seconds before impact.

       {¶19} The crash data does not tend to disprove that Mr. McQuistan was under the

influence of alcohol, and it could, in fact, support the inference that his delayed reaction time

was further evidence of impairment. The trial court did not abuse its discretion by concluding

that the decision not to rely on such evidence was an element of trial strategy. As such, the trial

court did not err by concluding that Mr. McQuistan’s first claim for relief did not set forth

alleged sufficient operative facts that would establish substantive grounds for relief and

dismissing that claim without a hearing.

       {¶20} Portions of Mr. McQuistan’s second and fourth claims for relief also allege that

trial counsel was ineffective by virtue of failing to investigate the potential testimony of other

witnesses at the crash scene and whether video evidence of this crash scene or other crash scenes

depicted driving conditions on the date in question. Mr. McQuistan has not identified any such

evidence that actually exists, nor has he referenced the testimony that any specific witness might

provide in his defense. “Conjecture built upon insufficiently supported speculation does not

establish substantive grounds entitling a defendant to postconviction relief.” State v. English, 9th
                                                  9


Dist. Lorain No. 99CA007408, 2000 WL 254912, *4 (Mar. 8, 2000).                   See also State v.

Chesrown, 9th Dist. Summit No. 26336, 2014-Ohio-680, ¶ 11.

       {¶21} Portions of Mr. McQuistan’s fourth claim for relief argued that trial counsel was

ineffective in connection with State’s Exhibit 14, a dashboard camera video obtained from one of

the officers who responded to the accident scene. The State played portions of the video during

its cross-examination of Mr. McQuistan over trial counsel’s objection. In his fourth claim for

relief, Mr. McQuistan took contradictory positions: that trial counsel should have filed a motion

in limine to exclude the video entirely and that trial counsel should have introduced the entire

video into evidence. He also argued that trial counsel failed to ensure that the record contained

references to the specific portions of the video that were played at trial.

       {¶22} In reviewing the fourth claim for relief, the trial court found that the video, as a

whole, was harmful to the defense rather than helpful and that trial counsel’s decision reflected

sound trial strategy. The conclusion that this portion of the fourth claim for relief did not set

forth sufficient operative facts demonstrating substantive grounds for relief was not an abuse of

discretion. Moreover, this Court notes that State’s Exhibit 14 was part of the record on appeal.

Mr. McQuistan could have argued ineffective assistance of counsel with respect to this exhibit in

his direct appeal, so these aspects of his fourth claim for relief are barred by application of the

doctrine of res judicata. See State v. Spaulding, 9th Dist. Summit No. 28526, 2018-Ohio-3663, ¶

10, quoting State v. Bulls, 9th Dist. Summit No. 27713, 2015-Ohio-5094, ¶ 9 (“To avoid the

preclusive effect of res judicata, post-conviction relief claims must be ‘based on evidence outside

of the original record that existed during direct appellate proceedings.’”).

       {¶23} Mr. McQuistan’s final allegations of ineffective assistance of counsel were

pleaded in his second claim for relief, in which he alleged that trial counsel failed to file a timely
                                                 10


motion for a new trial and failed to file an affidavit of disqualification of the judge who presided

over the trial. Both of these assertions are based on Mr. McQuistan’s allegation that his trial was

tainted because “[t]he trial court ruled on petitioners’ post-trial motions and sentenced petitioner

after having hired the State of Ohio’s trial counsel as a magistrate on her office staff, creating at

the very least an appearance of impropriety and bias against petitioner.” Mr. McQuistan first

raised this allegation in a motion that he filed in the trial court on December 29, 2016. This

Court considered the denial of that motion in his direct appeal and concluded that even if

considered on its merits, the motion failed to demonstrate that he was entitled to a new trial. See

McQuistan, 2018-Ohio-539, at ¶ 48.         Because this Court previously determined that Mr.

McQuistan could not have prevailed on his motion even if it was considered as a timely motion

for a new trial, the trial court’s conclusion that he has not demonstrated ineffective assistance of

counsel was not an abuse of discretion.

       {¶24} The trial court also did not abuse its discretion by dismissing Mr. McQuistan’s

second claim for relief to the extent that he argued trial counsel was ineffective by failing to file

an affidavit of disqualification with the Ohio Supreme Court. As this Court noted in Mr.

McQuistan’s direct appeal, the exclusive remedy for a defendant who alleges that the trial judge

should have recused herself is to file an affidavit of disqualification with the Supreme Court, as

provided by R.C. 2701.03. See McQuistan at ¶ 49. The decision not to file an affidavit of

disqualification falls within the ambit of trial tactics. See State v. Hall, 2d Dist. Montgomery No.

25858, 2014-Ohio-416, ¶ 8.

       {¶25} Mr. McQuistan did not identify any evidence of bias on the part of the trial court.

He did not support his allegation that trial counsel erred by failing to file an affidavit of

disqualification, nor did he explain how there is a reasonable possibility that the outcome of the
                                                 11


trial would have been different had trial counsel done so. See Strickland, 466 U.S. at 694. See

also State v. Quinn, 6th Dist. Lucas No. L-12-1242, 2014-Ohio-340, ¶ 40 (rejecting an

ineffective assistance argument when the appellant failed to demonstrate prejudice resulting from

the failure to file an affidavit of disqualification.). In other words, this allegation of ineffective

assistance of counsel rested solely on conjecture and speculation, and the trial court did not err

by dismissing it. See English, 2000 WL 254912, at *4. See also Chesrown, 2014-Ohio-680, at ¶

11.

       {¶26} The remainder of Mr. McQuistan’s second claim for relief argued that he was

denied the right to a fair and impartial jurist. The trial court dismissed this portion of the second

claim for relief based on res judicata, noting that “McQuistan * * * asserted this exact argument

in his direct appeal and it was also rejected” by this Court. Although Mr. McQuistan did raise

this argument in his direct appeal, this Court concluded that it was not properly raised in that

context. See McQuistan at ¶ 49. Nonetheless, the allegations that Mr. McQuistan made in

support of this argument are the same as those made in connection with his argument that

counsel was ineffective by failing to file an affidavit of disqualification. This argument also,

therefore, is based solely on conjecture and speculation, and the trial court did not abuse its

discretion by dismissing McQuistan’s second claim for relief. See English at *4. See also

Chesrown at ¶ 11.

       {¶27} The trial court did not abuse its discretion by determining that Mr. McQuistan’s

petition for postconviction relief, along with the supporting documentation and the record, did

not set forth sufficient operative facts to establish substantive grounds for relief. See Calhoun,

86 Ohio St.3d 279 at paragraph two of the syllabus. His assignments of error are overruled.
                                                12


                                                III.

       {¶28} Mr. McQuistan’s assignments of error are overruled.             The judgment of the

Medina County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT



CARR, J.
HENSAL, J.
CONCUR.
                                        13


APPEARANCES:

MICHAEL CALLOW, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
