[Cite as State v. Dovala, 2011-Ohio-3110.]


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

STATE OF OHIO                                        C.A. No.       10CA009896

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MELISSA DOVALA                                       COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   04CR065398

                                 DECISION AND JOURNAL ENTRY

Dated: June 27, 2011



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellant, Melissa Dovala, appeals from the judgment of the Lorain

County Court of Common Pleas, denying her petition for post-conviction relief. This Court

affirms.

                                                 I

        {¶2}     In July 2005, a jury found Dovala guilty of felony murder, felonious assault,

endangering children, and involuntary manslaughter following the death of five-month-old Riley

Smath, an infant who died while under her supervision at her in-home child care business. The

trial court merged Dovala’s manslaughter conviction with her felony murder conviction and

sentenced her to an indefinite prison term of fifteen years to life. Dovala appealed and argued, in

part, that her trial counsel and her original appellate counsel were ineffective. This Court

affirmed her convictions and in doing so, concluded that she was not denied the effective

assistance of trial counsel. State v. Dovala, 9th Dist. No. 05CA008767, 2007-Ohio-4914, at ¶14-
                                                 2


17. Thereafter, Dovala petitioned for post-conviction relief on six different grounds. The trial

court determined that all of her claims were barred by res judicata and dismissed her petition.

Dovala appealed, and this Court reversed the trial court’s decision in part, concluding that,

though three of her six grounds for relief were barred on the basis of res judicata, three were not.

State v. Dovala, 9th Dist. No. 08CA009455, 2009-Ohio-1420, at ¶7-21.              Accordingly, we

concluded that the trial court had erred by failing to consider three of her claims, namely,

whether her trial counsel were ineffective because they had failed to: (1) fully prepare for trial

and investigate the State’s case; (2) present any expert testimony to contradict the State’s expert;

and (3) fully investigate their theory of her defense and support it with expert evidence. Id. at

¶21. Following our remand on these matters, the trial court held a hearing on April 30, 2010.

Three witnesses testified on Dovala’s behalf, and the trial court admitted transcripts of deposition

testimony from Dovala and her lead trial counsel, James Burge, into evidence. On August 23,

2010, the trial court issued its findings of fact and conclusions of law in which it determined that

Dovala was not entitled to post-conviction relief.    Dovala has appealed from the denial of her

petition and asserts one assignment of error for our review.

                                                 II

                                       Assignment of Error

       “THE JUDGMENT OF THE TRIAL COURT IS CONTRARY TO THE
       MANIFEST WEIGHT OF THE EVIDENCE, AND CONSTITUTES AN
       ABUSE OF JUDICIAL DISCRETION[.]”

       {¶3}    In her sole assignment of error, Dovala argues that the trial court erred in denying

her petition for post-conviction relief. Her argument is threefold. First, she argues that the trial

court’s findings of fact are not supported by the evidence in the record and, therefore, it abused

its discretion in determining whether she was denied the effective assistance of counsel. Next,
                                                   3


she asserts that the trial court applied the incorrect legal standard when it determined whether her

counsel’s performance was deficient. Finally, she alleges that her counsel breached his duty to

adequately investigate and prepare her defense.

        {¶4}    This Court reviews a trial court’s decision to deny a petition for post-conviction

relief for an abuse of discretion. State v. Cleveland, 9th Dist. No. 08CA009406, 2009-Ohio-397,

at ¶11, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, at ¶58. “[A] reviewing

court should not overrule the trial court’s finding on a petition for post[-]conviction relief [if it] is

supported by competent and credible evidence.” Gondor at ¶58. An abuse of discretion means

that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219.

        {¶5}    R.C. 2953.21(A)(1)(a) permits a person who has been convicted of a criminal

offense to petition the court for post-conviction relief where “there was such a denial or

infringement of the person’s rights as to render the judgment void or voidable under the Ohio

Constitution or the Constitution of the United States[.]” If the trial court agrees, it may “vacate

or set aside the judgment or sentence or [] grant other appropriate relief.” R.C. 2953.21(A)(1)(a).

In order to demonstrate ineffective assistance of counsel in a post-conviction petition, the

petitioner is required to satisfy the two-prong test set forth in Strickland v. Washington (1984),

466 U.S. 668, 687; State v. Stafford, 9th Dist. No. 24674, 2009-Ohio-5167, at ¶7. That is, the

petitioner must first demonstrate that her counsel’s performance was deficient to the extent that

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

Amendment.” Strickland, 466 U.S. at 687. Second, the petitioner must demonstrate that “the

deficient performance prejudiced [her] defense.” Id. To demonstrate prejudice, a petitioner must

prove that “there exists a reasonable probability that, were it not for counsel’s errors, the result of
                                                   4


the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three

of the syllabus. If she fails to satisfy either the deficiency or prejudice prong, the petitioner is not

entitled to relief. Id. at 143, quoting Strickland, 466 U.S. at 697.

Standard of Review

        {¶6}    On appeal, Dovala argues that the trial court applied the incorrect test for

determining her claim of ineffective assistance. She asserts that the trial court erred by relying

on State v. Rouse (July 12, 1990), 8th Dist. No. 57222, as authority for determining ineffective

assistance claims because that decision “relied upon [a] pre-Strickland decision of the Supreme

Court of Ohio which applied a different test to determine claims of ineffective legal

representation.” We disagree, as it is readily apparent in reading Rouse that the Eighth District

also cited and relied upon Strickland and Ohio’s adoption of the Strickland test in State v.

Bradley (1989), 42 Ohio St.3d 136, in conducting its analysis. Moreover, the syllabus in Bradley

relies upon the same pre-Strickland law, State v. Lytle (1976), 48 Ohio St.2d 391, as the Eighth

District did in Rouse. Thus, we reject Dovala’s assertion that the trial court misapplied the test

for ineffective assistance of counsel or imposed a higher burden of proof upon her than is

required.

Findings of Fact

        {¶7}    Dovala also argues that the trial court’s findings of fact were unsupported by the

evidence in the record. Dovala points to three different findings that she argues are unsupported

by any evidence adduced at her post-conviction hearing. First, Dovala takes issue with the trial

court’s finding that her counsel “consulted with a neurologist *** throughout the case, as well as

an OB/GYN.” She argues that the “consultation” attested to by Burge was nothing more than an

informal discussion between Burge and his co-counsel’s husband, Dr. Tom Watson, a
                                                 5


neurologist. She argues that it is misleading and inaccurate to consider Burge’s discussion with

Dr. Watson a “consultation” because Dr. Watson was not compensated for his services and did

not provide a written report of his findings. Given the lack of a report, she asserts that it is

unclear what materials he reviewed and relied on in arriving at his conclusion that Smath’s death

was the result of an inflicted injury that would have been accompanied by the quick onset of

symptoms. She also asserts that the informal nature of the “consultation” with Dr. Watson

resulted in several questions critical to her defense being left unanswered, specifically, whether

the injuries to Smath could have been inflicted by a younger child at an earlier point in the day.

Dovala considers this possibility one of “huge importance” because there was testimony at trial

that Smath had started crying earlier in the day while Dovala was out of the room, but her four

year old son remained in the room with him. Dovala further argues that the neurological

consultation should have included an assessment of the inconsistencies between the severe

internal tissue and skull damage and the lack of any external bruising or lacerations.

       {¶8}    In his deposition testimony, Burge testified that he has practiced criminal law for

thirty years. Throughout that time, he has defended four infant homicides before representing

Dovala, taking three of those cases to trial. Based on his experience, he understood that the

trauma to the head generally occurred close in time to the infant’s death. Further, at the point he

was retained by Dovala, she had made several statements to the police, one of which was video

recorded and admitted into evidence at trial. In those statements and in her testimony at trial,

Dovala stated that it was “absolutely not” possible that one of the other children could have done

anything to Smath that day, and further, that there were no accidents or other adults present in

the house that could have caused his injuries. Burge explained that these statements made it very

difficult to mount a defense that another party had caused the fatal injuries to Smath. He did,
                                                  6


however, discuss the case with Dr. Francis Bartek, a physician specializing in obstetrics and

gynecology (“OB/GYN”) who had testified in the past for one of Burge’s clients, and Dr. Tom

Watson, a neurologist, who was also the spouse of Burge’s co-counsel.                Though neither

physician prepared a report on the case, Dr. Bartek, who was compensated $2,000 in December

2004 for his analysis, suggested there might be a congenital weakness in the skull and reviewed

Smath’s medical records from birth. Dr. Bartek gave Burge the name of two other physicians

who could conduct genetic testing to determine if there was such a weakness in Smath’s skull,

one of whom was Dr. Brian Clark. Burge testified that Dr. Clark was able and willing to

perform the testing on Smath’s parents and that the Smaths had agreed to submit DNA samples

for testing. Burge discussed this strategy with Dovala and informed her of the ramifications of

the test results on her defense, particularly if the test demonstrated that there was not any

congenital weakness. Burge stated he left the decision up to Dovala, and that she instructed him

not to pursue the testing. We note that Dovala disputes Burge’s testimony, testifying in her

deposition that she left the decision up to Burge and was under the impression that the testing

had been done, until she learned just weeks before her trial that it had not, in fact, been done.

       {¶9}    According to Burge, Dr. Watson, who was not compensated for his assessment of

the case, reviewed both the medical records and the autopsy report and concluded that Smath’s

trauma was the result of an “inflicted injury” and that “the onset of symptoms [from the injury]

would have occurred very quickly.” Dr. Watson further indicated to Burge that “whoever

inflicted it knew they did it.” Burge stated that he consulted with Dr. Watson approximately

three months before the matter was set for trial and that Dr. Watson attended portions of the trial

as well. Burge admitted that he did not pursue further questioning with Dr. Watson as to the

discrepancies between the internal and external damage to Smath’s skull, in part because of Dr.
                                                 7


Watson’s assessment, but also based on Burge’s own experience and research with the nature of

the head injuries in these cases. For these reasons, he considered it “unrealistic” to consult with

another physician in an attempt to develop an alternative cause of death. Based on the foregoing,

we conclude that there was some competent, credible evidence to support the trial court’s

conclusion that Burge consulted with two different physicians throughout Dovala’s case.

       {¶10} Next, we consider Dovala’s challenge to the trial court’s finding that Dr. Audrius

Plioplys was unable to provide “a precise opinion on the amount of compressive force needed to

cause the [] fractures” to Smath’s skull. Dr. Plioplys testified at the post-conviction hearing that

Smath’s injuries were the result of “compressive-based force,” not blunt trauma, as was the

opinion of the State’s experts at trial. In addressing the amount of force necessary to inflict a

compressive force injury, Dr. Plioplys’ testimony ranged from a statement that the injury could

have resulted from “some pressure” from a thumb or a knuckle being applied for a brief period

of time, to a later statement that, although the force “could have been very brief[,] *** it was

considerable force.” Though he opined in his affidavit and at the hearing as well that the force

could have been inflicted “by the normal physical strength and body weight of a child four years

of age or older,” he was unable to specify the amount of weight or calculation of force that was

necessary to inflict the fatal fracture. His only testimony in this regard was that a finger or

knuckle placed on the developing skull of a person Smath’s age could have produced such an

injury “with [just] enough [] weight being placed on it[.]” When explicitly asked if he could

determine the amount of weight or force necessary to cause the type of fracture suffered by

Smath, however, Dr. Plioplys stated he could not. He further agreed that he was not familiar

with the literature or field of research on the amounts of pressure necessary to cause certain types

of fractures. Based on this testimony, we conclude that there was some competent, credible
                                                 8


evidence adduced at the hearing to support the trial court’s finding as to Dr. Plioplys’ opinion on

the amount of force necessary to cause Smath’s injuries.

       {¶11} Finally, we consider Dovala’s claim that the trial court failed to credit the breadth

of testimony offered by Dovala’s mother, Margaret Heinman. Dovala argues that the trial court

failed to consider Heinman’s testimony about an event that occurred at Dovala’s house earlier on

the day of Smath’s death. Specifically, she argues that the trial court ignored Heinman’s

testimony relating her concerns that Dovala’s son, or another child in the home, could have

injured Smath while Dovala was caring for her special needs daughter in a different part of the

house and Heinman was with the children. During that time, Heinman stated that Dovala’s son

was playing near Smath and, shortly thereafter, Smath starting crying and continued doing so for

nearly ten minutes. Heinman testified at the post-conviction hearing that she had informed

Burge of her concerns that Dovala’s son might have done something to Smath while she was not

watching, but stated that at trial, she was only asked whether she witnessed Dovala’s son injure

Smath, not whether she believed if there was an opportunity for Dovala’s son (or another child)

to have harmed Smath, when she was not watching. Despite having expressed this concern to

Burge, Heinman stated he failed to question her during trial on this event.

       {¶12} At the post-conviction hearing, the State questioned Heinman on cross-

examination as to why there was a five-second delay before she responded on direct when she

was asked whether Dovala’s son had the opportunity to injure Smath. Heinman initially was

silent in response to the State’s question. When the State asked a second time about the reason

for her delay in answering a question she surely knew would be addressed at the hearing, she

responded that she “was thinking about the question” before responding. The State further

challenged Heinman’s credibility based on the fact that she was Dovala’s mother, in addition to
                                                 9


her hesitation in answering the foregoing question. Thus, it is reasonable that the trial court

omitted any finding of fact on this topic because it simply did not find Heinman’s testimony to

be credible. Because the trial court is in the best position to judge the credibility of a witness

throughout a post-conviction hearing, this Court will not second-guess its judgment on appeal.

State v. Bradford (Aug. 11, 1999), 9th Dist. No. 98CA007264, at *3 (affirming the trial court’s

decision to credit the attorney’s version of events over the defendant’s in a post-conviction relief

hearing). Accordingly, the trial court was not required to make a finding of fact if it did not

consider the testimony credible.

       {¶13} Based on the foregoing analysis, we conclude that the trial court’s findings of fact

were based on competent, credible evidence. Dovala’s assertion to the contrary lacks merit.

Ineffective Assistance

       {¶14} Having concluded that the trial court’s findings of fact were supported by

competent, credible evidence, we next consider whether the trial court abused its discretion by

concluding that Dovala was not denied the effective assistance of counsel during her trial. The

sole basis asserted in her appellate brief is that Burge was ineffective because he failed to

investigate her case and prepare an adequate defense.

       {¶15} “[I]n Ohio, a properly licensed attorney is presum[ed] competent.”            State v.

Calhoun (1999), 86 Ohio St.3d 279, 289.              “[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations unnecessary.

In any ineffectiveness case, a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s

judgments.” Strickland, 466 U.S. at 691. Accord State v. Williams (1991), 74 Ohio App.3d 686,

695.   Additionally, “courts should decline second-guessing an attorney’s trial strategy.”
                                                10


Williams, 74 Ohio App.3d at 695, citing State v. Hester (1976), 45 Ohio St.2d 71, 74. The

Supreme Court has further noted that “the failure to call an expert and instead rely on cross-

examination does not constitute ineffective assistance of counsel.” State v. Nicholas (1993), 66

Ohio St.3d 431, 436, citing State v. Thompson (1987), 33 Ohio St.3d 1, 10-11.

       {¶16} Dovala essentially argues that Burge was overconfident in his ability to defend

her case based on his past experience of trying similar cases and over-relied on this experience

and self-professed knowledge of medical issues, instead of seeking the expert opinions of trained

medical professionals. In support of this assertion, Dovala offered the testimony of defense

attorney Mark Devan. Devan testified that, based on his thirty-five years of experience as a

criminal defense attorney, after reviewing the record in this case, it was “apparent that an expert

was necessary on behalf of [] Dovala.” He opined that Burge was deficient in presenting any

theory of reasonable doubt throughout his cross-examination of either of the State’s medical

experts, the county coroner, Dr. Paul Matus, or his supervisor, Dr. John Daniels, both of whom

performed the autopsy on Smath. Devan considered Burge’s cross-examination of the county

coroner, Dr. Matus, to be “strident and active” but “d[id] not believe it was effective” in that

Burge failed to demonstrate any alternative theory as to how Smath died.

       {¶17} In terms of the use of an expert, Devan agreed that it was appropriate to consult

with an OB/GYN in this case, but considered that simply a starting point, viewing that type of

physician as more of a referral source who could have directed Burge to the appropriate type of

expert to engage for Dovala’s defense. Devan argued that Burge was “talking to the wrong

people” and should have consulted a pathologist “at a minimum” as well as a neurologist.

       {¶18} Devan opined that Burge needed to “analyze the case further” to adapt his defense

to accommodate Dovala’s statements to police by suggesting that Smath’s injuries might have
                                                   11


occurred while he was temporarily out of her sight, attending to another child, or using the

restroom. Because the time frame of the injury was critical to Dovala’s defense, Devan believed

that if an expert like Dr. Plioplys had been employed, Burge could have also argued that Smath’s

injuries occurred earlier in time when Smath was not under Dovala’s care. Devan also criticized

Burge’s decision to pursue a defense theory that was not supported by science, as Burge admitted

was the case here. Devan concluded that Burge’s failure to pursue a professional, formal

consultation with someone other than an OB/GYN fell below the standard of practice in this type

of case. He further asserted that Burge’s failure to interview either coroner before the trial

constituted a breach of the duty he owed to Dovala and fell well beneath the reasonable standard

for an attorney to prepare a defense for Dovala.

       {¶19} Based on the foregoing observations, Devan concluded that Burge’s performance

fell below the reasonable standard of care and that Dovala was denied the effective assistance of

counsel. He further stated that, had Burge engaged a competent expert to challenge how Smath’s

injuries occurred, a jury “would have acquitted her with that sort of evidence in this sort of case,”

and if not, that it was probable that she would have been convicted of a lesser offense. Devan

concluded his testimony by stating that he “believe[s] that [Burge’s] experience got the best of

him” and that he “just didn’t go far enough *** [or] ask the right questions.”

       {¶20} At his deposition, Burge stated that he was limited in his options for asserting a

defense in light of Dovala’s numerous statements to police that no other adults or children had

been near Smath that day, nor had there been any accidents in the home. Burge reasoned that it

would be inconsistent at trial to blame another person in the house that day for the injuries based

on Dovala’s statements. Additionally, Burge testified that the coroner’s estimate that the injury

had occurred between three to five hours before Smath’s death, coupled with his own experience
                                                12


in similar cases, precluded any attempt to suggest that another party, such as Smath’s parents,

had caused the injury. Burge explained that based on his experience in similar cases, his

discussions with Dr. Bartek and Dr. Watson, and the statements Dovala made to police before

retaining him as counsel, he felt the best strategy to pursue in Dovala’s defense would be to rely

on a vigorous cross-examination of Dr. Daniels and Dr. Matus. The record reflects Burge did so,

offering several medical journals and studies challenging the conclusion of Dr. Matus, so much

so that Dr. Matus agreed there was a possibility, though remote, that there were factors that could

lead to increased intracranial pressure and result in a fracture similar to the one suffered by

Smath.

         {¶21} Consistent with the Supreme Court’s directive, this Court has rejected the

assertion that trial counsel is ineffective if he elects not to put forth an expert on defendant’s

behalf, and instead, relies on a rigorous cross-examination of the State’s witnesses. See State v.

Parker (Mar. 1, 2000), 9th Dist. No. 98CA007158, at *6, citing Nicholas, 66 Ohio St.3d at 436.

Accord State v. Fields (Aug. 9, 2000), 9th Dist. No. 99CA0062, at *3. Here, the record reflects

Burge’s deliberate decision, based on a variety of considerations including discussions with

medical professionals, not to seek an expert on Dovala’s behalf, but to instead attack the

credibility and findings of the State’s experts. Giving due deference to counsel’s decision, we

cannot conclude that the failure to obtain an expert under these circumstances constitutes

ineffective assistance of counsel. Williams, 74 Ohio App.3d at 695. Moreover, “[d]ecisions

regarding the calling of witnesses are within the purview of defense counsel’s trial tactics.” State

v. Pordash, 9th Dist. No. 05CA008673, 2005-Ohio-4252, at ¶21, quoting State v. Ambrosio, 9th

Dist. No. 03CA008387, 2004-Ohio-5552, at ¶10. In that same regard, we agree with other courts

that have held that a post-conviction relief petitioner cannot demonstrate ineffective assistance of
                                                13


counsel by presenting “a new expert opinion that is different from the theory used at trial.” State

v. Smith, 4th Dist. No. 09CA3128, 2011-Ohio-664, at ¶29, quoting State v. Cornwell, 7th Dist.

No. 00-CA-217, 2002-Ohio-5177, at ¶46. Accord State v. Tenace, 6th Dist. No. L-05-1041,

2006-Ohio-1226, at ¶26; State v. White (Aug. 7, 1998), 5th Dist. No. 97COA01229, at *9; and

State v. Combs (1994), 100 Ohio App.3d 90, 103. “Ohio case law clearly shows that alternate or

supplementary theories from expert witnesses, which are presented in post[-]conviction

proceedings, are not sufficient to establish ineffective assistance of counsel[.]” Smith at ¶31.

Despite Devan’s claims that Burge’s cross-examination was not effective, the record reveals that

Dr. Matus agreed that it was possible that increased cranial pressure could have caused an

existing fracture to expand in size, resulting in a fracture similar to the one that occurred here.

Accord In re J.B., 12th Dist. Nos. CA2005-06-176, CA2005-07-193, CA2005-08-377, 2006-

Ohio-2715, at ¶34-35 (rejecting a claim of ineffective assistance in a petition for post-conviction

relief where counsel was able to elicit testimony from the coroner on cross-examination

admitting that it was “possible” that there was another cause of death, but counsel had not

presented any corresponding expert on behalf of the defendant).

       {¶22} To the extent Dovala takes issue with Burge’s failure to properly investigate her

claims, Burge testified that he sought the expertise of both an OB/GYN and a neurologist as well

as conducting supplemental research on alternative causes of infant death in such circumstances.

Further, Burge’s initial and supplemental requests for discovery provide evidence that he

pursued relevant information necessary to prepare a defense in this case. This Court will not

employ “hindsight *** to distort the assessment of what was reasonable in light of counsel’s

perspective at the time[.]”    State v. Gapen, 2d Dist. No. 20454, 2005-Ohio-441, at ¶30.

Therefore, the trial court did not abuse its discretion in denying Dovala’s petition for post-
                                                14


conviction relief because there was no evidence that Burge was deficient in performing his duties

as counsel. Strickland, 466 U.S. at 687. Having concluded that Burge was not deficient in

acting as counsel, we need not address whether she suffered any prejudice. Bradley, 42 Ohio

St.3d at 143; Strickland, 466 U.S. at 697. Consequently, Dovala’s assignment of error is

overruled.

                                                III

       {¶23} Dovala’s sole assignment of error is overruled. The judgment of the Lorain

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 Lorain, 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(E). 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.
                                        15



                                             BETH WHITMORE
                                             FOR THE COURT


MOORE, J.
CONCURS

DICKINSON, J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

BARRY W. WILFORD, Attorney at Law, for Appellant.

WILLIAM D. MASON, Cuyahoga County Prosecutor, T. ALLAN REGAS, and BRENT
KIRVEL, Assistant Prosecuting Attorneys, for Appellee.
