State v. Heiney, 2020 Ohio 2761

Background

Jake P. Heiney, an orthopedic surgeon, was convicted after a February 2016 jury trial of two counts of gross sexual imposition (fourth-degree felonies) and one count of tampering with records (first-degree misdemeanor); he was sentenced to jail, fined, and designated a Tier 1 sex offender; direct appeals and certiorari were denied.
Two patients (M.S. and K.O.) testified that Heiney performed ‘‘breast exams’’ and other manipulations during shoulder/back visits (exposing/squeezing a breast, placing gauze inside a bra, pulling down pants/underwear and touching buttocks/upper thigh); no third party or gloves were present.
After a police interview about K.O., Heiney accessed and printed her electronic medical record and directed his assistant to add an addendum; the original EMR remained in the system.
Defense identified Dr. Serge Kaska as a potential orthopedic expert shortly before trial but did not call any expert; the state’s orthopedic witness, Dr. Christopher Foetisch, testified that the contested exams were not medically necessary and that he uses different procedures (including a third person present).
Heiney’s amended petition for postconviction relief (PCR) alleged ineffective assistance of trial counsel for failing to secure an expert and failing to seek a continuance; the trial court dismissed the petition (res judicata), and the appellate court rejected the res judicata ruling but affirmed denial of PCR on the merits, finding counsel’s choices strategic and no prejudice shown.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether PCR was barred by res judicata	Heiney: submitted competent evidence dehors the record (new expert affidavits) that could not have been raised on direct appeal	State: claims and facts were known earlier and res judicata bars relitigation	Court: Evidence dehors the record defeats res judicata here, but appeal affirmed on other grounds
Whether trial counsel was ineffective for not calling an expert and not seeking a continuance	Heiney: counsel failed to secure medical experts (affidavits from Drs. Corn/Tindle) and failed to request a continuance, which likely changed outcome	State: counsel reasonably considered and rejected experts as trial strategy; failure to find an expert is not per se ineffective; proffered expert evidence would be cumulative and not dispositive	Court: No ineffective assistance—counsel's conduct falls within strategic discretion and Heiney showed no reasonable probability of a different result

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance standard: deficient performance and prejudice)
State v. Perry, 10 Ohio St.2d 175 (1967) (res judicata bars issues raised or that could have been raised on direct appeal)
State v. Calhoun, 86 Ohio St.3d 279 (1999) (PCR is a narrow statutory remedy; relief requires evidence dehors the record)
State v. Gondor, 112 Ohio St.3d 377 (2006) (abuse-of-discretion standard for PCR decisions)
State v. Bradley, 42 Ohio St.3d 136 (1989) (presumption of counsel competence; tactical decisions generally not ineffective assistance)
State v. Madrigal, 87 Ohio St.3d 378 (1999) (ineffective-assistance claims premised on evidence outside the record belong in PCR)
State v. Nicholas, 66 Ohio St.3d 431 (1993) (decision not to call an expert can be a legitimate trial strategy)
State v. Combs, 100 Ohio App.3d 90 (1994) (PCR may be denied where newly proffered evidence is cumulative)