STATE OF OHIO v. MELISSA DOVALA
C.A. No. 13CA010440
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 2, 2014
[Cite as State v. Dovala, 2014-Ohio-2331.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 04 CR 65395
WHITMORE, Judge.
{¶1} Appellant, Melissa Dovala, appeals from the judgment of the Lorain County Court of Common Pleas, denying her motion for relief from judgment. This Court reverses.
I
{¶2} In July 2005, Dovala was convicted of felony murder, felonious assault, child endangering, and involuntary manslaughter for the death of R.S., a five-month-old in her care. State v. Dovala, 9th Dist. Lorain No. 05CA008767, 2007-Ohio-4914, ¶ 6. The trial court merged the involuntary manslaughter conviction with the felony murder conviction and sentenced Dovala to a prison term of 15 years to life. Id. Dovala appealed her convictions, and this Court affirmed. Id. at ¶ 27.
{¶3} Subsequently, Dovala filed a petition for post-conviction relief (“PCR“). The trial court found that all of her claims were barred by res judicata, and it dismissed her petition. This Court reversed in part, concluding that three of her claims were not barred by res judicata.
{¶4} On remand, the trial court held a hearing during which three witnesses testified on Dovala‘s behalf. Id. at ¶ 2. Additionally, the trial court admitted transcripts of deposition testimony from Dovala and her lead trial counsel, James Burge, into evidence. Id. In his deposition, Burge testified that he sought the opinion of a neurologist, Tom Watson, in his preparation for trial and that this neurologist confirmed that the injury sustained by R.S. was “an inflicted injury with the onset of symptoms which would have occurred very quickly.” In August 2010, the trial court denied Dovala‘s PCR, and this Court affirmed in June 2011. Id. at ¶ 23.
{¶5} In January 2013, Dovala filed a motion for relief from judgment, seeking to set aside the trial court‘s entry denying her PCR. In support of her motion, Dovala attached an affidavit of Dr. Thomas Swanson. In 2012, Dovala discovered that the neurologist Burge testified to consulting was Dr. Swanson, not a Dr. Tom Watson. In his affidavit, Dr. Swanson states that he never discussed Dovala‘s case with Burge and never rendered a medical opinion. The State filed a memorandum in opposition to Dovala‘s motion and attached an affidavit of Burge. In his affidavit, Burge states that he did not formally consult with Dr. Swanson, but that
{¶6} On March 22, 2013, the trial court held a hearing and granted Dovala‘s motion to expand the record with a deposition of Perkovic. Perkovic was subsequently deposed, and a transcript was filed with the trial court. In June 2013, without holding an additional hearing, the court denied Dovala‘s motion for relief from judgment. Dovala now appeals from that order and raises 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. FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION. (Sic.)
{¶7} In her sole assignment of error, Dovala argues that the court abused its discretion in denying her motion for relief from judgment based on newly discovered evidence that her trial counsel did not consult with a neurologist, which contradicted his previous testimony.
{¶8} “The decision to grant or deny a motion for relief from judgment pursuant to
{¶9}
To prevail on a motion brought under
Civ.R. 60(B) , the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated inCiv.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R. 60(B)(1) , (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. ”
Grounds for Relief Under Civ.R. 60(B)(5)
{¶10} ”
{¶11} One extraordinary circumstance which may form the basis for relief under
{¶12} Dovala filed her
{¶13} The court stated in its judgment that it had “examined and compared the conflicting affidavits and depositions of [] James Burge, Laura Perkovic[,] and Dr. Thomas Swanson.” However, there is no discussion of Perkovic‘s deposition, which occurred after both the briefing and the hearing. In its entry the court carefully summarized the testimony of both Burge and Dr. Swanson, but made no mention of Perkovic‘s.
{¶14} Even assuming the court did properly consider Perkovic‘s testimony, we cannot conclude that the court fully considered whether extraordinary or unusual circumstances (beyond fraud) warranted Dovala relief under
{¶15} Additionally, the court found the testimony of Dr. Swanson and Perkovic to be “merely cumulative.” This conclusion is not supported by the record. Burge‘s prior testimony was that Dr. Swanson rendered an opinion that was consistent with the State‘s medical experts (namely, that the injury was inflicted and that the onset symptoms would have occurred very quickly). Dr. Swanson and Perkovic now directly contradict this evidence and maintain that Dr. Swanson did not render any medical opinion, officially or unofficially. Burge now asserts that while he did not personally consult with Dr. Swanson, Dr. Swanson did relay his unofficial medical opinion to Perkovic, and that Perkovic, in turn, relayed that opinion to him. Again, Dr. Swanson and Perkovic deny any medical opinion was rendered or relayed to Burge. In the trial court‘s denial of Dovala‘s PCR, the court found that Burge was not ineffective, in part, because he had consulted with a neurologist. Dr. Swanson‘s affidavit and Perkovic‘s deposition, if believed, undermine the court‘s rationale and cannot be said to provide “merely cumulative” evidence.1
{¶16} The court did not fully analyze whether Dovala was entitled to relief under
{¶17} In addition to asserting a claim for relief under
{¶18} For the foregoing reasons, Dovala‘s assignment of error is sustained.
III
{¶19} Dovala‘s sole assignment of error is sustained. The judgment of the Lorain County Court of Common Pleas is reversed and the cause is remanded for further proceedings consistent with the foregoing opinion.
Judgment reversed, and remanded.
There were reasonable grounds for this appeal.
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 Appellee.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
BARRY W. WILFORD and SARAH M. SCHREGARDUS, Attorneys at Law, for Appellant.
TIMOTHY J. MCGINTY, Prosecuting Attorney, and T. ALLAN REGAS and BRENT KIRVEL, Assistant Prosecuting Attorneys, for Appellee.