STATE OF OHIO, PLAINTIFF-APPELLEE, v. GABRIEL W. SALYERS, DEFENDANT-APPELLANT.
CASE NO. 1-20-55
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
August 30, 2021
[Cite as State v. Salyers, 2021-Ohio-2978.]
Aрpeal from Allen County Common Pleas Court Trial Court No. CR 2018 0143 Judgment Affirmed
Patrick T. Clark for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-appellant, Gabriel W. Salyers, appeals the November 3, 2020 judgment of the Allen County Court of Common Pleas denying his petition for postconviction relief. For the reasons that follow, we affirm.
Background
{¶2} This case arises from the April 3, 2018 death of J.S., the minor child of Shelly Wireman. Salyers and Wireman, who were in a romantic relationship at the time of the incident, lived together with Wireman‘s children from previous relationships, including J.S. Salyers‘s children from previous relationships would also sometimes be present. On April 1, 2018, Wireman made an emergency call to report that she found J.S. unresponsive in his bedroom. J.S. was transported to the hospital, and he was pronounced dead on April 3, 2018. During an interview with law enforcement, Salyers admitted he shook J.S., applied рressure to his abdomen with his fist, and flicked his penis.
{¶3} We have previously recited much of the factual and procedural background of this case, and we will not duplicate those efforts here. State v. Salyers, 3d Dist. Allen No. 1-19-17, 2020-Ohio-147, ¶ 1-7. Relevant to this appeal, on May 17, 2018, the Allen County Grand Jury indicted Salyers on seven counts: Count One of aggravated murder in violation of
{¶4} On May 23, 2018, Salyers‘s trial counsel filed a notice of appearance. On May 24, 2018, Salyers appeared for arraignment and pleaded not guilty to the counts of the indictment.
{¶5} The case proceedеd to a jury trial on March 12-15 and 18-19, 2019. On March 19, 2019, the jury found Salyers guilty of Counts Two, Three, Four, Five, Six, and Seven. However, the jury found Salyers not guilty of the aggravated-murder charge in Count One. The trial court accepted the jury‘s verdict and found Salyers guilty of Counts Two, Three, Four, Five, Six, and Seven.
{¶6} That same day, the trial court sentenced Salyers. The trial court found that Counts Two, Four, and Six merged for the purpose of sentencing, and the State elected to proceed on Count Two. The trial court sentenced Salyers to 15 years to life in prison on Count Two, 8 years in prison on Count Three, 8 years in prison on Count Five, and 180 days in jail on Count Seven. Further, the trial court ordered the prison terms imposed for Counts Two, Three, and Five to be served consecutively to each other for an aggregate prison term of 31 years to life. The trial court ordered the sentence for Count Seven to run concurrently to the prison
{¶7} On April 10, 2019, Salyers filed a notice of appeal with this court. New counsel was appointed for Salyers‘s direct appeal. In his direct appeal, Salyers raised three assignments of error. In his first assignment of error, Salyers argued his trial counsel was ineffective for stipulating to the admission of certain pieces of evidence, making factual misrepresentations during opening statements, and failing to object to inadmissible evidence. Salyers, 2020-Ohio-147, at ¶ 8. In his second assignment of error, Salyers argued he was denied the constitutional right to present a complete defense because the trial court excluded evidence which would have exculpated him and inculpated Wireman. Id. at ¶ 38. In his third assignment of error, Salyers argued the cumulative effect of the errors alleged in his first and second assignments of error denied him a fair trial. Id. at ¶ 60. This Court rejected Salyers‘s arguments and affirmed the judgment of the trial court. Id. at ¶ 64.
{¶8} On January 27, 2020, Salyers filed a notice of intention to file a postconviction petition and a motion to compel Mercy Health – St. Vincent Medical Center to release all radiological imaging related to J.S. to both parties. On February 11, 2020, the trial court denied Salyers‘s motion to compel the production of records.
{¶10} In his second claim for relief, Salyers argued his trial counsel was ineffective for failing to obtain and evaluate the radiology records the State‘s experts relied upon. Specifically, Salyers contended there was no evidence that the State provided him all relevant laboratory or hospital reports or that his trial counsel
{¶11} In his third claim for relief, Salyers argued his trial counsel was ineffective for failing to request a Daubert hearing on the question of the timing of J.S.‘s fatal injury. Salyers contended that although the State‘s expert witnesses concluded that J.S. lost consciousness immediately following his fatal injury and did not experience a lucid interval, an expert witness secured by Salyers‘s
{¶12} On November 2, 2020, the State filed its response to Salyers‘s petition for postconviction relief. The State argued that Salyers‘s trial counsel explored the idea of obtaining expert assistance, but determined as a matter of strategy not to hire an expert for utilization in Salyers‘s defense at trial, even if the reasons for the decision are not reflected in trial counsel‘s case file. Further, the State argued that trial counsel‘s decision was reasonable, as trial counsel vigorously pursued a defense that Wireman was the last person alone with J.S. before he lost consciousness and was, therefore, responsible for the child‘s death.
{¶13} With respect to Salyers‘s argument that his trial counsel was ineffective because he failed to obtain and evaluate radiology studies the State‘s experts relied upon, the State argued that the evidence presented at trial does not reflect that the radiological images referenced in Salyers‘s petition for postconviction relief were “relied upon to any relevant extent by the state‘s medical experts, much less that those records were central to the state‘s theory of the case *
{¶14} The State also noted that although Salyers‘s postconviction expert stated that a lucid interval was “possible” between J.S.‘s injury and loss of consciousness, the expert could not rule out the possibility that J.S.‘s injury occurred immediately prior to his loss of consciousness. The State also argued that even if the trial court assumed that J.S. could have experienced a lucid interval following his injury, the evidence presented at the trial established that Salyers “had complete access” to J.S. prior to his loss of consciousness. Thus, even if J.S. did experience a lucid interval, Salyers could not be excluded as the perpetrator. Additionally, the State argued that Salyers‘s trial counsel vigorously pursued a theory at trial that Wireman had abused J.S. previously and had been the one to inflict the injury that caused the child‘s death.
{¶15} On November 3, 2020, the trial court filed a judgment entry denying Salyers‘s petitiоn for postconviction relief without a hearing. In its judgment entry, the trial court found that Salyers‘s petition for postconviction relief was barred by res judicata. The trial court also found that, even if Salyers‘s petition for
{¶16} On November 13, 2020, Salyers filed a notice of appeal. He raises two assignments of error for our review, which we will discuss together.
Assignment of Error No. I
The trial court abused its discretion when it determined that res judicata bars consideration of Gabe‘s postconviction petition. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982); State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999); November 3, 2020 Judgment Entry; Postconviction Exhibits A-K.
Assignment of Error No. II
The trial court abused its discretion by finding that no new credible evidence supported Gabe‘s postconviction grounds for relief. Hinton v. Alabama, 571 U.S. 263, 274, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014); November 3, 2020 Judgment Entry; Postconviction Exhibits A-K.
{¶17} In his first assignment оf error, Salyers argues that the trial court abused its discretion by determining his petition for postconviction relief was barred by res judicata. In his second assignment of error, Salyers argues that the trial court erred by finding that he failed to demonstrate that his trial counsel was ineffective.
Standard of Review
{¶18} “R.C. 2953.21 governs petitions for post-conviction relief.” State v. Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10. The statute sets forth who may petition for postconviction relief:
Any person who has been convicted of a criminal offense * * * and who claims that 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 *** may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence оr to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
{¶19} “The filing of a petition for postconviction relief does not automatically entitle the petitioner to an evidentiary hearing.” State v. Andrews, 3d Dist. Allen No. 1-11-42, 2011-Ohio-6106, ¶ 11, citing Calhoun, 86 Ohio St.3d at 282. Under
In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court‘s journal entries, the journalized records of the clerk of the court, and the court reporter‘s transcript.
{¶20} “[I]f the court determines that there are no substantive grounds for relief, it may dismiss the petition without an evidentiary hearing.” State v. Jones, 3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, ¶ 14. “The decision to grant the
Relevant Authority and Analysis
{¶21} The trial court dismissed Salyers‘s petition after concluding, in part, that it was barred by the doctrine of res judicata. “Although a defendant may challenge his conviction and sentence by either a direct appeal or a petition for postconviction relief, any claims raised in a postconviction relief petition will be barred by res judicata where the claim was or could have been raised on direct appeal.” State v. Schwieterman, 3d Dist. Mercer No. 10-09-12, 2010-Ohio-102, ¶ 23. ““[U]nder the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant * *
{¶22} However, “since ‘counsel cannot realistically be expected to argue his own incompetence, res judicata does not act to bar a defendant represented by the same counsel at trial and upon direct appeal from raising a claim of ineffective assistance of counsel in a petition for postconviction relief.‘” State v. Lentz, 70 Ohio St.3d 527, 529-530 (1994), quoting State v. Cole, 2 Ohio St.3d 112 (1982), fn.1. But, “where a defendant was represented by new counsel on direct appeal ‘who was in no way enjoined from asserting the ineffectiveness of appellant‘s trial counsel,’ claims of ineffective аssistance must be brought on direct review.” (Emphasis sic.)
{¶23} ““To overcome the res judicata bar, evidence offered [outside] the record must demonstrate that the petitioner could not have appealed the constitutional claim based upon information in the original record.“” State v. Lewis, 3d Dist. Logan No. 8-19-08, 2019-Ohio-3031, ¶ 14, quoting State v. Slagle, 4th Dist. Highland No. 11CA22, 2012-Ohio-1936, ¶ 16, citing Ohio v. Franklin, 1st Dist. Hamilton Nos. C-930760 and B-8804127, 1995 WL 26281, *7 (Jan. 25, 1995); State v. Lawson, 103 Ohio App.3d 307, 315 (12th Dist.1995). “This means that the evidence relied upon must not be evidence which was in existence or available for use at the time of trial or direct appeal, and finally, cannot be merely cumulative of
{¶24} “[I]n reviewing the documentary evidence in support of the petition, the trial court may judge their credibility in determining whether to accept the affidavits as true statements of fact for the purpose of showing substantive grounds for relief.” State v. Howald, 3d Dist. Union No. 14-08-23, 2008-Ohio-5404, ¶ 11, citing Calhoun, 86 Ohio St.3d at 284. The trial court should consider the relevant factors when assessing the credibility of affidavits, including:
(1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner‘s efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial.
An affidavit, being by definition a statement that the affiant has sworn to be truthful, and made under penalty of perjury, should not lightly be deemed false. However, not all affidavits accompanying a postconviction relief petition demonstrate entitlement to an evidentiary hearing, even assuming the truthfulness of their contents. Thus, where a petitioner relies upon affidavit testimony as the basis of entitlement to рostconviction relief, and the information in the affidavit, even if true, does not rise to the level of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is inconsequential.
{¶26} Salyers argues that his petition for postconviction relief is based on evidence outside the record. Specifically, Salyers references the 11 affidavits attached to his petition for postconviction relief and alleges the information contained in the affidavits contain competent, relevant, and material information which advance his claim that his trial counsel was ineffective.
{¶27} Exhibit A, the affidavit of Patrick Clark, a supervising attorney at the Office of the Ohio Public Defender (“OPD“), states that upon receiving Salyers‘s filе from the office of Salyers‘s trial counsel, the file included hospital records that
{¶28} Exhibit D is the affidavit of Dr. Evan Matshes, a forensic pathologist consulted by Salyers‘s postconviction counsel. Incorporated into Dr. Matshes‘s affidavit is lengthy report containing his expert medical opinions regarding J.S.‘s injuries and cause of death. Included in the report is Dr. Matshes expert opinion that J.S. died as a result of blunt force trauma to his head. Dr. Matshes further
{¶29} Exhibit E, the affidavit of Tom Coulter, Salyers‘s boss and close friend, detailed Salyers‘s work schedule in the days preceding J.S.‘s injury. Exhibits F through K are affidavits of Salyers‘s family members and individuals associated with Salyers‘s family. In general, these affidavits summarize the affiants’ interactions with Salyers, J.S., and Wireman in the days preceding J.S.‘s injury, including J.S.‘s demeanor over the preceding weekend. Several of the affidavits also contain observations of previous injuries observed on J.S. prior to the fatal injury and remarks criticizing Wireman‘s parenting.
{¶31} Upon review of the record, we find that Salyers‘s petition for postconviction relief is based, in part, on evidence outside of the record and is, therefore, not barred by res judicata. Our review of the record indicates that some of the evidence and affidavits Salyers attached to his petition for postconviction relief, such as the affidavits of his close family and friends, were merely cumulative of evidence already in the record. However, we find that several of the affidavits and supporting documentation comprise evidence outside the record. For example, the expert medical opinion of Dr. Matshes demonstrates that Salyers could not have appealed his constitutional claim based upon information in the original record. Accordingly, Salyers‘s petition for postconviction relief is not totally barred by res judicata. Therefore, we turn to the merits of his claim that he received ineffective assistance of trial counsel.
{¶32} A defendant asserting a claim of ineffective assistance of trial counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must amount to a substantial violation of counsel‘s essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396-397 (1976), vacated in part on other grounds, Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135 (1978).
{¶33} Prejudice results when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Bradley at 142, quoting Strickland at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., quoting Strickland at 694. If the petitioner cannot prove one of the elements, it is “unnecessary for a court to consider the other prong of the test.” State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.
{¶35} The failure to make either the deficiency or prejudice showing defeats a claim of ineffective assistance of counsel. State v. Frye, 10th Dist. Franklin Nos. 14AP-988 and 14AP-989, 2015-Ohio-3012, ¶ 11, citing Strickland, 466 U.S. at 697. Thus, “a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland at 697. Accordingly, we will first address Salyers‘s argument that he was prejudiced by his trial counsel‘s alleged errors.
{¶36} Salyers offers several arguments in support of his pоsition that he was prejudiced by his trial counsel‘s alleged deficient performance. First, Salyers argues that if his trial counsel had consulted with a medical expert it “would have opened additional defense theories about the manner of J.S.‘s death.” (Appellant‘s Reply Brief at 4). Salyers argues that because his trial counsel did not consult with an expert witness, none of his trial counsel‘s decisions could be tactical or strategic.
{¶38} Additionally, Salyers contends that a medical expert could have challenged the forensic pathologist‘s conclusions. Specifically, Salyers argues that a medical expert could have challenged the forensic pathologist‘s credibility by opining that she failed to meet standard practices. Further, Salyers contends that a medical expert could have challenged the forensic pathologist‘s opinion that J.S.‘s injuries suggest that he was shaken. According to Salyers, by challenging the forensic pathologist‘s findings, “trial counsel could have advanced an affirmative сase, arguing that J.S. experienced a lucid interval after [Wireman] fatally injured him in the day or hours leading to his collapse.” (Appellant‘s Brief at 11).
{¶39} After reviewing the record, including Salyers‘s petition for postconviction relief, we are unpersuaded. First, Salyers‘s argument that further investigation would have necessarily led to Salyers retaining an expert witness is
{¶41} Next, although Salyers argues he was prejudiced by his trial counsel‘s failure to employ an expert witness, Dr. Matshes‘s report and medical opinions expressed therein are largely consistent with the medical opinions offered by the State‘s medical experts. Consistent with the State‘s medical expert, Dr. Matshes concludes that J.S.‘s cause of death “is best certified as a homicide.” (Doc. No. 229, Ex. D). Dr. Matshes based this conclusion on the “totality of available information, including the presence of unexplained old and new injuries.” (Id.).
{¶43} Furthermore, a review of the trial record reveals that Salyers‘s trial counsel robustly pursued a theory that Wireman had abused J.S. previously and inflicted his fatal injury. Specifically, with regard to the fatal injury, trial counsel pursued a theory that, although Salyers put J.S. to bed on April 1, 2018, it was Wireman who found him unresponsive. Salyers‘s defense vigorously pursued a theory that Wireman fatally injured J.S. immediately prior to J.S. going limp in her arms. To present Wireman as a viable alternative suspect, Salyers‘s trial counsel cross-examined the lead detective regarding his interviews with Wireman to point out inconsistencies present in her statements to law enforcement. Trial counsel also highlighted Wireman‘s substance addiction and attempted to present Wireman as an abusive and neglectful parent. Moreover, defense counsel attempted to demonstrate that law enforcement immediately focused on Salyers as a suspect and was not willing to objectively consider Wireman as a suspect in her son‘s death. Specifically, defense counsel contrasted the recordings of police interviews with Wireman and Salyers to demonstrate that law enforcement treated Wireman sympathetically while treating Salyers with suspicion.
{¶45} With respect to Salyers‘s argument that the forensic pathologist performed J.S.‘s autopsy in a way that did not conform with national and international expectations for forensic pathologists, we are unpersuaded. First, although Dr. Matshes opines in his report that J.S.‘s autopsy fell below standards, Dr. Matshes fails to support this assertion with references to the specific national and international standards that the forensic pathologist apparently failed to meet. Furthermore, Salyers fails to identify specifically how the forensic pathologist‘s alleged errors prejudiced him aside from mere speculation that Dr. Matshes‘s opinion regarding the quality of the autopsy may have lessened the credibility of the forensic pathologist in the eyes of the jury.
{¶46} In conclusion, after reviewing the totality of the evidence presented at trial and the information proffered by Salyers in support of his petition for postconviction relief, including the affidаvits and their attachments, we do not find the trial court abused its discretion in determining Salyers failed to demonstrate that he was prejudiced by his trial counsel‘s alleged errors. See State v. Jones, 2d Dist. Miami No. 2016-CA-22, 2018-Ohio-673, ¶ 67-68 (finding that although trial counsel‘s performance was deficient for failing to retain an expert to assist with medical issues, this deficiency did not prejudice the defendant). We also determine
{¶47} Finally, Salyers argues that the trial court abused its discretion by dismissing his petition for postconviction relief without a hearing. However, after reviewing the record, including the petition, supporting affidavits, and files and records in this case, we find that the trial court did not abuse its discretion by denying Salyers‘s petition for postconviction relief without first holding an evidentiary hearing because the claim was facially untenable in light of the evidence he submitted.
{¶48} Accordingly, Salyers‘s assignments of error are overruled.
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
Judgment Affirmed