[Cite as State v. Dovala,
2016-Ohio-1349.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 14CA010692
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MELISSA DOVALA COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 04 CR 65398
DECISION AND JOURNAL ENTRY
Dated: March 31, 2016
WHITMORE, Presiding Judge.
{¶1} Appellant, Melissa Dovala, appeals an order of the Lorain County Court of
Common Pleas that denied her motion for relief from judgment. This Court affirms.
I
{¶2} In 2005, a jury found Dovala guilty of murder, involuntary manslaughter,
felonious assault, and child endangering in connection with the death of a four-month-old infant
in her care. The trial court sentenced her to a total prison term of fifteen years to life. Dovala
appealed, and this Court affirmed her convictions. State v. Dovala, 9th Dist. Lorain No.
05CA008767, 2007-Ohio-4914. While that appeal was pending, Dovala petitioned the trial court
for postconviction relief. The trial court denied the petition on the basis of res judicata without a
hearing, but this Court concluded that not all of her claims were barred by res judicata and
reversed. State v. Dovala, Lorain App. No. 08CA009455,
2009-Ohio-1420. On remand, the trial
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court considered the merits of those claims, but denied Dovala’s petition. This Court affirmed
that decision. State v. Dovala, 9th Dist. Lorain No. 10CA009896, 2011-Ohio-3110.
{¶3} In 2013, Dovala moved the trial court for relief from judgment under Civ.R.
60(B), arguing that trial counsel, who was deposed in the course of the postconviction
proceedings, gave inaccurate testimony. The State responded to the motion, attaching an
affidavit from trial counsel that provided an explanation for the alleged discrepancies. The trial
court considered Dovala’s motion under the “catch-all” provision of Civ.R. 60(B)(5), determined
that the new evidence served only to impeach trial counsel’s prior testimony, and concluded that
no fraud had been perpetrated upon the court. The trial court, therefore, denied the motion, and
Dovala appealed. This Court concluded that the trial court abused its discretion by denying the
motion, and we reversed. State v. Dovala, 9th Dist. Lorain No. 13CA010440, 2014-Ohio-2331.
In so doing, we concluded that an inquiry under Civ.R. 60(B)(5) is not limited to fraud upon the
court, but may also include other situations that constitute unusual, undisclosed circumstances
that might have inherently affected the reliability of the judgment. In this respect, we held that
the trial court “did not fully analyze” Dovala’s motion. Id. at ¶ 16.
{¶4} This Court remanded the matter for proceedings consistent with our opinion. Id.
at ¶ 19. After conducting a status conference, the trial court issued a second order concluding
that there were no unusual circumstances that inherently affected the accuracy and reliability of
the order that denied Dovala’s petition for postconviction relief and denied her motion for relief
from judgment. This appeal followed.
3
II
Assignment of Error
THE SUPPLEMENTAL JUDGMENT OF THE COURT BELOW DENYING
[DOVALA’S] MOTION TO REOPEN JUDGMENT WAS CONTRARY TO
THE WEIGHT OF THE EVIDENCE AND CONSTITUTED AN ABUSE OF
JUDICIAL DISCRETION.
{¶5} Dovala’s sole assignment of error is that the trial court abused its discretion by
determining that unusual, undisclosed circumstances did not inherently affect the accuracy and
reliability of the trial court’s order that denied her petition for postconviction relief. We
disagree.
{¶6} Civ.R. 60(B)(5) is a “catch-all provision reflecting the inherent power of a court
to relieve a person from the unjust operation of a judgment” that must be invoked by
“substantial” grounds. Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983), paragraphs one
and two of the syllabus. Relief under Civ.R. 60(B) is reserved for the “extraordinary and
unusual case when the interests of justice warrant[] it.” Adomeit v. Baltimore,
39 Ohio App.2d
97, 105 (8th Dist.1974). The rule encompasses situations that involve unusual circumstances
that, at the time of the judgment, were not disclosed to the parties, which inherently affect the
accuracy and reliability of the judgment at issue. Consolo v. Menter, 9th Dist. Summit No.
26857,
2014-Ohio-1033, ¶ 9. Unusual circumstances of this nature include fraud upon the court,
judicial bias, and “errors or omissions that transcend a mere error in judgment.”
Id. See also In
re J.W., 9th Dist. Summit No. 26874,
2013-Ohio-4368, ¶ 30. We review a trial court’s decision
applying Civ.R. 60(B)(5) for an abuse of discretion, which signifies not just an error in law or
judgment, but an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court.
Parkhust v. Snively, 9th Dist. Medina No. 3179-M,
2001 WL 1192745, *1 (Oct. 10, 2001).
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{¶7} Several of the claims in Dovala’s petition for postconviction relief alleged
deficient performance by trial counsel, Attorney James Burge, in connection with his
investigation of the charges, preparation of a defense, and presentation of expert witness
testimony. In a prior appeal, this Court concluded that these claims were not barred by res
judicata. Dovala, 2009-Ohio-1420, at ¶ 21. In support of her petition, Dovala presented the
testimony of Dr. Audrius Plioplys, a retired pediatric neurologist who opined that the victim’s
injuries were not caused by blunt force trauma, but by compressive force applied directly to a
single point on the skull. In his affidavit and testimony in support of the petition, Dr. Plioplys
also disagreed with the State’s trial experts regarding the timeframe during which the victim’s
injuries could have occurred. Specifically, he concluded that he could not narrow the timeframe
further than the twenty-four hour window before the victim’s death.
{¶8} The videotaped deposition of Attorney Burge was admitted into evidence during
the hearing on Dovala’s petition. Attorney Burge explained that according to his understanding
of the timeline and potential testimony by the State’s experts, the onset of the victim’s symptoms
happened too late in the day to attribute them to an injury that occurred before he was in
Dovala’s care. He also explained that Dovala had taken the position, as memorialized in a
recorded interview with police, that no one else in her home had injured the victim. In response
to questions about whether another child in the home could have injured the victim – the theory
espoused by Dr. Plioplys – Attorney Burge reasoned that although the argument could be made
despite Dovala’s own prior statements, it was not a defense that would have proved successful.
Attorney Burge testified that he believed that the only avenue open to him in light of the
substantial limitations imposed by Dovala’s prior statements was a defense that the injury was a
preexisting or congenital condition.
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{¶9} Attorney Burge then described how this defense unfolded. He testified that he
consulted Dr. Thomas Swanson, whose name he recalled incorrectly at the time, between 60-90
days before trial. Attorney Burge acknowledged that Dr. Swanson was married to his co-counsel
at that time, which provided him the opportunity to review records. Attorney Burge stated that
the case was one of interest to Dr. Swanson, and that he was not paid a fee. According to
Attorney Burge, he did not pursue a formal consultation with Dr. Swanson because he believed
him unlikely to opine that the victim suffered anything other than an inflicted injury. Attorney
Mark Devan, an expert who testified regarding Attorney Burge’s performance during the hearing
on Dovala’s petition, agreed that Attorney Burge’s interaction with Dr. Swanson could be
characterized as an “unpaid, informal consult” by the “ex-husband of co-counsel.”
{¶10} Dovala’s motion for relief from the trial court’s judgment denying postconviction
relief was based on an affidavit obtained from Dr. Swanson. In that affidavit, Dr. Swanson
affirmed that he was married to Attorney Burge’s co-counsel at the time of Dovala’s trial and
that he discussed the case with her “in a casual manner at our home.” He denied that he
discussed the case directly with Attorney Burge, and stated that he did not “officially opine
anything regarding the mechanism of the death” involved in this case. He also recalled that he
“did not have access to or review the records in any detail that would have allowed a learned
opinion in this case.” (Emphasis added.) Attorney Burge provided an affidavit in response to
Dovala’s motion. In that affidavit, he clarified that any consultations with Dr. Swanson were
informally conducted through co-counsel, to whom Dr. Swanson was married at the time.
Attorney Burge adhered to his recollection that Dr. Swanson believed that the injury involved in
this case was inflicted, and Attorney Burge reiterated that because the theory of Dovala’s defense
6
had already been developed at that time, he did not believe that a formal consultation with Dr.
Swanson would have been helpful.
{¶11} While Dovala’s motion was pending, counsel deposed trial co-counsel, Attorney
Laura Perkovic. Attorney Perkovic’s recollection of details surrounding the defense was
hampered by the passage of time. Although she disagreed with parts of Attorney Burge’s
affidavit, she also disagreed with elements of Dr. Swanson’s affidavit. The substance of her
testimony, however, confirmed that Attorney Burge did ask her to speak to Dr. Swanson about
Dovala’s case, and that she did so, providing access at least to the autopsy photographs and
report. According to Perkovic, Dr. Swanson would not provide an opinion without being
formally retained, but that he did tell her that because the case involved “brain trauma,” he would
be qualified to formally consult on the case.
{¶12} As an initial matter, having now reviewed the record in light of the trial court’s
judgment in accordance with our remand, this Court questions whether the substance of Dovala’s
motion for relief from judgment was really newly discovered evidence under Civ.R. 60(B)(2),
and thus subject to the time limitations applicable to that section of the Rule. Dr. Swanson’s
affidavit is evidence; it was alleged to be newly discovered. “A straightforward and logical
reading of Civ.R. 60(B)(2) dictates that it applies.” Strack v. Pelton, 70 Ohio St.3d 172, 173
(1994). Nonetheless, the trial court has now analyzed this matter twice under Civ.R. 60(B)(5),
once in response to a mandate from this Court. As such, despite our reservations, we adhere to
our previous analysis and consider this case under Civ.R. 60(B)(5).
{¶13} This Court concludes that the trial court did not abuse its discretion by
determining that this is not the unusual case involving undisclosed circumstances that inherently
affect the accuracy and reliability of the judgment at issue such that relief is warranted under
7
Civ.R. 60(B)(5). Although the witnesses’ recollections of the details differ in light of the
passage of time, a witness during the postconviction proceedings summarized Attorney Burge’s
consultation with Dr. Swanson in a manner consistent with the new testimony: it was informal,
Dr. Swanson was not retained, and it occurred because Dr. Swanson was married to co-counsel.
This much was clear as a result of Attorney Burge’s deposition during the postconviction
proceedings, and it was not an abuse of discretion for the trial court to conclude that the
information set forth in Dr. Swanson’s affidavit did not undermine the accuracy and credibility
of the judgment.
{¶14} Dovala’s assignment of error is overruled.
III
{¶15} Dovala’s 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(C). The Clerk of the Court of Appeals is
8
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.
BETH WHITMORE
FOR THE COURT
SCHAFER, J.
CONCURS.
MOORE, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
BARRY W. WILFORD and SARAH M. SCHREGARDUS, Attorneys at Law, for Appellant.
TIMOTHY J. MCGINTY, Prosecuting Attorney, and BRETT HAMMOND, BRENT KIRVEL,
and T. ALLAN REGAS, Assistant Prosecuting Attorneys, for Appellee.
