State v. Ayers

(1999); State v.

Phillips, 9th Dist. No. 20692,

2002-Ohio-823

. In order to obtain post-conviction relief, a

petitioner must show 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 [.]” R.C. 2953.21; State v. Watson,

126 Ohio App.3d 316, 323

710 N.E.2d 340

 (12th Dist. 1998).

                           Right to evidentiary hearing is not automatic

       {¶44} Under R.C. 2953.21, a petitioner seeking post-conviction relief is not

automatically entitled to an evidentiary hearing. Calhoun,

86 Ohio St.3d at 282

. Significantly, the Ohio Supreme Court has held that the proper basis for

dismissing a petition for post-conviction relief without holding an evidentiary hearing

include: 1) the failure of the petitioner to set forth sufficient operative facts to establish

substantive grounds for relief, and 2) the operation of res judicata to bar the constitutional

claims raised in the petition. Calhoun, 86 Ohio St.3d at paragraph two of the syllabus;

State v. Lentz,

70 Ohio St.3d 527, 530

639 N.E.2d 784

(1994).

       {¶45} In order for an indigent petitioner to be entitled to an evidentiary hearing in

a post-conviction relief proceeding on a claim that he was denied effective assistance of
Stark County, Case No. 2021CA00134                                                          14


counsel, the two-part analysis set forth in Strickland v. Washington,

(1984) is to be applied. Hill v. Lockhart,

474 U.S. 52, 58

106 S.Ct. 366

88 L.Ed.2d 203

(1985); State v. Lytte,

48 Ohio St.2d 391

358 N.E.2d 623

(1976); State v. Bradley,

(1989); State v.

Cole, supra,

 2 Ohio St.3d at 114,

. The petitioner must therefore prove that: 1).

counsel's performance fell below an objective standard of reasonable representation; and

2). there exists a reasonable probability that, were it not for counsel's errors, the result of

the trial would have been different.

Id.


       {¶46} R.C. 2953.21 does not expressly mandate a hearing for every post-

conviction relief petition; therefore, a hearing is not automatically required. In determining

whether a hearing is required, the Ohio Supreme Court in State v. Jackson,

64 Ohio St.2d 107

413 N.E.2d 819

(1980), stated the pivotal concern is whether there are substantive

grounds for relief which would warrant a hearing based upon the petition, the supporting

affidavits, and the files and records of the case. As the Supreme Court further explained

in Jackson, "[b]road assertions without a further demonstration of prejudice do not warrant

a hearing for all post-conviction relief petitions.”

Id. at 111

413 N.E.2d 819

. Rather, a

petitioner must submit evidentiary documents containing sufficient operative facts to

support his claim before an evidentiary hearing will be granted. Accordingly, "a trial court

properly denies a defendant's petition for post-conviction relief without holding an

evidentiary hearing where the petition, the supporting affidavits, the documentary

evidence, the files, and the records do not demonstrate that petitioner set forth sufficient

operative facts to establish substantive grounds for relief.” Calhoun, 86 Ohio St.3d at

paragraph two of the syllabus; see R.C. 2953.21(C).
Stark County, Case No. 2021CA00134                                                           15


       {¶47} Furthermore, before a hearing is granted in proceedings for post-conviction

relief upon a claim of ineffective assistance of trial counsel, the petitioner bears the initial

burden to submit evidentiary material containing sufficient operative facts that

demonstrate a substantial violation of any of defense counsel's essential duties to his

client and prejudice arising from counsel's ineffectiveness. Calhoun,

86 Ohio St.3d at 289

; State v. Jackson,

64 Ohio St.2d 107

413 N.E.2d 819

(1980),

syllabus; see, also Strickland v. Washington,

466 U.S. 668, 687

80 L.Ed.2d 674, 693

(1984).

       {¶48} "In determining how to assess the credibility of supporting affidavits in post-

conviction relief proceedings, the Supreme Court adopted the reasoning of the First

Appellate District in State v. Moore,

99 Ohio App.3d 748

651 N.E.2d 1319

(1st Dist. 1994),

which had looked to federal habeas corpus decisions for guidance.

Id. at 753-754

651 N.E.2d at 1322-1323

. The Supreme Court ultimately determined that the trial court should

consider all relevant factors in assessing the credibility of affidavit testimony in 'so-called

paper hearings,' including the following: '(1) whether the judge viewing the post-

conviction 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. Moreover, a

trial court may find sworn testimony in an affidavit to be contradicted by evidence in the

record by the same witness, or to be internally inconsistent, thereby weakening the

credibility of that testimony.’ Calhoun,

86 Ohio St.3d at 285

714 N.E.2d at 911-912

, citing
Stark County, Case No. 2021CA00134                                                        16


Moore,

99 Ohio App.3d at 754-756

651 N.E.2d at 1323-1324

.” State v. Kinley,

136 Ohio App.3d 1, 13-14

735 N.E.2d 921, 930-31

(2nd Dist. 1999). A trial court that discounts the

credibility of sworn affidavits must include an explanation of its basis for doing so in its

findings of fact and conclusions of law in order that meaningful appellate review may

occur. Id. at 285,

735 N.E.2d 921

714 N.E.2d at 911-912

.

                                           Res Judicata

       {¶49} Another proper basis upon which to deny a petition for post-conviction relief

without holding an evidentiary hearing is res judicata. State v. Lentz,

70 Ohio St.3d 527, 530

1994-Ohio-532

639 N.E.2d 784

; State v. Perry,

10 Ohio St.2d 175

39 O.O.2d 189

226 N.E.2d 104

(1967); State v. Phillips, 9th Dist. No. 20692,

2002-Ohio-823

. Under 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 at the trial, which resulted in that

judgment of conviction, or on an appeal from that judgment. State v. Szefcyk,

77 Ohio St.3d 93

671 N.E.2d 233

(1996), syllabus, approving and following State v. Perry,

10 Ohio St.2d 175

226 N.E.2d 104

(1967), paragraph nine of the syllabus. It is well settled that,

"pursuant to res judicata, a defendant cannot raise an issue in a [petition] for post-

conviction relief if he or she could have raised the issue on direct appeal.” State v.

Reynolds,

79 Ohio St.3d 158, 161

679 N.E.2d 1131

(1997).

       {¶50} Similarly, regarding claims of ineffective assistance of trial counsel in post-

conviction proceedings, the Ohio Supreme Court has stated that where a defendant,

represented by different counsel on direct appeal, "fails to raise [in the direct appeal] the
Stark County, Case No. 2021CA00134                                                           17


issue of competent trial counsel and said issue could fairly have been determined without

resort to evidence dehors the record, res judicata is a proper basis for dismissing

defendant's petition for post-conviction relief.” State v. Cole,

(1982), syllabus; see, also, Lentz, 70 Ohio St.3d at 530,

639 N.E.2d 784

; State

v. Phillips, supra.

                                     Time requirements for filing

       {¶51} The pertinent jurisdictional time requirements for a post-conviction petition

at the time of Ayers’s direct appeal were set forth in R.C. 2953.21(A)(2) as follows,

               A petition under division (A)(1) of this section shall be filed no later

       than one hundred eighty days after the date on which the trial transcript is

       filed in the court of appeals in the direct appeal of the judgment of conviction

       or adjudication ….

       {¶52} In order for a court to recognize an untimely post-conviction petition, both

of the following requirements must apply (R.C. 2953.23(A)(1)):

               (a) Either the petitioner shows that the petitioner was unavoidably

       prevented from discovery of the facts upon which the petitioner must rely to

       present the claim for relief, or, subsequent to the period prescribed in

       division (A)(2) of section 2953.21 of the Revised Code or to the filing of an

       earlier petition, the United States Supreme Court recognized a new federal

       or state right that applies retroactively to persons in the petitioner's situation,

       and the petition asserts a claim based on that right.

               (b) The petitioner shows by clear and convincing evidence that, but

       for constitutional error at trial, no reasonable factfinder would have found
Stark County, Case No. 2021CA00134                                                          18


       the petitioner guilty of the offense of which the petitioner was convicted or,

       if the claim challenges a sentence of death that, but for constitutional error

       at the sentencing hearing, no reasonable factfinder would have found the

       petitioner eligible for the death sentence. (Emphasis added).

       {¶53} In the case at bar, Ayers agrees that her petition was filed outside the 180-

day time limit in effect at the time of her conviction.

             Standard of Review – Untimely petition for Post-Conviction Relief

       {¶54} A post-conviction proceeding is a collateral civil attack on the judgment,

State v. Calhoun,

86 Ohio St.3d 279, 281

 (1999), and the “right to file a

post-conviction petition is a statutory right, not a constitutional right,” State v. Broom,

146 Ohio St.3d 60

2016-Ohio-1028

51 N.E.3d 620, ¶ 28

.             A post-conviction petitioner

therefore “receives no more rights than those granted by the statute.”

Calhoun at 281, 714 N.E.2d 905

. This means that any right to post-conviction relief must arise from the

statutory scheme enacted by the General Assembly.

       {¶55} That includes the right to have one’s claim heard at all: R.C. 2953.23(A)

provides that “a court may not entertain a petition filed after the expiration of the period

prescribed in [ R.C. 2953.21(A)] or a second petition or successive petitions for similar

relief on behalf of a petitioner unless” one of the exceptions in R.C. 2953.23(A) applies.

(Emphasis added.) State v. Apanovitch,

2018-Ohio-4744

121 N.E.3d 351, ¶ 36

. Therefore, a petitioner’s failure to satisfy R.C. 2953.23(A) deprives a

trial court of jurisdiction to adjudicate the merits of an untimely or successive post-

conviction petition.

Apanovitch at ¶ 36

.
Stark County, Case No. 2021CA00134                                                        19


       {¶56} Accordingly, given the substance of Ayers’s allegations, for the trial court to

have subject-matter jurisdiction to consider the petition, Ayers had to show (1) that she

was “unavoidably prevented from discovery of the facts” upon which her claim relies and

(2) by clear and convincing evidence, that no reasonable fact-finder would have found

her guilty or eligible for the death sentence but for the constitutional error at trial. R.C.

2953.23(A)(1). See State v. Apanovitch,

2018-Ohio-4744

121 N.E.3d 351, ¶ 36

. State v. Bethel, __Ohio St.3d ___,

2022-Ohio-783

, __N.E.3d__, ¶20.

       {¶57} We review de novo whether the trial court had subject-matter jurisdiction to

entertain Ayers’s petition.

Apanovitch at ¶ 24

; Bethel at .¶20.

       {¶58} We must first decide does the post-conviction petition satisfy an exception

provided in R.C. 2953.23(A). State v. Apanovitch,

2018-Ohio-4744

121 N.E.3d 351, ¶ 23

.

                      “[U]navoidably prevented from discovery of the facts”

       {¶59} For the trial court to have jurisdiction to entertain the ineffective assistance

of trial counsel claim alleged in the post-conviction petition, Ayers first had to establish

that she was “unavoidably prevented from discovery of the facts” on which she relies.

R.C. 2953.23(A)(1)(a). To meet this standard, courts in Ohio have previously held that a

defendant ordinarily must show that he was unaware of the evidence he is relying on and

that he could not have discovered the evidence by exercising reasonable diligence.

Bethel, at ¶21 citing State v. Harrison, 8th Dist. Cuyahoga No. 105909,

2018-Ohio-1396

2018 WL 1778661

, ¶ 6.

       {¶60} We find it unnecessary to reach this issue because even if we assume

arguendo that Ayers was “unavoidably prevented from discovery of the facts” on which
Stark County, Case No. 2021CA00134                                                          20


she relies, Ayers must also show by clear and convincing evidence that no reasonable

fact-finder would have found her guilty but for constitutional error at trial. Apanovitch, 155

Ohio St.3d at ¶26.

       No reasonable fact-finder would have found Ayers guilty but for the constitutional

                                         error at trial

       {¶61} Ayers’s post-conviction petition faces an additional jurisdictional hurdle:

under R.C. 2953.23(A)(1)(b). Therefore, we must first decide whether a constitutional

error occurred during Ayers’s jury trial. If a constitutional error occurred, we must then

find by clear and convincing evidence that no reasonable fact-finder would have found

her guilty but for constitutional error at trial. This question goes to the heart of the second

prong of the Strickland- Brady test for claims of ineffective assistance of counsel, which

requires Ayers to show that is there is a reasonable probability that but for counsel's

unprofessional errors, the result of her trial would have been different. Strickland v.

Washington,

(1984); State v. Bradley,

(1989). In Harrington v. Richter, the United States

Supreme Court discussed the prejudice prong of the Strickland test,

               A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.” [Strickland], at 694,

. It is not

       enough “to show that the errors had some conceivable effect on the

       outcome of the proceeding.”

Id., at 693

. Counsel’s errors

       must be “so serious as to deprive the defendant of a fair trial, a trial whose

       result is reliable.”

(2011).
Stark County, Case No. 2021CA00134 21

Substantive Claims

First Ground for Relief

{¶62} In the First Count of her petition for post-conviction relief Ayers contends

that she was denied effective assistance of counsel. Specifically, Ayers contends 1).

Defense counsel failed to consult with an expert witness regarding the origin of the fire;

2). Defense counsel failed to challenge false and unsupported testimony offered by the

state’s expert; and 3). Defense counsel failed to object to testimony that should have been

barred under Ohio Crim.R.16(K).

1). Failure to consult with an expert.

{¶63} In support of her contention that she was denied effective assistance of

counsel because her trial attorney did not consult with an expert witness, Ayers submitted

the affidavit of John J. Lentini, a renowned forensic arson expert. Lentini concludes

"unequivocally and to a reasonable degree of professional certainty'' that:

1). "The proposition that this fire had two points of origin is

unsupportable by any generally accepted methodology,"

2). "Mr. Winters used circular logic to conclude that the fire could

not have been set by Ms. Ayers's son Brennan,"

3). "Despite claiming to follow NFPA 921, Mr. Winters disregarded

its guidance in several important ways," and

4). "Mr. Winters demonstrated by his testimony that he is not

qualified to investigate fires per NFPA 1033, the generally accepted

industry standard."
Stark County, Case No. 2021CA00134 22

Lentini Affidavit at ¶ 9. Mr. Lentini is highly critical of the state’s expert Fire Inspector

Reginal Winters.

{¶64} At trial Fire Inspector Winters testified concerning his knowledge and

experience as follows,

Q. How long have you been a Fire Inspector/Fire Investigator?

A. I've been - - five years with the City of Massillon, been on the

fire department for ten.

Q. And prior to your employment at the City of Massillon, were

you employed elsewhere as a firefighter?

A. Yes, sir, fifteen years with the City of Orrville.

Q. Now, if you would, could you tell these ladies and gentlemen

what a fire inspector’s duties are?

A. Fire inspector’s duties are we do public safety. We also go

through commercial buildings ensuring safety, making sure the fire

extinguishers, exit lights are lit, and we also give approval for new buildings

and stuff like that. We work with the building department. We also are

in charge of fireworks, certifying them and stuff like that, to inspect the site

to make sure it’s safe for the community.

Q. How about the other part of your job description that you

previously entail detailed that you had, would you explain that to these

folks?
Stark County, Case No. 2021CA00134 23

A. As a Fire Investigator, my job is to come in and determine

origin and cause. The cause being what happened, the origin is where the

fire started at.

Q. Did you have to undergo specialized training in order to hold

a position as that of which you just described?

A. Yes, sir.

A. What type of training, first of all, did you have to undergo?

A. First of all, I had to get my certified Fire Inspector. You have

to be a certified Fire Inspector. And then from there you have to - - it’s two

stages. You have a basic Fire Investigator and then you have an advanced

Fire Inspector course you have to take.

Q. Let’s talk about the certified Fire Inspector training first. What

does that entail?

A. That entails looking at multiple burn scenes, learning the

scientific methodology of how different things burn as far as oils, gas,

electrical fires, the synthetic fires as far as people using open flames to fires,

candles, paper. And we look at the different patterns the fire makes, the

different charring of wood and stuff like that to make our determination

whether - - what caused the fire, whether it was mechanical, accidental, or

incendiary.

Q. Do you have to go to classes for that?

A. Yes, sir.

Q. And how long were those classes?
Stark County, Case No. 2021CA00134 24

A. My first class as a basic investigator, it was 32 hours. The

second part of advanced was - - it was 40 hours.

Q. Did you successfully complete all those classes?

A. Yes, sir.

Q. And then at the end of those classes, do you have to take a

test?

A. Yes, sir.

Q. And did you successfully pass all those tests?

A. Yes, sir.

Q. So, you are now a certified arson Investigator?

A. Yes.

Q. And that's within the State of Ohio?

A. Yes, sir.

Q. Once you complete that training, do you have to continue to

update your education?

A. Yes, sir.

Q. What do you have to do?

A. We have to - - well, we take like different seminars. One

seminar I attend is the International Firefighters Association of Arson

Investigators in Columbus. It’s an annual Fire Investigator course

weeklong. We have to maintain 32 hours in a three-year period of

continuing education.
Stark County, Case No. 2021CA00134 25

Q. And as you sit here today, are you current in all your

requirements to be a certified arson investigator?

A. Yes, sir.

Q. You indicated that you've held that position with the Massillon

Police [sic] Department for five years. Could you estimate the number of

fires you've investigated within those five years?

A. I would say approximately 30.

Q. And have you testified before in the courts of Stark County as

an expert in the cause and origin of fires?

A. Yes, sir.

Q. And has that testimony been accepted by the courts?

A. Yes, sir.

1T. at 225-229.

{¶65} In State v. Thomas,

97 Ohio St.3d 309

2002-Ohio-6624

779 N.E.2d 1017

,

the Supreme Court observed,

             Neither special education nor certification is necessary to confer

      expert status upon a witness. “The individual offered as an expert need not

      have complete knowledge of the field in question, as long as the knowledge

      he or she possesses will aid the trier of fact in performing its fact-finding

      function.” State v. Hartman, 93 Ohio St.3d at 285,

; State

      v. Baston,

85 Ohio St.3d 418, 423

709 N.E.2d 128

. Pursuant to Evid.R.

      104(A), the trial court determines whether a witness qualifies as an expert,

      and that determination will be overturned only for an abuse of discretion.
Stark County, Case No. 2021CA00134                                                       26


        State v. Hartman,

93 Ohio St.3d at 285

; State v.

        Williams (1983),

4 Ohio St.3d 53, 58

, 4 OBR 144,

446 N.E.2d 444

Id. at ¶46 (emphasis added). Ayers does not argue in her petition for post-conviction

relief that the trial court abused its discretion by qualifying Fire Inspector Winters as an

expert witness.

{¶66} In the case at bar, the undisputed facts at trial were that a fire occurred on

a mattress located in the basement that caused damage to the residence. The disputed

facts at trial were whether Ayers stared the fire intentionally or accidentally, or, whether

the 3-year-old child started the fire.

{¶67} Mr. Lentini’s affidavit does not exonerate Ayers or reduce her culpability.

In other words, Mr. Lentini does not opine that 1). the fire was of accidental origin; 2).

a person could not have intentionally started the fire; or 3). having only one ignition

point rules out that the fire was started intentionally. To answer those questions the

jury must necessarily look to the other evidence present by the state during Ayers’s

jury trial.

{¶68} Ayers’s father testified he had previously discussed finances with her, and

the fact she had not been contributing to the household financial situation. Mr. Ayers told

Ayers that he was planning to move to West Virginia. Jeff Ayers testified that Ayers

became more aggressive toward him and began to make threats to the point that he

feared for the safety of his family. 1T. at 309-310. Jeff Ayers testified that Ayers

threatened to burn the house down. Id. He became so concerned that he called his

sister, aunt and the landlord and told them that Ayers was threatening to burn the house
Stark County, Case No. 2021CA00134 27

down. 1T. at 310. The fire occurred on the day that he left the home for West Virginia.

1T. at 312.

{¶69} Additionally, a neighbor of Ayers, Jason Pandrea, testified he heard Ayers

threaten her father with burning the house down if he ever left. 1T. at 339. Pandrea

testified that Ayers “meant it.” 1T. at 341.

{¶70} The jury viewed the video of Ayers’s statement to Fire Inspector Winters

and Patrolman Curtis Rucker from the Massillon Police Department. 1T. at 195; 201.

State’s Exhibit 1. The jury was shown pictures of the scene after the fire had occurred.

{¶71} Inspector Reginald Winters was the state's expert. 1T. at 225. Winters did

not find evidence of a cigarette as the cause of the fire. 1T. at 240. Winters identified the

State's Photograph Exhibits that he took of the scene of the fire. 1T. at 243; 2T. at 273,

275. Winters was able to exclude cigarettes, natural gas, accelerants, and an electrical

cause for the fire. 1T. at 248- 249. Winters testified the cause of the fire was incendiary

(open flame) and a person or persons started the fire. 1T. at 250.

{¶72} The jury heard Ayers’s statement to Massillon Paramedic Richard Annen

that she was running upstairs to get her son when the fire started in the basement. 1T.

at 186. Ayers initially told Annen that the child started the fire; however, she later claimed

that she might have fallen asleep. 1T. at 206-207. Annen looked in the child’s mouth

and on his face and found no evidence of soot, which would indicate that the child had

been near the fire. Id. at 185. He found evidence of soot on Ayers. 1T. at 186-187.

{¶73} At the hospital, Ayers claimed to be in the basement folding clothes when

she noticed her son playing with a lighter on the mattress. 2T. at 261. When asked how

she could see a small fire on the bed with the chimney, hot water tank and furnace
Stark County, Case No. 2021CA00134 28

blocking her view from her position near the clothes dryer she was unable to answer. 2T.

at 263.

{¶74} The jury also had audio recordings of calls made by Ayers while she was in

jail. Exhibit 2. This Court notes that State’s Exhibit 2 is a disk containing 34 phone calls

that Ayers made from the jail while she was awaiting trial. However, only “snippets” from

two calls were played for the jury and admitted into evidence. 2T. at 397-398. The state

never identified the specific portion of the calls that were played for the jury and admitted

into evidence.

{¶75} It is not unusual in a case in which highly technical, medical or other

specialized evidence is presented for the experts presented by each party to criticize the

other’s training, methodology, and/or conclusions. When a so-called “battle of experts”

takes place during a jury trial such criticisms go to the weight not the admissibility of each

expert’s opinion. An expert witness is not required to be the best witness on the subject.

Alexander v. Mt. Carmel Med. Ctr.,

56 Ohio St.2d 155, 159

383 N.E.2d 564

(1978).

(Citations omitted.)

          {¶76} The majority of Lentini’s opinion centers on his belief that Winters is not

qualified, or did not use the techniques that Lentini believes are the best practice. When

viewed in this light, Lentini’s affidavit has only limited probative value. His opinion does

not exonerate Ayers or reduce her culpability.         He opines only that Fire Inspector

Winters’s expert testimony was “unreliable, unscientific, and at odds with generally

accepted fire investigation methodology.” Lentini Affidavit at ¶32. Lentini’s opinion does

not affect the other testimony and evidence that was presented during Ayers’s jury trial.
Stark County, Case No. 2021CA00134                                                       29


       {¶77} In light of the evidence produced that did not depend upon expert testimony

and the entire record in this case, we hold that Ayers has not shown a reasonable

probability that but for counsel's unprofessional errors, the result of her trial would have

been different. Strickland v. Washington,

(1984); State v. Bradley,

(1989). The testimony

of Lentini could not reasonably be taken to put the whole case in such a different light as

to undermine confidence in the verdict. Ayers was not denied her right to due process

and fair trial by counsel’s failure to consult an expert witness.

       2). Defense counsel failed to challenge false and unsupported testimony offered

by the state’s expert & 3). Defense counsel failed to object to testimony that should have

been barred under Ohio Crim.R.16(K).

       {¶78} Ayers next argues that she received ineffective assistance of trial counsel

because defense counsel did not object or otherwise challenge Fire Inspector Winters’s

testimony.

       {¶79} In her direct appeal, Ayers raised the following Assignment of Error,

              “II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

       COUNSEL DUE TO TRIAL COUNSEL’S FAILURE TO REVIEW THE

       APPROPRIATE DISCOVERY MATERIALS IN PREPARATION FOR

       TRIAL.”

State v. Ayers, 5th Dist. Stark No. 2013 CA 00034,

2013-Ohio-5402, ¶15

.

       {¶80} We further note that counsel’s failure to object to Fire Inspector Winters’s

testimony is evident from the record. The entire Executive Summary prepared by Winters

was read into the record during the jury trial. 2T. at 297. Defense counsel acknowledged
Stark County, Case No. 2021CA00134                                                           30


receiving the report. Id. at 299. The report does not indicate the fire had two points of

origin. 2T. at 297. Ayers was indigent. The record contains no evidence that the defense

requested the trial court provide funds to consult with an expert witness.

       {¶81} In the case at bar, Ayers was represented in her direct appeal by new

counsel. Counsel in that appeal could have cited to the testimony and records contained

in the court file to support a claim of ineffective assistance of trial counsel in failing to

object or challenge Fire Inspector Winters’s testimony. To overcome the res judicata bar,

the evidence must show that the petitioner could not have appealed the constitutional

claim based on the information in the original trial record. State v. Cole,

 (1982), syllabus. Ayers has failed in this burden.

       {¶82} As Ayers could have raised and fully litigated this issue on direct appeal,

this court concludes that the trial court did not err in finding that trial counsel’s failure to

object or challenge Fire Inspector Winters’s testimony is barred by res judicata.

                                     Second Ground for Relief

       {¶83} In her Second Ground for Relief, Ayers claims the prosecutor committed

misconduct by failing to disclose Fire Inspector Winters’s conclusion that the fire had two

point of origin in violation of Crim.R. 16(K).

       {¶84} The entire Executive Summary prepared by Winters was read into the

record during the jury trial. 2T. at 297. Defense counsel acknowledged receiving the

report.

Id. at 299

. The report does not indicate the fire had two points of origin. 2T. at

297.

       {¶85} In the case at bar, Ayers was represented in her direct appeal by new

counsel. Counsel in that appeal could have cited to the testimony and records contained
Stark County, Case No. 2021CA00134                                                          31


in the court file to support a claim of ineffective assistance of trial counsel in failing to

object or challenge the state’s failure to disclose Fire Inspector Winters’s testimony

concerning the fire’s two points of origin. Ayers was indigent. The record contains no

evidence that the defense requested the trial court provide funds to consult with an expert

witness.

       {¶86} To overcome the res judicata bar, the evidence must show that the

petitioner could not have appealed the constitutional claim based on the information in

the original trial record. State v. Cole,

(1982), syllabus.

Ayers has failed in this burden.

{¶87} As Ayers could have raised and fully litigated this discovery issue on direct

appeal, this Court concludes that the trial court did not err in finding that this issue was

barred by res judicata.

Third Ground for Relief

{¶88} In the Third Ground for Relief set forth in Ayers’s petition for post-conviction

relief, Ayers contends that her right to compulsory process was violated by the state’s

discovery violation, i.e. failing to disclose Fire Inspector Winters’s conclusion that the fire

had two point of origin in violation of Crim.R. 16(K).

{¶89} Defense counsel was in possession of Fire Inspector Winters’s Executive

Summary, and his draft report prior to trial. Thus, the defense was on notice that the state

would present expert testimony prior to trial. Nothing impeded the defense from obtaining

its own expert witness. The proffered testimony of Ayers’s attorneys submitted, as Exhibit

L to her petition, does not indicate that her trial attorneys would have retained an expert
Stark County, Case No. 2021CA00134 32

witness had they received Fire Inspector Winters’s conclusion that the fire had two points

of origin before trial.

{¶90} The entire Executive Summary prepared by Winters was read into the

record during the jury trial. 2T. at 297. Defense counsel acknowledged receiving the

report.

Id. at 299

. The report does not indicate the fire had two points of origin. 2T. at

297.

       {¶91} In the case at bar, Ayers was represented in her direct appeal by new

counsel. Counsel in that appeal could have cited to the testimony and records contained

in the court file to support a claim of ineffective assistance of trial counsel in failing to

object or challenge Fire Inspector Winters’s testimony, or to retain and present its own

expert at trial. To overcome the res judicata bar, the evidence must show that the

petitioner could not have appealed the constitutional claim based on the information in

the original trial record. State v. Cole,

 (1982), syllabus.

Ayers has failed in this burden. The issue of whether Ayers was denied compulsory

process by the state’s failure to disclose Fire Inspector Winters’s conclusion that the fire

had two points of origin before trial could have been raised in her direct appeal.

       {¶92} As Ayers could have raised and fully litigated this issue on direct appeal,

this Court concludes that the trial court did not err in finding that this issue was barred by

res judicata.

                                     Fourth Ground for Relief

       {¶93} In the Fourth Ground for Relief Ayers asserts a claim of actual innocence.

       {¶94} Ayers does not assert a claim of actual innocence based upon DNA

evidence as set forth in R.C. 2953.23(A)(2).
Stark County, Case No. 2021CA00134                                                        33


      {¶95} The United States Supreme Court has ruled that under the United States

Constitution, an actual-innocence claim “is not itself a constitutional claim,” Herrera v.

Collins,

506 U.S. 390, 404

113 S.Ct. 853

122 L.Ed.2d 203

 (1993). Accord, State v.

Apanovitch,

2018-Ohio-4744

121 N.E.3d 351, ¶26

. In State v. Willis,

the Court explained,

             In Herrera v. Collins,

506 U.S. 390

113 S.Ct. 853

122 L.Ed.2d 203


      (1993), the United States Supreme Court held that “a claim of ‘actual

      innocence’ is not itself a constitutional claim.”

Id. at 404

113 S.Ct. 853

. “[A]

      claim of ‘actual innocence’ is not itself a constitutional claim, but instead a

      gateway through which a habeas petitioner must pass to have his otherwise

      barred constitutional claim considered on the merits.” Nevertheless, the

      court was willing to “assume, for the sake of argument in deciding [the] case,

      that a truly persuasive demonstration of ‘actual innocence’ made after trial

      would render the execution of a defendant unconstitutional, and warrant

      federal habeas relief if there were no state avenue open to process such a

      claim.”

Id.


             Interpreting

Herrera, supra,

 the First District Court of Appeals held

      that a petitioner was not entitled to post-conviction relief unless he showed

      a violation of rights that were constitutional in dimension, which occurred at

      the time that the petitioner was tried and convicted. State v. Campbell, 1st

      Dist. Hamilton No. C–950746,

1997 WL 5182

 (Jan. 8, 1997). The court

      stated:
Stark County, Case No. 2021CA00134                                                    34


                    [N]ewly discovered evidence is, by definition, that

             “which the defendant could not with reasonable diligence

             have discovered and produced at trial.” Crim.R. 33(A)(6); …

             * A claim of actual innocence based on newly discovered

             evidence will, therefore, not provide substantive grounds for

             post-conviction relief, because “it does not, standing alone,

             demonstrate a constitutional violation in the proceedings that

             actually resulted in the conviction.” … Campbell’s claims of

             actual innocence were thus not cognizable in a postconviction

             proceeding. Citing State v. Powell,

90 Ohio App.3d 260, 264

629 N.E.2d 13

 (1993).

             Other Ohio courts have similarly held that a claim of actual innocence

      does not constitute a substantive ground for post-conviction relief. State v.

      Bound, 5th Dist. Guernsey No. 04 CA 8,

2004-Ohio-7097

2004 WL 2988294

, State v. Watson,

126 Ohio App.3d 316, 323

710 N.E.2d 340

 (12th

      Dist. 1998), State v. Loza, 12th Dist. Butler No. CA96–10–214,

1997 WL 634348

 (Oct. 13, 1997).

6th Dist. Lucas Nos. L-15-1098, L-15-1101,

2016-Ohio-335

58 N.E.3d 515

, ¶15-¶17.

      {¶96} We further note that this Court has previously found that Ayers’s convictions

are not against the weight or the sufficiency of the evidence. State v. Ayers, 5th Dist.

Stark No. 2013 CA 00034,

2013-Ohio-5402, ¶26

.

      {¶97} Accordingly, the trial court did not abuse its discretion in denying Ayers’s

petition based on actual innocence.
Stark County, Case No. 2021CA00134                                                         35


                                      Fifth Ground for Relief

       {¶98} In her Fifth Claim for Relief, Ayers argues that but for Fire Inspector

Winters’s false, unsupported and/or materially misleading testimony she would not have

been convicted.

       {¶99} It is not unusual in a case in which highly technical, medical or other

specialized evidence is presented for the experts presented by each party to criticize the

other’s training, methodology, and/or conclusions. When a so-called “battle of experts”

takes place during a jury trial such criticisms go to the weight not the admissibility of each

expert’s opinion.

       {¶100} An expert witness is not required to be the best witness on the subject.

Alexander v. Mt. Carmel Med. Ctr.,

56 Ohio St.2d 155, 159

383 N.E.2d 564

(1978).

(Citations omitted.) In State v. Thomas,

97 Ohio St.3d 309

2002-Ohio-6624

779 N.E.2d 1017

, the Supreme Court observed,

              Neither special education nor certification is necessary to confer

       expert status upon a witness. “The individual offered as an expert need not

       have complete knowledge of the field in question, as long as the knowledge

       he or she possesses will aid the trier of fact in performing its fact-finding

       function.” State v. Hartman,

93 Ohio St.3d at 285

; State

       v. Baston,

85 Ohio St.3d 418, 423

709 N.E.2d 128

. Pursuant to Evid.R.

       104(A), the trial court determines whether a witness qualifies as an expert,

       and that determination will be overturned only for an abuse of discretion.

       State v. Hartman,

93 Ohio St.3d at 285

; State v.

       Williams (1983),

4 Ohio St.3d 53, 58

, 4 OBR 144,

446 N.E.2d 444

.
Stark County, Case No. 2021CA00134                                                         36


Id. at ¶46 (emphasis added).

       {¶101} When viewed in this light, Lentini’s affidavit has only limited probative value.

His opinion does not exonerate Ayers. The majority of Lentini’s opinion centers on his

belief that Winters is not qualified, or did not use the techniques that Lentini believes are

the best practice. He opines only that Fire Inspector Winters’s expert testimony was

“unreliable, unscientific, and at odds with generally accepted fire investigation

methodology.”    Lentini Affidavit at ¶32.    Lentini’s opinion does not affect the other

testimony and evidence that was presented during Ayers’s jury trial. Mr. Lentini does

not opine: 1). the fire was of accidental origin; 2). a person could not have intentionally

started the fire; or 3). having only one ignition point rules out that the fire was started

intentionally. To answer those questions the jury must necessarily look to the other

evidence present by the state during Ayers’s jury trial.

       {¶102} In light of the evidence produced that did not depend upon expert

testimony and the entire record in this case, we hold that Ayers has not shown a

reasonable probability that but for counsel's unprofessional errors, the result of her trial

would have been different. Strickland v. Washington,

(1984); State v. Bradley,

(1989). The

testimony of Lentini could not reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict. Ayers was not denied her right

to due process and fair trial by Fire Inspector Winters’s testimony.

       {¶103} We further note that this Court has previous found that Ayers’s convictions

are not against the weight or the sufficiency of the evidence. State v. Ayers, 5th Dist.

Stark No. 2013 CA 00034,

2013-Ohio-5402, ¶26

.
Stark County, Case No. 2021CA00134                                                       37


                                      Sixth Ground for Relief

       {¶104} In her Sixth Ground for Relief Ayers recasts her previous arguments as well

as asserting due process and cruel and unusual punishment claims under the Ohio

Constitution.

       {¶105} The claims under the state constitution fail for the reasons set forth above

in our disposition of Ayers’s First through Fifth Grounds for Relief.

                              Conclusion – Post conviction relief

       {¶106} In Harrington v. Richter, the United States Supreme Court discussed the

prejudice prong of the Strickland test,

                A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.” [Strickland], at 694,

. It is not

       enough “to show that the errors had some conceivable effect on the

       outcome of the proceeding.”

Id., at 693

. Counsel’s errors

       must be “so serious as to deprive the defendant of a fair trial, a trial whose

       result is reliable.”

(2011).

       {¶107} In light of the evidence produced that did not depend upon expert testimony

and the entire record in this case, we hold that Ayers has not shown a reasonable

probability that but for counsel's unprofessional errors, the result of her trial would have

been different. Strickland v. Washington,

(1984); State v. Bradley,