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State v. Waskelis

Court of Appeals of Ohio, Eleventh District

September 23, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
LARRY W. WASKELIS, Defendant-Appellant.

Civil Appeals from the Portage County Court of Common Pleas, Case No. 2011 CR 0027.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).

Larry W. Waskelis, pro se, (Defendant-Appellant).

OPINION

DIANE V. GRENDELL, J.

(¶1} Defendant-appellant, Larry W. Waskelis, appeals from the October 30, 2012 Order and Journal Entry of the Portage County Court of Common Pleas, denying his postconviction Petition to Vacate and Set Aside Conviction and Sentence. The issues to be determined by this court are whether a defendant's postconviction petition can be denied, without a hearing, when the issue related to the ineffective assistance of counsel was not raised on appeal, and whether the trial court made proper factual findings and conclusions of law when it stated that the matter was barred by res judicata. For the following reasons, we affirm the decision of the trial court.

(¶2} On April 15, 2011, following a jury trial, Waskelis was found guilty of six counts of Rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b). On four counts of Rape (counts three through six of the indictment), the jury made additional findings that the victim was "less than ten [years old]" at the time of the offense. Waskelis was also found guilty of three counts of Gross Sexual Imposition, felonies of the third degree, in violation of R.C. 2907.05(A)(4).

(¶3} The charges against Waskelis were related to his sexual contact with his girlfriend's minor daughter, A.B. A.B. testified that she was being sexually abused by Waskelis. Nurse Carlin Johnson, a pediatric sexual assault nurse at the Portage County Children's Advocacy Center, testified regarding A.B.'s allegations against Waskelis and described the physical exam she performed. Dr. Paul McPherson explained that, based on his review of the exam performed by Johnson and the statements of A.B., "[w]ithin a reasonable degree of medical certainty, her evaluation is consistent with child sexual abuse." The evidence presented at trial is further described in State v. Waskelis, 11th Dist. Portage No. 2011-P-0035, 2012-Ohio-3030, ¶ 4-19.

(¶4} In a May 9, 2011 sentencing Order and Journal Entry, the court found that Waskelis was a Tier III Sex Offender. Waskelis was sentenced to life in prison, with eligibility for parole after ten years, for the first count of Rape, into which count two merged. Waskelis was sentenced to life in prison with no parole on the third count of Rape, into which count four merged. On the fifth count of Rape, Waskelis was sentenced to life in prison with parole eligibility after fifteen years, into which the sixth count of Rape merged. The three counts of Gross Sexual Imposition were merged with the sentence in count one. All sentences were ordered to be served consecutively.

(¶5} On May 20, 2011, Waskelis filed a Notice of Appeal.

(¶6} On December 27, 2011, Waskelis filed a Petition to Vacate and Set Aside Conviction and Sentence, based on the ineffective assistance of counsel at trial. Waskelis asserted that competent counsel would have called an expert witness on his behalf to raise concerns about the reliability and weight of the testimony of the State's witnesses, including Dr. McPherson and Nurse Johnson.

(¶7} In support of his Petition, Waskelis attached the affidavit of Jolie S. Brams, Ph.D., a clinical and forensic psychologist. In her affidavit, Brams stated that she had reviewed the evidence in Waskelis' case and took issue with several areas of testimony and defense counsel's failure to consult and hire an expert. She asserted that an expert retained by the defense could have educated defense counsel on appropriate investigation tactics and "the need to develop alternative hypotheses as part of a valid forensic investigation, " and shared information regarding various issues with the jury. Specifically, she contended that Nurse Johnson may not have been able to provide a proper evaluation of the sexual abuse, since she served as an advocate for the child and took A.B.'s statement in a "supportive" manner, which may have affected the validity of A.B.'s report of Waskelis' actions. In addition, Brams contended that there should have been exploration into the victim's life experiences and her reasons for reporting the rape.

(¶8} Brams also explained that an expert could have provided testimony that Nurse Johnson was not qualified to make a medical diagnosis and that Dr. McPherson merely signed off on her evaluation of A.B. Brams noted that Dr. McPherson had no personal knowledge of A.B.'s affect or physical presentation, and an expert could have pointed this out to the jury.

(¶9} Brams concluded that the failure to retain an expert witness resulted in "deficits in the presentation" of certain concepts and opinions to the jury.

(¶10} On June 29, 2012, this court issued its decision in Waskelis, 2012-Ohio-3030, affirming Waskelis' convictions. In that opinion, inter alia, this court concluded that counsel was not ineffective by failing to object to the admission of testimony regarding the sexual abuse given by Dr. McPherson, who opined that A.B. was sexually abused, based on his review of her medical record and statements. Id. at ¶ 69

(¶11} On October 30, 2012, the trial court issued an Order and Journal Entry, denying Waskelis' Petition. The court found that "there are no substantive grounds for relief and the Petitioner is not entitled to relief." The court held that Waskelis' claim "did not show that Defendant's trial counsel was ineffective" and that the claim of ineffective assistance was barred by res judicata.

(¶12} On November 16, 2012, Waskelis filed a Motion of Defendant Requesting an Evidentiary Hearing and Final Appealable Order, asserting that a hearing should be conducted on the Petition and that the trial court's Journal Entry did not include findings of fact and conclusions of law, as ...


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