State v. Gaffin

2021 Ohio 4019

Opinion

[Cite as State v. Gaffin, 2021-Ohio-4019.]

Released 11/3/21 FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 20CA1115 : v. : : KEVIN GAFFIN, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

William R. Gallagher, Elizabeth Conkin, Arenstein & Gallagher, Cincinnati, Ohio for Appellant.

D. Vincent Faris, Clermont County Prosecutor, Nick Horton, Scott O'Reilly, Assistant Prosecuting Attorneys, Batavia, Ohio, for Appellee. _____________________________________________________________

Smith, P.J.

{¶1} This matter comes on for consideration of Appellant’s

application for en banc hearing pursuant to App.R. 26.

{¶2} In 2016, Gaffin (“Appellant”) was convicted by a jury of three

counts of rape, R.C. 2907.02(A)(1)(b), with specifications; three counts of

sexual battery, R.C. 2907.03(A)(5), with specifications, and one count of

felonious assault, R.C. 2903.11(A)(1). The victim was his six-year-old

stepson. Appellant was sentenced to life in prison without the possibility of

parole. He directly appealed his convictions. We affirmed the judgment of Adams App. No. 20CA1115 2

the trial court in State v. Gaffin, 4th Dist. Adams No. 16CA1027, 2017-

Ohio-2935, “Gaffin I.”

{¶3} Next, Appellant filed a petition for postconviction relief pursuant

to R.C. 2953.21. The trial court found no substantive grounds for relief and

dismissed the petition. Appellant timely appealed this denial. In State v.

Gaffin, 4th Dist. Adams No. 17CA1057, 2019-Ohio-291, “Gaffin II,” this

Court found the trial court abused its discretion in denying Appellant’s

petition for postconviction relief without a hearing. We remanded the matter

to the trial court to conduct an evidentiary hearing on Appellant’s

postconviction petition consistent with our opinion in Gaffin II. The

decision in Gaffin II was written by Judge Hoover, with Judge Abele

concurring in judgment and opinion, and Judge Harsha concurring in

judgment only.

{¶4} Pursuant to this Court’s mandate in Gaffin II, the trial court

conducted an evidentiary hearing. Subsequently, the trial court again

overruled Appellant’s postconviction petition. Appellant timely appealed

the trial court’s ruling.

{¶5} In State v. Gaffin, 4th Dist. Athens No. 20CA1115, 2021-Ohio-

2659, “Gaffin III”, decided July 30, 2021, we clarified our findings in Gaffin

II but ultimately found no merit to Appellant’s arguments and affirmed the Adams App. No. 20CA1115 3

judgment of the trial court. Gaffin III was authored by Judge Smith, with

Judge Abele and Judge Hess also concurring in judgment and opinion.

{¶6} Appellant has filed an application for en banc hearing, in which

he asserts that this Court’s July 30, 2021 decision is in direct conflict with

this Court’s prior holding in Gaffin II, and that en banc review of the appeal

is necessary to secure and maintain uniformity of well settled legal precedent

in this district and in Ohio. Appellant’s Application for En Banc Hearing

was filed on August 13, 2021. On August 26, 2021, the State of Ohio filed a

responsive pleading.

{¶7} App.R. 26(A)(2) governs application for en banc consideration.

See also Pfalzgraf v. Miley, 7th Dist. Monroe Nos. 16MO-0005 and 16MO-

0006, 2018-Ohio-3595, at *6. Pursuant to the rule, if a court of appeals

determines that two or more of its decisions are in conflict it may order that

an appeal or other proceeding be considered en banc. App.R. 26(A)(2)(a).

Intra-district conflicts can arise when different panels of judges hear the

same issue but reach different results. Gentile v. Turkoly, 7th Dist. No. 16

MA0071, 2017-Ohio-2958, ¶ 2, citing McFadden v. Cleveland State Univ.,

120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, ¶ 15. “Consideration

en banc is not favored and will not be ordered unless necessary to secure or

maintain uniformity of decisions within the district on an issue that is Adams App. No. 20CA1115 4

dispositive in the case in which the application is filed.” App.R.

26(A)(2)(a). The burden is on the party requesting en banc consideration to

“explain how the panel's decision conflicts with a prior panel's decision on a

dispositive issue and why consideration by the court en banc is necessary.”

App.R. 26(A)(2)(b).

{¶8} Of significance to Appellant’s application for en banc

consideration, App.R. 26(A) provides in section (2)(c) that “[t]he rules

applicable to applications for reconsideration set forth in division (A)(1) of

this rule, including the timing requirements, govern applications for en banc

consideration.” App.R. 26(A)(1) mandates that applications for

reconsideration shall be “made in writing no later than ten days after the

clerk has both mailed to the parties the judgment or order in question and

made a note on the docket of the mailing.” App.R. 26(A)(1). See

Summitcrest, Inc. v. Erie Petroleum, 7th Dist. Columbiana No. 12CO0055,

2016-Ohio-3381, at ¶ 4. “ ‘A motion for reconsideration can be entertained

even though it was filed beyond the ten-day limitation provided for by the

rule if the motion raises an issue of sufficient importance to warrant

entertaining it beyond the ten-day limit.’ ” Summitcrest, supra, at ¶ 5,

quoting State v. Dew, 7th Dist. No. 08MA62, 2014-Ohio-4042, ¶ 7. Adams App. No. 20CA1115 5

{¶9} This Court issued its decision and judgment entry in Appellant’s

appeal on July 30, 2021. On that same day, the Adams County Clerk mailed

the judgment entry to the parties and made a note on the docket accordingly.

Thus, Appellant was required to file his motion for reconsideration and

application for en banc consideration on or before August 9, 2021.

{¶10} However, App. R. 14(B) provides that for good cause shown,

the court, upon motion, may enlarge the time prescribed by the appellate

rules or may permit an act to be done after the expiration of the prescribed

time. Specifically, enlargement of time to file an application for en banc

consideration pursuant to App.R. 26(A) shall not be granted except on a

showing of “extraordinary circumstances.” App.R. 14(C), which provides

for additional time after service by mail, states that three additional days

shall be added to the prescribed time period. Therefore, Appellant had three

additional days added to the August 9th prescribed date, giving him until

August 12th, to file his application.

{¶11} Appellant filed his application for en banc hearing on August

13, 2021. Thus, his application is time-barred. Appellant does not

acknowledge the tardy filings nor make an argument for extraordinary

circumstances. Adams App. No. 20CA1115 6

{¶12} Even if Appellant’s application had been timely filed we would

find no dispositive issue requiring en banc consideration. Appellant argues

that a conflict exists between this court’s decisions in Gaffin II and Gaffin

III.1 Appellant’s postconviction petition asserted ineffective assistance of

counsel due to trial counsel’s failure to investigate witnesses Appellant

suggested. Appellant urged that had his counsel investigated certain

witnesses he would have had the opportunity to impeach the State’s key

witnesses and offered a viable reason for the victim to lie.

{¶13} In Gaffin II, this court found that the trial court improperly

found that statements made in “Decker’s, Bowling’s, and Mallott’s affidavits

were inadmissible under Evid. R. 608(B).”2 (Emphasis added.) To further

confuse the matter, in Gaffin II we found:

After reviewing the evidence, we find that Gaffin established that he received constitutionally ineffective assistance of counsel. First, Gaffin showed that his counsel’s performance fell below an objective level of reasonable representation. * * * Here, Gaffin’s trial counsel not only failed to call a majority of the witnesses he subpoenaed, the affidavits show that he failed to interview nearly ten of those individuals. * * * Second, in light of the admissible evidence Gaffin provided, we find that there is a reasonable probability that the jury would have returned a different verdict. Had the jury heard the witnesses’ testimony, especially that of the two officers from the

1 In the application, Appellant references these decisions as Gaffin I and Gaffin II. 2 In Gaffin III at ¶ 46, we recognized a scrivener’s error set forth in Gaffin II at ¶ 78. Gaffin II at ¶ 78 should have stated that: “the trial court improperly found that the statements made in Vaughn’s, Bowling’s and Malott’s affidavits were inadmissible.” See, again, Gaffin III at ¶ 46. Adams App. No. 20CA1115 7

Manchester Police Department, it is reasonably likely that the outcome of the trial would have been different. Id. at ¶ 88.

Yet, Gaffin II ultimately held:

[W]e find that any rational trial court would have found substantive grounds for relief existed and granted an evidentiary hearing. * * * [W]e remand the matter to the trial court to conduct an evidentiary hearing on Gaffin’s petition for postconviction relief consistent with this opinion. (Emphasis added.) Id. at ¶ 88.

{¶14} During the evidentiary hearing upon remand, Appellant

presented the testimony of various witnesses, including Jeffrey Vaughn and

Officer Bowling, both of whom are emphasized in Appellant’s application

for en banc hearing. After hearing the fully developed testimony, the trial

court found that Mr. Vaughn was not present until later in the afternoon so

his testimony did not “actually impeach” the victim or his mother. In Gaffin

III, we noted this ruling was not inconsistent with our finding in Gaffin II

that Vaughn’s testimony would be admissible if, pursuant to Evid.R. 616(B),

it related to the witness’s intoxication “at the time of the matter which the

witness seeks to testify.” Gaffin III at ¶ 71. See Gaffin II, at 57. As to

Officer Bowling, when his testimony was more fully developed at the

remand hearing the trial court found him to be lacking in credibility. In Adams App. No. 20CA1115 8

Gaffin III we noted that such determinations are within the province of the

trial court. Id. at ¶ 79.3

{¶15} After the evidentiary hearing was conducted and the trial court

again overruled the postconviction petition, in the appeal of that decision,

Gaffin III, Appellant’s chief argument was that the trial court failed to

adhere to the law of the case doctrine. Pointing to the above language in

Gaffin II, Appellant argued it was established as the law of the case that

Appellant’s counsel was deficient and also established as the law of the case

that Appellant had established prejudice. Thus, Appellant contended his

ineffective assistance of counsel claim was definitely established as the law

of the case. We disagreed.

{¶16} In Gaffin III we noted the Supreme Court of Ohio’s language in

State v. Jackson, 64 Ohio St. 2d 107, 413 N.E.2d 819 (1980), syllabus:

In a petition for postconviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel’s ineffectiveness.

(Emphasis added.) See also State v. Kapper, 5 Ohio St. 3d 36, 38, 448

N.E.2d 823 (1983); State v. Crossley,2d Dist. Clark No. 2020-CA-10, 2020-

3 The trial court’s lengthy, well-reasoned, and thoughtful decision subsequent to the remand hearing also noted that the additional testimony of Vaughn and Bowling could actually have strengthened the State’s case. Adams App. No. 20CA1115 9

Ohio-6640, at ¶ 26; State v. Wright, 4th Dist. Washington No. 06CA18,

2006-Ohio-7100, at ¶ 20.

{¶17} In Gaffin III we admitted our language in Gaffin II was

imprecise, that the decision did not explicitly discuss postconviction

petitions in the context of ineffective assistance claims, nor did we discuss

the petitioner’s “initial burden” except in a generalized manner. We

concluded, however, that given our additional Gaffin II finding that “any

rational trial court would have found substantive grounds for relief existed

and granted an evidentiary hearing,” it was “illogical or disingenuous” to

conclude that our decision in Gaffin II unequivocally found that Appellant

established a prima facie case of ineffective assistance of counsel and thus

became the law of the case. See Gaffin III at ¶ 30. We further noted that if

we had found in Gaffin II that Appellant had definitively established his

ineffective assistance claim, we would have reversed his conviction and

granted a new trial rather than remanding for an evidentiary hearing. Gaffin

III at ¶ 29.

{¶18} In Gaffin III we rejected Appellant’s law of the case argument.

See also State v. Jones, 9th Dist. Summit No. 28063, 2019-Ohio-289, at ¶ 15

(Law of the case doctrine did not require court to find counsel’s performance

deficient based on “if” statement in prior decision where Jones’ argument Adams App. No. 20CA1115 10

asked court to disassociate statement from the paragraph in which it was

contained as well as the full decision). However, rejecting Appellant’s

argument was no disavowal of our prior holding in Gaffin II. In Gaffin III

we simply clarified our holding in Gaffin II and acknowledged a scrivener’s

error in the prior decision.

{¶19} Finally, in Gaffin III we cited State v. Brant, 11th Dist. Portage

No. 99-P-0037, 2000 WL 1114845 (Aug. 4, 2000), “Brant III.” In 1994,

Brant was also convicted of several counts including rape. As with

Appellant, Brant had a direct appeal and two denials of his motions for

postconviction relief. Brant argued various instances of ineffective

assistance of counsel. Brant’s convictions were affirmed in his direct

appeal, State v. Brant, 11th Dist. Portage No. 94-P-0117, (Sept. 22, 1995),

“Brant I.”

{¶20} Brant’s first petition for postconviction relief was dismissed

without a hearing. When Brant appealed the dismissal the appellate court

found that: (1) the testimony of an expert was critical to his defense; and (2)

had the expert been called, it was “arguable” there was a reasonable

probability Brant would not have been convicted. In State v. Brant, 11th

Dist. Portage No. 97-P-0019, 1998 WL 386183 (May 22, 1998), “Brant II,”

the case was remanded for an evidentiary hearing as in Appellant’s case. Adams App. No. 20CA1115 11

Upon remand, the trial court held the hearing but again denied Brant’s

petition.

{¶21} In Brant III, the appellate court explicitly found that counsel’s

failure to call an available expert witness: (1) fell below the objective

standard of reasonable representation; and (2) concluded that the error was

prejudicial. The judgment of the trial court was reversed and the matter

remanded for a new trial. Appellant argues herein that Brant III supports his

position. That would be a fair argument if, in Gaffin II as in Brant III, we

had explicitly found ineffective assistance. Our decision did no such thing.

But for the need for clarification of Gaffin II, nothing about Appellant’s case

is unique. Appellant has failed to demonstrate an intra-district conflict on a

dispositive issue.

{¶22} Appellant’s application for en banc hearing is untimely. Even

if we had considered the merits, we are not convinced that a conflict exists

between our decisions in Gaffin II and Gaffin III which necessitates en banc

consideration. For the reasons stated, Appellant’s application for en banc

hearing is denied.

APPLICATION FOR EN BANC CONSIDERATION DENIED. Adams App. No. 20CA1115 12

The Clerk shall serve a copy of this entry on all counsel of record and

unrepresented parties at their last known addresses by ordinary mail. IT IS

SO ORDERED.

Abele, J. and Hess, J. concur in Entry Denying Application for En Banc

Hearing.

For the Court,

_________________________ Jason P. Smith Presiding Judge