State v. Gebrosky - Ohio Court Affirms Post-Conviction Relief Denial

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April 21, 2026 Get Citation Alerts Download PDF Add Note

State v. Gebrosky

Ohio Court of Appeals

• Citations: 2026 Ohio 1430
• Docket Number: WD-25-053, WD-25-005

• Judges: Duhart

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

• Similar Cases (50.6K)

• PDF

Syllabus

Judge Duhart, post-conviction relief, res judicata, indigent petitioner's right to be represented by counsel in a postconviction proceeding.

Combined Opinion

[Cite as State v. Gebrosky, 2026-Ohio-1430.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY

State of Ohio Court of Appeals No. {87}WD-25-053
{87}WD-25-005
Appellee
Trial Court No. 2022 CR 0096
2021 CR 0388
v.

John E. Gebrosky DECISION AND JUDGMENT

Appellant Decided: April 21, 2026

---

Paul A. Dobson, Wood County Prosecuting Attorney, for appellee.

John E. Gebrosky, pro se, appellant.

---

DUHART, J.

{¶ 1} This consolidated case is before the court on appellant, John Gebrosky’s pro

se appeal of the June 27, 2024 judgments of the Wood County Common Pleas Court

denying his petition for post-conviction relief. For the reasons that follow, we affirm.
I. Assignments of Error1

Assignment of Error Number 1: Trial Court Abused Its Discretion in
Finding That Petition Was Not Supported By Evidence That Did Not Exist
Or Was Not Available For Use At The Time Of Trial and Applying Res
Judicata To Bar The Claims of Ineffective Assistance of Counsel.

Assignment of Error Number 2: Trial Court Erred in Failing To Appoint
Counsel To Assist [Gebrosky] In Obtaining The Additional Documentary
Evidence, Affidavits, And/Or Depositions Required To Support The …
Ineffective Assistance Of Counsel Claims.

Assignment of Error Number 3: Trial Court Erred In Not Granting An
Evidentiary Hearing.
II. Background

{¶ 2} This appeal pertains to two separate criminal cases, which have been

consolidated for purposes of appeal. We have briefly set forth the relevant facts of each

case. A thorough account of the facts and evidence is set forth in State v. Gebrosky,

2024-Ohio-2659 (6th Dist.) (“Gebrosky 1”).

A. Wood County Case No. 2021CR0388

{¶ 3} In August 2021, Gebrosky was charged with one count of rape in violation

of R.C. 2907.02(A)(1)(b) and (B), a felony of the first degree, and one count of gross

sexual imposition in violation of R.C. 2907.05(A)(4) and (C)(2), a felony of the third

degree. The charges pertained to allegations that he had sexual contact with his daughter,

1
We note that Gebrosky’s assignments of error listed in the beginning of his appellate brief
differ from those listed and argued in the body of his brief. The initial listing did not include the
second and third assignments of error listed here and instead contained a different second
assignment of error which asserted that the trial court misconstrued the record as it related to the
claims presented. The assigned errors set forth here are the errors listed and argued in the body
of Gebrosky’s brief. We observe that Gebrosky does allege in the body of his brief that the trial
court misconstrued arguments made in his petition, and we have addressed these alleged errors
when they were applicable.
2.
H.G., in Wood County over Christmas 2016 when she was 11 years old. H.G. did not

report the alleged abuse until August of 2020.

{¶ 4} The case was tried to a jury and at trial Gebrosky was represented by

attorney Kati Tharp. The State presented the testimony of the following witnesses: H.G.;

Anissa, Gebrosky's former girlfriend and the mother of two of his younger children;

Detective Israel Garrett, a detective with the Toledo Police Department’s special victims

unit who first investigated the offenses; Carrie Menchaca, a behavioral specialist; Samuel

Young, an inmate who was at the jail with Gebrosky; and, Detective Dustin Glass, a

detective with the Perrysburg Township Police Department who received the case from

Detective Garrett. Gebrosky then called his mother, Barbara Lewis, to testify and he took

the stand in his own defense.

{¶ 5} Relevant to this appeal, H.G. testified to two separate instances when

Gebrosky had inappropriate contact with her during Christmas of 2016. In the first

instance, Gebrosky was lying on top of her and began rubbing his hands up and down her

legs and breathing heavily. This went on for a few minutes and then H.G. got up.

Gebrosky commented that what he was doing, or what he was going to do, “would put

him in jail for a long time.” During the second of the two occurrences, H.G. testified that

Gebrosky was massaging her while she lay on her stomach. During this massage, H.G.

stated that Gebrosky was lying on top of her, moving himself back and forth and then she

felt his hands “move [her] underwear, and then [she] felt something very close to [her]

vagina.” She assumed it was “either his fingers or his penis.” She jumped up before

anything entered her vagina. Gebrosky then asked her whether she wanted to play the

3.
food game, which was “a game H.G. and her younger siblings had watched on YouTube

where one person is blindfolded and the other person gives them weird food

combinations that the blindfolded person tries to identify.” Gebrosky 1 at ¶ 12. During

this game, H.G. said Gebrosky put something in her mouth that initially tasted sweet and

then later salty and he told her not to bite down. He then put his hand on the back of her

head and moved it back and forth. At some point she “bit down a little bit and it made

him jump.” She “took the blindfold off and he ran into the kitchen, hunched over,

holding either his stomach or whatever – or – with a party cup in his hand.” According to

H.G.’s testimony, at the time, Gebrosky tried to convince her that it was a pepper, but

during a conversation later he first told her that it was a dildo, then he told her that “it was

him” and “then he tried to take it back and go back to saying that it was a dildo.” When

asked what was meant by “it was him” she said “[h]e called it his dick.”

{¶ 6} Also germane to this appeal, Young, a fellow inmate of Gebrosky’s,

testified. According to Young, Gebrosky spoke to him about his case. Gebrosky never

admitted to any inappropriate conduct, instead contending that his family was setting him

up. Young maintained that he and Gebrosky discussed possible ways to combat

anomalies in Gebrosky’s case and at some point Young became concerned that Gebrosky

was going to use his advice to create a false alibi, which caused Young to contact the

police or prosecutor.

{¶ 7} Gebrosky testified in his own defense and maintained that “he was surprised

by H.G.’s allegations, because when he was released from prison just before the

allegations, H.G. was upset that she could not come see him yet.” Gebrosky 1 at ¶ 31. He

4.
also stated that, after the allegations, “he received ‘odd’ Facebook messages ‘just saying

sorry, dad, I miss you,’ and he was not sure if it was H.G. sending the messages.” Id.

{¶ 8} Concerning the specific allegations, he asserted that on Christmas Eve 2016

he stayed up wrapping presents. He claimed he was never friends with Young, that he

“didn’t like him at all.” He disputed H.G.’s and Anissa's claim that the family spent

Christmas 2016 in Perrysburg, instead maintaining that they stayed in Toledo. He also

denied that any of the incidents occurred. While he admitted to massaging H.G., and to

playing the food game with her and her brother, he insisted that nothing sexual ever

occurred between him and H.G.

{¶ 9} The jury found Gebrosky guilty of both counts.

{¶ 10} After trial, Gebrosky wrote a letter to the court requesting Tharp be

removed as his counsel and Tharp filed a motion to withdraw based upon “a complete

breakdown in the attorney client relationship.” Tharp was released as counsel of record

and Attorney Merle Dech was appointed to represent Gebrosky.

{¶ 11} On October 11, 2022, Gebrosky filed a pro se motion for new trial. He

filed a pro se supplement to his motion for new trial on December 14, 2022. These

motions were discussed at a hearing on February 14, 2023. At issue was whether

Gebrosky wanted to represent himself; he decided he did not. Dech discussed

Gebrosky’s motions and said the following:

. . . as it goes to the new trial motion, once I explained what Mr.
Gebrosky has before himself and before the Court is really not newly
discovered evidence because it’s things that were in the possession of Mr.
Gebrosky and his Counsel at the time, and I think Rule 33 doesn’t - - it’s
not newly discovered. So what I suggested to Mr. Gebrosky is to proffer it

5.
as an exhibit, seal it for appellate purposes only for review for any potential
ineffective assistance of Counsel claim at the appellate level.

{¶ 12} When the prosecutor complained that he “didn’t know what documents Mr. Dech

[wa]s referring to,” Dech detailed the documents as follows:

. . . We have a series of Facebook messages, which, a copy was
given to the Government this morning. A two-page document which is a
timeline, says timeline. An inmate request, which is for two matters. A
letter from Children Services to Mr. Gebrosky dated 7/24/19, and
conversation activity within the Wood County jail.

{¶ 13} Dech reiterated that he was filing these documents “for potential review by

the Court of Appeals.” Dech then filed a motion for new trial, with exhibits, on February

28, 2023. The motion requests “a new trial so that said exhibits may be entered into

evidence or in the alternative made part of the court record for appellate review.” At the

sentencing hearing on March 15, 2023, Dech stated that he had inadvertently failed to

include some pages that Gebrosky had given him in the motion for new trial. It was

requested that the amended document be filed under seal due to the contents of some of

the pages. Dech said he would file the amended document that night. An amended

motion for new trial was filed under seal on that same date.2 The motion for new trial

was denied.

2
Gebrosky has repeatedly claimed that this amended motion was never filed. While it is true
that the docket did not show the filing until December 17, 2025, the filing was acknowledged in
the trial court’s order of March 29, 2023, which denied the motion for new trial “filed March 15,
2023 under seal.”
6.
B. Wood County Case No. 2022CR0096

{¶ 14} In March 2022, Gebrosky was charged with one count of rape in violation

of R.C. 2907.02(A)(2) and (B), a felony of the first degree, and one count of unlawful

sexual conduct with a minor in violation of R.C. 2907.04(A) and (B)(1), a felony of the

fourth degree. These charges were based on allegations of sexual misconduct with A.J.,

who was 14 years old at the time. Although Gebrosky was initially represented in this

case by Tharp, prior to trial Tharp was released as counsel and Dech was appointed to

represent him.

{¶ 15} This case went to trial beginning February 27, 2023. The State presented

the testimony of Anissa, A.J., A.J.’s mother and Detective Garrett. Gebrosky then took

the stand in his own defense.

{¶ 16} Relevant to this case, A.J. testified that she met Gebrosky when she was

dating Anissa’s brother in 2010, when she was 12. After dating Anissa’s brother for a

year, the relationship ended. However, she continued to see Gebrosky and accepted

rides, food and gifts from him. A.J. indicated that whenever she went with him “there

were sexual activities involved.” She discussed two specific instances. First, there was a

time he picked her up, drove for a while and then took her to a secluded, industrial area

she was unfamiliar with, and asked her “to touch his penis and kiss him.” Initially she

refused, but he “told [her] that he wasn't going to take [her] home until [she] did that.”

Second, she discussed a time she skipped school and went to Cedar Point with Gebrosky

during her eighth-grade year. They rode rides, had lunch, and on the way home he told

her they needed to make a stop. They stopped at a motel on Woodville Road, which was

7.
by a bowling alley she used to go to when she was a kid. A.J. was shown photographs of

the Express Motel and confirmed that that was the motel. In the motel room, according

to A.J., Gebrosky “put his penis inside of [her]” despite her telling him that she “wanted

him to stop” and that she “didn’t want to do this.”

{¶ 17} Eventually A.J. was contacted by the police and she spoke to Detective

Garrett. A.J. mentioned that Anissa messaged her on Facebook in 2021, but she denied

the two were friends and that Anissa had asked her to “lie about getting raped” and she

agreed that she would not have lied for Anissa.

{¶ 18} Detective Garrett discussed two interviews he had with A.J. – one on

December 7, 2021, and the second on February 4, 2022. He explained that during his

investigation, A.J. told him about a time in 2012 that she and Gebrosky were coming

back from Cedar Point and they stopped at a motel. She didn’t know the name of the

motel, but she knew the name of the bowling alley next to the motel, and based on A.J.’s

description, he determined that the motel was the Express Motel, located in Wood

County. On cross-examination, he admitted he didn’t go to the Express Motel regarding

the investigation, that his contact was limited to calling to ask about rates, and that he

never spoke to anyone regarding whether Gebrosky had checked into the motel.

{¶ 19} Gebrosky testified that A.J. and Anissa were friends and would do things

together. He claimed that he never took A.J. to Cedar Point and had never “entered into

any kind of intimate relations with her.” He said he only gave A.J. rides when Anissa

was unavailable. He additionally explained his belief that A.J., Anissa, and H.G.

“hatched this plan to frame [him]” and that the girls were lying. He said that “he and

8.
Anissa had a visitation dispute, beginning when he filed for visitation rights in 2019” and

he “claimed Anissa withheld his children from him and the ‘allegations started happening

... because she changed the order while [he] was in jail, and when [he] came home she –

for better lack of a term, these allegations started and she stopped allowing [him] to see

the kids immediately.’” Gebrosky 1 at ¶ 54.

{¶ 20} The jury found Gebrosky guilty of both charges.

C. Sentencing

{¶ 21} Gebrosky was sentenced in both cases on March 15, 2023. In case No.

2021CR0388, the trial court determined the offenses of rape and gross sexual imposition

were not subject to merger. The trial court then imposed a mandatory prison term of ten

years to life for the rape offense and a definite prison term of three years for the gross

sexual imposition offense. These terms were ordered to be served consecutively.

{¶ 22} In case No. 2022CR0096, the trial court determined the offenses of rape

and unlawful sexual conduct with a minor merged, and the State elected to proceed to

sentencing on the rape count. The trial court then imposed a mandatory prison term of

eight years on the rape offense.

{¶ 23} The sentence in case No. 2022CR0096 was ordered to run consecutively to

the sentence in case No. 2021CR0388 with an aggregate prison term of 21 years to life.

He was also ordered to register as a Tier III sex offender.

D. Prior Appeals

{¶ 24} Gebrosky appealed his convictions to this court, arguing that the conviction

in case No. 2021CR0388 was against the manifest weight of the evidence and that

9.
evidence of other acts of sexual contact between A.J. and Gebrosky should have been

excluded as more prejudicial than probative. Gebrosky 1 at ¶ 62. We affirmed the trial

court’s judgments. Id. at ¶ 103.

E. Motions for Post-Conviction Relief

{¶ 25} On April 22, 2024, Gebrosky filed pro se a “Petition to Vacate or Set Aside

Judgment of Conviction or Sentence” and a “Motion for Appointment of Counsel” in

both cases. The trial court summarily denied the postconviction petitions. Gebrosky

appealed. The trial court did not address the motion for appointment of counsel.

Gebrosky then filed a second motion for appointment of counsel for the purpose of

appealing the trial court’s denial of his postconviction petition.

{¶ 26} We reversed the trial court’s decisions denying the postconviction petitions

and remanded the case to the trial court to make findings of fact and conclusions of law

specifically stating the reasons for the denial of relief. Once back at the trial court,

Gebrosky was granted leave to amend his petitions.

{¶ 27} He filed, pro se, an amended petition requesting postconviction relief in

both cases and additionally filed a new motion for the appointment of counsel.

{¶ 28} With respect to his request for an appointment of counsel, Gebrosky

contended that he lacked the skill or knowledge to pursue his right to postconviction

relief without the assistance of counsel, and he pointed to “special circumstances”

resulting from his incarceration that entitled him to counsel, including: (1) a new Ohio

Department of Rehabilitation and Corrections policy that he maintained “results in

significant delay in the delivery of incarcerated adults [sic] legal mail” which renders him

10.
unable to meet filing dates, (2) his inability to obtain certain records, (3) he couldn’t

obtain sworn depositions or affidavits to support his claim, and (4) he was unable to

attend hearings.

{¶ 29} In his postconviction petition he claimed ineffective assistance of counsel

with respect to his trial attorney in each case, stating that each attorney “failed to

investigate the evidence, prepare evidence and witnesses for trial and failed to present

favorable evidence needed to adequately engage in the adversarial process and

adequately challenge the State of Ohio’s case.” He attached his own affidavit and

numerous exhibits to his petition.

{¶ 30} The trial court denied Gebrosky’s request for court-appointed counsel and

dismissed his petition for postconviction relief without a hearing. The trial court found

that all of Gebrosky’s exhibits “did exist or were available at the time of trial” and thus,

his claims were barred by res judicata. The trial court also found that Gebrosky misstated

the record and that some of the exhibits relied upon by Gebrosky were used at trial, and

therefore Gebrosky’s arguments were cumulative of evidence already presented. Lastly,

the trial court found that some of Gebrosky’s arguments were “speculative and merely a

‘hypothesis and a desire for further discovery’ which is insufficient to rise to ‘marginally

sufficient evidence.’”

{¶ 31} Gebrosky appealed.

III. Preliminary Issues

{¶ 32} Gebrosky has raised additional claims in his briefs and in supplemental

filings. We have previously stricken the supplemental filings. With respect to his briefs,

11.
we can only address arguments presented in his petition to the trial court. State v.

Zamora, 2008-Ohio-4410, ¶ 26 (3d Dist.). “It is well-settled that appellate courts will not

consider issues that are raised for the first time on appeal.” State v. Hardin, 2025-Ohio-

5446, ¶ 25 (6th Dist.), citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210

(1982). Therefore, we will not consider any arguments raised by Gebrosky for the first

time on appeal. Similarly, we cannot consider exhibits, including those attached to

Gebrosky’s briefs, which were not in the trial court record. Kobal v. Edward Jones

Securities, 2021-Ohio-1088, ¶ 17 (8th Dist.).

IV. Postconviction Procedure

{¶ 33} R.C. 2953.21 allows inter alia, a “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” to file a petition asking the court to vacate or set

aside the judgment or sentence. “A postconviction proceeding is a collateral civil attack

on a criminal judgment, not an appeal of a criminal conviction. To prevail, the petitioner

must establish a violation of his constitutional rights that renders the judgment of

conviction void or voidable.” (Citations omitted.) State v. Clinton, 2024-Ohio-4720, ¶ 17

(6th Dist.).

{¶ 34} Petitions for postconviction relief may be resolved in one of three ways: (1)

the trial court can summarily dismiss the petition without holding an evidentiary hearing,

(2) the trial court can grant summary judgment on the petition to either party who moved

for summary judgment, or (3) the trial court can hold an evidentiary hearing on the issues

12.
raised by the petition. State v. Belton, 2023-Ohio-294, ¶ 50 (6th Dist.), quoting State v.

Harris, 2020-Ohio-4101, ¶ 14 (12th Dist.).

{¶ 35} “Before a trial court may grant a hearing on a petition, it must evaluate the

petition in the context of the entire record in the case to determine whether the petition

alleges ‘substantive grounds for relief.’” State v. Blanton, 2022-Ohio-3985, ¶ 24, quoting

R.C. 2953.21(D). “A petition presents substantive grounds for relief when it contains

allegations that are sufficient to state a constitutional claim and the files and records of

the case do not affirmatively disprove the claim.” Id.

{¶ 36} We generally review the denial of an application for postconviction relief

for an abuse of discretion. State v. Allison, 2024-Ohio-872, ¶ 13 (6th Dist.). However, if

a trial court denies a petition by operation of law, such as by application of the doctrine of

res judicata, this court's review is de novo. State v. Willis, 2016-Ohio-335, ¶ 7 (6th Dist.).

V. Exhibits Attached to Postconviction Relief

{¶ 37} Prior to our analysis of Gebrosky’s claims, we find it helpful to first discuss

his exhibits. In support of his petition, he attached the following: his own “Affidavit of

Truth and Verity”; a Lucas County Parenting Plan Schedule; a letter from Lucas County

Children’s Services (“LCCS”) which Gebrosky contends is “regarding a time when H.G.

had issues with her mother and reported them, the purpose was to show that H.G.

report[ed] wrong doings [sic] to her right away, and this letter was a topic John Gebrosky

was using for custody of H.G.”; a copy of a motion for new trial filed by Dech on

February 28, 2023, in case No. 2021CR0388 with handwritten corrections and additions,

apparently written by Gebrosky; an order of the trial court in case No. 2021CR0388, also

13.
with numerous handwritten additions, striking Gebrosky’s pro se filing on March 6, 2023

in which he requested to supplement the February 28, 2023 motion for new trial;

numerous pages entitled “Conversation Activity” showing a history of Gebrosky’s

comments and requests made in the Wood County Jail; pages of Gebrosky’s

conversations with H.G. on Facebook Messenger; two Inmate Requests, written by

Gebrosky in May of 2022, and the officer’s replies to the requests; a “Timeline” which is

purported to be a list created by Tharp to show Gebrosky, detailing questions she planned

to ask H.G., which Gebrosky alleges she didn’t do; a form represented by Gebrosky to be

a “rule violation charge, between Young and Gebrosky,” dated March 21, 2022, charging

Gebrosky with rule violations; handwritten pages represented to be a “trial notebook”

where Gebrosky wrote questions he had during trial in case No. 2021CR0388; page 4 of a

5 page police report detailing interviews with A.J. and her mother on December 7, 2021

and December 10, 2021 respectively; a supplemental report made by Garrett detailing an

interview with A.J. on February 4, 2022, and an email he received from A.J. on February

7, 2022; a supplemental report made on August 8, 2020 discussing conversations the

reporting officers had with H.G. and her mother on August 7, 2020; a Perrysburg

Township Police Investigation Report discussing an interview of Young at the jail with

handwritten additions presumably by Gebrosky; page 3 of a 5 page Toledo police report

discussing A.J.’s case; two pages of therapy records regarding H.G., which were admitted

into evidence at trial; and a 32-page handwritten letter from Gebrosky.

{¶ 38} Although all of the exhibits were attached to Gebrosky’s petition, and at the

end of each claim, he generally states that all of the exhibits “are attached to support the

14.
claim,” he only discusses some of the documents in his arguments. We only consider the

documents as they are specifically argued by Gebrosky in support of his claims.

VI. First Assignment of Error

{¶ 39} In his first assignment of error, Gebrosky contests the application of res

judicata to his postconviction relief petition. Gebrosky asserts that the trial court abused

its discretion in finding that his petition was barred by res judicata on the basis that his

petition was not supported by evidence that either did not exist or was not available for

use at the time of trial. He concedes that some of his documentary evidence did exist at

the time of trial and direct appeal but contends that the trial court ignored his affidavit -

which did not exist at the time of trial, and which contained evidence of off-the-record

conversations which could not have been presented on direct appeal.

A. Applicable Law

{¶ 40} According to the doctrine of res judicata, “a final judgment of conviction

bars the convicted defendant from raising and litigating in any proceeding, except an

appeal from that judgment, any [claim] 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.” Blanton, 2022 Ohio 3985, at ¶ 25, quoting State v. Perry, 10 Ohio St.2d

175, 180 (1967).

{¶ 41} This test has been modified in some instances when a petition for

postconviction relief is premised upon a claim of ineffective assistance of counsel as the

Ohio Supreme Court has recognized that these petitions “pose unique challenges.” Id. at

¶ 29. In these cases, when a defendant, represented by new counsel on direct appeal, fails

15.
to raise the issue of the competency of his trial counsel, and that “issue could fairly have

been determined without resort to evidence dehors the record, res judicata is a proper

basis for dismissing [the] defendant’s petition for postconviction relief.” Id. at ¶ 30,

quoting State v. Cole, 2 Ohio St.3d 112 (1982), syllabus. However, “res judicata does not

bar a postconviction ineffective-assistance-of-counsel claim when either (1) the petitioner

had the same attorney at trial and on appeal or (2) he must rely on evidence outside the

trial record to establish his claim for relief.” Id. at ¶ 2, citing Cole at 113-114. Gebrosky

was represented by different attorneys at trial and on appeal.

{¶ 42} As Gebrosky’s claims were based on ineffective assistance of counsel, it

was not necessary that Gebrosky’s evidence did not exist at the time of trial or was not

available at trial. The Ohio Supreme Court has held in such cases, “[t]here is no

requirement that to overcome a res judicata bar, the evidence on which such a claim is

based must have been unknown or unavailable to the defense at trial.” 3 Blanton at ¶ 60.

B. Applicability of Res Judicata

{¶ 43} Gebrosky attached numerous documents to his petition for postconviction

relief. Many of the documents were in the trial court record at the time of appeal.

However, there were a few exhibits he attached and referred to that were not in the trial

3 It is not clear that the trial court correctly applied this test. At one point the trial
court notes that res judicata applies in ineffective assistance of counsel cases when “the
petitioner has a new attorney on appeal and the claim could have been litigated based on
the trial record.” However, the trial court also stated that “claims in the ‘petition for
postconviction relief must be supported by . . . evidence [that] did not exist or was not
available for use at the time of trial” and concluded that Gebrosky’s “exhibits did or were
available at the time of trial.” (Emphasis in original.)
16.
court record. These documents include Gebrosky’s affidavit and the pages of police

reports.4

{¶ 44} “A postconviction claim of ineffective assistance of counsel that relies

upon competent evidence outside the record is “generally * * * sufficient, if not to

mandate a hearing, [then] at least to avoid dismissal on the basis of res judicata.”

{¶ 45} We first note that two of Gebrosky’s claims do not rely on any evidence

outside of the record. First, Gebrosky claims that he spoke with Tharp about concerns he

had with Young’s potential testimony, and Tharp informed him Young’s testimony might

be introduced at trial and that “she would object to his testimony being introduced if it

wasn’t more probative and prejudicial,” and that despite this, Tharp “failed to object on

the grounds that [they] discussed.” Gebrosky insists Tharp should have objected and

requested a curative instruction because Young’s testimony “was clearly more prejudicial

than probative.” Although he mentioned this in his affidavit, stating that Tharp discussed

with him “the possibility of Samuel Young being called and the testimony that would be

objected to if presented and the reasons why the testimony would be objected to,” both in

his brief and in his affidavit, his argument is that Tharp failed to object to testimony in

the record. “‘To overcome the res judicata bar, evidence offered [outside] the record

4
The police reports were filed in the trial court on April 9, 2024, as exhibits to his
first postconviction petition. However, as Gebrosky filed his appeal on April 10, 2023,
we have not considered these to be part of the trial court record on direct appeal.
Additionally, Gebrosky’s 32-page letter was not in the trial court record when his appeal
was filed, but this letter was not cited by him in support of any of his claims, and thus his
claims do not rely upon this document and we have not considered it for purposes of this
appeal.
17.
must demonstrate that the petitioner could not have appealed the constitutional claim

based upon information in the original record.’” State v. Hardin, 2025-Ohio-5446, ¶ 18

(6th Dist.), quoting State v. Lewis, 2019-Ohio-3031, ¶ 14 (3d Dist.). All relevant

information relating to his claim that Tharp failed to object to testimony was in the trial

court transcript and thus could have been raised on direct appeal. Gebrosky’s affidavit

does not add any salient evidence regarding this claim. Therefore, we find the trial court

properly found this claim to be barred by res judicata.

{¶ 46} Second, Gebrosky claims that Dech failed to file a motion for new trial in

case No. 2021CR0388. He does not rely on any evidence outside of the trial court record

in support of this claim, and thus, we find the trial court correctly found it to be barred by

res judicata.

{¶ 47} With respect to Gebrosky’s remaining claims of ineffective assistance, his

affidavit discusses communications with both Tharp and Dech relating to these claims.

We have previously found that a claim regarding communications “between a defendant

and his trial counsel is not one that can be borne out by the record [because] [i]t relies

upon information necessarily outside the record.” State v. Allison, 2024-Ohio-872, ¶ 22

(6th Dist.), quoting State v. Lawson, 2020-Ohio-6852, ¶ 106 (2d Dist.). As Gebrosky’s

remaining claims rely upon evidence outside the trial court record, we find that the trial

court erred in concluding that the petition was barred by res judicata. Accordingly, his

first assignment of error is found not well-taken with respect to his claim that Dech was

ineffective in failing to file an amended motion for new trial and his claim that Tharp

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should have objected to Young’s testimony and found well-taken with respect to his

remaining claims.

{¶ 48} Although we have found the trial court erred in barring some of Gebrosky’s

ineffective assistance of counsel claims on the basis of res judicata, the trial court’s

judgment may ultimately be correct. “The Ohio Supreme Court has mandated a two-part

inquiry for courts to use when evaluating a postconviction claim that is premised upon an

allegation of ineffective assistance of counsel. First, the court must conduct a res judicata

analysis to determine whether the petitioner has introduced competent evidence of

ineffective assistance that was not included in the trial court record. If so, the court must

determine if that evidence presents substantive grounds for relief; ‘that is, if believed,

would the newly presented evidence—together with any evidence in the trial record—

establish that counsel was ineffective?’” (Internal citations omitted.) Id. at ¶ 19, quoting

Blanton, 2022 Ohio 3985, at ¶ 33-34. The Ohio Supreme Court “cautioned that courts

often ‘conflate’ these two inquiries but the ‘better practice is to treat [them] as

analytically distinct.’” Id., quoting Blanton at ¶ 34. As Gebrosky’s third assignment of

error considers this second inquiry - whether the evidence presents substantive grounds

for relief - we will consider his third assigned error next.

VII. Third Assignment of Error

{¶ 49} In his third assignment of error, Gebrosky takes issue with the trial court’s

failure to hold a hearing on his petition. He claims the failure to hold a hearing violated

his rights to substantive and procedural due process, and had a hearing been held, he

would have been entitled to appointed counsel who would have been able to obtain

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additional documentary evidence, including A.J.’s attendance records and records from

the Express Motel.

A. Applicable Law Regarding Ineffective Assistance of Counsel

{¶ 50} To establish ineffective assistance, Gebrosky must “(1) show that counsel’s

performance ‘fell below an objective standard of reasonableness’ as determined by

‘prevailing professional norms’ and (2) demonstrate ‘a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’”

State v. Wilks, 2018-Ohio-1562, ¶ 140, quoting Strickland v. Washington, 466 U.S. 668,

688, 694 (1984). When the issue is whether to grant a hearing on a postconviction

petition, rather than as to the merits of the postconviction petition, the postconviction

petition does not need to definitively establish that trial counsel was deficient, or that

Gebrosky was prejudiced. State v. Bunch, 2022-Ohio-4723, ¶ 27. Instead, Gebrosky’s

petition must be sufficient on its face to raise an issue as to whether he was deprived of

effective assistance of counsel, and that his claim depends on factual allegations that

cannot be determined by examining the trial court record. Id.

B. Case No. 2021CR0388

{¶ 51} In his petition, Gebrosky contended that Tharp was ineffective in that she

“failed to investigate the evidence, prepare evidence and witnesses for trial and failed to

present favorable evidence needed to adequately engage in the adversarial process and

adequately challenge the State of Ohio’s case.” Although in his petition he claimed that

Tharp failed to use recorded interviews and that “[t]he recorded interviews and their

inconsistencies clearly indicated that the statements made by the alleged victim were

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coerced or otherwise influenced by outside parties as the case progressed,” in his

appellate brief, he explains that the trial court misconstrued these allegations as a claim

that Tharp had failed to use recorded interviews when “[t]he actual claim was that

[Tharp] had begun certain lines of questioning and then failed to follow through with

those lines of questioning and that continuing those lines of questioning were critical to

showing that the story being told had continually evolved.”5 He also asserted that

“attorney Tharp failed to present evidence that the victim had a significant history of

reporting perceived wrongdoings to her immediately countering the State’s claims of

delayed disclosure.” He cited to the LCCS letter as support for this contention.

{¶ 52} Gebrosky also maintained that Tharp failed to follow through on questions

to H.G. regarding her changing stories and the effect her meetings with the prosecution

and its investigators had on her testimony. He contended that “[c]ontinued questioning

on th[is] subject would have likely led to an admission that the prosecution or their

investigators manipulated the victim to change her stories in order to support the case

they wanted to present.” He pointed to Detective Garrett’s supplemental reports as

evidence of this alleged manipulation.

5 Because Gebrosky has stated that his claim is not based on the failure to use interviews, we
have not further addressed this claim. However, we do note that no recorded interviews were
provided as evidence for the postconviction relief petition. The only recorded interviews were
those admitted at trial or proffered as an exhibit at trial for purposes of appeal. Thus, any claim
regarding the recorded interviews would have been barred by res judicata.

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{¶ 53} Also relevant to this claim was Gebrosky’s affidavit, which states, in

relevant part:

1.) I repeatedly informed attorney Kati Tharp that the allegations related to
Case No. 2021CR[0]388 were motivated by the ongoing custody dispute
between myself and Anissa Diaz (Alleged victim[’]s Step Mother) and that
the allegations could be easily disproved by obtaining certain records
showing that [the] alleged victim was not living or visiting with me at the
time she claimed these events occurred. These records were 1.) the Lucas
County Juvenile Court Parenting schedule showing the visiting times I was
allowed, 2.) a letter from [LCCS] regarding one of the times alleged victim
had issues with her mother related to less serious issues than the alleged
events in this case, 3. [sic] Facebook messages between myself and alleged
victim, and other messages from the listed time frame.
...
3.) Despite my continued requests to do so, attorney Tharp failed to
question the alleged victim in case number 2021CR0388 about the number
of times she met with the prosecution or their investigators, her
continuously changing stories and the effect of these meetings . . . on her
continuously changing stories.
4.) Attorney Tharp did begin questioning the alleged victim about these
issues but changed her course of questioning and failed to return to ask the
relevant questions about whether or not she was influenced by the
prosecution during her many meetings with them.

{¶ 54} After reviewing Gebrosky’s new evidence as well as the evidence in the

trial court record, we do not find that Gebrosky has raised an issue as to whether Tharp

was ineffective in not further questioning H.G. Gebrosky was “required to raise in his

petition a triable issue of fact, supported by evidence outside the record, whether his trial

counsel was deficient and whether that deficiency prejudiced him.” Bunch, 2022-Ohio-

4723, at ¶ 37. His evidence “must show that trial counsel’s actions were not reasonable

‘under prevailing professional norms,’ and that ‘there is a reasonable probability that,

absent the errors, the factfinder would have had a reasonable doubt respecting guilt,’”

(Internal citation omitted.) Id., citing Strickland at 688, 695. Here, even assuming the

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statements in Gebrosky’s affidavit are true, we do not find that they support his assertion

that Tharp was ineffective in her questioning of H.G. and that this failure was prejudicial.

{¶ 55} Gebrosky claims that H.G.’s allegations were motivated by the custody

dispute and by H.G.’s meetings with the prosecutors, and in his affidavit he contends that

he informed Tharp that she could prove that this was the case by obtaining and relying

upon: the visitation schedule, the LCCS letter, the Facebook messages between H.G. and

Gebrosky, and the supplemental police report, and by further questioning of H.G. We

first note that none of the documents relied upon by Gebrosky specifically establish

H.G.’s motivations. Moreover, as the trial court concluded, the evidence Gebrosky

claims that Tharp failed to use was either used at trial or was cumulative to other

evidence used at trial. “Finding an item outside the record to attach to a petition does not

turn an issue into a substantive post-conviction claim where it is essentially cumulative to

evidence that was in the record on a topic that could have been raised on direct appeal.”

State v. Boyd, 2023-Ohio-4725, ¶ 41 (7th Dist.).

{¶ 56} With respect to the visitation schedule, there was testimony at trial

regarding when H.G. would visit Gebrosky. This document does not add anything of

significance as it is not specific evidence of the schedule followed over the 2016

Christmas holiday. The document itself allows the parties to change the schedule by

agreement, and, in fact, Gebrosky appears to have changed some of the terms himself in

the exhibit presented. In the context of the winter break, he crossed out Mother and

added Father, changed 10:00 p.m. to 9:00 p.m. and changed Father to Mother.

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{¶ 57} Regarding the LCCS letter and the Facebook messages, the relevant

information Gebrosky contends Tharp failed to raise was, in fact, brought up at trial. For

instance, as to the incident discussed in the LCCS letter, H.G. testified on direct

examination that she got into a fight with her mom in 2019 that got physical and LCCS

got involved the next day, and she admitted that, at that time, she didn’t want to live with

her mother and that as a result, she “got involved in some counseling.” Tharp also

questioned H.G. about the “CSB incident” where her “mom was physically abusive.”

Similarly, Tharp questioned H.G. about the Facebook messages, asking if she

remembered messaging Gebrosky in 2020 “about wanting to come over and spend more

time with him,” to which H.G. responded “With his two other kids, yes.”

{¶ 58} As to the supplemental police report, the facts stated in the police report are

not significantly different from those testified to by H.G. at trial. The year she alleged it

happened was different, but that was discussed at trial. The events themselves, as

discussed in the police report, were very similar to those discussed at trial. The report

states that the relevant events happened at Christmas time, that Gebrosky gave H.G.

massages and rubbed her inner thighs, and that they played the food game where she was

blindfolded and Gebrosky inserted an object into her mouth that had liquid on it which

tasted salty. He takes issue with a statement that the object “was or could have been” his

penis, whereas at trial she testified that she knew it was his penis because sometime

thereafter, at one point, he admitted it was. Gebrosky’s argument is that Tharp failed to

ask more questions of H.G. However, Tharp did ask H.G. if she told the police about her

conversations with Gebrosky regarding what happened and she said she didn’t know. We

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do not find that these inconsistencies are material and raise an issue was to whether, if

Tharp had questioned H.G. more about the facts in the report, that the result of the

proceeding would have been different.

{¶ 59} Tharp also questioned H.G. about the amount of times she met with the

prosecutor and H.G. agreed it was somewhere around four or five times. Any suggestion

that further questioning “would have likely led to an admission that the prosecution or

their investigators had manipulated” H.G. is mere speculation and not supported by any

evidence provided by Gebrosky.

{¶ 60} For the above reasons, we do not find that Gebrosky’s petition raises an

issue that Tharp was deficient in her questioning of H.G., or that such deficiency

prejudiced his defense. Accordingly, with respect to Gebrosky’s allegations pertaining to

H.G.’s testimony, we do not find that the trial court erred in denying Gebrosky’s petition

without a hearing.

C. Case No. 2022CR0096

{¶ 61} With respect to this case, Gebrosky asserts that Dech misled him as to how

the case would proceed, told Gebrosky “that he would obtain records from the hotel

where [A.J.] was claiming that the alleged conduct occurred,” and “refused to talk about

the interviews done with A.J.” and Garrett’s supplemental reports.

{¶ 62} He first claims that Dech was ineffective in failing to obtain records from

A.J.’s school and the motel that she testified they went to together. He believed that the

trial court misconstrued this claim, and that he was actually claiming that “it was

ineffective assistance of trial counsel . . . when he failed to obtain the Hotel registry

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information concerning the check in-check out information . . .” In support of this claim,

Gebrosky provided his affidavit, which states:

5) I repeatedly informed attorney Merle Dech Jr. that the allegations related
to Case No. 2022CR0096 could be easily disproven by collecting the
following evidence[:] 1.) Records from A.J.’s [s]chool showing that she
was present for all classes and other school activities during the time these
allegations were being claimed to have occurred, 2.) Records from the
Express Motel on Woodville Road, next to a bowling alley, and thus are not
barred by the doctrine of res judicata.
6.) I repeatedly informed attorney Merle Dech Jr. that the allegations
relating to Case No. 2022CR0096 were part of a coordinated effort to get
me out of the picture and dispose of my ongoing custody dispute with
[H.G.]’s Step[]mother.
7.) In conversations with attorney Merle Dech Jr., he continuously claimed
that he would obtain the records from the motel and school.

{¶ 63} We do not find that Gebrosky’s petition is sufficient on its face to raise an

issue as to whether he was deprived of the effective assistance of counsel. He has

provided this court with no evidence that these records exist, or that, if they did, they

would support his claims.

{¶ 64} Lastly, Gebrosky takes issue with Dech’s failure to discuss the interviews

done with A.J., which he supports with three pages from what appear to be two separate

police reports. Two of the pages appear to be pages 3 and 4 of a 5-page police report.

Page 3 contains information that the authoring detective was informed by a Wood County

prosecutor that A.J. was a possible victim of Gebrosky, and page 4 contains a summary

of a 12/7/2021 interview with A.J. as well as a partial summary of a 12/10/2021 interview

with A.J.’s mother. The third page states that it is page 1 of 1 and it details a 02/04/22

interview with A.J.

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{¶ 65} We do not find that these reports raise an issue as to whether Gebrosky was

deprived of the effective assistance of counsel. Gebrosky claims the reports show

inconsistency as “in interview one she says things took place between Mr. Gebrosky on

Cedar Point Road after leaving Maumee Bay State park, then later at a hotel in Oregon

Ohio . . . then her story changes completely in second interview with Det. Garret[t] to Mr.

Gebrosky getting her from school, then going on a Cedar Point trip, that ended at the

Ex[]press Motel in Northwood.” A review of the reports does not show a glaring

inconsistency. In the first report A.J. mentions multiple occasions, and states both that

Gebrosky “would take her out on Cedar Point Road towards Maumee Bay” and also a

time at a hotel “on Woodville Road by a bowling alley right before the highway.” This

second description fits the Express Motel testified to at trial. In the summary of the

February 4, 2022 interview, the detective asks for more details, and she again references

numerous locations, including “a hotel that was off of Woodville Road, next to the

highway” and that there was a “bowling alley next to it.” The detective then learned that

the hotel A.J. described was the Express Motel. A.J. also added additional details during

this second interview – that she had skipped school and Gebrosky took her to Cedar Point

and then, after Cedar Point, took her to the hotel. These reports are consistent with each

other, and with A.J.’s testimony at trial.

{¶ 66} For the above reasons, we do not find that Gebrosky’s petition raises an

issue that Dech was deficient in his representation of Gebrosky, or that such alleged

deficiency prejudiced his defense. Accordingly, with respect to Gebrosky’s allegations

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pertaining to Dech’s representation, we do not find that the trial court erred in denying

Gebrosky’s petition without a hearing.

{¶ 67} We therefore find Gebrosky’s third assignment of error not well-taken.

VIII. Assignment of Error No. 2

{¶ 68} Gebrosky claims that the trial court erred in denying his motion for

appointment of counsel. While he concedes that he does not have a constitutional right to

an attorney, he contends that, “pursuant to R.C. 120.16(A)(1) and (D), an indigent

petitioner is statutorily entitled to representation by a public defender on a post-

conviction petition if the public defender concludes that the issues raised by the petitioner

have arguable merit.”

{¶ 69} “[A]n indigent petitioner has neither a state nor a federal constitutional

right to be represented by an attorney in a postconviction proceeding.” State v. Crowder,

60 Ohio St.3d 151, 152 (1991). However, when “a trial court finds a petitioner is entitled

to a hearing on a petition for postconviction relief, R.C. 120.16(A)(1) and (D) implicitly

require the trial court to promptly notify the public defender of the pending hearing.”

State v. Wood, 2025-Ohio-2170, ¶ 77 (2d Dist.), citing Crowder at paragraph two of the

syllabus. The “trial court’s duty to notify the public defender’s office of the pendency of

a petition for post-conviction relief only arises when, and if, the petition is scheduled for

an evidentiary hearing.” Id. at ¶ 78, quoting State v. Singleton, 2006-Ohio-4522, ¶ 30 (2d

Dist.). Then, “[p]ursuant to R.C. 120.16(D), the public defender may, within his

discretion, represent or refuse to represent an indigent petitioner seeking post-conviction

relief.” Id. at ¶ 77, quoting State v. Simons, 2013-Ohio-3654, ¶ 35 (2d Dist.).

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{¶ 70} As we have concluded that the trial court did not abuse its discretion in

finding that Gebrosky was not entitled to a hearing on his petition, we thus find that

Gebrosky was not entitled to public defender engagement nor appointed counsel.

Therefore, Gebrosky’s second assignment of error is not well-taken.

IX. Conclusion

{¶ 71} The judgments of the Wood County Court of Common Pleas are affirmed.

Pursuant to App.R. 24, John Gebrosky is hereby ordered to pay the costs incurred on

appeal.

Judgments affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J. ____________________________
JUDGE
Myron C. Duhart, J.

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Charles E. Sulek, J. JUDGE
CONCUR.

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JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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