[Cite as State v. Grad, 2017-Ohio-8778.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                           C.A. No.      17CA0004-M

          Appellee

          v.                                            APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
KENNETH GRAD                                            COURT OF COMMON PLEAS
                                                        COUNTY OF MEDINA, OHIO
          Appellant                                     CASE No.   08CR0272

                                 DECISION AND JOURNAL ENTRY

Dated: December 4, 2017



          HENSAL, Presiding Judge.

          {¶1}     Kenneth Grad appeals a judgment of the Medina County Court of Common Pleas

that denied his petition for post-conviction relief. For the following reasons, this Court affirms.

                                                   I.

          {¶2}     A jury found Mr. Grad guilty of five counts of child endangering and three counts

of felonious assault involving his infant son. On appeal, one of Mr. Grad’s arguments was that

his trial counsel had been ineffective because he did not call any medical experts on Mr. Grad’s

behalf. This Court upheld Mr. Grad’s convictions because it determined that his counsel’s

decision was a matter of trial strategy and the strategy was not objectively unreasonable. State v.

Grad, 9th Dist. Medina No. 15CA0014-M, 2016-Ohio-8388, ¶ 9.                  Meanwhile, Mr. Grad

petitioned for post-conviction relief under Revised Code Section 2953.21. In his petition, Mr.

Grad also argued that his trial counsel had been ineffective for not calling any experts on his

behalf.        The trial court denied Mr. Grad’s petition without holding a hearing because it
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determined that his argument was barred under the doctrine of res judicata. The court also

determined that, even if Mr. Grad’s argument was not barred, his counsel’s performance was not

deficient because the decision not to call any experts was a matter of trial strategy. Mr. Grad has

appealed the denial of his petition for post-conviction relief, assigning two errors.

                                                 II

                                  ASSIGNMENT OF ERROR I

       THE FAILURE OF DEFENSE COUNSEL TO PRESENT MEDICAL
       EXPERTS TO REBUT THE TESTIMONY OF THE STATE’S MEDICAL
       EXPERT RENDERED THE VERDICT UNRELIABLE, THUS DENYING THE
       APPELLANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF
       COUNSEL.

       {¶3}    Mr. Grad argues that he received ineffective assistance of counsel because his

lawyer did not call any experts on his behalf even though there were several who could have

explained that his son’s broken bones were not caused by abuse but because of underlying

nutritional deficiencies and genetic conditions.        According to Mr. Grad, his counsel’s

performance was outside of professional norms and calls the reliability of the jury’s verdict into

question.

       {¶4}     We note that Mr. Grad’s argument is similar to the one he made on direct appeal.

Id. at ¶ 5. “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 * * * on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d

93 (1996), syllabus.

       {¶5}    The trial court determined that the arguments Mr. Grad made in his petition for

post-conviction relief were barred by the doctrine of res judicata. Mr. Grad has not challenged
                                                3


the court’s conclusion in his appellate brief. “This Court will not assume an appellant’s duty and

formulate an argument on his behalf.” State v. Lortz, 9th Dist. Summit No. 23762, 2008-Ohio-

3108, ¶ 24. We, therefore, conclude that Mr. Grad’s argument is barred by res judicata. See

Benitez v. Gonzalez, 9th Dist. Lorain No. 96CA006608, 1997 Ohio App. LEXIS 3736, *3 (Aug.

20, 1997). Mr. Grad’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY FAILING TO HOLD AN EVIDENTIARY
       HEARING AS THE AFFIDAVITS PROVIDED IN A PETITIONER’S
       MOTION TO VACATE FILED PURSUANT TO R.C. 2953.21 ESTABLISH A
       MERITORIOUS ISSUE.

       {¶6}    Mr. Grad also argues that the trial court should have held a hearing before ruling

on his petition, citing Section 2953.21(C). Interpreting that section, the Ohio Supreme Court has

explained that “[a]n evidentiary hearing is not automatically guaranteed each time a defendant

files a petition for postconviction relief.” State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, ¶

29. “A trial court has the discretion to deny a postconviction petition without discovery or an

evidentiary hearing if the petition, supporting affidavits, documentary evidence, and trial record

do not demonstrate ‘sufficient operative facts to establish substantive grounds for relief.’” Id.,

quoting State v. Calhoun, 86 Ohio St.3d 279 (1999), paragraph two of the syllabus. “To warrant

an evidentiary hearing in a postconviction proceeding, a petitioner must submit evidence outside

the record that sufficiently establishes that the petitioner is entitled to relief on one or more

asserted constitutional grounds.” Id.

       {¶7}    The trial court found that Mr. Grad “did not support his petition with any

probative evidentiary materials beyond the expert reports and opinions which were already filed

in this case prior to trial.” Although Mr. Grad argues that his petition “contained evidence that

was not part of the record on direct appeal[,]” he has not identified which evidence was new.
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Moreover, in light of the court’s determination that Mr. Grad’s claims were barred by res

judicata, which he has not contested, we conclude that Mr. Grad failed to demonstrate that the

evidence he submitted with his petition sufficiently establishes that he was entitled to relief. See

id. Accordingly, the trial court exercised appropriate discretion when it denied Mr. Grad’s

petition without holding an evidentiary hearing. Mr. Grad’s second assignment of error is

overruled.

                                                III.

       {¶8}    Mr. Grad’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                             JENNIFER HENSAL
                                             FOR THE COURT



CARR, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

DAVID L. DOUGHTEN, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
