[Cite as State v. Somers, 2019-Ohio-3157.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :      JUDGES:
                                             :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :      Hon. John W. Wise, J.
                                             :      Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
MASON SOMERS                                 :      Case No. CT2019-0020
                                             :
        Defendant - Appellant                :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
                                                    Court of Common Pleas, Case No.
                                                    CR2017-0424




JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   August 5, 2019



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

D. MICHAEL HADDOX                                   MASON SOMERS
Prosecuting Attorney                                #A741-605
Muskingum County, Ohio                              Noble Correctional Institution
                                                    1578 McConnellsville Road
By: TAYLOR P. BENNINGTON                            Caldwell, Ohio 43724-8902
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2019-0020                                              2

Baldwin, J.

       {¶1}   Mason Somers appeals the decision of the Muskingum County Court of

Common Pleas denying his motion for post-conviction relief based upon the doctrine of

res judicata, failure to address issues on direct appeal and lack of meritorious claims.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   Ernest Dilley was sitting in his home when there was a knock at his front

door. Mr. Dilley opened the door believing it to be his daughter returning home from work,

but instead it was a man holding a gun, with a bandana covering part of his face. Mr.

Dilley noticed the man was around six feet tall and had tattoos on his arms and on the

hand holding the gun. The man charged into the house and pushed Mr. Dilley through

the threshold area of the home, into the living room, until Mr. Dilley was on his couch. The

man pointed the gun at Mr. Dilley and demanded all of Mr. Dilley's money. Mr. Dilley told

the intruder his money was at the bank. The intruder then picked up a lid from a glass

candy jar and struck Mr. Dilley in the face. The intruder grabbed Mr. Dilley's cell phone

off the coffee table and ran out of the house. Mr. Dilley followed the intruder to the front

porch area. Once outside, Mr. Dilley noticed the glass candy dish lid had been dropped

in his yard. On top of the broken glass lid was a flashlight.

       {¶3}   Mr. Dilley ran to the neighbor's house and asked him to call the police. When

the police arrived, they searched the area and found Dilley's cell phone in the middle of

his yard and returned it to him. The police also found the flashlight and a pistol bullet

cartridge that had not been fired and both were submitted for DNA testing. The DNA

discovered on the flashlight came back as a one in one trillion match to Appellant Mason

Somers. The test of the bullet was inconclusive.
Muskingum County, Case No. CT2019-0020                                              3

       {¶4}   Appellant was indicted on one count of Aggravated Burglary, a felony of the

first degree, in violation of R.C. 2911.11 1(A)(2), one count of Aggravated Robbery, a

felony of the first degree, in violation of R.C. 2911.01(A)(1), one count of Kidnapping with

a gun specification, a felony of the first degree, in violation of R.C. 2905.01(A)(1), and

one count of Felonious Assault, a felony of the second degree, in violation of R.C.

2903.11(A)(2).

       {¶5}   At trial, the jury heard testimony from Ernest Dilley, Deputy Andrew Murphy,

Detective Amy Thompson, BCI forensic scientist Michael Monfredi, and Detective Brad

Shawger.

       {¶6}   Mr. Dilley testified as to the events that took place on August 23, 2017, as

set forth above. He further testified that the perpetrator's height and tattoos on his hands

and arms were consistent with that of Appellant's height and tattoos on his hands and

arms. Mr. Dilley also testified that the flashlight found in the yard had not been there

previously because if it had been, he would have picked it up.

       {¶7}   The state presented two audio recordings of Appellant from a phone call

and a visit. In the recordings, Appellant comments on the facts of the case and concludes

that he should get a “sweet deal” as a result of the lack of any egregious actions during

the offense. Appellee argued the statements were made prior to the state responding to

Appellant’s discovery requests, suggesting that Appellant had knowledge of the facts that

only the perpetrator would know. Appellee’s trial counsel cross-examined the officer who

introduced the tapes, suggesting during those questions and in his closing argument that

there were alternative sources for the information the Appellant described, such as the

complaint, trial counsel, or other individuals. Appellant’s trial counsel chose not to have

his client testify and avoided subjecting him to cross examination, which, according to
Muskingum County, Case No. CT2019-0020                                               4

Appellant’s brief, would disclose a prior drug offense and, based upon the record, may

have been of little material assistance.

       {¶8}   The jury found Appellant guilty of all counts and firearm specifications and

the trial court sentenced Appellant to serve 25 years in prison and pay court costs.

       {¶9}   Appellant, through appointed counsel, filed a timely appeal assigning as

error that the conviction was based upon insufficient evidence and against the manifest

weight of the evidence, that consecutive sentences were unconstitutional and that he

received ineffective assistance of counsel. This court rejected his assignments of error

and affirmed the decision of the trial court on November 18, 2018.

       {¶10} Appellant filed a petition for postconviction relief on February 25, 2019,

asking that the trial court grant a hearing on the petition and, ultimately, a new trial.

Appellant alleged that his constitutional rights were violated as a result of prosecutorial

misconduct and ineffective assistance of trial counsel. In support of his motion, Appellant

supplied multiple references to transcripts of hearings before the trial court as well as his

affidavit recounting his conversations with trial counsel before and during the hearings.

       {¶11} On March 8, 2019, the trial court denied Appellant’s petition finding that the

Defendant failed to raise these claims in his direct appeal, that he failed to present any

meritorious claims and that his motion was barred by the doctrine of res judicata. On

March 25, 2019 Appellant filed a timely notice of appeal, listing three assignments of error:

       {¶12} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT   DENIED     APPELLANT'S        POST-CONVICTION          RELIEF     PETITION      WHEN

APPELLANT HAD SHOWN ESSENTIAL OPERATIVE FACTS IN(SIC) SUPPORTING

EVIDENTIAY(SIC) QUALITY MATERIALS DEHORS THE RECORD IN VIOLATION OF

THE OHIO AND U.S. CONSTITUTIONS.”
Muskingum County, Case No. CT2019-0020                                              5

       {¶13} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DENIED APPELLANT'S POST-CONVICTION PETITION WITHOUT A HEARING

WHEN THE COURT FILES, RECORD, AND DOCUMENTATION SUPPORTED SUCH

A HEARING.”

       {¶14} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT FAILED TO ISSUE FACTS AND CONCLUSIONS OF LAW AS REQUIRED BY R.C.

2953.21.”

                                STANDARD OF REVIEW

       {¶15} The appropriate standard for reviewing a trial court's decision to dismiss a

petition for post-conviction relief, without an evidentiary hearing, involves a mixed

question of law and fact. State v. Durr, 5th Dist. Richland No. 18CA78, 2019-Ohio-807.

This court must apply a manifest weight standard in reviewing a trial court's findings on

factual issues underlying the substantive grounds for relief, but we must review the trial

court's legal conclusions de novo. Id.

       {¶16} With regard to Appellant’s assertion he was entitled to a hearing, the

Supreme Court of Ohio held that “[i]n post-conviction cases, a trial court has a

gatekeeping role as to whether a defendant will even receive a hearing.” State v. Gondor,

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77. A petition for post-conviction relief

does not provide a petitioner a second opportunity to litigate his or her conviction, nor is

the petitioner automatically entitled to an evidentiary hearing on the petition. State v.

Wilhelm, 5th Dist. Knox No. 05-CA-31, 2006-Ohio-2450, citing State v. Jackson, 64 Ohio

St.2d 107, 413 N.E.2d 819 (1980). Pursuant to R.C. 2953.21(C), a defendant's petition

may be denied without a hearing when the petition, supporting affidavits, documentary

evidence, files, and records do not demonstrate that the petitioner set forth sufficient
Muskingum County, Case No. CT2019-0020                                                6

operative facts to establish substantive grounds for relief.” State v. Adams, 11th Dist.

No.2003–T–0064, 2005–Ohio–348, ¶ 36 quoting State v. Calhoun, 86 Ohio St.3d 279,

282, 714 N.E.2d 905 (1999).

       {¶17} We also note that the trial court’s entry referred to the lack of “meritorious”

claims, when R.C. 2953.21 obligates the trial court to review the petition for “substantive

grounds for relief.” R.C. 2953.21(D). In the context of this case, we accept the trial court’s

cite to “meritorious claims” as referencing “substantive grounds for relief.”

                                              I.

       {¶18} Appellant     contends    that   prosecutorial   misconduct    and    ineffective

assistance of counsel supports his first assignment of error in which he argues the trial

court abused its discretion by denying the petition. He concludes his argument by

characterizing the facts he describes as “outside the trial court’s record” but the record

requires the opposite conclusion. The facts Appellant relies upon were clearly part of the

record and thus available for presentation and argument at trial and at a direct appeal of

any alleged error.

       {¶19} Appellant first contends that the prosecutor acted inappropriately by arguing

that Appellant knew the facts of the case before Appellant received the state’s discovery

response and that guilt could be implied from that fact. Appellant refers to the Arraignment

Hearing Transcript, the prosecutor’s opening statement and recordings of Appellant’s

telephone conversations while Appellant was in custody.            Appellant contends the

prosecutor’s comments on the evidence were improper because he knew or should have

known that Appellant was informed of the facts prior to and during the November 11, 2017

arraignment hearing. He states in his petition that “The prosecutor in this case knew that
Muskingum County, Case No. CT2019-0020                                              7

he was not going to get a conviction based upon the testimony of the victim and BCI

forensic scientist, thus choose to result(sic) to conduct clearly prohibited by the

professional rules of conduct by telling the jury that defendant committed the crimes

because he had information about the crimes before defendant should have known it,

resulting in prosecutorial misconduct.” (Defendant Mason Somers Timely Motion for

Postconviction Relief Pursuant To Ohio Revised Code Section 2953.21, February 25,

2019, Docket # 47).

       {¶20} The alleged prosecutorial conduct was part of the record in this case. The

prosecutor referenced Appellant’s foreknowledge in his opening and closing statements,

contending that Appellant had information about the crime long before the state

responded to Appellant’s discovery request.         The state presented two recorded

conversations of Appellant in support of its contention that the Appellant had committed

the crimes described in the complaint because appellant had knowledge of the facts.

Appellant’s trial counsel addressed this issue in cross examination and closing, arguing

that Appellant could have received the same information from other sources and the state

had failed to rule out those alternatives.

       {¶21} Appellant had the opportunity to raise the claim of prosecutorial misconduct

that he now sets forth in the instant appeal at trial and in a direct appeal. Such claims,

therefore, are barred under the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175,

180, 226 N.E.2d 104 (1967). The Perry court explained the doctrine as follows: “Under

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

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
Muskingum County, Case No. CT2019-0020                                                 8

from that judgment.” Id. at paragraph 8 of the syllabus. A defendant who was represented

by counsel is barred from raising an issue in a petition for post-conviction relief if the

defendant raised or could have raised the issue at trial or on direct appeal. State v.

Szefcyk, 77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996).

       {¶22} Appellant had the opportunity to raise the issue of the prosecutor’s conduct

at trial and a direct appeal thereafter, but failed to do so. This portion of the first

assignment of error is overruled.

       {¶23} Appellant argues his trial counsel was ineffective for failing to withdraw and

request appointment of new counsel in the second part of his first assignment of error.

              Where ineffective assistance of counsel is alleged in a petition for

       postconviction relief, the defendant, in order to secure a hearing on his

       petition, must proffer evidence which, if believed, would establish not only

       that his trial counsel had substantially violated at least one of a defense

       attorney's essential duties to his client but also that said violation was

       prejudicial to the defendant.

State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982).

       {¶24} Appellant’s argument is based upon a contention that his trial counsel had

the obligation to withdraw from the case so he could be called as a witness and testify as

to his conversations with his client regarding the facts of the case, in an effort to rebut the

prosecutor’s contention that Appellant had foreknowledge of the facts. In support of his

argument, Appellant offers his own affidavit describing his conversations with counsel

regarding the facts of the case and references to the record of the case.
Muskingum County, Case No. CT2019-0020                                                 9

       {¶25} The decision whether to call any witness falls within the purview of trial

tactics. State v. Adkins, 144 Ohio App.3d 633, 646, 761 N.E.2d 94 (12th Dist.2001);

Lakewood v. Town, 106 Ohio App.3d 521, 527, 666 N.E.2d 599 (8th Dist.1995). Had

Appellant’s counsel testified, it is likely that he would have waived attorney client privilege

and subjected himself to prejudicial cross examination by the state. Appellant discloses

an example of the potential prejudicial information in his petition when he admits his trial

counsel warned him that his prior conviction of possession of drugs, if disclosed to the

jury, would have a negative effect.

       {¶26} Appellant’s trial counsel addressed the state’s allegation regarding

Appellant’s knowledge of facts by cross examination of the officer that identified the

recordings and by suggesting to the jury the existence of alternative sources for the

information in his closing argument. Trial counsel’s failure to withdraw and act as a

witness in this case is not evidence of ineffective assistance, but part of a prudent trial

strategy and “[w]e will not second-guess the strategic decisions counsel made at trial

even though appellate counsel now argue that they would have defended differently.”

State v. Post, 32 Ohio St.3d 380, 388, 513 N.E.2d 754 (1987) as cited in State v. Mason,

82 Ohio St.3d 144, 169, 1998-Ohio-370, 694 N.E.2d 932. Consequently, even if the trial

court believed Appellant’s allegations, he has not provided evidence of a substantial

violation of trial counsel’s duties.

       {¶27} We hold that the trial court did not abuse its discretion by finding that the

Appellant’s allegations were barred by res judicata or did not provide substantive grounds

for relief. The first assignment of error is denied.
Muskingum County, Case No. CT2019-0020                                                10

                                               II.

       {¶28} Appellant revisits his allegation of ineffective assistance of counsel in his

second assignment of error, arguing his trial counsel violated an essential duty by

advising him not to testify. “The advice provided by counsel to his or her client regarding

the decision to testify is “a paradigm of the type of tactical decision that cannot be

challenged as evidence of ineffective assistance.” State v. Winchester, 8th Dist.

Cuyahoga No. 79739, 2002–Ohio–2130, ¶ 12, quoting Hutchins v. Garrison, 724 F.2d

1425, 1436 (C.A.4, 1983), cert. denied, 464 U.S. 1065, 104 S.Ct. 750, 79 L.Ed.2d 207

(1984). See also, Jones v. Murray (C.A.4, 1991), 947 F.2d 1106, 1116, fn. 6. Nonetheless,

a claim for ineffective assistance of counsel may be successful if the record demonstrates

the defendant's decision whether or not to testify was the result of coercion. Id, citing

Lema v. United States, 987 F.2d 48, 52–53 (1st Cir.1993).

       {¶29} Nothing in the record suggests Appellant's decision to not testify was the

result of coercion. Appellant has not shown that his decision to not testify was not of his

own free will, and he therefore cannot challenge his decision to not testify as ineffective

assistance of counsel.

       {¶30} Appellant has admitted that at least one reason for counsel’s advice was

his prior conviction for drug possession. As noted in our review of the first assignment

of error, trial counsel employed a strategy that allowed him to attack the evidence without

putting his client on the witness stand and exposing to cross examination.

       {¶31} Even if the trial court accepted the assertions in Appellant’s affidavit as true,

the trial court would not have abused its discretion by finding that the allegations did not

state substantive grounds for relief as the facts as stated by Appellant do not support a

claims of ineffective assistance of counsel.
Muskingum County, Case No. CT2019-0020                                                11

       {¶32} Appellant’s second assignment of error is overruled.

                                             III.

       {¶33} In his third assignment of error, Appellant claims the trial court failed to

include findings of fact and conclusions of law in its entry denying the petition. Findings

of fact and conclusions of law are mandatory if the trial court dismissed the petition without

hearing as they are necessary “to apprise petitioner of the grounds for the judgment of

the trial court and to enable the appellate **1331 courts to properly determine appeals in

such a cause.’ Jones v. State, 8 Ohio St.2d 21, 22, 222 N.E.2d 313 (1966)

              The exercise of findings and conclusions are essential in order to

       prosecute an appeal. Without them, a petitioner knows no more than he lost

       and hence is effectively precluded from making a reasoned appeal. In

       addition, the failure of a trial judge to make the requisite findings prevents

       any meaningful judicial review, for it is the findings and the conclusions

       which an appellate court reviews for error.

State v. Mapson, 1 Ohio St.3d 217, 219, 438 N.E.2d 910 (1982).

       {¶34} We hold that the journal entry in this case satisfies the policy considerations

announced by the Supreme Court of Ohio in Mapson, supra. The trial court did not label

its entry as findings of fact and conclusions of law, but that is what its words import. State

ex rel. Carrion v. Harris, 40 Ohio St.3d 19, 20, 530 N.E.2d 1330 (1988). We have

previously held that “As long as the basis for the court's ruling can be gleamed from the

entry, R.C. 2953.21 has been complied with.” State v. Wells, 5th Dist. Licking No. 94 CA

113, 1995 WL 495308, *1. In State v. Rouse, 5th Dist. Muskingum No. CT2013-0043,

2014-Ohio-483, ¶ 20, we found that an entry stating that the court found that the claims
Muskingum County, Case No. CT2019-0020                                                 12

were barred by res judicata was sufficient. The entry in the case sub judice contains that

reference as well as a reference to the absence of “meritorious claims” and failure to

address the arguments during the direct appeal. Appellant does not claim any prejudice

from the alleged failure to provide findings of fact or conclusions of law and it is clear that

Appellant was aware of the trial court’s rational as he presented argument, on pages 18

and 19 of his brief, that “res judicata is inapplicable here” and that “there are enough facts

provided to verify Appellants (sic) claims and to grant relief.”

       {¶35} Appellant’s third assignment of error is denied.

       {¶36} The decision of the Muskingum County Court of Common Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.
