[Cite as State v. Roy, 2020-Ohio-3536.]


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

STATE OF OHIO                                          C.A. No.       19CA011473

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
SOMNATH ROY                                            COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   07CR074732

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2020



        CARR, Presiding Judge.

        {¶1}     Appellant Somnath Roy appeals the judgment of the Lorain County Court of

Common Pleas. This Court affirms.

                                                  I.

        {¶2}     This Court discussed much of the history of this case in a prior appeal:

        Prior to the allegations that arose in this matter, Roy was a family physician
        practicing out of an independent medical office in the Gates Medical Building.
        Several of Roy’s patients as well as two women who responded to a job opening at
        his medical office came forward, alleging that Roy had sexually abused them while
        acting in his capacity as a physician. A grand jury ultimately indicted Roy on the
        following counts: (1) abduction, gross sexual imposition, and sexual imposition,
        with respect to Jocelyn B.H.; (2) gross sexual imposition and sexual imposition,
        with respect to Annette A.; (3) gross sexual imposition and sexual imposition, with
        respect to Jolene G.; (4) gross sexual imposition and sexual imposition, with respect
        to L.S.; (5) gross sexual imposition and sexual imposition, with respect to Jennifer
        G.; (6) gross sexual imposition and sexual imposition, with respect to Shelby W.;
        and (7) sexual imposition, with respect to A.S. Before trial, the sexual imposition
        counts pertaining to A.S. and Shelby W. were dismissed on the basis that the statute
        of limitations had expired.

        Roy waived his right to a jury, and the matter proceeded to a bench trial. At the
        close of the State’s case-in-chief, the court acquitted Roy of the three sexual
                                                  2


       imposition counts pertaining to Jolene G., L.S., and Jennifer G. The defense then
       presented its case-in-chief. At the close of trial, the court found Roy not guilty of
       three counts: the abduction count pertaining to Jocelyn B.H., the gross sexual
       imposition count pertaining to Jennifer G., and the gross sexual imposition count
       pertaining to Shelby W. The court found Roy guilty of the remaining six counts.
       Those counts were (1) gross sexual imposition and sexual imposition, with respect
       to Jocelyn B.H.; (2) gross sexual imposition and sexual imposition, with respect to
       Annette A.; (3) gross sexual imposition, with respect to Jolene G.; and (4) gross
       sexual imposition, with respect to L.S. The court sentenced Roy to community
       control.

State v. Roy, 9th Dist. Lorain No. 13CA010404, 2014-Ohio-5186, ¶ 2-3.

       {¶3}    Roy appealed, raising six assignments of error. Id. at ¶ 4. This Court concluded

that insufficient evidence was presented to support Roy’s conviction with respect to Jolene G. Id.

at ¶ 46. In addition, this Court remanded the matter for resentencing as to an allied offenses issue.

See id. at ¶ 79-80.

       {¶4}    While his direct appeal was pending, on January 27, 2014, Roy filed a “First

Petition to Vacate or Set Aside Sentence Pursuant to [R.C.] []2953.21[.]” Accompanying the

petition were transcripts of Roy’s hearing before the State Medical Board of Ohio. On February

14, 2014, Roy filed an amended petition; the only change was to the request for relief. In his

petition, Roy asserted that his trial counsel was ineffective for: (1) failing to advise Roy that he

had an absolute right to testify and (2) failing to call certain witnesses to testify on behalf of Roy.

In addition, Roy argued that the trial court failed to inform Roy during the trial that he had an

absolute right to testify. In July 2016, the State filed a response to Roy’s petition. The State

included the State Medical Board of Ohio hearing examiner’s report and recommendation in

support of its argument. On August 13, 2018, the trial court issued a decision denying Roy’s

petition. On August 16, 2018, the trial court issued an entry stating that “[c]ounsel for both parties

have advised the Court that the Court must issue findings of fact and conclusions of law because
                                                  3


the Court did not hold a hearing.” On January 15, 2019, the trial court issued findings of fact and

conclusions of law.

       {¶5}    Roy has appealed, raising four assignments of error for our review.

                                                 II.

                                         Preliminary Issue

       {¶6}    Prior to addressing the merits of Roy’s assignments of error, we pause to consider

whether Roy’s petition was timely filed. If a petition is untimely and the requirements of R.C.

2953.23(A) are not satisfied, a trial court is without jurisdiction to consider the petition. State v.

Sprenz, 9th Dist. Summit No. 22433, 2005-Ohio-1491, ¶ 8. The date the petition is filed

determines which version of R.C. 2953.21 is applicable. See State v. Stephens, 9th Dist. Summit

No. 27957, 2016-Ohio-4942, ¶ 6.

       {¶7}    As Roy’s petition was filed January 27, 2014, former R.C. 2953.21(A)(2) applies.

Former R.C. 2953.21(A)(2) states in relevant part: “Except as otherwise provided in section

2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later

than one hundred eighty days after the date on which the trial transcript is filed in the court of

appeals in the direct appeal of the judgment of conviction or adjudication * * *.”

       {¶8}    The transcripts were filed in Roy’s direct appeal on July 8, 2013. Given that date,

Roy’s petition would be untimely. However, in a journal entry, this Court concluded that the trial

transcripts could not be considered part of the record on appeal because they were not certified.

State v. Roy, 9th Dist. Lorain No. 13CA010404 (June 26, 2014). We ordered Roy to submit

certifications for the impacted volumes. Id. Roy complied with the order and evidence of

certification was filed July 2, 2014.
                                                  4


       {¶9}     In examining a related issue, the Supreme Court of Ohio has held that “whenever a

written transcript is certified by the reporter in accordance with App.R. 9(A), the written transcript

shall constitute the trial ‘transcript’ or ‘transcript of proceedings’ for purposes of calculating the

time by which to file a petition for postconviction relief. A videotape recording constitutes the

trial transcript or transcript of proceedings only when there is no written transcript certified by the

reporter.” State v. Everette, 129 Ohio St.3d 317, 2011-Ohio-2856, ¶ 27. Citing Everette, this

Court has stated that the “period for filing is triggered when the certified, written transcript of the

proceedings in the trial court is filed in the court of appeals.” In re D.J., 9th Dist. Summit No.

29119, 2019-Ohio-2988, ¶ 7. Given the foregoing, we can only conclude that Roy’s petition was

timely filed.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT BARRED APPELLANT’S CLAIM[S]
       ON THE BASIS OF RES JUDICATA[.]

       {¶10} Roy argues in his first assignment of error that the trial court erred in concluding

his claims were barred based upon res judicata.

       {¶11} We cannot say that the trial court definitively determined that res judicata barred

all of Roy’s claims. In the trial court’s August 2018 entry, the trial court stated that “[a]rguably

this Court could deny Defendant’s Motion on the basis of Res Judicata. * * * However, this Court

will consider the merits of Defendant’s assertions.” Then, in the January 2019 entry detailing

findings of fact and conclusions of law, the trial court indicated that it “could deny Defendant’s

Petitions on the basis of res judicata, as all of his assertions could have been fully litigated on his

direct appeal to the Ninth District Court of Appeals.” However, the trial court thereafter discussed

the merits of Roy’s arguments. Accordingly, we cannot say that Roy has even demonstrated that

the trial court in fact concluded that Roy’s claims were barred by res judicata.
                                                  5


       {¶12} Accordingly, this Court overrules Roy’s first assignment of error.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S PETITION
       WITHOUT A HEARING[.]

       {¶13} Roy argues in his second assignment of error that the trial court erred in denying

his petition without a hearing. In so doing, Roy focuses primarily on the factors set out in State v.

Calhoun, 86 Ohio St.3d 279 (1999).

       Under R.C. 2953.21(A)(1), a convicted criminal defendant may petition the trial
       court to vacate or set aside the judgment or sentence because it is void or voidable
       under the Constitution of the United States or the Ohio Constitution. The petitioner
       may file documentary evidence in support of the petition. Id. A petitioner “is not
       automatically entitled to a hearing.” []Calhoun, 86 Ohio St.3d [at 282.] In that
       respect, the trial court has a “gatekeeping” function. State v. Gondor, 112 Ohio
       St.3d 77, 2006-Ohio-6679, ¶ 51. “Pursuant to R.C. 2953.21(C), a trial court
       properly denies a defendant’s petition for postconviction relief without holding an
       evidentiary hearing where the petition, the supporting affidavits, the documentary
       evidence, the files, and the records do not demonstrate that petitioner set forth
       sufficient operative facts to establish substantive grounds for relief.” Calhoun at
       paragraph two of the syllabus.

State v. El-Jones, 9th Dist. Summit No. 26616, 2013-Ohio-3349, ¶ 4.

       {¶14} “When a trial court exercises its ‘gatekeeping’ function by determining that the

petitioner has not alleged sufficient operative facts that would establish the substantive grounds

for relief, our review is a two-step process.” Id. at ¶ 5. “First, we must determine whether the trial

court’s findings of fact are supported by competent and credible evidence.” Id., citing State v.

Wesson, 9th Dist. Summit No. 25874, 2012-Ohio-4495, ¶ 11, citing Gondor at ¶ 52. “If this Court

concludes that the findings are properly supported, then this Court reviews the trial court’s decision

in regard to its gatekeeping function for an abuse of discretion.” El-Jones at ¶ 5, quoting Wesson

at ¶ 11. It does not appear that Roy is challenging the trial court’s findings of fact. See App.R.

16(A)(7).
                                                   6


       {¶15} “When determining whether a petition and accompanying affidavits demonstrate

sufficient operative facts to establish substantive grounds for relief, the trial court ‘should give due

deference to affidavits sworn to under oath and filed in support of the petition, but may, in the

sound exercise of discretion, judge the credibility of the affidavits in determining whether to accept

the affidavits as true statements of fact.” El-Jones at ¶ 9, quoting Calhoun at paragraph one of the

syllabus.

       The trial court must consider “all relevant factors” with respect to the affidavits,
       including, but not limited to: “(1) whether the judge reviewing the postconviction
       relief petition also presided at the trial, (2) whether multiple affidavits contain
       nearly identical language, or otherwise appear to have been drafted by the same
       person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants
       are relatives of the petitioner, or otherwise interested in the success of the
       petitioner’s efforts, and (5) whether the affidavits contradict evidence proffered by
       the defense at trial.”

El-Jones at ¶ 9, quoting Calhoun at 285. “Depending on the entire record, one or more of these or

other factors may be sufficient to justify the conclusion that an affidavit asserting information

outside the record lacks credibility. Such a decision should be within the discretion of the trial

court.” Calhoun at 285.

       {¶16} Roy raised two claims in his petition. One claim was based upon ineffective

assistance of trial counsel and the second alleged that the trial court failed to inform Roy of his

right to testify. That second claim, as discussed below in Roy’s fourth assignment of error, is

barred by res judicata and will not be further addressed here.

       {¶17} “When a petitioner’s post-conviction claim sounds in ineffective assistance of

counsel, a trial court must analyze * * * h[is] claim under the two-step test set forth in Strickland

v. Washington, 466 U.S. 668 (1984). The petitioner must show that (1) counsel’s performance

was deficient, and (2) the deficiency prejudiced h[im].” (Internal quotations and citations omitted.)

State v. Mills, 9th Dist. Summit No. 29190, 2019-Ohio-2416, ¶ 17.
                                                  7


       {¶18} In his ineffective assistance of counsel claim, Roy alleged that trial counsel was

ineffective in failing to inform Roy of his absolute right to testify and in failing to call certain

witnesses to testify in Roy’s defense. In support of Roy’s claims, he did not present affidavits.

Instead, he offered the testimony presented at his hearing before the State Medical Board of Ohio.

In response, the State presented the report and recommendation of the hearing examiner who heard

the testimony that Roy presented in support of his petition.

       {¶19} As to Roy’s claim that trial counsel failed to inform Roy of his absolute right to

testify, he did not demonstrate entitlement to a hearing on that basis. At the hearing before the

State Medical Board of Ohio, Roy’s testimony was sometimes difficult to understand. At one

point he did appear to state that he was not allowed to testify. However, he was then asked whether

he made the decision not to testify after consultation with his attorney. Roy responded: “This was

brought by my attorney during the trial when our time was coming. At that point I think he just

asked me and my wife. I was getting ready to testify and then my wife said whatever judge said,

whatever attorney said, is better because they know better than us, so if he is saying don’t talk,

then don’t talk.” Roy was then asked if he made the decision not to testify and he responded

affirmatively.

       {¶20} Here the evidence Roy submitted indicates overall that it was Roy’s decision not to

testify; a decision he made after consulting with his attorney. Roy did not demonstrate that his

attorney failed to inform his of his right to testify, or that even if Roy’s counsel did fail to do so,

Roy would have nonetheless chosen to testify if he had been so informed. Instead, at best, it

appears Roy may have regretted his decision not to testify at his trial.

       {¶21} Roy additionally claims that his trial counsel was ineffective in failing to call

several witnesses. Notably, several of the witnesses he mentioned in his petition were actually
                                                  8


called as defense witnesses during his trial. Thus, with respect to those witnesses, he failed to

establish sufficient operative facts to establish substantive grounds for relief.

       {¶22} As to the remaining witnesses that were not called at Roy’s trial, Roy did not

demonstrate that the failure of trial counsel to call them was anything other than trial strategy. See

State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶ 222 (“Generally, counsel’s decision whether

to call a witness falls within the rubric of trial strategy and will not be second-guessed by a

reviewing court. Moreover, [a]ttorneys need not pursue every conceivable avenue; they are

entitled to be selective.”) (Internal quotations and citations omitted.); see also State v. Spaulding,

9th Dist. Summit No. 28526, 2018-Ohio-3663, ¶ 25. At trial, trial counsel called several witnesses

in support of Roy’s defense including employees, patients, and physicians in the community. Roy

suggests that the additional patients, employees, and physicians should have been called to testify.

However, it is not clear how these witnesses would provide testimony that was substantively

different from the testimony of the witnesses who did testify at trial. Roy did not argue that the

witnesses who were not called were present in the room during the incidents that resulted in Roy’s

convictions. Thus, even if the testimony of Roy’s witnesses at the hearing before the State Medical

Board of Ohio was taken at true, we cannot say Roy has demonstrated sufficient operative facts

entitling him to relief. To the extent that Roy argued that one particular employee, S.H.S. could

have rebutted the testimony of one of the victims concerning whether the victim repeatedly called

the office, the trial court observed that the hearing examiner did not find S.H.S.’s testimony to be

credible. Notably, the hearing examiner instead found the victim, who also testified at the hearing,

to be credible. This supports the trial court’s conclusion that Roy failed to demonstrate that he

was prejudiced by trial counsel’s failure to call S.H.S.
                                                  9


       {¶23} Roy also argued that his trial counsel was ineffective for failing to call Roy and his

wife. From the record before this Court, it does not appear that Roy’s wife, who also worked at

his office, witnessed any of the incidents. Thus, she could not directly contradict the testimony of

the victims as to the incidents. As the trial court noted, it could be viewed as reasonable trial

strategy to have Roy’s wife appear beside him during the trial, instead of in the limited capacity

as a witness. Further, it is possible that her testimony could have been viewed with suspicion given

her close relationship to Roy.

       {¶24} With respect to the argument that trial counsel was ineffective in failing to call Roy,

Roy’s own testimony evidences that Roy was involved in the decision not to testify. Further, this

Court has noted that “[i]t is difficult to imagine a better example of trial strategy than a decision

of whether a defendant should testify on his own behalf.” (Internal quotations and citation

omitted.) State v. Ambrosio, 9th Dist. Lorain No. 03CA008387, 2004-Ohio-5552, ¶ 14. The record

is clear that English was not Roy’s first language, and, thus, Roy was sometimes difficult to

understand. Finally, as noted by the trial court, the hearing examiner, who did observe Roy’s

testimony, did not find him credible. This conclusion by the hearing examiner lends support to

the conclusion that Roy did not demonstrate that he was prejudiced by trial counsel’s failure to

call Roy as a witness.

       {¶25} Therefore, this Court cannot say that Roy has demonstrated that the trial court

abused its discretion in denying Roy’s petition without a hearing. In so doing, we do not view the

Calhoun factors as particularly helpful under the circumstances. Calhoun provides factors for a

trial court to consider in evaluating the credibility of affidavits, not testimony before a medical

board. See Calhoun, 86 Ohio St.3d at 284-285. We note that while the trial court cited to Calhoun

in its decision, it recited the standard for granting a hearing, not the factors themselves. Unlike an
                                                 10


affidavit, which represents one person’s unchallenged statements as to what occurred, testimony

at a hearing includes questioning from both sides and provides a different vantage point from

which to consider the credibility of the witness. This is further enhanced here, where the trial court

was provided with the report and recommendation of the hearing examiner. Thus, the trial court

had before it the hearing examiner’s view of the witnesses’ credibility; there can be no dispute that

the hearing examiner was in a far better position to evaluate the credibility of the witnesses as the

hearing examiner could also view the witnesses’ mannerisms and expressions and hear the tone of

their voices when answering questions. Moreover, Roy did not point this Court to any cases

applying the Calhoun factors in this context. See App.R. 16(A)(7).

       {¶26} Overall, Roy has not demonstrated that the trial court abused its discretion in

denying him a hearing on his petition. Roy’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN DEFERRING TO THE STATE MEDICAL
       BOARD’S DETERMINATION[.]

       {¶27} Roy argues in his third assignment of error that the trial court erred in deferring to

the State Medical Board of Ohio’s determination. In so doing, Roy points to several places in the

trial court’s decision where the trial court mentions the hearing examiner’s findings as to witness

credibility. Roy maintains that the trial court “delegate[d] his judgment to the judgment of the

medical board.”

       {¶28} We cannot say that Roy has demonstrated the trial court acted improperly. A

review of the entire judgment entry reveals that the trial court thoughtfully considered the issues

before it. The trial court did not merely conclude that Roy’s petition failed because the hearing

examiner found Roy and another witness not credible. Instead, the trial court considered whether

the evidence supported Roy’s claim; for example, in evaluating the determination of trial counsel
                                                  11


to not call certain employees or other patients as witnesses, the trial court observed that “[it] is

within trial counsel’s strategy and tactics, since no employees or patients were identified as

witnesses to the alleged unlawful acts, and any supportive testimony would be cumulative to that

provided by the witnesses presented.” Overall, it appears that the trial court cited to the credibility

determinations of the hearing examiner in support of the notion that Roy failed to demonstrate

prejudice. Given that the hearing examiner observed the witnesses testify and was therefore in a

better position to evaluate their credibility, it would seem improper if the trial court would have

completely ignored those findings. We conclude that the trial court’s decision follows the spirit

of the Calhoun decision. Calhoun noted that the statute envisioned a trial court exercising

discretion in determining whether a hearing was warranted. See Calhoun, 86 Ohio St.3d at 284.

Requiring the trial court to accept any sworn statements as true, particularly under circumstances

in which a neutral trier of fact found the statements to not be credible, would require a hearing in

almost all cases. See id.

       {¶29} Roy has not demonstrated that the trial court abused its discretion. Roy’s third

assignment of error is overruled.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN APPLYING THE [THIRD] [CIRCUIT]
       HOLDING OF PENNYCOOKE AND ABUSE[D] ITS DISCRETION IN ITS
       APPLICATION OF PENNYCOOKE[.] [EMPHASIS SIC.]

       {¶30} Roy argues in his fourth assignment of error that the trial court erred in applying

United States v. Pennycooke, 65 F.3d 9 (3d Cir.1995).

       {¶31} The trial court referenced Pennycooke in addressing the merits of Roy’s second

claim for relief. That claim asserted that the trial court failed to advise Roy at any point during the
                                                12


trial that Roy had an absolute right to testify. The trial court determined that Roy’s claim was

without merit.

       {¶32} Here, Roy’s argument could have been raised on direct appeal as it would be

evident from the transcripts whether the trial court gave Roy any advisement about testifying.

Thus, the trial court should have concluded that Roy’s claim was barred by res judicata. See El-

Jones, 2013-Ohio-3349, at ¶ 12. However, any error in the trial court’s consideration of the merits

of Roy’s argument is harmless as the trial court concluded that Roy’s claim was without merit.

       {¶33} Roy’s fourth assignment of error is overruled.

                                                III.

       {¶34} Roy’s assignments of error are overruled. The judgment of the Lorain 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 Lorain, 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.
                                      13


      Costs taxed to Appellant.




                                           DONNA J. CARR
                                           FOR THE COURT



HENSAL, J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

KIMBERLY KENDALL CORRAL, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
