[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 Appellee

v. SOMNATH ROY Appellant C.A. No. 19CA011473

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO 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 prio r appeal: Prior to the allegations that arose in this matter, Roy was a f amily physician practicing out of an independent m edical office in the Gates Me dical Building. Several of Roy’s patients as w ell 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 s exual imposition, with respect to Annette A.; (3) gross sexual imposition and sex ual imposition, with respect to Jolene G.; (4) gross sexual imposition and sexual im position, with respect to L.S.; (5) gross sexual imposition and sexual imposition, wit h respect to Jennifer G.; (6) gross sexual imposition and sexual imposition, with res pect 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 b asis that the statute of limitations had expired. Roy waived his right to a jury, and the matter proceeded to a b ench trial. At the close of the State’s case-in-chief, the court acquitted Roy of the three sexual2

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 p ertaining to Jocelyn B.H., t he gross sexual imposition count pertaining to Je nnifer G., and the gross sexua l imposition count pertaining to Shelby W. The court found Roy guilty of the rema ining six counts. Those counts were (1) gross sexu al imposition and sexual imposi tion, with respect to Jocelyn B.H.; (2) gross sexual imposition and sexual imposit ion, 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 Ro y 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 convi ction with respect to Jolene G. Id. at ¶ 46. In addition, this Court remanded the matter for resen tencing as to an allied offenses issue.

See id. at ¶ 79-80. {¶4} While his direct appeal was pending, on January 27, 2014, Roy f iled a “First Petition to Vacate or Set Aside Sentence Pursuant to [R.C.] []2 953.21[.]” Accompanying the petition were transcripts of Roy’s hearing before the State Med ical Board of Ohio. On February 14, 2014, Roy filed an amended petiti on; the only change was to the request for relief. In his petition, Roy asserted that his tr ial counsel was ineffective f or: (1) failing to advise Roy that he had an absolute right to testify and (2) failing to call certai n witnesses to testify on behalf of Roy. In addition, Roy argued that the trial court faile d to inform R oy during the trial that he had an absolute right to testify. In July 2016, the State filed a res ponse to Roy’s petition. The State included the State Medical Board of Ohio hearing examiner’s rep ort and recommendation in support of its argument. On August 13, 2018, the trial court i ssued 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 fa ct and conclusions of law because3

the Court did not hold a hearing.” On January 15, 2019, the tr ial court issued fi ndings of fact and

conclusions of law. {¶5} Roy has appealed, raising four assignments of error for our rev iew.

II. Preliminary Issue {¶6} Prior to addressing the merits of Roy’s assignments of error, w e pause to consider whether Roy’s petition was timely filed. If a petition is unti mely and the requirements of R.C. 2953.23(A) are not satisfied, a tr ial court is without jurisdic tion to consider the petition. State v. Sprenz , 9th Dist. Summit No. 22433, 2005-Ohio-1491, ¶ 8. The date th e 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 Ja nuary 27, 2014, former R.C. 2953. 21(A)(2) applies. Former R.C. 2953.21(A)(2) states i n relevant part: “Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) o f 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 a djudication * * *.” {¶8} The transcripts were filed in Roy’s direct appeal on July 8, 20 13. Given that date, Roy’s petition would be untimely. However, in a journal entry, this Court concluded that the trial transcripts could not be consider ed part of the record on appea l because they were not certified. State v. Roy, 9th Dist. Lorain No. 13CA010404 (June 26, 2014). We ordered Ro y 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 hel d that “whenever a written transcript is certified by the reporter in accordance w ith App.R. 9(A), the written transcript shall constitute the trial ‘transcript’ or ‘transcript of proce edings’ 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 i s 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 c onclude 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 cour t erred in concluding his claims were barred based upon res judicata. {¶11} We cannot say that the trial cour t definitively determined that res judicata barred all of Roy’s claims. In the tr ial court’s August 2018 entry, t he trial court stated that “[a]rguably this Court could deny Defendant’s Motion on the basis of Res Ju dicata. * * * However, this Court will consider the merits of Defendant’s assertions.” Then, in the January 2019 entry detailing findings of fact and conclusions o f law, the trial court indica ted that it “could deny Defendant’s

Petitions on the basis of res judicata , as all of his assertions coul d have been fully litigated on h is direct appeal to the Ninth Dist rict 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 overrule s Roy’s first assignment of err or. ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN DENYING APPELLANT’S PETITION WITHOUT A HEARING[.] {¶13} Roy argues in his second assignme nt of error that the trial cou rt erred in denying his petition without a hearing. In so doing, Roy focuses prima rily on the factors set out in State v.

Calhoun , 86 Ohio St.3d 279 (1999). Under R.C. 2953.21(A)(1), a convict ed criminal defendant may pe tition the trial court to vacate or set aside the judgment or sentence because i t is void or voidable under the Constitution of the United States or the Ohio Constit ution. The petitioner may file documentary eviden ce 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 relie f without holding an evidentiary hearing where the petition, the supporting affidavi ts, the documentary evidence, the files, and the records do not demonstrate that pe titioner 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 det ermining that the petitioner has not alleged sufficient operative facts that woul d 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 suppor ted by competent and credibl e 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 ar e properly supported, then this C ourt reviews the trial court’s decision in regard to its gatekeeping function for an abuse of discretio n.” 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 affidavit s 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 suppor t of the petition, but may, in the sound exercise of discretion, judge the credibility of the affi davits 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 respe ct to the affidavits, including, but not limited to: “(1) whether the judge reviewin g the postconviction relief petition also presided at the trial, (2) whether multipl e affidavits contain nearly identical language, or otherwise appear to have been dra fted by the same person, (3) whether the affidav its 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) wheth er 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 b e within the discretion of the trial

court.” Calhoun at 285. {¶16} Roy raised two claims in his petition. One cla im was based upo n ineffective assistance of trial counsel and the second alleged that the tri al court failed to inform Roy of his right to testify. That second cl aim, 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-convicti on claim sounds in ineffectiv e assistance of counsel, a trial cour t 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) couns el’s performance was deficient, and (2) the deficiency prejudiced h[im].” (Inte rnal 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 tha t trial counsel was ineffective in failing to inform Roy of his absolute right to t estify and in failing to call certain witnesses to testify in Roy’s defense. In support of Roy’s cla ims, he did not present affidavits. Instead, he offered the testimony presented at his hearing befo re 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 pres ented in support of his petition. {¶19} As to Roy’s claim that trial couns el failed to inform Roy of hi s absolute right to testify, he did not demonstrate entitlement to a hearing on tha t basis. At the hearing before the State Medical Board of Ohio, Roy’s testimony was sometimes diff icult 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 comin g. 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 n ot to testify and he responded affirmatively. {¶20} Here the evidence Roy submitted indicates overall that it was R oy’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 h is trial. {¶21} Roy additionally claims that hi s trial counsel was ineffective in failing to call several witnesses. Notably, several of the witnesses he mentio ned in his petition were actually8

called as defense witnesses during his trial. Thus, with respe ct to those witnesses, he failed to establish sufficient operative f acts to establish substantive g rounds for relief. {¶22} As to the remaining witnesses that were not called at Roy’s tri al, 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, counse l’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 c onceivable avenue; they are entitled to be selective.”) (Inte rnal quotations and citations omitted.); see also State v. Spaulding , 9th Dist. Summit No. 28526, 2018-Ohio-3663, ¶ 25. At trial, tr ial 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 physician s should have been called to testify. However, it is not clear how the se witnesses would provide test imony that was substantively different from the testimony of the witnesses who did testify a t trial. Roy did not argue that the

witnesses who were not called were present in the room during t he 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 demonstr ated sufficient operative facts entitling him to relief. To the extent that Roy argued that on e particular employee, S.H.S. could have rebutted the testimony of one of the victims concerning wh ether the victim repeatedly called the office, the trial court obser ved that the hearing examiner did not find S.H.S.’s testimony to be credible. Notably, the hearing examiner instead found the vict im, who also testified at the hearing, to be credible. This supports the trial court’s conclusion tha t 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 fail ing to call Roy and his wife. From the record before this Court, it does not appear th at Roy’s wife, who also worked at his office, witnessed any of the incidents. Thus, she could no t 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 tha t trial counsel was ineffective in failing to call Roy, Roy’s own testimony evidences that Roy was involved in the deci sion not to testify. Further, this Court has noted that “[i]t is difficult to imagine a better exa mple of trial strategy than a decision

of whether a defendant should te stify on his own behalf.” (Int ernal quotations and citation omitted.) State v. Ambrosio , 9th Dist. Lorain No. 03CA008387, 2004-Ohio-5552, ¶ 14. The r ecord 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 h earing examiner lends support to the conclusion that Roy did not demonstrate that he was prejudi ced 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 heari ng. In so doing, we do not view the

Calhoun factors as particularly helpf ul under the circumstances. Calhoun provides factors for a trial court to consider in evaluating the credibility of affida vits, 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 an10

affidavit, which represents one p erson’s unchallenged statement s 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 furt her enhanced here, where the trial court was provided with the report a nd recommendation of the hearing examiner. Thus, the trial court had before it the hearing examiner’s view of the witnesses’ cre dibility; there can be no dispute that the hearing examiner was in a f ar better position to evaluate t he 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 p oint 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 i ts 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 cour t 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 heari ng examiner’s findings as to witness credibility. Roy maintains that the trial court “delegate[d] h is judgment to the judgment of the

medical board.” {¶28} We cannot say that Roy has demonstrated the trial court acted i mproperly. A review of the entire judgment entry reveals that the trial cour t 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 w itness not credible. Instead, the trial court considered whether the evidence supported Roy’s cla im; for example, in evaluating the determination of trial counsel11

to not call certain employees or other patients as witnesses, t he 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 test imony would be cumulative to that provided by the witnesses presen ted.” 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 witnes ses testify and was therefore in a better position to evaluate their credibility, it would seem im proper 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 envisi oned 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 tru e, 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 discre tion. 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 cou rt 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 fai led to advise Roy at any point during the12

trial that Roy had an absolute right to testify. The trial cou rt 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 a ny advisement about testifying. Thus, the trial court should have concluded that Roy’s claim wa s barred by res judicata. See ElJones , 2013-Ohio-3349, at ¶ 12. However, any error in the trial cou rt’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 Pl eas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting 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 constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t 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 m ake 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, Attorn ey at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assi stant Prosecuting Attorney, for Appellee.