[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 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 
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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 
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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. 
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{¶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. 
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{¶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). 
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{¶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. 
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{¶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 
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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. 
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{¶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 
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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 
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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 ElJones, 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. 
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 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.