[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 : O P I N I O N 

 

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.