State v. Grad ( 2017 )

[Cite as State v. Grad, 2017-Ohio-8778.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 17CA0004-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KENNETH GRAD COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 08CR0272
DECISION AND JOURNAL ENTRY
Dated: December 4, 2017
HENSAL, Presiding Judge.
{¶1} Kenneth Grad appeals a judgment of the Medina County Court of Common Pleas
that denied his petition for post-conviction relief. For the following reasons, this Court affirms.
I.
{¶2} A jury found Mr. Grad guilty of five counts of child endangering and three counts
of felonious assault involving his infant son. On appeal, one of Mr. Grad’s arguments was that
his trial counsel had been ineffective because he did not call any medical experts on Mr. Grad’s
behalf. This Court upheld Mr. Grad’s convictions because it determined that his counsel’s
decision was a matter of trial strategy and the strategy was not objectively unreasonable. State v.
Grad, 9th Dist. Medina No. 15CA0014-M, 2016-Ohio-8388, ¶ 9. Meanwhile, Mr. Grad
petitioned for post-conviction relief under Revised Code Section 2953.21. In his petition, Mr.
Grad also argued that his trial counsel had been ineffective for not calling any experts on his
behalf. The trial court denied Mr. Grad’s petition without holding a hearing because it
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determined that his argument was barred under the doctrine of res judicata. The court also
determined that, even if Mr. Grad’s argument was not barred, his counsel’s performance was not
deficient because the decision not to call any experts was a matter of trial strategy. Mr. Grad has
appealed the denial of his petition for post-conviction relief, assigning two errors.
II
ASSIGNMENT OF ERROR I
THE FAILURE OF DEFENSE COUNSEL TO PRESENT MEDICAL
EXPERTS TO REBUT THE TESTIMONY OF THE STATE’S MEDICAL
EXPERT RENDERED THE VERDICT UNRELIABLE, THUS DENYING THE
APPELLANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL.
{¶3} Mr. Grad argues that he received ineffective assistance of counsel because his
lawyer did not call any experts on his behalf even though there were several who could have
explained that his son’s broken bones were not caused by abuse but because of underlying
nutritional deficiencies and genetic conditions. According to Mr. Grad, his counsel’s
performance was outside of professional norms and calls the reliability of the jury’s verdict into
question.
{¶4} We note that Mr. Grad’s argument is similar to the one he made on direct appeal.
Id. at ¶ 5. “Under the doctrine of res judicata, a final judgment of conviction bars a convicted
defendant who was represented by counsel 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 * * * on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St. 3d
93 (1996), syllabus.
{¶5} The trial court determined that the arguments Mr. Grad made in his petition for
post-conviction relief were barred by the doctrine of res judicata. Mr. Grad has not challenged
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the court’s conclusion in his appellate brief. “This Court will not assume an appellant’s duty and
formulate an argument on his behalf.” State v. Lortz, 9th Dist. Summit No. 23762, 2008-Ohio-
3108, ¶ 24. We, therefore, conclude that Mr. Grad’s argument is barred by res judicata. See
Benitez v. Gonzalez, 9th Dist. Lorain No. 96CA006608, 1997 Ohio App. LEXIS 3736, *3 (Aug.
20, 1997). Mr. Grad’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY FAILING TO HOLD AN EVIDENTIARY
HEARING AS THE AFFIDAVITS PROVIDED IN A PETITIONER’S
MOTION TO VACATE FILED PURSUANT TO R.C. 2953.21 ESTABLISH A
MERITORIOUS ISSUE.
{¶6} Mr. Grad also argues that the trial court should have held a hearing before ruling
on his petition, citing Section 2953.21(C). Interpreting that section, the Ohio Supreme Court has
explained that “[a]n evidentiary hearing is not automatically guaranteed each time a defendant
files a petition for postconviction relief.” State v. Broom, 146 Ohio St. 3d 60, 2016-Ohio-1028, ¶
29. “A trial court has the discretion to deny a postconviction petition without discovery or an
evidentiary hearing if the petition, supporting affidavits, documentary evidence, and trial record
do not demonstrate ‘sufficient operative facts to establish substantive grounds for relief.’” Id.,
quoting State v. Calhoun, 86 Ohio St. 3d 279 (1999), paragraph two of the syllabus. “To warrant
an evidentiary hearing in a postconviction proceeding, a petitioner must submit evidence outside
the record that sufficiently establishes that the petitioner is entitled to relief on one or more
asserted constitutional grounds.” Id.
{¶7} The trial court found that Mr. Grad “did not support his petition with any
probative evidentiary materials beyond the expert reports and opinions which were already filed
in this case prior to trial.” Although Mr. Grad argues that his petition “contained evidence that
was not part of the record on direct appeal[,]” he has not identified which evidence was new.
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Moreover, in light of the court’s determination that Mr. Grad’s claims were barred by res
judicata, which he has not contested, we conclude that Mr. Grad failed to demonstrate that the
evidence he submitted with his petition sufficiently establishes that he was entitled to relief. See
id. Accordingly, the trial court exercised appropriate discretion when it denied Mr. Grad’s
petition without holding an evidentiary hearing. Mr. Grad’s second assignment of error is
overruled.
III.
{¶8} Mr. Grad’s assignments of error are overruled. The judgment of the Medina
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 Medina, 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.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
DAVID L. DOUGHTEN, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.