State v. Perry , 2022 Ohio 2132 ( 2022 )

[Cite as State v. Perry, 2022-Ohio-2132.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 110764 and 110954
v. :
DAVEION PERRY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART AND DISMISSED IN PART
RELEASED AND JOURNALIZED: June 23, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-610816-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Mary M. Frey and Sarah Hutnik, Assistant
Prosecuting Attorneys, for appellee.
Daveion Perry, pro se.
MICHELLE J. SHEEHAN, J.:
In 2016, defendant-appellant Daveion Perry (“Perry”) pleaded guilty
to aggravated murder and received a term of life without eligibility of parole under
a plea agreement. He has attempted to withdraw his plea since then. Before this
court now are two appeals he filed in 2021, which we consolidated sua sponte for
review. After careful consideration of the record and applicable law, we dismiss 8th
Dist. Cuyahoga No. 110764 because this court lacks jurisdiction to consider a nullity.
We affirm the trial court’s denial of Perry’s “Motion for Plain Error Pursuant to
Crim.R. 52(B)” in 8th Dist. Cuyahoga No. 110954 because Crim.R. 52(B) does not
create a procedure to obtain review and, furthermore, the claims he raised in the
motion are barred by res judicata. In the following, we recount the procedural
history of this case and then address each appeal in turn.
Substantive Facts and Procedural History
In 2016, Perry was charged under a 15-count indictment for
aggravated murder and other related felony offenses. The indictment stemmed
from a three-day crime spree between October 14-16, 2016. During an armed
robbery on October 14, 2016, Perry killed a 15-year-old boy working at a Mr. Hero
restaurant owned by the victim’s family in Cleveland Heights, Ohio. The incident
was captured on the restaurant’s video surveillance system. Perry committed two
more armed robberies following the shooting at Mr. Hero. He robbed a Subway
restaurant on October 15, 2016, and a Dollar Store on October 16, 2016.
Perry was arrested on October 16, 2016. The day after his arrest, on
October 17, 2016, Perry’s family retained counsel for him. The next day, Perry
accepted a plea deal on his counsel’s advice. Pursuant to the plea agreement, the
state agreed to not seek the death penalty for the aggravated murder offense and
Perry agreed to a sentence of life without parole for his offenses.
On October 21, 2016, a grand jury indicted him for aggravated
murder, five counts of aggravated robbery, four counts of kidnapping, two counts of
felonious assault, breaking and entering, obstructing official business, and
tampering with evidence. The docket reflects that the prosecutor served discovery
on Perry’s counsel two days after the indictment.
On October 26, 2016, Perry was arraigned and entered a plea of not
guilty and the court proceeded to a plea hearing. The state reported that a plea
agreement had been reached based on the representation by the defense counsel
that it was his client’s desire to proceed with the proposed agreement. The state
agreed to take the death penalty off the table in exchange for a full confession but
reserved the right to proceed with a reindictment for the death penalty if Perry failed
to comply with the plea agreement. The trial court then proceeded to a Crim.R. 11
colloquy with Perry. Perry answered “no” when asked if there was any threat or
promise made to him. He answered “yes” when asked if he was satisfied with the
work performed by his counsel. Perry then entered a plea of guilty to all charges in
the 15-count indictment. The matter proceeded to sentencing two days later. At the
sentencing hearing, Perry apologized to the victim’s family. The trial court imposed
the agreed sentence of life without parole eligibly for the aggravated murder offense,
to be served consecutive to six years in prison on the firearm specifications. The
remaining counts were either merged or given a concurrent term.
a. Direct Appeal
Perry did not file a timely appeal but later sought leave to file a
delayed appeal. This court granted leave and appointed counsel, who subsequently
filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed. 2d 493 (1967), asserting that no prejudicial error had occurred below
and any grounds for appeal would be frivolous. Appellate counsel concluded he
could not make any meritorious arguments on Perry’s behalf. Nevertheless, counsel
presented the following three potential issues for this court’s Anders review: (1)
whether the trial court erred by accepting Perry’s guilty plea; (2) whether the
conduct of trial counsel denied appellant his right to the effective assistance of
counsel, and (3) whether the trial court imposed on Perry a sentence unsupported
by the record. Perry also filed an appellate brief pro se and argued that his plea was
void. He argued that (1) the Cleveland Heights Municipal Court lacked jurisdiction
to accept his guilty plea, (2) his due process rights were violated when he entered
into a plea agreement for offenses with which he had not yet been charged, (3) the
state breached the agreement when he was forced to plead guilty to additional
charges in the indictment that were not contained in the plea agreement, and (4) the
trial court did not comply with Crim.R. 11(C) in accepting his guilty plea.
Upon an independent review of the record, this court found no
meritorious argument to any of Perry’s arguments or to any potential issues raised
by Perry’s counsel. State v. Perry, 8th Dist. Cuyahoga No. 105307, 2017-Ohio-7324.
This court noted specifically that Perry stated at the plea hearing that he understood
the rights he was waiving by pleading guilty and that he understood the effect of his
plea.
b. Petition for Postconviction Relief
While his direct appeal was pending, on April 10, 2017, Perry filed a
“Petition to Vacate or Set Aside Judgment of Conviction or Sentence.” He raised
constitutional claims under the Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments. Regarding his Sixth Amendment ineffective-assistance-of-counsel
claim, Perry alleged that his counsel induced him to take a life-without-parole plea
only two days after his arrest and before he was even indicted. In support, he
attached notarized affidavits from himself, his mother, and his girlfriend Sharon
Weatherless (“Weatherless”).1
The trial court denied his petition, erroneously believing that it did
not have jurisdiction to rule on Perry’s postconviction petition because his direct
appeal was pending. On appeal, this court reversed the trial court’s decision.
1 Perry’s affidavit alleged he was coerced into the plea agreement. He alleged that his
retained counsel told him that “you get what you pay for,” that he could not help Perry in
the trial, and that Perry would lose the trial and get the death penalty. Perry further
alleged that his counsel knew he was under duress but continued to talk him into taking
the plea deal. Weatherless’s affidavit alleged that Perry’s counsel told her and Perry’s
mother that Perry would get the death penalty if he did not take the plea. Perry’s mother
stated in her affidavit that Perry’s counsel told her that “even though [Perry] wanted to
fight the case, they convinced him to a plea deal,” and that Perry would get the death
penalty if he fought the case. Perry’s mother also alleged that Perry’s counsel told her that
if she had enough money, he would help fight the case, but she was unable to pay the
amount of money he asked for. She alleged that, because Perry’s counsel was not willing
to try the case, there was no effective way for Perry and his family to fight the charges.
On remand, the trial court issued a ruling denying postconviction
relief in December 2017. The trial court described the case as a cold-blooded murder
of an innocent 15-year boy and found that Perry was afforded every constitutional
guarantee and was ably represented by counsel during every part of the proceeding.
The trial court found that Perry entered a knowing, intelligent, and voluntary plea,
and noted specifically that “[t]he plea proceeding was lengthy and all aspects of the
steps leading up to the plea were explained in great detail and were confirmed and
approved by defendant’s counsel.”
The trial court’s ruling denying postconviction relief did not include
findings of fact and conclusions of law as required by R.C. 2953.21(H). Notably,
Perry did not appeal from the ruling to challenge the trial court’s failure to comply
with the statute. As we explain later in the opinion, Perry’s failure to appeal the trial
court’s denial of his postconviction petition in 2017 is fatal to his R.C. 2953.21(H)
claim.
c. Subsequent Motions
Subsequent to the trial court’s denial of his petition for postconviction
relief, in November 2017, Perry filed a motion to withdraw his plea pursuant to
Crim.R. 32.1. The trial court denied the motion. On appeal, this court found that all
of the issues raised in Perry’s motion to withdraw the plea were raised, considered,
and rejected in Perry’s direct appeal and concluded res judicata barred any further
consideration of these issues. State v. Perry, 8th Dist. Cuyahoga No. 106723, 2018-
Ohio-4117, ¶ 11.
In August 2018, Perry filed a motion to vacate his plea. The trial court
denied the motion. This court affirmed the trial court, finding that the claims raised
in the motion were or should have been asserted on direct appeal or the prior motion
to withdraw his guilty plea and, as such, were barred by res judicata. State v. Perry,
8th Dist. Cuyahoga No. 107596, 2019-Ohio-547, ¶ 10.
In January 2019, Perry filed a “Motion to Vacate Conviction and
Suppress Evidence in Violation of Fourth Amendment of the United States
Constitution and Article I, Section 14 of the Ohio Bill of Rights.” Perry argued that
his Fourth Amendment rights were violated by a warrantless arrest and his trial
counsel was ineffective for failing to seek suppression of evidence before he pleaded
guilty and that his guilty plea was a product of ineffective assistance of counsel. The
trial court denied the motion. On appeal, this court explained that Perry’s motion
must be treated as a successive petition for postconviction relief under
R.C. 2953.23(A) and held that the trial court did not have jurisdiction to entertain
Perry’s motion. State v. Perry, 8th Dist. Cuyahoga No. 108258, 2019-Ohio-3668,
¶ 9.
Appeal No. 110764: Motion for Findings of Fact and Conclusions of Law
Appeal No. 110764 concerns the postconviction petition Perry filed
in 2017. The trial court issued a ruling in December 2017 denying Perry
postconviction relief, but the judgment entry did not contain findings of fact and
conclusions law as required by R.C. 2953.21(H). Perry did not appeal the trial
court’s ruling. Instead, three and a half years later, on June 8, 2021, he filed a
“Motion for Findings of Fact and Conclusions of Law Pursuant to R.C. 2953.21(H)”
regarding his 2017 postconviction petition. The trial court granted the motion and
then issued an order that denied the postconviction petition and included the
findings of fact and conclusion of law.2 Perry now appeals from that order in Appeal
No. 110764, raising six assignments of error.3
2The trial court found that, by pleading guilty, Perry waived his constitutional claims
under the Fourth, Fifth, and Fourteenth Amendments. Furthermore, the doctrine of res
judicata barred all of his constitutional claims except for the ineffective-assistance-of-
counsel under the Sixth Amendment. Regarding that claim, the trial court held that Perry
has not proven that his counsel was deficient or that he would not have pleaded guilty but
for the purported deficiencies of his counsel. The court found the affidavits submitted
with his postconviction petition were self-serving and relied mostly on hearsay. The trial
court found furthermore that the affidavits were contradicted by the record, which
reflected that Perry stated in open court that there were no threats or promises made to
him and that he was satisfied with his counsel’s performance. The court found Perry
failed to present sufficient facts establishing grounds for relief justifying a hearing.
3 The six assignments of error are as follows:
1. The trial court erred and abused its discretion violating Perry’s due
process right when it failed to review Perry’s evidence submitted with his
postconviction petition and not granting an evidentiary hearing before the
filing of the ruling on the motion for post-conviction relief.
2. Was Perry’s due process right violated when the trial court abused its
discretion ruling – that Perry had effective assistance of counsel throughout
the trial court proceedings, when trial counsel was ineffective for failing to
object, investigate and/or discover exculpatory evidence and information
pertaining to count 1 aggravated murder of the grand jury indictment and
section 1(a) of the plea agreement?
3. Perry’s due process was violated when the trial counsel rendered
ineffective assistance for failing to investigate and discover exculpatory
evidence favorable to Perry and not getting the charges of aggravated
robbery and kidnapping against Taylor Fryer deleted from the plea
agreement and indictment and having Perry plead guilty to this victim.
Both Perry’s motion for findings of fact and conclusions of law and
the trial court’s order on that motion are premised on a lack of final, appealable
order in the trial court’s 2017 judgment denying postconviction relief.
R.C. 2953.21(H) states that “if the court does not find grounds for
granting relief, it shall make and file findings of fact and conclusions of law and shall
enter judgment denying relief on the petition.” In the past, the courts had
interpreted R.C. 2953.21(H) to mean that the trial court’s judgment denying a timely
petition for postconviction relief that does not contain findings of fact and
conclusions of law is not a final, appealable order, based on the authority of State v.
Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910 (1982). In Mapson, the Supreme Court
4. Perry’s due process was violated when the trial counsel rendered
ineffective assistance in failing to investigate or discover the exculpatory
evidence dealing with the Dollar General robbery on the night of October
16, 2016, not getting this section deleted from the plea agreement and
indictment and having Perry plead guilty to this charge.
5. Perry’s due process was violated when the trial counsel for Perry
rendered ineffective assistance for failing to investigate and discover the
exculpatory evidence for the 2 felonious assault charges against the
Cleveland Heights Police on the night of October 16, 2016, not getting the
clause from the contract, i.e., plea agreement section 1 j(2) removed and
indictment counts 11 and 12 dismissed and having Perry plead guilty to this
victim.
6. Perry suffers from ineffective assistance of counsel and his due process
rights were violated when the prosecutor and counsel violated the Brady
rule by withholding exculpatory evidence favorable to Perry and having
Perry plead guilty to the counts whereas no crime was ever committed and
where counsel failed to file for Ohio Crim. R. 16 motion for discovery before
coercing Perry into a plea agreement then withheld that information once
counsel received his first set of evidence from the prosecutors and the
additional evidence from the motion for discovery.
of Ohio held that the requirement that a trial court make findings of fact and
conclusions of law is essential in order to prosecute an appeal. Id. at 219. See, e.g.,
State v. Hostacky, 8th Dist. Cuyahoga No. 101282, 2015-Ohio-419, ¶ 10 (a judgment
entry denying or dismissing a timely petition for postconviction relief that does not
contain findings of fact and conclusions of law is not a final, appealable order); State
v. Spencer, 8th Dist. Cuyahoga No. 81035, 2003-Ohio-287; State v. Loper, 8th Dist.
Cuyahoga Nos. 81297, 81400, and 81878, 2003-Ohio-3213; and In re W.H., 8th
Dist. Cuyahoga No. 94160, 2010-Ohio-2898.
In 2020, however, the Supreme Court of Ohio overturned Mapson in
State ex rel. Penland v. Dinkelacker, 162 Ohio St.3d 59, 2020-Ohio-3774, 164
N.E.3d 336. The Supreme Court of Ohio found Mapson to have been wrongly
decided and caused confusion about the appealability of a judgment denying
postconviction relief that does not include findings of fact and conclusions of law.
The court held that a trial court’s failure to issue findings of fact and conclusions of
law does not affect a petitioner’s ability to appeal a judgment denying postconviction
relief. In support for the holding, the court cited R.C. 2953.23(B), which provides
that “[a]n order awarding or denying relief sought in a petition filed pursuant to
section 2953.21 of the Revised Code is a final judgment.” The court in Penland
concluded that “the statutory mandate that a trial court issue findings of fact and
conclusions of law does not transform the trial court’s failure to do so into a
jurisdictional defect.” Id. at ¶ 21. “If a trial court errs by failing to issue statutorily
required findings of fact and conclusions of law, the petitioner may obtain relief by
raising that issue in an appeal from the trial court’s judgment.” Id. at ¶ 28.
Pursuant to Penland, therefore, the trial court’s 2017 denial of Perry’s
postconviction petition was a final, appealable order. In order to challenge the trial
court’s noncompliance with R.C. 2953.21 and the deficiency in its judgment, Perry
was required to appeal that judgment in 2017. See State v. Hunt, 5th Dist.
Tuscarawas No. 2020 AP 09 0019, 2021-Ohio-528, ¶ 9 (the appellate court reversed
the trial court’s judgment denying postconviction relief because it did not contain
the findings of fact and conclusions of law and remanded the case for the trial court
to make the requisite findings).4
Perry failed to appeal the trial court’s judgment in 2017, but rather,
moved the court for findings of facts and conclusions of law in 2021. Perry’s only
remedy to correct the deficiency, however, was through an appeal pursuant to
Penland. Because the trial court’s 2017 judgment was final, it did not retain
jurisdiction to take further actions on Perry’s petition. Noble v. Colwell, 44 Ohio
St.3d 92, 94, 540 N.E.2d 1381 (1989) (when the trial court makes an order that is
not final it retains jurisdiction for further proceedings). Because the trial court was
without jurisdiction to issue the instant order containing the findings of fact and
conclusions of law, the order was a nullity, and this court lacks jurisdictions to
4 This court directed the parties to supplement their briefs regarding this court’s
jurisdiction in Appeal No. 110764 in light of Penland. Only Perry submitted a
supplemental brief in response.
entertain an appeal from it. See, e.g., State v. Doogs, 6th Dist. Wood No. WD-19-
089, 2020-Ohio-1415, ¶ 12, and State v. Buss, 3d Dist. Auglaize No. 2-05-04, 2005-
Ohio-3603, ¶ 12.
For the foregoing reasons, we dismiss Appeal No. 110764 for a lack of
jurisdiction.
Appeal No. 110954: “Motion for Plain Error Pursuant to Crim.R. 52(B)”
On August 19, 2021, Perry filed a “Motion for Plain Error Pursuant to
Crim.R. 52(B).” He claimed in the motion that the trial court failed to explain the
maximum penalties for his offenses and also failed to comply with R.C. 2929.14(C)
at sentencing. The trial court denied the motion, and Perry appealed from the
judgment, in Appeal No. 110954.5
5 The four assignments of error raised on appeal are as follows:
1. Perry’s due process and equal protections were violated pursuant to the
14th Amendment of the United States Constitution and Article I, Section 10
of the Ohio Bill of Rights when the trial court failed to follow the strict
compliance of Crim.R. 11(C)(2)(c).
2. The state failed and violated Perry’s due process and equal protection
pursuant to the 14th Amendment of the United States Constitution and
Article I, Section 10 of the Ohio Bill of Rights when the plea agreement and
indictment both failed to incorporate the peace officer specification
pursuant to R.C. 2941.1412.
3. The trial court violated Perry’s due process when failing to follow the R.C.
2929.12 sentencing hearing considerations.
4. The trial court violated Perry’s due process pursuant to the 14th
Amendment and Article I, section 10 of the Ohio Bill of Rights when the trial
court failed to make the statutory requirements pursuant to R.C.
2929.14(C).
Crim.R. 52(B) provides that “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.” Crim.R. 52(B) provides a standard of review on direct appeal and does
not in itself create a procedure to obtain review. State v. Strickland, 10th Dist.
Franklin No. 14AP-307, 2014-Ohio-5105, ¶ 15. Perry’s motion is not recognized
under the Ohio Rules of Criminal Procedure. State v. Frazier, 8th Dist. Cuyahoga
No. 88331, 2007-Ohio-1851, ¶ 7. Furthermore, the two specific claims he raised in
the motion, which concerned the validity of the Crim.R. 11 colloquy and the
propriety of his consecutive sentence, are barred by res judicata because he could
have raised these two claims on direct appeal. Id. at ¶ 8. Accordingly, the trial
court’s judgment denying his “Motion for Plain Error Pursuant to Crim.R. 52(B)” is
affirmed.
Appeal No. 110764 is dismissed for want of jurisdiction. The trial
court’s judgment is affirmed in Appeal No. 110954.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and
EILEEN T. GALLAGHER, J., CONCUR