State v. Perry

[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