[Cite as State ex rel. Perry v. Santoli, 2023-Ohio-720.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL., DAVEION PERRY, :
Relator, :
No. 112118
v. :
ANDREW J. SANTOLI :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT GRANTED IN PART AND DENIED IN PART
DATED: March 7, 2023
Writ of Mandamus
Motion No. 559826
Order No. 562007
Appearances:
Daveion Perry, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James E. Moss, Assistant Prosecuting
Attorney, for respondent.
KATHLEEN ANN KEOUGH, P.J.:
On November 10, 2022, the relator, Daveion Perry, commenced this
mandamus action to compel the respondent, Judge Andrew Santoli, to comply with
R.C. 2953.21(H) and to issue Civ.R. 58(B) service language to a December 15, 2017
judgment denying a motion for postconviction relief filed in the underlying case,
State v. Perry, Cuyahoga C.P. No. CR-16-610816-A. On November 22, 2022, the
respondent judge moved for summary judgment on the grounds of mootness: he
issued findings of fact and conclusions of law denying the subject postconviction
relief petition with Civ.R. 58(B) service language. Perry filed his brief in opposition
on December 12, 2022. For the following reasons, this court denies the motion for
summary judgment in part and issues the writ of mandamus to endorse Civ.R. 58(B)
service language to the December 15, 2017 entry but denies the mandamus to issue
findings of fact and conclusions of law.
Factual and Procedural Background
Between October 14-16, 2016, Perry engaged in a three-day crime
spree. During his first armed robbery, Perry killed a 15-year-old boy working at a
Mr. Hero restaurant owned by the victim’s family in Cleveland Heights, Ohio. The
restaurant’s video surveillance system recorded the incident. Perry committed two
more armed robberies in the succeeding days. Video surveillance also recorded the
second robbery. Law enforcement, pursuing him leaving the third robbery, arrested
him on October 16, 2016. His family immediately retained counsel for him. The next
day while he was in the custody of the Cleveland Heights Police Department, Perry
accepted a plea deal on his counsel’s advice: the state agreed not to seek the death
penalty for aggravated murder, if Perry made a full confession, pleaded guilty to the
charges brought against him, and accepted a sentence of life without parole for his
offenses.
On October 21, 2016, the 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. On October 26, at the arraignment, the trial court
conducted a full guilty plea colloquy with Perry, after which he pleaded guilty to the
full 15-count indictment. Perry answered “yes” when asked if he was satisfied with
his counsel’s performance. At the sentencing hearing, two days later Perry
apologized to the victim’s family. The trial court imposed the agreed sentence of life
without parole eligibility for the aggravated murder offense, to be served consecutive
to six years in prison for the firearm specifications. The remaining counts were
either merged or given concurrent terms.
On December 29, 2016, Perry moved for a delayed appeal, and this
court granted the motion and appointed counsel. State v. Perry, 8th Dist. Cuyahoga
No. 105307, 2017-Ohio-7324. However, appointed counsel after reviewing the
record could not find a good faith argument and moved to withdraw from
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967). This court allowed Perry to submit his own brief, in which he
argued the following: (1) The municipal court lacked subject-matter jurisdiction to
adjudicate felony charges and to accept his guilty plea; (2) The municipal court
lacked jurisdiction to accept the guilty plea when the criminal complaint containing
the charges to which he pleaded guilty was not filed until after the plea was
presented to him; (3) The trial court erred in accepting a plea of guilty based upon
an invalid plea agreement entered in municipal court; (4) The trial court failed to
meet all of the requirements of Crim.R. 5 and 11 prior to accepting his plea of guilty;
and (5) The trial court erred in sentencing him based upon an invalid plea agreement
entered in the municipal court.
This court granted the appellate attorney’s motion to withdraw and
dismissed the appeal. It reasoned that its own independent review showed that the
trial court conducted a thorough plea colloquy, that Perry’s trial counsel was
effective, and that the trial court imposed the agreed prison sentence. Furthermore,
the record showed that Perry’s guilty plea was properly taken in the Cuyahoga
County Common Pleas Court and not the Cleveland Heights Municipal Court.
Perry, 8th Dist. Cuyahoga No. 105307, 2017-Ohio-7324.
While his direct appeal was pending, Perry in April 2017, filed a
“Petition to Vacate or Set Aside Judgment of Conviction or Sentence,” in which he
argued the following: (1) The Cleveland Heights police issued an invalid search
warrant, used excessive force, and conducted an unlawful arrest in violation of the
Fourth Amendment; (2) He was induced into signing a plea agreement of life
without parole before being indicted or a complaint issued in violation of the Fifth
Amendment; (3) He received ineffective assistance of trial counsel because he did
not investigate a defense of alibi and induced Perry to accept the plea agreement in
violation of the Sixth Amendment; (4) The $1,000,000 bail was excessive because
Perry could not afford to make bail in violation of the Eighth Amendment; and (5)
The plea agreement is invalid because it was signed in municipal court that did have
subject-matter jurisdiction over the felony offense in violation of the Fourteenth
Amendment.
On May 3, 2017, the trial court denied the postconviction petition for
lack of jurisdiction because the case was on appeal. Perry appealed that decision. In
State v. Perry, 8th Dist. Cuyahoga No. 105807, 2017-Ohio-8324, this court reversed
and remanded the case back to the trial court, because R.C. 2953.21(D) provides that
a trial court shall consider a postconviction petition even if a direct appeal of the
conviction is pending.
On remand on December 15, 2017, the trial court issued a four-page
journal entry, entitled “Ruling on Motion for Postconviction Relief,” denying the
petition. The trial judge reiterated the factual and procedural history, noting the
completeness of plea hearing and the sentencing hearing, including “the chilling
admissions by the defendant.” The judge found that the actual video of the murder
proved beyond any doubt Perry’s guilt. The judge also ruled that Perry was offered
every constitutional guarantee that can be afforded and that he was fully and ably
represented. Thus, he denied the petition. The entry included a certificate of service
but did not have the Civ.R. 58(B) endorsement directing the clerk to serve the entry
upon all parties. Perry has not appealed this decision.
On May 27, 2021, Perry filed a “Motion for Proper Notice,” in which
he moved the trial judge to order the clerk of courts to provide him with proper
notice of the December 15, 2017 journal entry pursuant to Civ.R. 58(B). Then on
June 8, 2021, Perry moved for findings of fact and conclusions of law for his 2017
postconviction relief petition. In this motion, he argued that without the required
findings of fact and conclusions of law under R.C. 2953.21(H) he did not have a final,
appealable order pursuant to State v. Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910
(1982). He repeated the need for Civ.R. 58(B) language ordering service of the
order.
On June 21, 2021, the trial judge granted the motion and issued
explicit findings of fact and conclusions of law denying Perry’s 2017 postconviction
relief petition. The trial judge also ordered the clerk pursuant to Civ.R. 58(B) to send
a copy of the June 21, 2021 findings of fact and conclusions of law to Perry and to
note its date of entry upon the journal. Perry appealed this order. State v. Perry,
8th Dist. Cuyahoga Nos. 110764 and 110954.1
In deciding the postconviction relief petition appeal, this court first
ruled that the December 15, 2017 journal entry denying the petition did not include
findings of fact and conclusions of law as required by R.C. 2953.21(H). Nonetheless,
the December 15, 2017 entry is a final, appealable order. In 2020, the Supreme
Court of Ohio overturned Mapson in State ex rel. Penland v. Dinklacker, 162 Ohio
St.3d 59, 2020-Ohio-3774, 164 N.E.2d 336. The Court ruled that the failure to issue
findings of fact and conclusions of law does not affect the petitioner’s ability to
Perry appealed the denial of two entries. In 8th Dist. Cuyahoga No. 110764, he
1
appealed the findings of fact and conclusions of law denying the postconviction relief
petition. In 8th Dist. Cuyahoga No. 110954 he appealed the denial of a “Motion for Plain
Error Pursuant to Crim.R. 52(B).”
appeal a judgment denying the postconviction relief petition. If the trial court failed
to make the statutorily required findings of fact and conclusions of law, then the
petitioner could raise that as an error on appeal.
This court continued that because the trial court’s 2017 order was
final, the trial court did not retain jurisdiction to take further actions on Perry’s
petition, pursuant to Noble v. Colwell, 44 Ohio St.3d 92, 540 N.E.2d 1381 (1989).
Thus, because the trial court was without jurisdiction to issue the 2021 order; it was
a nullity, and this court lacked jurisdiction to entertain an appeal from it. It
dismissed the 110764 appeal.2
Perry filed a motion for reconsideration on the grounds that he has
been complaining for years that he never got proper service of the December 15, 2017
judgment. In response, this court replied:
[T]he lack of proper service of the 2017 judgment pursuant to Civ.R.
58(B) tolled the time for an appeal. The record reflects that on May 27,
2021, appellant filed a “Motion for Proper Notice,” requesting that the
trial court provide him with proper notice of the December 2017
judgment pursuant to Civ. R. 58(B). The trial court granted appellant’s
“Motion for Findings of Fact and Conclusions of Law” and denied his
“Motion for Proper Notice” as moot. The issue of whether appellant
received proper notice of the December 2017 judgment was not
litigated at the trial court, and more importantly, the Civ.R. 58(B) issue
impacts the timeliness of an appeal but not the finality of a judgment.
While the time for an appeal from the 2017 judgment may have been
tolled due to a lack of proper service pursuant to Civ.R. 58(B), the
tolling of the appeal time does not affect the final appealable nature of
the 2017 judgment. To this date, appellant has not appealed from the
December 2017 judgment.
2Perry appealed this decision to the Ohio Supreme Court, but then dismissed it on
September 7, 2022.
Perry filed another “Motion for Proper Notice and Service of
Judgment entry” on September 26, 2022. The trial court has not ruled on that
motion. Perry then commenced this mandamus action.
Legal Analysis
In the present case, Perry seeks a mandamus to compel the
respondent judge to comply with R.C. 2953.21(H) and Civ.R. 58(B). The requisites
for mandamus are well established: the relator must show by clear and convincing
evidence (1) a clear legal right to the requested relief, (2) the respondent must have
a clear legal duty to perform the requested relief and (3) there must be no adequate
remedy at law. Additionally, although mandamus may be used to compel a court to
exercise judgment or to discharge a function, it may not control judicial discretion,
even if that discretion is abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515
N.E.2d 914 (1987). Although mandamus should be used with caution, the court has
discretion in issuing it. In State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio
St.2d, 141, 228 N.E.2d 631 (1967), paragraph seven of the syllabus, the Supreme
Court of Ohio ruled that “in considering the allowance or denial of the writ of
mandamus on the merits, [the court] will exercise sound, legal and judicial
discretion based upon all the facts and circumstances in the individual case and the
justice to be done.” The court elaborated that in exercising that discretion the court
should consider
the exigency which calls for the exercise of such discretion, the nature
and extent of the wrong or injury which would follow a refusal of the
writ, and other facts which have a bearing on the particular case. * * *
Among the facts and circumstances which the court will consider are
the applicant’s rights, the interests of third persons, the importance or
unimportance of the case, the applicant’s conduct, the equity and
justice of the relator’s case, public policy and the public’s interest,
whether the performance of the act by the respondent would give the
relator any effective relief, and whether such act would be impossible,
illegal, or useless.
Id. at 161-162.
Civ.R. 58(B) provides in pertinent part as follows:
When the court signs a judgment, the court shall endorse thereon a
direction to the clerk to serve upon all parties not in default * * * notice
of the judgment and its date of entry upon the journal. Within three
days of entering the judgment upon the journal, the clerk shall serve
the parties in a manner prescribed by Civ.R. 5(B) and note the service
in appearance docket. Upon serving the notice and notation of the
service in the appearance docket, the service is complete. The failure
of the clerk to serve notice does not affect the validity of the judgment
or the running of the time for appeal except as provided in App.R. 4(A).
App.R. 4(A) provides that a party who wishes to appeal shall file the
notice of appeal within 30 days of the entry. However, App.R. 4(A)(3) provides that
if the clerk has not completed service of the order with the three-day period
prescribed in Civ.R. 58(B), the 30-day period begins to run on the date when the
clerk actually completes service.
In State ex rel. Ford v. McClelland, 8th Dist. Cuyahoga No. 100014,
2013-Ohio-4379, this court considered Civ.R. 58(B) in postconviction relief cases.
It noted that because such petitions are civil in nature, Civ.R. 58(B) applies. The
rule imposes on the judge the duty to direct the clerk to serve upon all parties notice
of the judgment and to note service upon the journal. Similarly, the relator had the
right to notice pursuant to Civ.R. 58(B). Furthermore, the time for filing the appeal
does not begin to run until the formal notice required by Civ.R. 58(B) is effected.
The present matter has a very tortuous procedural posture. After
pleading guilty, inter alia, to aggravated murder and aggravated robbery, Perry’s
direct appeal was dismissed pursuant to Anders v. California. Perry also filed a filed
postconviction relief petition that the trial judge denied for lack of jurisdiction.
Perry appealed that decision and obtained a ruling that the trial court had to rule on
the merits of the petition. The trial court did that, issuing the four-page December
15, 2017 judgment, which was not explicitly in the form of findings of fact and
conclusions of law. Moreover, the judge did not make the required Civ.R. 58(B)
endorsement for service. That has left the appeal time for the December 15, 2017
judgment open. In May 2021, Perry filed a “Motion for Proper Notice” for Civ.R.
58(B) notice for the December 2017 judgment. The next month, he filed a motion
for findings of fact and conclusions of law for his 2017 postconviction relief petition.
On June 21, 2021, the respondent judge issued explicit findings of fact and
conclusions of law and made the required Civ.R. 58(B) endorsement for the June
2021 judgment. However, on appeal this court ruled that the findings of fact and
conclusions of law was a nullity because the trial court in 2017 had issued a judgment
denying the petition. Any error as to the form of that judgment could be raised on
appeal. Finally, the appeal time for the 2017 judgment has not commenced, because
the trial court did not make the required Civ.R. 58(B) endorsement. This court must
now resolve Perry’s mandamus action.
This court has ruled that the December 15, 2017 judgment is a final,
appealable order that resolves Perry’s 2017 postconviction relief petition; any
further effort to resolve the merits of the petition is a nullity. Accordingly, the trial
judge at this time has no authority to issue findings of fact and conclusions of law
for the 2017 postconviction relief petition. To the extent that Perry seeks the
respondent judge to issue findings of fact and conclusions of law for the petition, the
claim is not well founded. The court grants the respondent judge’s motion for
summary judgment and denies the writ of mandamus for the findings of fact and
conclusions of law claim. However, nothing in this opinion precludes Perry from
arguing on appeal that the trial court erred in not issuing findings of fact and
conclusions of law, and nothing in this opinion precludes this court from fully
addressing that issue and ordering appropriate relief.
However, the trial court never issued the Civ.R. 58(B) language for
the December 15, 2017 judgment; the time for filing an appeal has never begun to
run. Perry has filed two “Motions for Proper Service.” One has remained pending
since May 2021. State ex rel. Ford v. McClelland stated that filing such a motion,
and, if necessary, appealing the denial of such a motion, is an adequate remedy at
law that precludes mandamus. However, given the duty and right imposed by Civ.R.
58(B), the tortuous procedural posture of the case, and the desirability of resolving
this matter, this court in the exercise of its discretion issues the writ of mandamus
and orders the respondent judge to issue the Civ.R. 58(B) endorsement for the
December 15, 2017 judgment.
Accordingly, this court grants the respondent judge’s motion for
summary judgment in part and denies the writ of mandamus to issue findings of fact
and conclusions of law for the 2017 postconviction relief petition; it denies the
respondent judge’s motion for summary judgment in part and grants the writ of
mandamus for the respondent judge to issue the Civ.R. 58(B) direction for the
December 15, 2017 judgment entry. Each side to pay its own costs; cost waived. This
court directs the clerk of courts to serve all parties notice of the judgment and its
date of entry upon the journal as required by Civ.R. 58(B).
Writ granted in part and denied in part.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
LISA B. FORBES, J., and
MARY J. BOYLE, J., CONCUR