[Cite as State v. Holloway, 2023-Ohio-3600.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
JERMAILL HOLLOWAY,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0110
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2016 CR 1351
BEFORE:
Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Gina DeGenova, Mahoning County Prosecutor and Atty. Edward A. Czopur,
Assistant Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee
Jermail Holloway, Pro se, Inmate No. A693841, Lake Erie Correctional Institution, 501
Thompson Rd., Conneaut, Ohio 44030, Defendant-Appellant
Dated: September 29, 2023
–2–
WAITE, J.
{¶1} Appellant Jermaill Holloway appeals a September 30, 2022 judgment of the
Mahoning County Court of Common Pleas denying his postconviction petition as
untimely. Because Appellant untimely filed his petition, his arguments are without merit
and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} The facts of this matter were discussed in Appellant’s recent appeal:
On December 1, 2016, Appellant was indicted on two counts of murder,
felonies of the first degree in violation of R.C. 2903.02(A)(D), (B)(D); one
count of improper discharge of a firearm at or into habitation, a felony of the
second degree in violation of R.C. 2923.161(A)(1), (D); eight counts of
felonious assault, felonies of the second degree in violation of R.C. 2903.11
(A)(2), (D). All counts were accompanied by a firearm specification
pursuant to R.C. 2941.145(A). The indictment stemmed from an incident
on March 20, 2016 where Appellant was asked to leave a house after an
argument over a video game. (3/9/17 Sentencing Hrg. Tr., p. 8.) Apparently,
the argument continued, leading both Appellant and the victim to fire shots
at one another. (3/9/17 Sentencing Hrg. Tr., p. 9.) According to witnesses,
the victim fired from inside the house and Appellant fired from outside of the
house.
On March 8, 2017, Appellant pleaded guilty to an amended charge of
voluntary manslaughter, a felony of the first degree in violation of R.C.
Case No. 22 MA 0110
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2903.03(A)(C), and all eight counts of felonious assault. The remaining
murder charge and the sole count of improper discharge of a firearm were
dismissed. (3/8/17 Plea Agreement.)
On March 9, 2017, the trial court sentenced Appellant to an aggregate total
of fifteen years of incarceration. On March 10, 2017, Appellant wrote a letter
to the trial court which was construed as a motion to withdraw his plea. After
a hearing on the matter, the court denied the motion. Appellant's timely
direct appeal followed in State v. Holloway, 7th Dist. Mahoning No. 17 MA
0048, 2018-Ohio-5393 (“Holloway I”). In Holloway I, Appellant raised
assignments of error pertaining to his guilty plea, his sentence, the trial
court's decision to deny his motion to withdraw his plea, and the
effectiveness of his trial counsel. We affirmed the judgment of the trial court.
Id. at ¶ 55.
Appellant subsequently filed an application to reopen his appeal based on
his appellate counsel's representation. He claims that counsel failed to
challenge the trial court's denial of his motion to withdraw his plea or to
challenge the voluntariness of his plea. He alleges counsel was also
deficient in failing to raise as error his lack of an evidentiary hearing on these
claims prior to sentencing. Additionally he urges that appellate counsel
should have raised prosecutorial misconduct as an assignment of error in
his direct appeal. State v. Holloway, 7th Dist. Mahoning No. 17 MA 0048,
2019-Ohio-1575 (“Holloway II”). We denied the application.
Case No. 22 MA 0110
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On November 20, 2020, Appellant filed a second motion to withdraw his
guilty plea. In this motion he raised seven claims: trial counsel's failure to
adequately investigate the charge and prepare for trial, prosecutorial
misconduct for failing to provide exculpatory evidence, the withholding of
evidence of a second shooter, counsel's allegedly erroneous statement that
self-defense is not available in Ohio, and an alleged breach of a plea
agreement by the state. On March 18, 2021, the trial court denied the
motion. Appellant now appeals this entry.
State v. Holloway, 7th Dist. Mahoning No. 21 MA 0035, 2022-Ohio-1459, ¶ 2-6 (“Holloway
III”).
{¶3} Subsequently, on July 15, 2022, Appellant filed a “Motion to Vacate or Set
Aside Judgment of Conviction or Sentence,” which the trial court construed as a
postconviction petition. On August 9, 2022, the trial court denied the motion. Thereafter,
on September 30, 2022, the trial court filed a nunc pro tunc entry correcting a date
contained within its prior judgment entry. It is from this entry that Appellant timely appeals.
Non-Conforming Brief
{¶4} In his brief, Appellant has violated several of the appellate rules. App.R.
19(A)(2) requires an appellant to provide “[a] table of cases alphabetically arranged,
statutes, and other authorities cited, with references to the pages of the brief where cited.”
While Appellant set out a “Case Law” section, this section contains no actual case or
statutory law.
{¶5} App.R. 16(A)(7) requires “[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for review and the reasons
Case No. 22 MA 0110
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in support of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies. The argument may be preceded by a summary.” Eight
of Appellant’s ten assignments of error solely provide a heading, but include no law,
relevant facts, or argument. The remaining two assignments fail to cite any case or
statutory law and merely present conclusory statements. Thus, Appellant’s brief fails to
conform to the requirements of the appellate rules. Even though these violations are
grounds for dismissal, in the interest of fairness and justice we will attempt to address
Appellant’s concerns.
Postconviction Petition
{¶6} In order to successfully assert a postconviction petition, “the petitioner must
demonstrate a denial or infringement of his rights in the proceedings resulting in his
conviction sufficient to render the conviction void or voidable under the Ohio or United
States Constitutions.” State v. Agee, 7th Dist. Mahoning No. 14 MA 0094, 2016-Ohio-
7183, ¶ 9, citing R.C. 2953.21(A)(1).
{¶7} The petitioner bears the burden of demonstrating “substantive grounds for
relief” through the record or any supporting affidavits. Agee at ¶ 9. However, as a
postconviction petition does not provide a forum to relitigate issues that could have been
raised on direct appeal, res judicata bars many claims. Agee at ¶ 10.
Timeliness
{¶8} R.C. 2953.21(A)(2) requires a petitioner to file a petition within one year
after the trial transcripts are filed in the court of appeals. In relevant part, R.C.
2953.21(A)(2) provides that a postconviction petition:
Case No. 22 MA 0110
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[S]hall be filed no later than three hundred sixty-five days after the date on
which the trial transcript is filed in the court of appeals in the direct appeal
of the judgment of conviction[.] * * * If no appeal is taken, except as
otherwise provided in section 2953.23 of the Revised Code, the petition
shall be filed no later than three hundred sixty-five days after the expiration
of the time for filing the appeal.
{¶9} Ohio law provides a two-part exception to this rule if the petitioner can
demonstrate that he or she meets the criteria found in R.C. 2953.23(A)(1)(a)-(b).
Pursuant to R.C. 2953.23(A)(1)(a), the petitioner must either show that he: “was
unavoidably prevented from discovery of the facts upon which [he] must rely to present
the claim for relief, or, * * * the United States Supreme Court recognized a new federal or
state right that applies retroactively to persons in the petitioner's situation, and the petition
asserts a claim based on that right.”
{¶10} Appellant’s trial transcripts were filed in this Court on June 27, 2017. His
instant petition was filed on July 7, 2022, well beyond the established deadline. Appellant
attempts to explain his tardiness by arguing that his appellate counsel erroneously
advised he was barred from filing any postconviction petition because he pleaded guilty.
Appellant claims he learned that advice was erroneous, when this Court informed him in
an appellate opinion in Holloway III that some of his claims were more appropriately raised
in a postconviction petition.
{¶11} The law governing such petitions clearly provides only two exceptions to the
timeliness requirement: (1) a showing that Appellant was unavoidably prevented from
discovering the fact on which he relies, or (2) that the United States Supreme Court
Case No. 22 MA 0110
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created a new federal or state law that applies retroactively to Appellant. Appellant
concedes that he was aware of the facts on which he relies in this petition at the time of
trial, and that he has not alleged any new federal or state law that applies to his case. As
Appellant recognizes neither exception to the deadlines to file a postconviction petition
apply, Appellant’s petition is untimely.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION BY FAILING TO
ISSUE FINDINGS OF FACT AND CONCLUSIONS OF LAW IN DENYING
APPELLANTS [SIC] POST CONVICTION RELIEF PETITION.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRORED [SIC] BY DENYING APELLANTS [SIC]
POST CONVICTION RELIEF PETITION BECAUSE APPELLANT
SATISFIED R.C. 2953.23(A)(1)(a). IN EXCUSING SUCH A DELAY IN
FILING THE PETITION.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED BY DENYING APPELLANTS [SIC] PCP
PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED IN
CLAIM NUMBER THREE ADEQUATE EVIDENCE THAT HE WAS
DEPRIVED OF HIS 6TH AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL BY HIS COUNSELS [SIC] FAILURE TO
INVESTIGATE THE CASE AND FILE A MOTION TO DISMISS THE
Case No. 22 MA 0110
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INDICTMENT DUE TO THE POLICE VIOLATING HIS DUE PROCESS
RIGHTS BY TAMPERING WITH EVIDENCE AND MAKING A FALSE
POLICE REPORT TO SECURE AN INDICTMENT ON APPELLANT.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED BY DENYING APELLANTS [SIC] PCR
PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED
ADEQUATE EVIDENCE THAT HE WAS DEPRIVED OF HIS 6 TH
AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY
HIS COUNSELS [SIC] FAILURE TO ADEQUATELY VISIT APPELLANT
AND PREPARE FOR TRIAL.
ASSIGNMENT OF ERROR NO. 7
THE TRIAL COURT ERRED BY DENYING APPELLANTS [SIC] PCR
PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED IN
CLAIM NUMBER FOUR HE WAS DEPRIVED OF HIS 6TH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY HIS COUNSELS
[SIC] FAILURE TO ADEQUATELY VISIT APPELLANT AND PREPARE
FOR TRIAL.
ASSIGNMENT OF ERROR NO. 8
THE TRIAL COURT ERRED BY DENYING APPELLANTS [SIC] PCR
PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED HE
Case No. 22 MA 0110
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WAS DEPRIVED OF HIS 6TH AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
ASSIGNMENT OF ERROR NO. 9
THE TRIAL COURT ERRED BY DENYING APPELLANTS [PCR]
PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED THAT
HE WAS DEPRIVED OF HIS 6TH AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL IN CLAIM NUMBER SIX.
ASSIGNMENT OF ERROR NO. 10
THE TRIAL COURT ERRED BY DENYING APPELLANTS [PCR]
PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED THAT
HIS 6TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL WAS DEPRIVED IN CLAIM NUMBER SEVEN.
{¶12} As earlier discussed, Appellant has presented nothing more than a heading
for these assignments. He provides no facts, no law, and raises no arguments. As we
are thus unable to review these issues, Appellant’s first, second, fourth, fifth, seventh,
eighth, ninth, and tenth assignments of error are without merit and are overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED BY DENYING APELLANTS [SIC] POST
CONVICTION RELIEF PETITION ABSENT A HEARING BECAUSE
APPELLANT SHOWED ADEQUATE EVIDENCE IN CLAIM NUMBER
Case No. 22 MA 0110
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ONE THAT HE WAS DEPRIVED OF HIS 6TH AMENDMENT RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL.
ASSIGNMENT OF ERROR NO. 6
THE TRIAL COURT ERRED BY DENYING APELLANTS [SIC] PCR
PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED THAT
HE WAS DEPRIVED OF HIS 6TH AMENDMENT TO EFFECTIVE
ASSISTANCE OF COUNSEL BY HIS COUNSELS [SIC] FAILURE TO
INVESTIGATE THE CASE AND FILE A MOTION TO DISMISS THE
INDICTMENT.
{¶13} Instead of addressing the errors alleged in these assignments, Appellant
actually argues ineffective assistance of counsel. Regardless, “[t]he requirement that a
post-conviction petition be filed timely is jurisdictional. State v. Peyatt, 7th Dist. Monroe
No. 21 MO 0001, 2021-Ohio-3310, ¶ 12, citing R.C. 2953.23(A). Where a postconviction
petition is untimely filed, a trial court lacks jurisdiction to hold a hearing. Id. at ¶ 15, citing
R.C. 2953.21(F). Thus, Appellant’s third and sixth assignments of error are without merit
and are overruled.
Conclusion
{¶14} Appellant argues that he did not realize he was eligible to file a
postconviction petition and so was unable to timely file his petition. Because timely filing
is jurisdictional and Appellant acknowledges neither of the two exceptions apply, his
arguments are without merit and the judgment of the trial court is affirmed.
Case No. 22 MA 0110
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Robb, J. concurs.
D’Apolito, P.J., concurs.
Case No. 22 MA 0110
[Cite as State v. Holloway, 2023-Ohio-3600.]
For the reasons stated in the Opinion rendered herein, Appellant’s assignments of
error are overruled and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.