State v. Perry

[Cite as State v. Perry, 2023-Ohio-3883.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 112548
v. :

DAVEION PERRY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 26, 2023

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, and Sarah E. Hutnik, Assistant Prosecuting
Attorney, for appellee.

Daveion Perry, pro se.

MARY EILEEN KILBANE, P.J.:

Defendant-appellant Daveion Perry, pro se, appeals from the trial

court’s December 2017 judgment denying his April 2017 motion for postconviction

relief. For the reasons that follow, we affirm.
Factual and Procedural History

Perry is serving a life sentence in prison without the possibility of

parole, a sentence that the trial court imposed after Perry pleaded guilty to

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.

This court previously summarized the events leading to Perry’s

convictions as follows:

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.
State ex rel. Perry v. Santoli, 8th Dist. Cuyahoga No. 112118, 2023-Ohio-720, ¶ 2–

3.

From there, the case developed “a very tortuous procedural

history” — id. at ¶ 19 — which has culminated (at least for now) in this appeal. This

court has described that history in detail, most recently in State ex rel. Perry v.

Santoli, 8th Dist. Cuyahoga No. 112118, 2023-Ohio-720 (“Perry IV”).

Our court dismissed Perry’s direct appeal from his convictions after his

appellate counsel moved to withdraw pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Perry filed his own brief in support of

that appeal, raising arguments primarily directed at an alleged jurisdictional defect

related to the Cleveland Heights Municipal Court.1 In dismissing the appeal, this

court reasoned that its own independent review showed that the trial court

conducted a thorough plea colloquy, that Perry’s trial counsel was effective, that the

trial court imposed the agreed prison sentence, and that there was no merit to

Perry’s jurisdictional arguments. State v. Perry, 8th Dist. Cuyahoga No. 105307,

2017-Ohio-7324 (“Perry I”).

1 Perry 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. Perry III, 8th Dist. Cuyahoga No. 112118, 2023-Ohio-720, at ¶ 4.
 In April 2017, while that direct appeal was pending, Perry filed the

motion at issue in this appeal. In the motion, styled as a “Petition to Vacate or Set

Aside Judgment of Conviction or Sentence,” Perry 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 was invalid

because it was signed in a municipal court that did have subject-matter jurisdiction

over the felony offense in violation of the Fourteenth Amendment.

The trial court denied the petition in May 2017, but this court reversed

and remanded the judgment based on a legal error in the court’s decision. See State

v. Perry, 8th Dist. Cuyahoga No. 105807, 2017-Ohio-8324 (“Perry II”).

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 the plea hearing and 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, the court denied the petition. The entry included a certificate of

service but did not have a Civ.R. 58(B) endorsement directing the clerk to serve the

entry upon all parties.

At the time, Perry did not appeal the trial court’s December 15, 2017

judgment entry denying his April 2017 motion for postconviction relief. But,

pursuant to App.R. 4(A), the time for filing an appeal from the judgment did not

begin to run because the formal Civ.R. 58(B) notice was never effected. See Perry

IV at ¶ 19.

On June 8, 2021, Perry moved for the entry of formal findings of fact

and conclusions of law for the denial of his 2017 postconviction-relief petition. 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

order purported to deny Perry’s April 2017 petition again.

Perry appealed that order, and this court held that the order denying

the petition again was a nullity because the trial court in 2017 had issued a final,

appealable order denying the petition and any error as to the form of that judgment

could be raised on appeal. State v. Perry, 8th Dist. Cuyahoga Nos. 110764 and

110954, 2022-Ohio-2132 (“Perry III”).

Perry then sought and received a mandamus from this court,

directing the trial court judge to issue the Civ.R. 58(B) endorsement for the

December 15, 2017 judgment denying Perry’s April 2017 postconviction motion.
Perry IV at ¶ 21–22. The trial court issued the Civ.R. 58(B) endorsement for the

order on March 8, 2023.

Perry now appeals the December 15, 2017 judgment denying his April

2017 postconviction motion. He raises the following four assignments of error:

I. The trial court erred and abused its discretion, violating Perry’s right
to due process pursuant to the Fourteenth Amendment of the United
States Constitution when the court failed to review Perry’s evidence
submitted with his timely petition for postconviction relief and failed
to grant an evidentiary hearing before the filing of the findings of fact
and conclusions of law.

II. Perry’s rights to due process and effective assistance of counsel were
violated when trial counsel failed to investigate and discover the
exculpatory information for the charge of aggravated murder, and for
advising Perry to plead guilty as charged to it.

III. Perry’s rights to due process and effective assistance of counsel
were violated when his trial counsel failed to investigate or discover the
exculpatory evidence dealing with the Dollar General robbery on the
night of October 16, 2016, failing to have the charges related to this
section deleted from the plea agreement and indictment, and having
Perry plead guilty to this charge.

IV. Perry’s rights to due process and effective assistance of counsel
were violated when trial counsel failed to investigate and discover the
exculpatory information for the two felonious assault charges against
the Cleveland Heights Police, and for allowing them to be part of the
plea agreement section.

The present litigation is far from Perry’s only attempt to undo his

guilty plea.

In 2017, Perry moved to withdraw his guilty plea. The trial court

denied the motion on res judicata grounds and Perry appealed. State v. Perry, 8th

Dist. Cuyahoga No. 106723, 2018-Ohio-4117, ¶ 7 (“Perry V”). In the motion, Perry

argued that (1) the trial court lacked jurisdiction to accept his plea; (2) the trial court
did not comply with Crim.R. 11 in accepting his plea; (3) his due process rights were

violated when he was compelled to enter into a plea agreement for offenses with

which he had not yet been charged; and (4) the state breached the agreement when

he was compelled to plead guilty to additional counts not contained in the written

agreement. Perry V at ¶ 8.

This court affirmed the denial of Perry’s motion, holding that res

judicata barred further consideration of those issues because “[a]ll of the arguments

that Perry raised in his motion to withdraw his plea were raised, considered, and

rejected in Perry’s direct appeal.” Id. at ¶ 11.

In August 2018, Perry filed another motion to vacate his plea. He

argued that his trial counsel was ineffective for many of the same reasons asserted

in the present litigation: counsel advised him to plead guilty within a day of being

retained, Perry was afraid that the state would pursue the death penalty for him,

counsel “coerced” him into pleading guilty, and counsel failed to object to

jurisdictional defects with the plea hearing. He argued that his counsel led him to

“hopelessly believ[e] * * * that a plea deal was his only option.”

The trial court denied the motion, and this court affirmed that

judgment on appeal. State v. Perry, 8th Dist. Cuyahoga No. 107596, 2019-Ohio-547

(“Perry VI”).

In January 2019, Perry filed a “motion to vacate conviction and

suppress evidence,” arguing among other things that his trial counsel had been

ineffective in failing to raise a Fourth Amendment challenge before his plea. The
trial court denied the motion, and this court affirmed that denial on appeal. State v.

Perry, 8th Dist. Cuyahoga No. 108258, 2019-Ohio-3668 (“Perry VII”).

This court has warned Perry on multiple occasions that his litigation

conduct put him at risk of being declared a vexatious litigator.2 See Perry VI, 8th

Dist. Cuyahoga No. 107596, 2019-Ohio-547, at ¶ 12; Perry VII, 8th Dist. Cuyahoga

No. 108258, 2019-Ohio-3668, at ¶ 8.

I. Law and Analysis

Assignment of Error I

The trial court erred and abused its discretion, violating Perry’s right to
due process pursuant to the Fourteenth Amendment of the United
States Constitution when the court failed to review Perry’s evidence
submitted with his timely petition for postconviction relief and failed
to grant an evidentiary hearing before the filing of the findings of fact
and conclusions of law.

Assignment of Error II

Perry’s rights to due process and effective assistance of counsel were
violated when trial counsel failed to investigate and discover the
exculpatory information for the charge of aggravated murder, and for
advising Perry to plead guilty as charged to it.

2 In addition to the cases discussed above, we note that Perry has filed numerous

mandamus actions in this court related to his criminal case. See State ex rel. Perry v.
McClelland, 8th Dist. Cuyahoga No. 107535, 2019-Ohio-354 (mandamus action seeking
to compel the trial court judge to issue a new sentencing journal entry and arguing that
the original sentencing entry was not a final, appealable order); State ex rel. Perry v.
Byrd, 8th Dist. Cuyahoga No. 109006, 2020-Ohio-34; State ex rel. Perry v. O’Malley, 8th
Dist. Cuyahoga No. 109088, 2020-Ohio-1291, ¶ 5–6; State ex rel. Perry v. Cleveland Hts.
Mun. Clerk of Courts, 8th Dist. Cuyahoga No. 109916, 2020-Ohio-5193, ¶ 17; State ex rel.
Perry v. Santoli, 8th Dist. Cuyahoga No. 110713, 2021-Ohio-3354. Additionally, Perry
filed and then voluntarily dismissed two other matters in this court. State v. Perry, 8th
Dist. Cuyahoga No. 107470, Motion No. 519932 (Aug. 6, 2018); State ex rel. Perry v.
O’Malley, 8th Dist. Cuyahoga No. 111447, Motion No. 557103 (Aug. 10, 2022).
 Assignment of Error III

Perry’s rights to due process and effective assistance of counsel were
violated when his trial counsel failed to investigate or discover the
exculpatory evidence dealing with the Dollar General robbery on the
night of October 16, 2016, failing to have the charges related to this
section deleted from the plea agreement and indictment, and having
Perry plead guilty to this charge.

Assignment of Error IV

Perry’s rights to due process and effective assistance of counsel were
violated when trial counsel failed to investigate and discover the
exculpatory information for the two felonious assault charges against
the Cleveland Heights Police, and for allowing them to be part of the
plea agreement section.

We consider Perry’s assignments of error together because they are

intertwined. Through them, Perry argues that he is entitled to relief under

R.C. 2953.21(A) because he has presented evidence outside of the record that his

counsel was ineffective and his plea was therefore not valid. He also argues that the

trial court should have granted a hearing on his petition.

Even now, Perry continues to admit that he planned to rob Mr. Hero

on October 14, 2016, that he followed through on that plan, and that he shot a

fifteen-year-old child to death during the robbery. He further admits that, in

exchange for his agreement to plead guilty to the indictment in this case, the state

agreed to recommend a sentence of life imprisonment without the possibility of

parole, as opposed to seeking the death penalty for him.

Perry argues that his motion for postconviction relief should have

been granted because his counsel allegedly coerced him into pleading guilty by

stating — before Perry was formally charged and before discovery was
completed — counsel’s belief that Perry would be convicted if he went to trial and

receive the death penalty if convicted. Perry further alleges that this lawyer failed to

investigate potential defenses and told him that his family could not afford counsel’s

services if the matter went to trial and therefore would have to find other

representation unless Perry pleaded guilty. Perry supported his motion for

postconviction relief with unsworn letters from his mother, his girlfriend, and

himself.

As this court has previously stated:

“[C]ourts are not required to hold a hearing in every postconviction
case.” State ex rel. Madsen v. Jones, 106 Ohio St.3d 178, 2005-Ohio-
4381, 833 N.E.2d 291, ¶ 10 (citations omitted). Before granting a
hearing on a petition for postconviction relief, “the court shall
determine whether there are substantive grounds for relief.” R.C.
2953.21(D). “In making such a determination, the court shall consider,
in addition to the petition, the supporting affidavits, and the
documentary evidence, all the files and records pertaining to the
proceedings against the petitioner * * *.” Id.

State v. McFeeture, 8th Dist. Cuyahoga No. 108434, 2020-Ohio-801, ¶ 11.

We review a trial court’s decision on postconviction relief for an abuse

of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77,

¶ 45. The term abuse of discretion connotes more than an error of law or judgment;

it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983); Johnson v.

Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463.

A trial court does not abuse its discretion in denying a petition for

postconviction relief without a hearing if (1) the petitioner fails to set out sufficient
operative facts to establish substantive grounds for relief, or (2) the operation of res

judicata prohibits the claims made in the petition. State v. Curry, 8th Dist.

Cuyahoga No. 108088, 2019-Ohio-5338, ¶ 15, citing State v. Abdussatar, 8th Dist.

Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 15.

After a careful review of Perry’s petition, the exhibits submitted in

support of the motion, and the files and records pertaining to the proceedings

against Perry, we find that the trial court acted within its discretion in denying

Perry’s motion without a hearing.

As an initial matter, many of the claims Perry raised in the motion

were waived by his plea or are barred in the present appeal by res judicata or the

law-of-the-case doctrine.

“When a defendant enters a guilty plea, they generally waive all

appealable errors that may have occurred unless those errors are shown to have

precluded the defendant from entering a knowing and voluntary plea.” State v.

Jabbaar, 8th Dist. Cuyahoga No. 98218, 2013-Ohio-2897, ¶ 5; State v. Milczewski,

8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5; State v. Kelley, 57 Ohio St.3d

127, 566 N.E.2d 658 (1991), paragraph two of the syllabus.

“The doctrine of res judicata bars someone from raising a claim that

could have been raised and litigated in a prior proceeding.” State v. Blanton, 171

Ohio St.3d 19, 2022-Ohio-3985, 215 N.E.3d 467, ¶ 2. “[T]he law-of-the-case

doctrine states that ‘“the decision of a reviewing court in a case remains the law of

that case on all legal questions involved for all subsequent proceedings in the case
at both the trial and reviewing levels.”’” (Emphasis added in Breaux.) State ex rel.

Cherry v. Breaux, 169 Ohio St.3d 376, 2022-Ohio-1885, 205 N.E.3d 450, ¶ 9,

quoting Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329,

¶ 15, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984).

Because Perry pleaded guilty, he waived the arguments that (1) the

Cleveland Heights police issued an invalid search warrant, used excessive force, and

conducted an unlawful arrest in violation of the Fourth Amendment and (2) the trial

court failed to review a case file that was delivered to the court prior to sentencing.

He also waived the arguments that (1) the $1,000,000 bail set for him

violated the Eighth Amendment and (2) the Cleveland Heights police “den[ied] him

access to his family until after the plea agreement was signed.” Nevertheless, we

continue to consider these latter arguments in deciding whether Perry’s plea was

voluntary. Additionally, all four of these arguments could have been raised in the

direct appeal, and they are therefore also barred by res judicata.

Perry’s argument that the plea agreement was invalid because it was

signed in a municipal court that did not have subject-matter jurisdiction over the

felony offense was raised and decided against him in the direct appeal. Perry I, 8th

Dist. Cuyahoga No. 105307, 2017-Ohio-7324, at ¶ 12. Thus, this argument is barred

by res judicata and the law-of-the-case doctrine.

Similarly, his argument that he was induced into signing a plea

agreement before being indicted and before a complaint was issued, in violation of
the Fifth Amendment, could have been raised and decided in the direct appeal.

Thus, the argument is barred by res judicata.

After setting aside these arguments, Perry’s petition raises claims of

ineffective assistance of counsel. Specifically, he argues that he received ineffective

assistance of trial counsel because counsel did not investigate potential defenses and

induced Perry to accept the plea agreement in violation of the Sixth Amendment.

“A claim of ineffective assistance of counsel is generally waived by a

guilty plea, except to the extent that the ineffective assistance of counsel caused the

defendant’s plea to be less than knowing and voluntary.” State v. Slater, 8th Dist.

Cuyahoga No. 111536, 2023-Ohio-608, ¶ 55 (collecting cases).

Perry alleges that his trial attorney “compelled” him to accept the plea

agreement (1) without investigating an alibi defense, (2) “with repeated statements

of ‘losing trial and receiving the death penalty,’” and (3) without adequately

explaining the charges to him “[n]or did he explain the lower and lesser-included

offenses that Perry could have been convicted of * * *.”

We agree with the trial court that Perry’s petition failed to set out

sufficient operative facts to establish substantive grounds for relief, and we therefore

conclude that it was not an abuse of discretion to deny the petition without a hearing.

As an initial matter, Perry supported his arguments with three

written, unsworn letters, among other things. While these documents are styled as

“affidavits” and each bears a notary’s signature, they do not contain notarial

certificates indicating that the statements were made under oath or affirmation. An
affidavit is “a written declaration under oath, made without notice to the adverse

party.” (Emphasis added.) R.C. 2319.02. Because the statements contain no

indication that they were made under oath or affirmation, we presume that they

were unsworn. See Ma v. Gomez, 2023-Ohio-524, 209 N.E.3d 178, ¶ 4, fn.1 (8th

Dist.); State v. Beckwith, 8th Dist. Cuyahoga No. 106479, 2018-Ohio-2227, ¶ 16,

quoting Pinkney v. Southwick Invests., L.L.C., 8th Dist. Cuyahoga Nos. 85074 and

85075, 2005-Ohio-4167, ¶ 23 (“‘[A] notary’s signature and seal are not a substitute

for the formal swearing to the truth by the affiant when such is required for

verification.”).

“Unsworn letters are not admissible and should not be considered as

part of a petition for postconviction relief.” State v. Wilson, 8th Dist. Cuyahoga No.

98033, 2012-Ohio-4065, ¶ 8; see also State v. Miller, Slip Opinion No. 2023-Ohio-

3448 (Kennedy, C.J., concurring in judgment only), ¶ 28–30 (reasoning that where

a petitioner supported his petition with only an unsworn statement, he “failed to

produce sufficient evidence to enable the trial court to determine whether there were

substantive grounds for relief to grant a hearing”).

Because Perry did not submit evidentiary documents containing

sufficient operative facts to demonstrate that his counsel was ineffective and that he

was prejudiced by that ineffectiveness, the trial court acted within its discretion by

denying the petition without a hearing. See State v. Jackson, 64 Ohio St.2d 107, 413

N.E.2d 819 (1980), syllabus.
 We also note that this court has already found that Perry’s trial

counsel was effective. In the direct appeal, Perry’s appellate counsel presented three

potential issues for Anders review, including that “the conduct of trial counsel

denied Perry his right to effective assistance of counsel.” Perry I, 8th Dist. Cuyahoga

No. 105307, 2017-Ohio-7324, ¶ 10. After independently reviewing the record, this

court found that “trial counsel was effective.” Id. at ¶ 11.

Even if Perry’s argument is not barred by res judicata, and even if we

were to consider the unsworn statements attached to his petition, we would affirm.

Perry’s argument that his trial counsel failed to investigate an alibi

defense to the aggravated-murder charge is meritless. His mother wrote that Perry

was “help[ing] out at my restaurant” from 3 p.m. to 9 p.m. on October 14, 2016.

Perry seems to suggest that this statement presents an alibi for the Mr. Hero murder,

which occurred at around 7:50 p.m. that day. But in this appeal, Perry admits that

he committed that robbery and shot the boy to death while doing so. He admits “to

acting reckless with a gun” and “being the cause of [the 15-year-old’s] death.” Far

from showing that trial counsel was ineffective, the fact that Perry’s mother vouched

for his whereabouts at the time of the shooting only diminishes the credibility of her

statement. Perry cannot possibly show that he was prejudiced by counsel’s failure

to investigate an alibi defense that he himself admits is not true.

Perry’s argument that his trial counsel coerced him into pleading

guilty by leveraging the death penalty against him also fails. “[C]ounsel is strongly

presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Strickland v. Washington,

466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674. The description of counsel’s

advice contained in the unsworn statements attached to his petition amount to

defense counsel explaining — albeit in very strong terms — his professional opinion

about the likely and dire result of a decision to forego a plea and proceed to trial.

Sharron Weatherless wrote that “[t]he lawyer * * * said that Daveion

would get the death penalty if he did not take a plea. He also told us that he and the

detectives had convinced Daveion to take a deal because it would save his life, he

also expressed his disbelief that Daveion actually was guilty.”

Serina Perry wrote that “[the attorney] told myself, my daughter, and

Daveion’s girlfriend that even though Daveion wanted to fight the case, they

convinced him to a plea deal. He stated that Daveion would get the death penalty if

he fought the case. He also let us [know] that if we had enough money he would help

fight the case, but we were unable to pay the amount of money he was asking for, he

informed us that someone else would have to take the case. Because our attorney

was not willing to try the case there was no actual counsel and no effective way to

fight the charges.”

Perry wrote that his attorney told him that “my family can’t afford his

assistance, and that you get what you pay for.” The attorney also “stated to me that

he would not help me in trial, that I would lose trial and get the death penalty and

would die before I’m able to appeal, and re-fight the case.” He also “told me that if

I don’t take the plea they would indict my girlfriend Sharron Weatherless.”
 Considering that the Mr. Hero murder was captured on camera, that

Perry admits to being the shooter, and that it is undisputed that the state only agreed

to forego the death penalty in exchange for Perry’s plea, we cannot say that Perry

has overcome the presumption that trial counsel’s advice was given in the exercise

of reasonable professional judgment. The prosecutor stated at Perry’s arraignment

that the state “had an open and frank discussion” with counsel and “provided him

full information of everything that we knew to that point in time” before the plea

agreement was executed. Moreover, Perry acknowledges that at the time of his plea

he was scared that the state was pursuing the death penalty for him. Because the

state only agreed to take the death penalty off the table in exchange for Perry’s plea,

he cannot “show that there is a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going to trial.” State

v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 89.

Counsel’s alleged statement that Perry would have to secure

alternative representation if he went to trial because counsel’s fee for representing

him through trial would be beyond the means of his family is not coercive. Even

taking these unsworn statements as true, counsel merely explained the cost of his

services through trial and had a frank discussion that Perry could not afford those

services. He explained that Perry could secure other representation if he wanted to

proceed to trial.
 We see no reason to conclude that Perry’s plea was coerced, even

considering the short time between his arrest and the time he signed the plea

agreement, the circumstances of his detainment, and the bail set in his case.

Finally, Perry’s argument that his trial counsel did not adequately

investigate or explain the charges against him is not well-taken. Perry says that his

trial counsel did not advise him that, to be convicted of aggravated murder, the state

would have to prove that he purposefully killed the boy during the robbery. He says

that his defense would have been that he did not intend to kill the boy, but rather

fired a “warning shot” at the boy during the robbery that ended up killing him. He

further argues that defense counsel should have advised him not to plead guilty to

aggravated robbery of the Dollar General store and to the felonious-assault counts

because he did not actually steal anything from that store or point or fire his gun at

officers attempting to arrest him.

The plea agreement that Perry signed specifically stated that Perry

agreed to plead guilty to aggravated murder and states that Perry “did purposely

cause the death of another.” The agreement specifically stated that Perry committed

aggravated robbery by having a deadly weapon on his person “in attempting or

committing a theft offense.” (Emphasis added.) The agreement also identified the

elements of the felonious-assault charges. Perry received a copy of the indictment,

which mirrored this charging language, and his counsel indicated on the record that

he reviewed it with Perry and that Perry understood it. Perry answered “Yes” when

asked whether he “had sufficient time to discuss this thoroughly with [defense
counsel], understanding your rights and what is going on here.” He answered “No”

when asked whether any threats or promises other than those set forth in the plea

agreement had been made that caused him to agree to plead guilty.

The unsworn, self-serving statements attached to Perry’s petition do

not set out sufficient operative facts, in light of the record and the trial court’s

thorough Crim.R. 11 colloquy, to establish that his counsel’s advice prior to the plea

made his guilty plea less than knowing and voluntary. Additionally, because Perry

was admittedly primarily concerned with avoiding the possibility of receiving the

death penalty, he has not shown that there is a reasonable probability that, but for

counsel’s alleged errors with respect to the aggravated-robbery and felonious-

assault charges, he would not have pleaded guilty and would have insisted on going

to trial. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 89.

Moreover, while Perry says that a lesser-included offense to

aggravated murder would fit the facts better, there is no guarantee that he would

have been able to plead to a lesser-included offense. Indeed, the prosecutor and

defense counsel agreed at the arraignment that there had been no plea offer made

except the offer that Perry could plead straight-up to the indictment in exchange for

an agreed sentence of life in prison without parole. In other words, Perry again

cannot “show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Ketterer

at ¶ 89.
 Perry’s arguments in support of his petition for postconviction relief

were waived by his guilty plea, barred by res judicata or the law-of-the-case doctrine,

or substantively meritless. We cannot say that the denial of his petition, even

without a hearing, was an abuse of discretion.

Before concluding, we address one final argument Perry raised — that

the trial court erred by failing to issue findings of fact and conclusions of law when

it denied Perry’s petition in December 2017. A trial court must make findings of fact

and conclusions of law to support its denial of a postconviction petition if it finds no

grounds for granting relief. E.g., State v. McGraw, 8th Dist. Cuyahoga No. 97839,

2012-Ohio-3692, ¶ 18. Here, the trial court issued a four-page decision when it

denied his petition. The court thereafter issued formal findings of fact and

conclusions of law in 2021, in response to Perry’s motion for the issuance of findings

and conclusions. While this court held that the trial court did not have jurisdiction

in 2021 to issue a new final, appealable order denying Perry’s April 2017

petition — Perry III, 8th Dist. Cuyahoga Nos. 110764 and 110954, 2022-Ohio-2132,

¶ 19–20 — we may properly consider those 2021 findings and conclusions in

considering Perry’s present appeal. Even if a trial court fails to issue findings of fact

and conclusions of law initially, the court retains jurisdiction to issue such findings

and conclusions to explain their judgment. See McGraw at ¶ 18. Put differently, the

trial court had jurisdiction in 2021 to explain its December 2017 denial of the

petition; it did not have jurisdiction to deny the motion again in 2021. Because the
trial court issued findings of fact and conclusions of law supporting its denial of

Perry’s petition, there is no reason to remand here.

We, therefore, overrule Perry’s assignments of error.

II. Conclusion

Having overruled Perry’s assignments of error for the reasons stated

above, we affirm.

It is ordered that the appellee recover from the appellant the costs herein

taxed.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas 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.

_________________________
MARY EILEEN KILBANE, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR