State v. Perry
2013 Ohio 4466
Ohio Ct. App.2013Background
- Perry was convicted in 2008 of two counts of aggravated murder and related offenses and sentenced to 66 years to life.
- On direct appeal, this court vacated the sentence as void for improper post-release control and remanded for resentencing.
- On remand, the trial court again sentenced Perry to 66 years to life.
- Perry’s second appeal challenged self-representation, the court’s self-defense instruction, and ineffective assistance of counsel; the court affirmed in 2011.
- Perry filed a late post-conviction relief petition on November 7, 2012, asserting missing record items hindered direct-appeal review and claiming unavoidably discovered facts; the petition was deemed untimely and denied.
- The trial court denied the PCR petition; Perry appeals, consolidating four assignments of error challenging the denial and lack of hearings, findings, counsel, and procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PCR petition was properly heard given untimeliness | Perry argued unavoidably prevented discovery rendered timely by able missing records | State argued untimely and no exception satisfied | Untimely petition barred; no jurisdiction to address merits |
| Whether the trial court erred by denying without a hearing | Perry contends a hearing was needed to assess his untimely claim | Court properly denied untimely petition without a hearing | No error; untimely PCR can be denied without a hearing |
| Whether the court should have issued findings of fact and conclusions of law | Perry seeks findings and conclusions on denial | No requirement to issue findings for untimely petitions | Correct to deny without findings of fact and conclusions of law |
| Whether appointment of counsel was required for the PCR petition | Perry argues right to counsel to aid with PCR | No constitutional right to counsel in PCR proceedings | No appointment required; court properly denied |
Key Cases Cited
- State v. Cleveland, 2009-Ohio-397 (9th Dist. Lorain No. 08CA009406) (abuse of discretion standard for PCR when not purely legal ruling)
- State v. Samuels, 2009-Ohio-1217 (9th Dist. Summit No. 24370) (de novo review when decision rests on legal issue)
- State v. Elkins, 2003-Ohio-4522 (9th Dist. Summit No. 21380) (untimely petition may be denied without a hearing)
- State v. Porter, 2013-Ohio-1163 (9th Dist. Summit No. 26169) (no requirement to issue findings of fact and conclusions of law for untimely petitions)
- State v. Smith, 2009-Ohio-1497 (9th Dist. Summit No. 24382) (no constitutional right to counsel in PCR proceedings)
- State v. Crowder, 1991-Ohio- (60 Ohio St.3d 151) (counsel rights in collateral proceedings)
- State v. Romanda, 2013-Ohio-1771 (9th Dist. Summit No. 26450) (res judicata effect on grounds raised in PCR)
- State v. Daniel, 2013-Ohio-3510 (9th Dist. Summit No. 26670) (R.C. 2953.23 requirements for untimely petitions and discovery rule)