2016 Ohio 4582
Ohio Ct. App.2016Background
- Jason Perry was convicted by a jury of aggravated burglary (first-degree felony) for remaining in the victim Jennifer Crider’s residence and causing physical harm; acquitted of abduction and disrupting public services. The conviction was upheld on direct appeal.
- Perry filed a petition for post-conviction relief alleging ineffective assistance of trial counsel and due-process violations because counsel failed to call witnesses who would have shown Perry cohabitated with Crider, negating the trespass element of aggravated burglary.
- Perry attached multiple affidavits (including his own, friends, family, and a supervisor) and documentary exhibits (change-of-address correspondence, utility/lease-related documents, and an affidavit from a mover) to his original and amended petitions.
- The State moved for summary judgment and to strike the amended petition, arguing res judicata, hearsay, self-serving statements, lack of authentication, and that the affidavits contradicted trial evidence.
- The trial court found Perry’s proffered affidavits and documents were inadmissible, lacked cogency or credibility, and conflicted with trial testimony (victim and roommate said Perry did not live there). The court denied an evidentiary hearing and granted summary judgment for the State.
- This Court affirmed, concluding Perry failed to present operative, admissible evidence creating a genuine issue of material fact on ineffective assistance or due-process claims; a dissent would have held a hearing was warranted given the affidavits contradicting trial testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perry’s post-conviction petition raised substantive grounds to require an evidentiary hearing on ineffective assistance of counsel for failing to call witnesses about cohabitation | Perry: affidavits and documents show he lived with Crider; counsel’s failure to present them was deficient and prejudicial because it negates trespass element | State: affidavits are hearsay, self-serving, unauthenticated, biased, and conflict with trial evidence; no genuine factual dispute; counsel cannot be faulted for facts not in evidence | Held: No. Court found affidavits/documents not sufficiently admissible or credible to create a genuine issue; summary judgment for State affirmed |
| Whether res judicata barred Perry’s post-conviction ineffective-assistance claim | State: claim should have been raised on direct appeal | Perry: proffered extrinsic evidence not in trial record defeats res judicata | Held: Res judicata does not bar claims supported by evidence outside the trial record, but Perry still failed on the merits due to lack of admissible/cogent evidence |
| Whether Perry was denied due process or an opportunity to be heard at trial | Perry: exclusion of witnesses deprived him of procedural and substantive due process | State: Perry had full trial and opportunity; nothing in petition shows denial of notice/hearing | Held: No due-process violation shown; trial record demonstrates Perry had opportunity and jury rejected cohabitation claim |
| Whether claim of "actual innocence" alone entitles Perry to relief | Perry: asserts actual innocence | State: actual innocence alone is not a constitutional claim | Held: Actual innocence is not by itself a constitutional claim (citing Herrera); not a basis for relief |
Key Cases Cited
- Calhoun v. United States, 86 Ohio St.3d 279 (Ohio 1999) (post-conviction petitioners must present operative facts sufficient to merit a hearing; courts may judge affidavit credibility)
- Cole v. State, 2 Ohio St.3d 112 (Ohio 1982) (post-conviction relief is collateral and not an automatic right to a hearing)
- Herrera v. Collins, 506 U.S. 390 (U.S. 1993) (a claim of actual innocence is not by itself a constitutional claim)
- Stanton v. State Tax Commission, 114 Ohio St. 658 (Ohio 1926) (notice and opportunity to be heard are fundamental elements of due process)