State ex rel. Perry v. Santoli

2023 Ohio 720

• Court: Ohio Court of Appeals
• Decided: March 7, 2023
• Docket: 112118
• Status: Published

Opinion

[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