[Cite as State v. Perry, 2016-Ohio-4582.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 26874 : v. : T.C. NO. 14CR292 : JASON E. PERRY : (Criminal appeal from : Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the ___24th___ day of _____June_____, 2016.
...........
MICHELE D. PHIPPS, Atty, Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DONALD GALLICK, Atty. Reg. No. 0073421, 190 North Union Street #102, Akron, Ohio 44304 Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
This matter is before the Court on the Notice of Appeal of Jason Perry, filed
October 22, 2015. Perry appeals from the September 24, 2015 “Decision, Order and
Entry Granting in part and Denying in part Respondent’s Motion to Strike Defendant’s
Amended Petition for Post-Conviction Relief; Denying Respondent’s Renewed Motion to -2-
Dismiss; and Granting Respondent’s Renewed Motion for Summary Judgment.” We
hereby affirm the judgment of the trial court.
By way of background, we note that this Court affirmed Perry’s conviction on
one count of aggravated burglary in State v. Perry, 2d Dist. Montgomery No. 26421, 2015-
Ohio-2181, wherein the relevant facts and course of proceedings were set forth as
follows:
On March 11, 2014, Perry was indicted for one count of aggravated
burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree; one
count of abduction in violation of R.C. 2905.02(A)(2), a felony of the third
degree; and one count of disrupting public services in violation of R.C.
2909.04(A)(3), a felony of the fourth degree. Perry pled not guilty to the
charges and a four-day jury trial was held on August 4 through August 7,
2014. At trial, the State presented testimony from the victim, Jennifer Crider,
who was Perry's girlfriend at the time of the alleged offenses. In addition,
the State presented testimony from Crider's friends, Jordan McClain and
Jason Farr, as well as Crider's father, Jeffrey Crider, and the investigating
police officer, Mark Allison.
Jennifer Crider testified that she and Perry met online in May 2013
through an online dating website. According to Crider, she later met Perry
in person in June 2013 and entered into a romantic relationship with him
after a few months of dating. Their relationship became more serious over
time; however, Crider, who lived with her two daughters and Jordan
McClain, testified that Perry did not reside with her or have a key to her -3-
home.
Continuing, Crider testified that at the end of December 2013, she
and Perry went on vacation to Gatlinburg, Tennessee, and then returned to
her home in West Carrollton, Ohio, on New Year's Eve. After they returned
to her house, Crider testified that they began drinking whiskey to celebrate
the New Year. Crider's two daughters were not at home that night, but
McClain and Jason Farr were there celebrating with Perry and Crider. As
part of the celebration, Crider testified that she had four or five half shots of
whiskey, whereas Perry had four to five full shots of whiskey and two large
glasses of whiskey and soda. During the course of their celebration, Crider
testified that Perry became drunk. Crider testified that Perry was acting very
happy and also strange, as he appeared to be flirting with McClain, who is
male. In addition, Crider testified that later on in the evening, Perry entered
the kitchen wearing only his boxer shorts, a t-shirt, and cowboy boots. At
that point in time, Farr was the only other person with them in the house,
and Crider testified that Farr left shortly thereafter.
Once McClain and Farr were gone, Crider testified that she and Perry
began to have sex in her bedroom. Crider explained that over the course of
their relationship, she and Perry had engaged in “rough sex,” which she
defined as pulling hair, biting, smacking, and scratching on certain areas.
She testified that on the night in question, she and Perry engaged in some
of these activities, but claimed that the sex was not physically rough and did
not last very long. Trial Trans., Vol I (Aug. 4, 2014), p. 15–16. Crider further -4-
testified that in the past, Perry had enjoyed it when she told him that he was
not pleasing her. However, when Crider informed Perry that he was not
pleasing her on the night in question, Crider claimed that Perry “freaked out”
and told her that he was going to leave. In response, Crider said she told
Perry: “I think it's a good idea if you leave now, and I'm going to do the
same.” Trial Trans., Vol. I (Aug. 4, 2014), p. 16.
Following her request for Perry to leave, Crider testified that she tried
to grab her phone to call McClain, but that Perry took her phone and told
her she was not calling anyone. Crider then testified that Perry grabbed her
throat, pushed her across the bed and onto the floor while shouting
expletives at her. As she was being choked, Crider noticed the candles in
her bedroom had been knocked on the floor and she claimed that Perry
stopped choking her so that they could pick up the candles. After tending to
the candles, Crider testified that she ran to the front door in an attempt to
leave, but Perry caught her and pinned her down with his legs. Crider
claimed that her back was against the ground with Perry on top of her hitting
her multiple times on the chest and at least once on the jaw. Crider testified
that as she tried to fight off Perry she told him: “Please get off me. Please
get out of my home. People are going to know you did this to me. You need
to leave. I need my phone. Give me my phone.” Id. at 22. According to
Crider, Perry responded: “I'm not leaving and neither are you. Nobody is
leaving. You're not going to call the cops. You're not going to keep me from
my kids.” Id. at 23. -5-
Crider testified that after several minutes of fighting, she decided to
stop struggling because it was just making Perry more aggressive. She said
that when Perry eventually let her up she offered him $1,000 to leave.
Crider explained that $1,000 was double the amount she owed him for her
half of the Gatlinburg vacation. According to Crider, Perry refused her offer
and instead demanded $3,000. Crider explained that she did not have that
kind of money, but wrote Perry a $1,000 check, which she later ripped up
when it became clear that Perry was not going to leave.
Crider then testified that she sat on the arm of her couch near a
window and drew the curtains open so someone might see her.
Meanwhile, Crider testified that Perry was pacing back and forth in her
house and yelling in her face. While Perry was pacing, Crider testified that
she unlocked the window and climbed through it to escape. She claimed
that when Perry ran out the front door after her, she was able to run back
inside and lock the front door. However, by the time she locked the door,
Perry had already climbed back inside her house through the unlocked
window. After they were both back inside the house, Crider testified that
she returned to the arm of the couch and Perry continued pacing She
testified that while all this was going on, she continually asked Perry to give
her phone back and to get out of her house, but he still refused to leave.
Since Perry would not leave and would not let her call the police,
Crider testified that she told him to call anybody of his choosing because
someone else needed to be there with them. According to Crider, Perry -6-
called the mother of his children, Lisa Langley. Crider testified that while
Perry had Langley on speaker phone, she told Langley: “I'm not okay. He
choked me. He hit me. He hurt me. And he refuses to leave my home. I am
not okay.” Trial Trans., Vol. I (Aug. 4, 2014), p. 33. Perry then told Langley
that “it was rough sex, that we were just having sex, and that's all.” Id.
While Perry was talking with Langley, Crider testified that Perry
began bringing his belongings and some of her own belongings to the front
door. Crider testified that when Perry eventually left, he had taken a pair of
her diamond earrings, her cell phone, and the gifts he had purchased her
for Christmas. Crider later realized that he had also taken the ripped up
check and cashed it using his camera phone.
After Perry left Crider's house, Crider testified that she locked all of
her doors and left messages on Facebook for McClain and Farr asking them
to come help her because Perry “went crazy” and she was scared. Crider
testified that when McClain subsequently returned home, they slept for a
few hours and then went to the West Carrollton police station where she
reported the incident and had photos taken of her injuries. At trial, Crider
confirmed that all of her injuries were inflicted by Perry during the early
morning hours following their New Year's Eve celebration.
McClain also testified at trial. According to McClain, Crider had no
bruises or scratches on her body when he left her on New Year's Eve.
However, McClain testified that upon receiving Crider's messages and
returning home the next morning, he observed scratches and bruises on -7-
her neck, collar bone, and chest. McClain also testified that Crider was
frantic and scared. Like McClain, Jason Farr also testified that he saw no
bruises on Crider at the New Year's Eve party, and confirmed that he had
received messages from Crider asking for help early the next morning. In
addition, Crider's father testified that on the morning of the incident, Crider
had a swollen jaw, bruised arms, and was physically shaking.
Officer Mark Allison of the West Carrollton Police Department
testified that he was the investigating officer assigned to the case after
Crider reported the incident. Allison testified that when he interviewed Crider
on January 2, 2014, he saw a yellow bruise on her jaw, numerous bruises
on her upper chest and forearms, and scratches on her neck. Allison took
additional photos of Crider's injuries as well as photos of her house. Allison
further testified that he contacted Perry and that Perry denied having
Crider's phone or diamond earrings. According to Allison, Perry also
claimed that he knew nothing about Crider's bruises.
After the State rested, Perry testified in his defense and also
presented testimony from Lisa Langley. Perry's testimony regarding the
events of the night in question were in line with Crider's up to the point where
everyone left Crider's home on New Year's Eve. Their testimony differed in
that Perry claimed that he and Crider had consensual rough sex for a couple
of hours, which included some biting and Perry putting his hands on Crider's
throat. He also testified that at one point he and Crider “bounced and slid
off the bed pretty hard.” Trial Trans., Vol. II (Aug. 6, 2014), p. 239. Perry -8-
testified that Crider looked horrified after falling off the bed. He claimed that
she made statements about violence and how she thought he was trying to
hurt her. Perry, however, testified that he was not trying to hurt Crider and
that he never hit her in the chest or face. He also testified that the only injury
he inflicted on Crider that night was a bite mark on her chest, which he
claims was the product of consensual rough sex.
Additionally, Perry claimed that the cell phone he took from Crider
was his phone. Perry testified that upon taking his phone, he called Langley
and spoke with her while he collected his belongings. At trial, Perry
identified phone records showing calls made from his phone to Langley
early that morning. As Perry was talking to Langley, Perry testified that
Crider jumped out the window. After Crider did this, Perry claimed that he
exited the front door of the house to put his belongings in his car. He then
testified that he realized he left his wallet and watch inside the house, so he
tried to go back inside to get them, but Crider ran back in the house and
locked the door. Perry testified that in order to retrieve his wallet and watch,
he went through the unlocked window and then left.
Perry admitted that he took a necklace he had purchased Crider for
Christmas, but claimed that he did not take her diamond earrings or cell
phone. As for the $1,000 check, he testified that Crider had written the
check to him earlier on New Year's Eve as repayment for their vacation, and
that he had put the check in his wallet. When he went through the window
to get his wallet, he claimed that the check had been removed and ripped -9-
into pieces, which he took with him.
Perry's witness, Lisa Langley, testified that Perry called her around
3:10 a.m. on January 1, 2014, and asked if she would stay on the phone
with him. Langley testified that during the call, Perry was trying to get his
belongings out of Crider's house so that he could leave because he said
Crider was acting crazy. She claimed that Crider got on the phone with her
and said “he choked me,” and Perry responded “[y]eah, that was during sex.
* * * [I]f you feel like something is wrong, why don't we just call the police?”
Trial Trans., Vol. II (Aug. 6, 2014), p. 280. According to Langley, Crider did
not want to call the police. Langley also remembered Perry mentioning that
Crider went out the window. In addition, Langley testified that Perry told her
over the phone that he forgot his wallet and watch and that he had to go
back in the house to retrieve them. Langley then testified that Perry's phone
went dead, and that he called her back shortly thereafter as he was driving
to her house.
After hearing all the testimony and reviewing the evidence, the jury
found Perry guilty of aggravated burglary, but not guilty of abduction or
disrupting public services. The trial court then sentenced Perry to
community control sanctions for a period not to exceed five years. Perry
now appeals from his conviction, raising three assignments of error for
review.
Id., ¶ 2-18. This Court determined in part that “there was adequate evidence for the jury
to find that Perry trespassed by remaining on Crider’s property against her wishes through -10-
force of violence * * *.” Id., ¶ 30.
Perry filed a “Petition for Post-Conviction Relief” on April 13, 2015. Therein
he asserted in part as follows:
***
5. Petitioner alleges that he was deprived of his right to effective
assistance of counsel as found in the Sixth Amendment of the U.S.
Constitution and Article I of the Constitution of Ohio, leading to his wrongful
conviction for Aggravated Burglary.
6. Petitioner further alleges that he was denied the right to
procedural and substantive due process as protected by the Fifth and
Fourteenth Amendments of the U.S. Constitution and Article I of the
Constitution of Ohio, and that he has actual innocence.
7. Factually, Petitioner asserts that his right to effective
representation, procedural due process, and substantive due process were
violated due to his trial counsel’s failure to interview, prepare, and call to the
witness stand, multiple witnesses Perry mentioned to trial counsel. * * *
8. Had trial counsel called these witnesses during the defense’s
case, the issue regarding trespassing, permission, consent, and withdrawal
of consent would have been moot because the witnesses would have
shown that Perry and the alleged victim co-habituated (sic) and therefore
Perry could not have been convicted of Aggravated Burglary – or any
burglary offense as the element of “trespassing” would be negated.
12. Defendant has a procedural and substantive due process right -11-
to present evidence to disprove an element of a criminal offense of which
he/she stands accused. Excluding a witness material to negating the
element of an offense, would constitute a due process denial committed by
a trial court, and therefore a trial counsel’s complete refusal to call witnesses
to negate the element of trespassing should also be considered a due
process denial where a defendant is convicted of a burglary offense. ***
WHEREFORE, as Petitioner [has] set forth a prima facie case of ineffective
assistance of counsel and the denial of procedural and substantive due
process due to the complete failure to call * * * the available witnesses to
show Perry was not trespassing in the alleged victim’s home but was in fact
a lawful resident there, the conviction for Aggravated Burglary is a wrongful
conviction. * * *
Attached in support of the petition were the affidavits of Perry, Ben Aydin,
Jorge Gurgel, Lisa Langley, Betty Rowland, and Jonathan Stutzman. Perry averred that
he resided with Crider at the time of the offense and was accordingly innocent of
aggravated burglary in violation of R.C. 2911.11(A)(1), which provides that “[n]o person,
by force, stealth, or deception, shall trespass in an occupied structure” in the course of
committing the offense. Perry further averred that he “also never assaulted Crider or
threatened her with violence on January 1, 2014.” According to Perry, he advised
defense counsel that he resided with Crider and that multiple witnesses would so testify,
but that defense counsel “refused to call any of the witnesses and never argued that I
could not be guilty of aggravated burglary because I lived with Crider.”
Aydin averred that he intended to become roommates with Perry in -12-
November 2013 but did not do so because Perry “moved in with his girlfriend at the end
of 2013.” Gurgel averred that on “December 16, 2013, [he] witnessed a conversation
between Jonathan Stutzman and Jennifer Crider and heard Jonathan say how lucky
Jason Perry is to be living with her, Jennifer Crider.” Langley averred in part that she is
Perry’s former girlfriend, and that on December 3, 2013, Crider “did confirm that Jason
was in the process of moving into her home.” Rowland averred that she is Perry’s
grandmother, and that in December 2013, “Crider told me in conversation that she and
Jason Perry were living together.” Finally, Stutzman averred that Perry was his student
in a martial arts class, and that Stutzman advised Crider in December 2013 that “Jason
is very lucky to now be living with her.”
On May 18, 2015, Perry filed a motion for an evidentiary hearing in support
of his petition. On June 1, 2015, the State responded to Perry’s petition, and on June
22, 2015, the State filed a Motion for Summary Judgment. The State asserted in relevant
part that Perry’s petition was barred by res judicata. On June 22, 2015, the State filed a
“Motion to Dismiss Petition for Post-Conviction Relief,” alleging a “failure to comply with
Criminal Rule 35” and asserting that the petition lacked substantive grounds for relief.
On July 1, 2015, Perry filed Petitioner’s Response to Summary Judgment,
arguing that he “proffered six affidavits that the State’s motion for summary judgment
does not counter.” On the same date, Perry filed “Petitioner’s Response to Motion to
Dismiss and Alternative Motion to Amend Petition.” Perry asserted that many “appellate
courts hold that once extrinsic evidence is proffered to a trial court alleging ineffective
assistance of counsel, res judicata is not a basis for dismissal,” and that this Court “holds
that ineffective assistance of counsel is properly raised through a post-conviction petition -13-
when evidence is produced that was not introduced at trial.” According to Perry in part,
defense counsel “produced multiple affidavits demonstrating that Jason Perry lived with
the woman who testified that he committed aggravated burglary. This testimony, had it
been produced at trial, would have likely changed the outcome of the first-degree felony
charge.” Perry asserted that “his attorney refused to inform the jury that he lived with the
victim.”
On July 7, 2015, Perry filed a “Motion to Continue July 17, 2015 Evidentiary
Hearing,” citing the following reasons: “1) since the conference call where both parties
agreed to the July 17, 2015 date, the prosecutor has filed two motions seeking to dismiss
the case without a hearing, meaning that the subpoenaed witnesses may be traveling to
the courthouse in vain,” and “2) two of the witnesses subpoenaed by Defendant-
Petitioner, have indicated that they are unable to comply with the subpoena due to
‘business commitments’ and a martial arts event scheduled for July 17, 2015.” On July
10, 2015, the trial court granted the motion to continue the evidentiary hearing, noting that
a new date “shall be set once the Court has ruled on the State’s motions.”
On July 31, 2015, the trial court issued a “Decision, Order and Entry Granting
Respondent’s Motion for [Partial] Summary Judgment; Denying Respondent’s Motion to
Dismiss Petition for Post-Conviction Relief; and Granting Petitioner’s Alternative Motion
to Amend Petition.” Regarding the State’s motion for summary judgment, the court
determined as follows:
Respondent’s initial assertion that Petitioner’s ineffective assistance
of trial counsel claim is barred by res judicata due to his failure to raise that
claim on his direct appeal * * * is not well taken. The ordinary bar of res -14-
judicata does not apply to post-conviction claims that are based on evidence
from outside the record before the appellate court on direct appeal. * * *
Such is the case here, where Petitioner’s claim relies on the absence from
the trial record of certain evidence which Petitioner contends his trial
attorney should have presented at trial – i.e., the testimony of several
witnesses who purportedly could have negated the trespass element of the
burglary charge of which Perry was convicted. * * * To support his current
claim, Petitioner does present evidence from outside the trial record, in the
form of the affidavits of multiple proposed witnesses. * * * Petitioner thus
has overcome the res judicata hurdle for obtaining post-conviction relief. * *
*
The court further determined, however, that the State “has demonstrated
the absence of any genuine issue of material fact as to its entitlement to judgment as a
matter of law on Petitioner’s claim for ineffective assistance of counsel.” The court noted
that although Perry has proffered affidavits in support of his petition, “the premise
underlying Respondent’s summary judgment motion is that those affidavits do not qualify
as the type of admissible and cogent evidence necessary to sustain Petitioner’s claim.”
The court agreed with the State, noting for example that Gurgel’s affidavit is based on
hearsay, namely the “unheard and unsworn declaration of someone [Stutzman] not even
a party to this prosecution.” The court determined that “Gurgel’s affidavit is not
cognizable proof that Perry was living with the victim at the time of the subject offense,
and thus does not suffice to create a genuine issue of fact regarding trial evidence to the
contrary, thereby implicating trial counsel’s effectiveness due to his failure to present -15-
Gurgel’s testimony at trial.” The court further concluded that the “proffered affidavits of
Ben Aydin and Jonathan Stutzman suffer from similar infirmities.” As to the affidavits of
Langley and Rowland, the court determined that while those affidavits “do attribute their
belief that Perry and Crider were living together directly to statements allegedly made by
Crider herself * * * the credibility of those affidavits is suspect” because of Langley’s and
Rowland’s “personal relationship with Perry suggesting that they may be biased
witnesses on his behalf.” Finally, the court found that Perry’s affidavit lacked credibility,
in part since it was contradicted by Crider’s testimony that Perry did not reside with her or
have a key to her residence, and because ample trial evidence cast doubt on his assertion
in his affidavit that he never assaulted Crider or threatened her with violence. The court
noted that while Langley testified at trial, she never mentioned Perry’s “supposed co-
habitation with Crider.” The court concluded that “Perry’s affidavit, like the other affidavits
he has presented, is not sufficiently credible to raise a genuine issue of material fact
regarding Crider’s uncontroverted testimony that Perry did not live with her at the time of
the offense.” According to the court, “that evidence also is insufficient to support a claim
of ineffective assistance based on trial counsel’s failure to call those affiants as witnesses
at trial, and no evidentiary hearing is necessary as to Perry’s petition. Respondent’s
motion for summary judgment is well taken on that basis.”
Regarding the State’s motion to dismiss and Perry’s motion to amend his
petition, the court concluded that because “the evidence offered in support of Petitioner’s
ineffective assistance of counsel claim fails to demonstrate the existence of a genuine
issue of material fact as to either the deficient performance or the prejudice element of
that claim, the appropriateness of judgment in favor of Respondent on that claim is -16-
confirmed for that additional reason.” Finally the court found that, pursuant to Crim.R.
35(A), Perry’s motion to amend his petition “is well taken,” and that the State’s motion to
dismiss “the remaining procedural and substantive due process claims set forth in
Petitioner’s petition for failure to comply with Crim.R. 35 will be denied without prejudice.”
The court ordered Perry to file within 14 days a petition complying with Crim.R. 35.
On August 12, 2015, Perry’s Amended Petition for Post-Conviction Relief
was filed wherein he repeated the arguments asserted in his original petition and
requested an evidentiary hearing. Attached to the amended petition are the identical
affidavits of Perry, Aydin, Gurgel, Langley, Rowland, and Stutzman that were attached to
his original petition (Exhibits A –F). Additionally attached are Exhibits G-K, which Perry
asserted “show that Perry moved in November of 2013.” Exhibit G is correspondence
dated December 20, 2013 from Perry to John Williamson, General Manager, Coverall
Health-Based Cleaning System, that provides:
Dear John,
This letter is to advise you that as of November 4th, 2013, I have moved to
the Dayton, Ohio area and am in need of information on how to change my
address.
I will be on vacation the week of December 23rd through January 5th. And
upon my return I would like to see about changing my address to 610
Skyview Dr. West Carrolton, Ohio 45449 permanently.
Also, as this residence is close to the Dayton office located in Miamisburg,
OH, I would also like to inquire about the possibility of being transferred to
the Coverall of Dayton office? -17-
Exhibit H appears to be a checking account statement from an account in
Perry’s name that reflects an address of 960 Staghorn Drive, Cincinnati (Exhibit H), as
well as a November 5, 2013 termination fee. Exhibit I provides that it is Perry’s “final bill
for electric service at 960 STAGHORN DR.” Exhibit J is correspondence dated August
19, 2013 from Perry to “Property Manager” at the Deerfield Apartments in Cincinnati,
which provides in part, “I am writing to inform you that I will not be renewing the lease at
960 Staghorn Dr. after the lease ends in November 2013. It is my intention to move on
to a new community.” Exhibit K is undated handwritten correspondence on “Deerfield
Apartments & Townhomes” stationery, signed by Sarah Weiss, leasing agent, that
provides: “Deerfield Apartments were taken over after Jason Perry moved out in
November, 13. We do not have any information on when he lived here. * * *.”
Finally, Perry attached Exhibits L and M. Exhibit L is the affidavit of John
Williamson, which provides that he was Perry’s “General Manager at Coverall Health-
Based Cleaning System, during and prior to the time this event occurred.” Williamson
averred that in November of 2013, Perry “asked permission to have his personal mail sent
to the office address, informing me that he was moving in with then girlfriend, Jennifer
Crider, and wanted to make sure things worked well before he permanently changed his
address with the postal office – I gave him permission to do so.” Williamson further
averred that on December 20, 2013, Perry “notified me in writing that he would like to
permanently change his address to Jennifer Crider’s” Skyview Dr. address “upon return
of his vacation. He further asked to be transferred to the Coverall office in Dayton, as it
would have been closer to his new address.” According to Williamson, he “was planning -18-
to change Jason Perry’s permanent address in the work computer to Skyview Drive, after
the New Year and his arrival back to work.” Exhibit M is the affidavit of Jeffrey Moore
which provides in part that Perry “is the father of my sister’s two sons,” and that in early
November 2013, Moore “helped Jason Perry move his belongings into the home of
Jennifer Crider, located at 610 Skyview Drive, West Carrolton, OH 45440.” Moore
averred that Perry’s belongings that were moved “included a number of boxes and
multiple luggage bags,” and that he and Perry “also moved a set of wicker furniture to the
house on Skyview Drive, but he decided to give the set of furniture as a gift for helping
him move into his new home with Jennifer Crider.”
On August 25, 2015, the State filed a “Motion to Strike Defendant’s
Amended Petition for Post-Conviction Relief and Renew Respondent’s Motions for
Summary Judgment and to Dismiss.” On September 4, 2015, Perry filed a “Brief in
Opposition to State’s Motion to Strike, Motion for Summary Judgment and Motion to
Dismiss.”
In its September 24, 2015 order, the trial court determined in relevant part
as follows:
In short, Petitioner’s claims continue to be unsupported by
admissible evidence and cogent evidence sufficient to sustain those claims.
As determined by this Court in analyzing Petitioner’s original petition * * *,
and as re-emphasized in Respondent’s current summary judgment motion
* * * many of the affidavits advanced in support of Perry’s petition relate to
hearsay testimony that would be inadmissible at trial. Additionally, this -19-
Court is permitted to “judge the credibility of the affidavits in determining
whether to accept the affidavits as true statements of fact” for purposes of
a R.C. § 2953.21 petition. * * * Having previously articulated its reasons for
finding Petitioner’s again-proffered affidavits not to be credible * * *, the
Court will not repeat those reasons here.
Additional unauthenticated documents appended to Petitioner’s
latest filing * * * do not dissuade the Court from its earlier conclusion.
Although Petitioner suggests that such documents lack authentication only
because “the witnesses with personal knowledge of these documents have
not yet had the opportunity to take the witness stand” * * *, such lack of in-
court testimonial authentication would not have precluded authentication of
such documents via affidavit, as expressly contemplated by Civ.R. 56(C).
Beyond the fact that such documents have not been presented in an
evidentiary form cognizable for Civ.R. 56 purposes is the fact that the
content of such documents also falls short of the evidence necessary to
sustain Petitioner’s claims. Photocopies of a letter and two bills indicating
that Petitioner did not renew his lease and also terminated services at a
prior address in November 2013 * * * is not definitive proof that Respondent
was residing with the subject victim on December 31, 2013 or January 1,
2014.
Similarly, a December 20, 2013 letter from Petitioner advising his
employer that Petitioner “would like to see about changing [his] address . .
. permanently” to the address where the victim resided * * * - although -20-
corroborated by the affidavit of Petitioner’s work supervisor * * * - is simply
another example of Petitioner’s own self-serving statements offered in
support of his current claim. A court may find that such self-serving
evidence lacks the “minimal level of cogency” needed to merit a hearing on
a post-conviction petition. * * * This Court so concludes in this instance.
More importantly, that letter’s indication that Petitioner was contemplating a
“permanent” change of address to the victim’s residence only at some later
date (i.e., after he returned from vacation on January 5, 2014) * * * suggests
that even Petitioner did not consider himself to be “permanent[ly]” residing
with the victim as of January 1, 2014, when the charged offense occurred.
Accordingly, even with the additional exhibits offered through his
amended petition, the evidence advanced by Petitioner in support of his
current claims still fails to reach the threshold of admissible, legally-
cognizable evidence sufficient to demonstrate the existence of a genuine
issue of material fact regarding the merit of Petitioner’s “no trespass”
defense to the aggravated burglary charge. Given that all evidence which
might tend to support Petitioner’s position also conflicts with evidence
actually presented at trial – including the victim’s testimony that Petitioner
did not live with her, have a key to her residence, or appear on her lease;
the testimony of the victim’s roommate that only the roommate, the victim
and the victim’s two children resided at that address; and Petitioner’s own
testimony that he owned three other residences but “basically lived at her
[the victim’s] home,” thereby acknowledging that the home was the victim’s, -21-
not his, and seeming to qualify the nature of his “liv[ing]” there * * * - the
Court concludes that Petitioner has not demonstrated circumstances
warranting an evidentiary hearing on his amended petition. * * * Respondent
is therefore entitled to summary judgment in its favor as to Petitioner’s
remaining claims in their entirety.
Accordingly, the court entered judgment as a matter of law pursuant to Civ.R. 56 in favor
of the State and against Perry on Perry’s amended petition “in its entirety.”
Perry asserts a single assignment of error herein as follows:
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING A
CONTINUANCE OF THE SCHEDULED EVIDENTIARY HEARING AND
THEN DENYING THE PETITION BEFORE HOLDING THE EVIDENTIARY
HEARING.
According to Perry, “all of the evidence proffered in the twelve exhibits
attached to the post-conviction – and amended – petition were not presented to the jury
and therefore could not have been raised in the direct appeal.” Perry asserts as follows:
The five affidavits attached to his original post-conviction petition
merit a hearing. * * * Much of the information contained in these affidavits
suggest that Jason Perry had moved in with the alleged victim in the
aggravated burglary case, thereby eliminating the crucial element of
trespassing.
The Amended Petition listed seven other exhibits showing that Perry
moved out of his previous home – and into the alleged victim’s home – in
November 2013. These exhibits include, inter alia, utility bills, a letter to -22-
Perry’s landlord stating his intent to move in November 2013, an affidavit
from Jeffrey Moore stating that he helped Perry moving Perry’s property into
Jennifer Crider’s home. * * *
According to Perry, the “twelve exhibits show – or at least suggest – that
Perry was either permanently living or temporarily living with the alleged victim. An
evidentiary hearing would have resolved this factual dispute.” Perry argues that since
defense counsel “failed to use evidence described by the twelve exhibits – evidence
which contradicted the State’s witnesses – Perry suffered from a deprivation of effective
assistance of counsel in violation of the Sixth Amendment of the U.S Constitution.”
Finally, Perry argues as follows:
Perry’s twelve exhibits contradicted the victim’s testimony, creating
an issue of fact of a material element of aggravated burglary: trespassing.
This Court has previously affirmed the denial of a post-conviction petition
without a hearing because the petitioner failed to show a factual dispute.
State v. Isham, 97-WL-0296, Montgomery App. No. 15976.
If Isham should have been denied an evidentiary hearing because
his petition failed to produce an issue of fact, then contrariwise, Perry should
have received a hearing since his petition’s exhibits did directly contradict
the victim on a key element.
The State responds as follows:
Here, at trial, Perry’s defense to the charge of aggravated burglary
(physical harm) was that he did not physically harm the victim beyond the
injuries that were caused when he and the victim were having consensual -23-
rough sex. * * * A review of the trial transcript reveals that Perry’s trial
counsel zealously represented Perry. There was no evidence presented to
establish that Perry lived with Crider on the date of the offense. The
closing arguments are not included in the trial transcript. However, even if
Perry is correct that his trial counsel did not argue that he lived with Crider
on the date of the offense, trial counsel cannot be faulted for failing to argue
facts not in evidence.
Regarding Perry’s affidavit, the State notes that “Crider testified that at the
time of the offense she lived at 610 Skyview Drive with her two daughters and roommate
Jordan McClain. Crider testified that Perry did not live with her, had never lived with her,
did not have a key to her residence, and was not on the lease.” Further, according to
the State, “McClain testified that Perry never lived at the Skyview address.” The State
argues, as the trial court found, that “Perry’s letter to his employer dated December 20,
2013, further undermined Perry’s credibility as to the issue of where he was living on
January 1, 2014, the day of the offense,” since it “indicates that even he did not consider
himself residing with Crider on January 1, 2014, when the offense occurred.” According
to the State, the trial court “properly found that Perry’s own self-serving affidavit was not
credible and did not support his ineffective assistance of counsel claim.”
Regarding the other supporting affidavits and documents, the State asserts
that they “rely on hearsay or the affiants are relatives of Perry, or otherwise interested in
the success of his efforts, and the affidavits contradict the evidence proffered by the
defense at trial. Additionally, none of the affidavits support Perry’s bare assertion that his
trial counsel failed to even interview them about the issue of Perry’s place of residence” -24-
at the time of the offense.
As this Court recently noted in State v. Perander, 2d Dist. Montgomery No.
26790, 2016-Ohio-1474, ¶ 13-15:
“Postconviction relief proceedings are not direct appeals of the
criminal conviction; instead they function as a collateral, civil attack on the
judgment.* * *.” State v. Perkins, 2d Dist. Montgomery No. 24397, 2011–
Ohio–5070, ¶ 9. R.C. 2953.21 governs petitions for postconviction relief
and provides in relevant part as follows:
Any person who has been convicted of a criminal
offense * * * and who claims that there was such a denial or
infringement of the person's rights as to render the judgment
void or voidable under the Ohio Constitution or the
Constitution of the United States * * * may file a petition in the
court that imposed sentence, stating the grounds for relief
relied upon, and asking the court to vacate or set aside the
judgment or sentence or to grant other appropriate relief. The
petitioner may file a supporting affidavit and other
documentary evidence in support of the claim for relief.
R.C. 2953.21(A)(1)(a).
Pursuant to R.C. 2953.21(C): * * * Before granting a hearing on a
petition filed under division (A) of this section, the court shall determine
whether there are substantive grounds for relief. In making such a
determination, the court shall consider, in addition to the petition, the -25-
supporting affidavits, and the documentary evidence, all the files and
records pertaining to the proceedings against the petitioner, including but
not limited to, the indictment, the court's journal entries, the journalized
records of the clerk of the court, and the court reporter's transcript.
As this Court has previously noted:
Under R.C. 2953.21, “a criminal defendant seeking to
challenge his conviction through a petition for postconviction
relief is not automatically entitled to a hearing.” State v.
Calhoun, 86 Ohio St.3d 279, 282, 1999–Ohio–102, citing
State v. Cole (1982), 2 Ohio St.3d 112. First, the trial court
must determine whether there are substantive grounds for
relief, i.e., “whether there are grounds to believe that ‘there
was such a denial or infringement of the person's rights as to
render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States.’ ” Id. at
283, quoting R.C. 2953.21(A)(1). * * *
The post-conviction relief statute imposes on a
petitioner “the initial burden to submit evidentiary documents
containing operative facts sufficient to demonstrate
substantive grounds for relief that merit a hearing.” State v.
Gapen, Montgomery App. No. 20454, 2005–Ohio–441, ¶ 21.
“Broad conclusory allegations are insufficient, as a matter of
law, to require a hearing.” Id. Additionally, where the -26-
allegations in an affidavit, even if true, do not demonstrate a
constitutional violation, no hearing is required. Calhoun, 86
Ohio St.3d at 284. To obtain a hearing, a defendant must
demonstrate prejudicial error. Id. at 283.
State v. Lenoir, 2d Dist. Montgomery No. 22893, 2009–Ohio–1275, ¶ 10–
11.
Finally as noted by this Court:
“[A] trial court should give due deference to affidavits sworn to under
oath and filed in support of the petition, but may, in the sound exercise of
discretion, judge the credibility of the affidavits in determining whether to
accept the affidavits as true statements of fact.” Calhoun at paragraph one
of the syllabus. “The trial court may, under appropriate circumstances in
post[-]conviction relief proceedings, deem affidavit testimony to lack
credibility without first observing or examining the affiant.” Id. at 284.
State v. Moore, 2d Dist. Clark No. 2014-CA-66, 2015-Ohio-550, ¶ 14.
“We review the trial court’s denial of a petition for post-conviction relief
under an abuse of discretion standard. * * * The trial court’s decision must be
‘unreasonable, arbitrary or unconscionable’ to be considered an abuse of discretion. * *
*.” State v. Pianowski, 2d Dist. Montgomery No. 25369, 2013-Ohio-2764, ¶ 14.
Regarding due process, this Court has previously noted:
The Fifth and Fourteenth Amendments to the United States
Constitution provide that no person shall be deprived of life, liberty, or -27-
property without due process of law. The Fourteenth Amendment
prohibition is specifically applicable to the states.
It is a well-established principle that notice and hearing, or an
opportunity to be heard, are fundamental elements of due process of law.
Stanton v. State Tax Commission (1926), 114 Ohio St. 658, 151 N.E. 760.
In particular, notice and an opportunity to be heard are essential requisites
of due process of law in judicial proceedings. Auglaize Box Board Co. v.
Hinton (1919), 100 Ohio St. 505, 126 N.E. 881. * * *
State v. Lopez, 2d Dist. Greene No. 2002CA81, 2003-Ohio-679, ¶ 7-8.
We initially conclude that the trial court properly characterized the affidavits
in Exhibits A – F, and we further agree with the trial court that Exhibits G – K, submitted
in support of Perry’s amended petition, are unauthenticated documents. We note that
Exhibit L relies upon hearsay statements from Perry, and regarding Exhibit M, we agree
with the State that in his affidavit, Perry “does not even mention the name Jeffrey Moore
as a potential witness that he told his trial attorney about who could testify that he lived
with Crider on the date of the offense.”
As noted above, Perry was not automatically entitled to a hearing on his
amended petition, and contrary to his assertion, his amended petition does not
demonstrate entitlement to a hearing regarding his claim that he was denied substantive
and procedural due process. We note that Crider testified as follows when asked about
her living arrangements with Perry:
Q. Did, at any point, the two of you live together?
A. No. -28-
Q. * * * Did he have a key to your house?
A. No.
Q. Was he on the lease or anything?
On cross-examination, the following exchange occurred:
Q. Ms. Crider, how often did Jason stay at your house?
A. Anywhere between one to three or four times a week sometimes
a week.
Q. And that was pretty much * * * from the summer up until January,
correct?
A. From around the end of August timeframe.
Q. * * * Around August, it’s anywhere from one to three, four times
a week, every week, at your house, correct
A. Sure.
Q. Take it he had a number of items there on his own?
A. No. He carried a bag with him.
Q. He didn’t have clothing, toiletries, no personal items that were
left there?
A. Maybe, at some point in time, he left a thing here or there. But
generally, he took it back with him.
Similarly, McClain testified as follows:
Q. And where do you currently live?
A. I live in Centerville now. I moved on the 25th of July. -29-
Q. And where did you move from?
A. From 610 Skyview Drive in West Carrollton.
Q. * * * And how long did you live at that address?
A. I lived there almost two years.
Q. And who lived there with you?
A. Jennifer Crider and her daughters, * * *.
Q. Now did the Defendant ever live with you at the 610 Skyview
Drive?
A. No, he didn’t live with us.
Q. Do you know if he had a key to the home?
A. Not that I know of.
In contrast, Perry testified, when asked about his interaction with Crider’s
daughters, that “[h]er kids, they’re great. I mean I had - - I basically lived in her home.”
We conclude that at trial the jury heard and rejected Perry’s claim that he resided with
Crider at the time of the offense (a finding affirmed on appeal). We further conclude that
Perry’s amended petition fails to demonstrate substantive grounds for relief since nothing
therein supports his assertion that he was denied notice and opportunity to be heard at
trial.
Finally, to the extent that Perry’s amended petition appears to argue, in
paragraph 6, that his rights to due process were violated based upon his “actual
innocence,” in Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203
(1993), the United States Supreme Court held that “a claim of ‘actual innocence’ is not -30-
itself a constitutional claim.”
Since Perry failed to set forth operative facts demonstrating a constitutional
violation, and since an abuse of discretion is accordingly not demonstrated in the trial
court’s dismissal, without a hearing, of Perry’s amended petition, Perry’s assigned error
is overruled. In the absence of prejudicial error, the judgment of the trial court is affirmed.
..........
WELBAUM, J., concurs.
FROELICH, J., dissenting:
The Appellant swears he told his lawyer about Aydin, Gurgel, Langley,
Stutzman and Rowland, and he says his attorney told him that “he [the lawyer] chose not
to bring up the fact that I lived with [the complaining witness] as a defense.”
Aydin said Appellant moved in with the complaining witness. Stutzman
said he told the complaining witness that Appellant was lucky to be living with her; Gurgel
said he witnessed Stutzman’s statement to the complaining witness. Langley said that
the complaining witness confirmed to her (Langley) that Appellant was in the process of
moving in with her (the complaining witness). And Rowland said the complaining witness
said that she (the complaining witness) and the Appellant were living together.
All this conflicts with the evidence presented at trial; the jury rejected the
claim that Appellant resided with the complaining witness.
But Appellant presents specific affidavits, especially Langley’s and
Rowland’s, that arguably support his testimony and contradicted the complaining
witness’s. These are not “broad conclusory allegations.” It may well be that some of
this evidence is not admissible, or would have been suspect, if not incredible, or that -31-
Appellant never relayed sufficient information to his attorney, or that the attorney made a
strategic decision not to interview or call such witnesses, but I would find that the trial
court should have held a hearing.
Copies mailed to:
Michele D. Phipps Donald Gallick Hon. Mary L. Wiseman