State v. Peterson

Opinion

[Cite as State v. Peterson, 2026-Ohio-2830.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 116024 v. :

DAMIEN L. PETERSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 23, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-639520-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew W. Moretto, Assistant Prosecuting Attorney, for appellee.

Damien L. Peterson, pro se.

EILEEN T. GALLAGHER, P.J.:

This cause came to be heard on the accelerated calendar pursuant to

App.R. 11.1 and Loc.App.R.11.1. Defendant-appellant Damien Peterson(“Peterson”),

pro se, appeals the denial of his successive petition for postconviction relief. He

claims the following error: The trial court abused its discretion when denying the appellant’s second and successive petition for postconviction relief without holding a hearing, citing lack of subject[-]matter jurisdiction to entertain the petition.

We affirm the trial court’s judgment.

I. Facts and Procedural History

In April 2019, Peterson was charged in a 12-count indictment with

various crimes related to and including the armed robbery of four different

businesses in the Cleveland area between March 17, and April 6, 2019. See State v.

Peterson, 2022-Ohio-835 (8th Dist.) (“Peterson I”). Despite being represented by

counsel, Peterson filed several pro se pretrial motions, including a motion to

disqualify his trial counsel and motion to dismiss the indictment. Peterson’s trial

counsel also filed a motion to withdraw, arguing that a lack of trust rendered the

attorney-client relationship untenable.

At a hearing on the motions, Peterson argued that his trial counsel lied

to him about the applicability of R.C. 2929.71 and 2929.72 to his case. He argued

those provisions required the case to be dismissed because he was not afforded a

preliminary hearing in the Shaker Heights Municipal Court within the ten-day

period required by R.C. 2945.71(C)(1). Peterson also asserted that his trial counsel

was ineffective for failing to file a motion to dismiss pursuant to Crim.R. 5(B)(6). He

argued that the charges related to armed robberies of the Pizza Pan, Michael’s Diner,

and 1900 Beverage should be dismissed because those charges were “not supported with a complaint.” The trial court granted counsel’s motion to withdraw, took the

other motions under advisement, and assigned new counsel to represent Peterson.

Prior to trial, the court again heard arguments on Peterson’s pretrial

motions, including Peterson’s motion to dismiss, which he filed through counsel

pursuant to R.C. 2945.71. R.C. 2945.71(C)(1) provides that a person against whom

a felony is pending “shall be accorded a preliminary hearing . . . within ten

consecutive days after the person’s arrest if the accused is held in jail in lieu of bail

on the pending charge . . . .” Peterson was arrested on April 12, 2019. His trial

counsel argued that, under R.C. 2945.71(C)(1), he should have had a hearing no later

than April 22, 2019. (Tr. 34.) Defense counsel produced a printout of the Shaker

Heights Municipal Court docket showing that a motion for continuance of the

preliminary hearing was filed on April 23, 2019, but there was no explanation on the

docket as to why the preliminary hearing was not held on or before the April 22,

2019 deadline.

The State opposed the motion to dismiss, arguing that a subsequent

indictment superseded any error in the municipal-court proceedings. The trial court

agreed and denied the motion to dismiss. In its ruling, the trial court cited State v.

Jones, 2019-Ohio-2233 (8th Dist.), and State v. Pugh, 53 Ohio St.2d 153 (1978), for

the proposition that a “failure to hold a preliminary hearing . . . does not affect a

subsequent indictment and conviction.” (Tr. 69-70; journal entry dated 10/01/19.)

Following a bench trial, the court found Peterson guilty of four counts

of aggravated robbery in violation of R.C. 2911.01(A)(1), first-degree felonies, (Counts 1, 4, 7, and 10). It also found him guilty of two counts of theft in violation

of R.C. 2913.02(A)(1), first-degree misdemeanors (Counts 2 and 8), and four counts

of having weapons while under disability in violation of R.C. 2923.13(A)(2), third-

degree felonies (Counts 3, 6, 9, and 12). And, the court found Peterson guilty of all

the firearm, notice-of-prior-conviction, and repeat-violent-offender specifications

attendant to each of the four aggravated-robbery convictions and having-weapons-

while-under-disability convictions. The court sentenced Peterson to an aggregate

prison term of 39 to 40.5 years. Peterson filed a timely notice of appeal.

On appeal, Peterson argued in the third assignment of error that he was

“denied due process of law by way of a defective complaint and failure of the

government to provide a preliminary hearing within the statutory timeframe and

prior to the indictment.” Peterson I, 2022-Ohio-835, at ¶ 7 (8th Dist.). This court

overruled the assignment of error on grounds that Peterson’s convictions were

based on an indictment rather than a complaint and because the indictment was not

challenged in the appeal. This court further stated:

Moreover, we note that Peterson’s arguments are otherwise meritless. “The jurisdiction of the court is invoked by the return of a valid indictment and is not based on the process by which an accused is taken into custody or the findings made on the preliminary examination.” Dowell v. Maxwell, 174 Ohio St.2d 89, 290, 189 N.E.2d 95 (1963); see also State v. Walker, 2d Dist. Montgomery No. 28970, 2021-Ohio- 3053, ¶ 36 (“the issuance of a grand jury indictment renders any defect in the complaint moot”); State v. Rogers, 10th Dist. Franklin No. 17AP- 610, 2018-Ohio-1073, ¶ 13 (“the issuance of a grand jury indictment renders any defect in the complaint or warrant moot”); State v. Hess, 7th Dist. Jefferson No. 02 JE 36, 2003-Ohio-6721, ¶ 17 (“An indictment generally renders any defects in the proceedings arising from the complaint moot”). Peterson I at ¶ 22.

Shortly after this court rendered its decision, Peterson filed an

application for reopening. See State v. Peterson, 2022-Ohio-2766 (8th Dist.)

(“Peterson II”). He asserted a claim of ineffective assistance of counsel based on his

appellate counsel’s failure to argue that his due-process rights were violated by a

defective preliminary hearing in the Shaker Heights Municipal Court. Peterson II

at ¶ 5. He also asserted that the common pleas court lacked jurisdiction “to indict,

bring to trial, and convict him of the offenses of aggravated robbery, having weapons

while under disability and theft.” Id. This court denied the application for reopening

as barred by res judicata. Id. at ¶ 9.

While the application for reopening was pending, Peterson filed a

motion to vacate a void judgment and sentence because of an alleged lack of subject-

matter jurisdiction. He argued the trial court never had jurisdiction and that his

convictions should be vacated because he never received a preliminary hearing in

the Shaker Heights Municipal Court. The trial court denied the motion, and

Peterson appealed. See State v. Peterson, 2023-Ohio-823, ¶ 5 (8th Dist.) (“Peterson

III”).

This court construed Peterson’s motion to vacate as a petition for

postconviction relief. Peterson III at ¶ 5. In reviewing the record and the trial court’s

judgment, we observed the history of the case and stated:

In Peterson’s motion to vacate void judgment . . . Peterson argued that his convictions and sentence are void “due to the Shaker Heights Municipal Court’s failure to relinquish jurisdiction to the Cuyahoga County Court of Common Pleas.” Peterson further argued that he “never received his entitled preliminary hearing, nor did he waive said preliminary hearing, for was [he] [sic] directly indicted on the charge in the Shaker Heights Municipal Court . . . .”

This argument was reviewed and rejected on the merits by this court in Peterson I. The third assignment of error in Peterson I follows: “Defendant was denied due process of law by way of a defective complaint and failure of the government to provide a preliminary hearing within the statutory timeframe and prior to the indictment.” Peterson I at ¶ 7. Specifically, Peterson argued that “the criminal complaint filed in the Shaker Heights Municipal Court was defective and . . . he was improperly denied a preliminary hearing.” Id. at ¶ 21. In Peterson I, this court found that argument to be without merit, because (1) the Shaker Heights Municipal Court proceedings were not part of the case at issue, and (2) the indictment filed in the Cuyahoga County Court of Common Pleas case at issue rendered any defects in the initial complaint moot. Id. at ¶ 21, 22. See also Crim.R. 5(B)(1) (stating that the preliminary hearing in felony cases “shall not be held . . . if the defendant is indicted”).

Peterson III at ¶ 11. Accordingly, this court affirmed the trial court’s denial of

Peterson’s first petition for postconviction relief on the basis of res judicata. Id. at

¶ 13-14.

In December 2024, Peterson filed a second petition for postconviction

relief wherein Peterson argued:

The petitioner submits this second and successive petition for post- conviction relief, due to the entire Shaker Heights Municipal Court proceedings being outside the record of his criminal conviction in the Cuyahoga County Court of Common Pleas case no. CR-19-639520. . . . . The Shaker Heights Police Department was the arresting agency in this case as the general docket will reflect, the Shaker Heights Municipal Court proceedings contains evidence of a violation of the petitioner’s 5th, 6th and 14th Amendment rights to the United States Constitution and his Article I, Section 10 & 16 Amendment rights to the Ohio Constitution, also a violation of Crim.R. 5(B)(1) thru (8) and O.R.C. 2945.71(C)(1). The trial court denied the successive petition as untimely. The trial

court found that Peterson’s successive petition did not meet the requirements of

R.C. 2953.23(A)(1)(a) and (b) and that, therefore, the court lacked jurisdiction to

consider the merits of the arguments presented therein. This appeal followed.

II. Law and Analysis

In the sole assignment of error, Peterson argues the trial court abused

its discretion in denying his successive petition for postconviction relief. He

contends the court erred by failing to hold a hearing and in finding that it lacked

jurisdiction to consider his petition.

We generally review a trial court’s ruling on a postconviction-relief

petition for an abuse of discretion. State v. Gondor, 2006-Ohio-6679, ¶ 49.

However, whether the trial court had subject-matter jurisdiction to entertain an

untimely petition for postconviction relief is a question of law that we review de

novo. State v. Apanovitch, 2018-Ohio-4744, ¶ 24. In a de novo review, we afford

no deference to the trial court’s decision. State v. Buehner, 2021-Ohio-4435, ¶ 43

(8th Dist.).

Pursuant to R.C. 2953.21(A)(1)(a)(i), any person convicted of a

criminal offense who claims that an infringement of the person’s rights rendered the

judgment of conviction void or voidable under either the Ohio or United States

Constitutions may file a petition in the court that imposed sentence stating the

grounds for relief relied upon and asking the court to vacate the conviction or

sentence or to grant other appropriate relief. State v. Jones, 2026-Ohio-1455, ¶ 21 (8th Dist.). However, a petitioner seeking postconviction relief “has a limited time

within which to do so.” State v. Johnson, 2024-Ohio-134, ¶ 9. “A trial court

generally has no jurisdiction to consider an untimely or successive petition.” Id. at

¶ 1. It is undisputed that this is Peterson’s second petition for postconviction relief

and that it is untimely.

A trial court may have jurisdiction to consider an untimely, successive

petition for postconviction relief if either R.C. 2953.23(A)(1) or (2) applies. Peterson

argues R.C. 2953.23(A)(1) applies. Under R.C. 2953.23(A)(1), the trial court would

have jurisdiction to consider his petition if (1) he demonstrates that he was

“unavoidably prevented” from discovering the facts he now relies on, and (2) he

shows by clear and convincing evidence that, but for a constitutional error at trial,

no reasonable factfinder would have found the petitioner guilty of the offense of

which the petitioner was convicted. R.C. 2953.23(A)(1).

Peterson asserts he is entitled to relief because his constitutional right

to a speedy trial was violated when the Shaker Heights Municipal Court failed to

hold a preliminary hearing within ten days of his arrest. He argues his right to due

process was also violated by the municipal court’s failure to hold a preliminary

hearing within ten days of his arrest and because several counts presented in the

indictment were not charged in the municipal court. Peterson argues his trial

counsel was ineffective because he did not make the full record of the Shaker Heights

proceedings part of the record in the common pleas court. Finally, Peterson argues that he was unavoidably prevented from discovering these constitutional violations

in time to file a timely postconviction petition.

The defendant in State v. Thompson, 2021-Ohio-376, ¶ 104 (8th

Dist.), made the very same arguments. In that case, Thompson argued that because

he was never afforded a preliminary hearing in the Cleveland Municipal Court in

accordance with the provisions of Crim.R. 5, the common pleas court had no

authority to proceed under the indictment. We rejected that argument and

explained that

“[t]he purpose of a preliminary hearing in Ohio is merely what the term implies. It is not to hear all the evidence and determine the guilt or innocence of the accused but rather to determine whether sufficient evidence exists to warrant binding the accused over to the grand jury, where, after a more thorough investigation of the evidence, it is then determined whether a formal charge shall be made against the accused.”

Id. at ¶ 103, quoting White v. Maxwell, 174 Ohio St. 186, 188 (1963). Thus, we held

that “once the defendant was indicted by a grand jury, the preliminary hearing was

no longer necessary.” Id. at ¶ 104, citing State v. Wigglesworth, 18 Ohio St.2d 171,

174 (1969). Other courts have held that the State’s failure to accord a preliminary

hearing to a defendant within the statutorily prescribed time effectively constitutes

a voluntary dismissal without prejudice of the felony charge against the defendant.

State v. Davis, 2020-Ohio-3617, ¶ 16 (5th Dist.), citing State v. Aberle, 1992 Ohio

App. LEXIS 3590, *1 (5th Dist. June 24, 1992), citing State v. Pugh, 53 Ohio St.2d

153 (1978). Indeed, “‘it is well-settled that failure to hold a preliminary hearing

within the time frame set by R.C. 2945.71(C)(1) does not affect a subsequent

indictment and conviction.’” Jones, 2019-Ohio-2233, at ¶ 16 (8th Dist.), quoting

State v. Chappell, 2014-Ohio-3877, ¶ 9 (7th Dist.), citing Pugh, 53 Ohio St.2d 153,

at syllabus. See also State v. Barnes, 2011-Ohio-63, ¶ 10 (8th Dist.) (holding that “a

subsequent indictment of the defendant by a grand jury renders any defects in the

preliminary hearing moot”); State v. Washington, 30 Ohio App.3d 98 (8th Dist.

1986), citing United States v. Walker, 491 F.2d 236, 238 (9th Cir. 1974) (“Any

alleged defects in the initial hearing were cured by the subsequent indictment.”);

Commonwealth v. Gordon, 254 Pa. Super. 267, 272 (1978) (“Likewise, once an

indictment has been approved[,] the preliminary proceedings are not subject to

either direct or collateral attack because the defendant has been afforded an

independent determination that a prima facie case exists.”). Therefore, any alleged

failure by the Shaker Heights Municipal Court to hold a preliminary hearing within

the time frame set by R.C. 2945.71(C)(1) is immaterial and has no bearing on

Peterson’s subsequent indictment, the trial court’s jurisdiction, or Peterson’s

convictions.

Moreover, Peterson has failed to demonstrate how he was unavoidably

prevented from discovering the facts he now claims entitle him to relief. Peterson

has been asserting a speedy-trial violation since at least July 11, 2019, before his trial

commenced in the common pleas court. (Tr. 63.) On July 11, 2019, his trial counsel

detailed the days during which Peterson was in jail and argued that his case had to be dismissed on speedy-trial grounds. (Tr. 63-64.) Therefore, Peterson was not

unavoidably prevented from discovering the evidence required to raise a speedy-

trial issue in a timely postconviction petition. Furthermore, this argument is barred

by res judicata.

A petition for postconviction relief may be dismissed without an

evidentiary hearing when the claims raised are barred by the doctrine of res judicata.

State v. Perry, 10 Ohio St.2d 175 (1967), paragraphs seven, eight, and nine of the

syllabus. Under the doctrine of res judicata,

a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal of that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction, or on an appeal from that judgment.

State v. Sowell, 2020-Ohio-2938, ¶ 30 (8th Dist.), paragraph nine of the syllabus.

“Thus, issues properly raised in a petition for postconviction relief are

those that could not have been raised on direct appeal because the evidence

supporting such issues is outside the record.” Id., citing State v. Dowell, 2006-Ohio-

110, ¶ 10 (8th Dist.). If an issue was, or could have been raised on direct appeal, the

trial court may dismiss the petition on the basis of res judicata. Id., citing State v.

Cody, 2015-Ohio-2764, ¶ 16 (8th Dist.).

Peterson raised the speedy-trial issue in the trial court. Thus, he could

have raised the issue in his direct appeal, but he did not. See Peterson I. Therefore,

the speedy-trial issue is barred by res judicata. Peterson’s due-process argument is equally flawed. He contends his

due-process rights were violated because the Shaker Heights Municipal Court never

bound him over to the common pleas court. (Appellant’s brief p. 3.) However, this

court previously considered this argument and rejected it in Peterson I, Peterson II,

and Peterson III. See Peterson III at ¶ 9-13.

In Peterson III, we reviewed Peterson’s first postconviction petition

wherein he argued “that his convictions and sentence are void ‘due to the Shaker

Heights Municipal Court’s failure to relinquish jurisdiction to the Cuyahoga County

Court of Common Pleas.’” Id. at ¶ 10. Peterson also argued that he ‘‘never received

his entitled preliminary hearing, nor did he waive said preliminary hearing, for was

[he] [sic] directly indicted on the charge in the Shaker Heights Municipal Court . . . .”

Id. In affirming the trial court’s denial of the postconviction petition, we explained

that because Peterson had previously raised this same argument in Peterson I and

Peterson II, it was barred by res judicata. Id. at ¶ 11-13.

As previously stated, “[r]es judicata bars the assertion of claims

against a valid, final judgment of conviction that have been raised or could have been

raised on appeal.” State v. Ketterer, 2010-Ohio-3831, ¶ 59. Under the law-of-the-

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

case on the legal questions involved for all subsequent proceedings in the case at

both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984), citing

Gohman v. St. Bernard, 111 Ohio St. 726, 730 (1924). Having previously determined that Peterson’s due-process claim is barred by res judicata, it is now barred by both

the doctrines of res judicata and law of the case.

Peterson fails to articulate his claim for ineffective assistance of

counsel in his appellate brief. In his successive petition, he argued that his trial

counsel was ineffective for failing to submit evidence in support of his speedy-trial

claim.

To establish ineffective assistance of counsel, the defendant must

demonstrate that counsel’s performance fell below an objective standard of

reasonable representation and that he or she was prejudiced by that deficient

performance. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). Prejudice

is established when the defendant demonstrates “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

Peterson’s trial counsel presented dates in support of his speedy-trial

claim and supported the argument with a copy of the Shaker Heights Municipal

Court docket. (Tr. 31-50.) No other evidence was required to calculate Peterson’s

speedy-trial time. Indeed, the trial court was initially persuaded by counsel’s

argument. However, the trial court ultimately denied the speedy-trial claim

pursuant to well-settled Ohio precedent holding that “‘a preliminary hearing within

the time frame set by R.C. 2945.71(C)(1) does not affect a subsequent indictment

and conviction.’” Jones, 2019-Ohio-2233, at ¶ 16 (8th Dist.), quoting Chappell,

2014-Ohio-3877, at ¶ 9 (7th Dist.), citing Pugh, 53 Ohio St.2d 153, at syllabus. The record fails to support Peterson’s claim that his trial counsel’s

performance was deficient. Nevertheless, even if his counsel’s performance were

deficient in some fashion, Peterson fails to explain how or why he was unavoidably

prevented from discovering that his trial counsel failed to present sufficient evidence

to support his speedy-trial claim. Therefore, he failed to establish a claim for

postconviction relief based on ineffective assistance of counsel.

The Shaker Heights Municipal Court’s alleged failure to hold a timely

preliminary hearing had no effect on the subsequent proceedings in the common

pleas court because a grand-jury indictment renders any defects in the preliminary

hearing moot. Barnes, 2011-Ohio-63, at ¶ 10 (8th Dist.). Furthermore, Peterson

failed to demonstrate that he was unavoidably prevented from discovering the facts

he now claims justify postconviction relief, and his claims are barred by res judicata.

Therefore, the sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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

common pleas court 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.

EILEEN T. GALLAGHER, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and ANITA LASTER MAYS, J., CONCUR