[Cite as State v. Perry, 2013-Ohio-4466.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.    26766

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
MARQUEZ B. PERRY                                       COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 08 01 0067 (A)

                                  DECISION AND JOURNAL ENTRY

Dated: October 9, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Marquez Perry, appeals from the judgment of the Summit

County Court of Common Pleas, denying his petition for post-conviction relief. This Court

affirms.

                                                   I

        {¶2}     In 2008, Perry was sentenced to 66 years to life in prison for the aggravated

murder of two individuals and various other crimes. Perry appealed, but this Court did not

address the case on the merits due to an error in the imposition of Perry’s post-release control.

Instead, we vacated Perry’s sentence as void by way of journal entry and remanded the matter

for resentencing. State v. Perry, 9th Dist. Summit No. 24527 (Sept. 3, 2009). On remand, the

trial court again sentenced Perry to 66 years to life in prison.

        {¶3}     Perry appealed for a second time, and this Court permitted the record to be

supplemented with the transcripts from his prior appeal. Perry’s appeal challenged the court’s
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alleged refusal to allow him to represent himself and the court’s failure to instruct the jury on

self-defense. Additionally, the appeal raised an ineffective assistance of counsel argument,

based on trial counsel’s failure to request a self-defense instruction. This Court rejected all of

Perry’s arguments and affirmed his convictions on May 11, 2011. State v. Perry, 9th Dist.

Summit No. 25271, 2011-Ohio-2242.

       {¶4}    On November 7, 2012, Perry filed a petition for post-conviction relief (“PCR”).

Perry acknowledged that his petition was untimely, but argued that he “was unavoidably

prevented from discovering the underlying fact that the record on appeal was incomplete.” Perry

specifically argued that he did not discover until after his appeal was decided that the record was

missing:

       A copy of the bill in (sic) particulars, a copy of [his] motion to waive counsel, a
       copy of [his] letter to the trial court asking to be allowed to represent himself.
       Also the following transcripts were also omitted from the record, Transcripts of
       proceedings for pretrial hearings held on 3-5-2008, 5-7-2008, 6-18-2008, and also
       a pretrial hearing held when the trial court addressed [his] motion to compel filed
       08-01-2008, transcripts of proceedings held for the supplemental arraignment held
       07-02-2008, transcripts of proceedings held for the mandatory status call held on
       04-23-2008.

According to Perry, the missing items severely hampered this Court’s review on direct appeal

because they would have shown how adamant Perry was about wanting to represent himself at

trial. Perry further argued that the “missing records left errors hidden and unclear,” such as the

fact that Perry’s speedy trial rights were violated. Additionally, Perry argued that the State

violated his rights by waiting until shortly before trial to charge him with additional offenses by

way of supplemental indictment. On December 20, 2012, the trial court issued a one line

judgment entry denying Perry’s PCR petition.
                                                  3


         {¶5}   Perry now appeals from the court’s denial of his petition and raises four

assignments of error for our review. For ease of analysis, we consolidate his assignments of

error.

                                                  II

                                 Assignment of Error Number One

         THE TRIAL COURT COMMITTED ERROR WHEN IT DID NOT HOLD A
         HEARING ON AND OR CONSIDER THE APPELLANTS (sic) ARGUMENT
         THAT HE WAS UNAVOIDABLY PREVENTED FROM DISCOVERING
         CERTAIN FACTS WHICH WOULD EXCUSE HIS UNTIMELY PETITION.

                                 Assignment of Error Number Two

         THE TRIAL COURT COMMITTED ERROR IN DENYING THE PETITION
         WITHOUT HOLDING A HEARING[.]

                                Assignment of Error Number Three

         THE TRIAL COURT COMMITTED ERROR IN NOT FILING FINDINGS OF
         FACT AND CONCLUSIONS OF LAW BEFORE DISMISSING THE
         PETITION[.]

                                 Assignment of Error Number Four

         THE TRIAL COURT COMMITTED ERROR IN NOT APPOINTING
         COUNSEL TO ASSIST WITH THE PETITION[.]

         {¶6}   In his assignments of error, Perry argues that the trial court erred by not: holding a

hearing on his PCR petition, granting the petition, filing findings of fact and conclusions of law

when it denied the petition, and appointing him an attorney to assist with the petition. We

disagree.

         {¶7}   Generally, this Court reviews a trial court’s denial of a PCR petition for an abuse

of discretion. State v. Cleveland, 9th Dist. Lorain No. 08CA009406, 2009-Ohio-397, ¶ 11.

When a trial court denies a petition solely on the basis of an issue of law, however, this Court’s

review is de novo. State v. Samuels, 9th Dist. Summit No. 24370, 2009-Ohio-1217, ¶ 3.
                                                 4


Whether a defendant’s PCR petition satisfied the procedural requirements set forth in R.C.

2953.21 and R.C. 2953.23 is an issue of law. Id. at ¶ 3-7. Consequently, a de novo standard of

review applies. Id. at ¶ 3.

       {¶8}    R.C. 2953.21 establishes procedures for filing a PCR petition.                   R.C.

2953.21(A)(2) provides, in relevant part, that a PCR petition “shall be filed no later than one

hundred eighty days after the date on which the trial transcript is filed in the court of appeals in

the direct appeal of the judgment of conviction * * *.” “An exception to the time limit exists if it

can be shown both that (1) ‘the petitioner was unavoidably prevented from discovery of the facts

upon which the petitioner must rely to present the claim for relief or * * * the United States

Supreme Court recognized a new federal or state right that applies retroactively to persons in the

petitioner’s situation, and the petition asserts a claim based on that right;’ and (2) there is clear

and convincing evidence that, but for the constitutional error at trial, no reasonable trier of fact

would have found the petitioner guilty of the offense.” State v. Daniel, 9th Dist. Summit No.

26670, 2013-Ohio-3510, ¶ 9, quoting R.C. 2953.23(A)(1)(a) and (b).              A trial court lacks

jurisdiction to hear an untimely PCR petition that does not meet the requirements set forth in

R.C. 2953.23(A). Daniel at ¶ 9.

       {¶9}    Perry concedes that his PCR petition was untimely. Accordingly, Perry’s petition

had to satisfy R.C. 2953.23(A) in order for the trial court to have jurisdiction to hear it. To the

extent Perry’s petition raised a speedy trial argument and an argument concerning the length of

time the State waited to issue a supplemental indictment against Perry, Perry cannot demonstrate

that he was unavoidably prevented from discovering facts in support of those arguments. See

State v. Mosley, 9th Dist. Lorain No. 96CA006499, 1997 WL 177682, *1-2 (Apr. 9, 1997). Both

arguments depend upon information that was contained in the record at the time of Perry’s direct
                                                 5


appeal, not any new facts. Moreover, because Perry could have raised either argument on direct

appeal, the arguments are barred by the doctrine of res judicata. See State v. Romanda, 9th Dist.

Summit No. 26450, 2013-Ohio-1771, ¶ 11.

         {¶10} To the extent Perry argued in his petition that he was unavoidably prevented from

discovering that the record was missing certain information, the only claim that Perry avers the

additional information would have supported was his claim that he wanted to represent himself at

trial.   This Court addressed the same argument on direct appeal, albeit without all of the

information Perry now claims is missing from the record. See Perry, 2011-Ohio-2242, at ¶ 10-

16. In this Court’s opinion, we noted that Perry was only 19 at the time he was tried for two

aggravated murders and that he lacked legal training; a fact upon which Perry now relies to argue

that the court erred by not appointing him counsel to aid with his PCR petition. Id. at ¶ 13.

Perry has not shown by clear and convincing evidence that, had he been permitted to represent

himself at trial, “no reasonable factfinder would have found [him] guilty” of the two counts of

aggravated murder and his other charges.         R.C. 2953.23(A)(1)(b).     Perry’s PCR petition,

therefore, did not satisfy the requirements of R.C. 2953.23, and the trial court did not err by

denying the petition.

         {¶11} Perry also argues that the court erred by not holding a hearing before it denied his

petition, by not issuing findings of fact and conclusions of law when it denied his petition, and

by not appointing him counsel to aid with his petition. This Court has recognized that it is not

error for a trial court to deny a PCR petition without a hearing when the petition is untimely.

State v. Elkins, 9th Dist. Summit No. 21380, 2003-Ohio-4522, ¶ 11.              Further, we have

recognized that “[i]f a [PCR] petition * * * is filed untimely, the trial court is not required to

issue findings of fact and conclusions of law” in denying the petition. State v. Porter, 9th Dist.
                                                 6


Summit No. 26169, 2013-Ohio-1163, ¶ 9. Finally, we have recognized that “a post-conviction

petitioner has no constitutional right to counsel.” State v. Smith, 9th Dist. Summit No. 24382,

2009-Ohio-1497, ¶ 17, citing State v. Crowder, 60 Ohio St.3d 151, 152 (1991).             Having

reviewed the record in this case, this Court can discern no error in the trial court’s denial of

Perry’s untimely PCR petition. Perry’s first, second, third, and fourth assignments of error are

overruled.

                                                III

       {¶12} Perry’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                                7


       Costs taxed to Appellant.




                                                    BETH WHITMORE
                                                    FOR THE COURT



MOORE, P. J.
CONCURS.

CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶13} Although I agree that Perry’s petition for postconviction relief was untimely, I

would affirm the trial court’s judgment solely on the basis that it lacked jurisdiction to address

his petition on the merits. State v. McGee, 9th Dist. Lorain No. 01CA007952, 2002-Ohio-4249,

¶ 11. Perry’s remedy, if any, lies by way of App.R. 26(B), rather than by way of a petition for

postconviction relief.


APPEARANCES:

MARQUEZ PERRY, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
