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State v. Perry

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 24, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DAVEION PERRY DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-610816-A

          ATTORNEY FOR APPELLANT David L. Doughten David L. Doughten Co. L.P.A.

          FOR APPELLANT Daveion Perry Inmate No. #A691-391 Trumbull Correctional Institution.

          ATTORNEY FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor.

          BEFORE: Kilbane, J., E.A. Gallagher, P.J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, JUDGE.

         {¶1} Defendant-appellant, Daveion Perry ("Perry"), appeals from the trial court's judgment following his guilty plea to 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. [1] Perry's well-respected counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967), and now seeks to withdraw as appellate counsel. After thoroughly reviewing the record, we grant counsel's motion to withdraw and dismiss this appeal.

         Procedural History and Facts

         {¶2} On October 21, 2016, Perry was charged in a 15-count indictment resulting from the death of a 15-year-old boy working at a fast-food restaurant in Cleveland Heights, Ohio. The state of Ohio reserved the right to seek the death penalty with the indictment. The incident, which occurred on October 14, 2016, was captured on the restaurant's video surveillance system.

         {¶3} The state met with Perry while he was in the custody of the Cleveland Heights Police Department. Perry had retained counsel at the time. The state and Perry, through retained counsel, reached an agreement where the state would "take death off the table for a full, complete confession and acceptance of responsibility [by Perry]." One of the stipulations of the agreement provides that in order to obtain the benefit of the no death penalty indictment, Perry would knowingly, voluntarily, and in compliance with Crim.R. 11 enter a guilty plea to the indictment in full as charged. The state reserved the right, both on the indictment and in the plea contract, to proceed with a reindictment for the death penalty if Perry chose not to fulfill his part of the agreement.

         {¶4} Perry was then arraigned on October 26, 2016. Immediately following the arraignment, the trial court held the guilty plea hearing. At the hearing, Perry and the state acknowledged on the record that they entered into a plea contract and explained the terms of the agreement on the record. Both parties stipulated to a case book of evidence and stipulated that the victim's family consented to the plea agreement. In exchange for Perry's guilty plea, the state agreed to not seek the death penalty. The state reserved the right to reindict with the capital specification and use Perry's confession if he changed his mind and chose to plead not guilty. After properly discussing the rights afforded to Perry under Crim.R. 11, the trial court accepted Perry's guilty plea.

         {¶5} The matter proceeded to sentencing on October 28, 2016. The court reviewed all of the evidence provided to it. The court found that Perry was fully and continuously represented by counsel, he was informed of his Miranda rights, and he knowingly and voluntarily entered into the plea contract. The state presented a power point presentation for the court's consideration, including statements from the victim's family, Perry's criminal history, Perry's written confession, and the basis for the guilty plea. Perry made a statement on his behalf and apologized to the victim's family as well as his family. The trial court sentenced Perry to an aggregate sentence of life in prison without parole to be served consecutive to six years in prison on the firearm specifications.

         {¶6} In December 2016, Perry, pro se, sought leave to file a delayed appeal and sought appointment of appellate counsel. We granted both motions and appointed Perry counsel. Based on the belief that no prejudicial error occurred below and that any grounds for appeal would be frivolous, Perry's astute counsel filed a motion to withdraw under Anders.

         Anders ...


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