[Cite as State v. Holloway, 2023-Ohio-3600.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

JERMAILL HOLLOWAY,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 22 MA 0110

Criminal Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 2016 CR 1351

BEFORE:

Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.

JUDGMENT:

Affirmed.

Atty. Gina DeGenova, Mahoning County Prosecutor and Atty. Edward A. Czopur, 

Assistant Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, 

for Plaintiff-Appellee

Jermail Holloway, Pro se, Inmate No. A693841, Lake Erie Correctional Institution, 501 

Thompson Rd., Conneaut, Ohio 44030, Defendant-Appellant

Dated: September 29, 2023
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Case No. 22 MA 0110

WAITE, J.

{¶1} Appellant Jermaill Holloway appeals a September 30, 2022 judgment of the 

Mahoning County Court of Common Pleas denying his postconviction petition as 

untimely. Because Appellant untimely filed his petition, his arguments are without merit 

and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} The facts of this matter were discussed in Appellant’s recent appeal: 

On December 1, 2016, Appellant was indicted on two counts of murder, 

felonies of the first degree in violation of R.C. 2903.02(A)(D), (B)(D); one 

count of improper discharge of a firearm at or into habitation, a felony of the 

second degree in violation of R.C. 2923.161(A)(1), (D); eight counts of 

felonious assault, felonies of the second degree in violation of R.C. 2903.11 

(A)(2), (D). All counts were accompanied by a firearm specification 

pursuant to R.C. 2941.145(A). The indictment stemmed from an incident 

on March 20, 2016 where Appellant was asked to leave a house after an 

argument over a video game. (3/9/17 Sentencing Hrg. Tr., p. 8.) Apparently, 

the argument continued, leading both Appellant and the victim to fire shots 

at one another. (3/9/17 Sentencing Hrg. Tr., p. 9.) According to witnesses, 

the victim fired from inside the house and Appellant fired from outside of the 

house.

On March 8, 2017, Appellant pleaded guilty to an amended charge of 

voluntary manslaughter, a felony of the first degree in violation of R.C. 
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Case No. 22 MA 0110

2903.03(A)(C), and all eight counts of felonious assault. The remaining 

murder charge and the sole count of improper discharge of a firearm were 

dismissed. (3/8/17 Plea Agreement.)

On March 9, 2017, the trial court sentenced Appellant to an aggregate total 

of fifteen years of incarceration. On March 10, 2017, Appellant wrote a letter 

to the trial court which was construed as a motion to withdraw his plea. After 

a hearing on the matter, the court denied the motion. Appellant's timely 

direct appeal followed in State v. Holloway, 7th Dist. Mahoning No. 17 MA 

0048, 2018-Ohio-5393 (“Holloway I”). In Holloway I, Appellant raised 

assignments of error pertaining to his guilty plea, his sentence, the trial 

court's decision to deny his motion to withdraw his plea, and the 

effectiveness of his trial counsel. We affirmed the judgment of the trial court. 

Id. at ¶ 55.

Appellant subsequently filed an application to reopen his appeal based on 

his appellate counsel's representation. He claims that counsel failed to 

challenge the trial court's denial of his motion to withdraw his plea or to 

challenge the voluntariness of his plea. He alleges counsel was also 

deficient in failing to raise as error his lack of an evidentiary hearing on these 

claims prior to sentencing. Additionally he urges that appellate counsel 

should have raised prosecutorial misconduct as an assignment of error in 

his direct appeal. State v. Holloway, 7th Dist. Mahoning No. 17 MA 0048, 

2019-Ohio-1575 (“Holloway II”). We denied the application.
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Case No. 22 MA 0110

On November 20, 2020, Appellant filed a second motion to withdraw his 

guilty plea. In this motion he raised seven claims: trial counsel's failure to 

adequately investigate the charge and prepare for trial, prosecutorial 

misconduct for failing to provide exculpatory evidence, the withholding of 

evidence of a second shooter, counsel's allegedly erroneous statement that 

self-defense is not available in Ohio, and an alleged breach of a plea 

agreement by the state. On March 18, 2021, the trial court denied the 

motion. Appellant now appeals this entry. 

State v. Holloway, 7th Dist. Mahoning No. 21 MA 0035, 2022-Ohio-1459, ¶ 2-6 (“Holloway 

III”).

{¶3} Subsequently, on July 15, 2022, Appellant filed a “Motion to Vacate or Set 

Aside Judgment of Conviction or Sentence,” which the trial court construed as a 

postconviction petition. On August 9, 2022, the trial court denied the motion. Thereafter, 

on September 30, 2022, the trial court filed a nunc pro tunc entry correcting a date 

contained within its prior judgment entry. It is from this entry that Appellant timely appeals.

Non-Conforming Brief

{¶4} In his brief, Appellant has violated several of the appellate rules. App.R. 

19(A)(2) requires an appellant to provide “[a] table of cases alphabetically arranged, 

statutes, and other authorities cited, with references to the pages of the brief where cited.” 

While Appellant set out a “Case Law” section, this section contains no actual case or 

statutory law. 

{¶5} App.R. 16(A)(7) requires “[a]n argument containing the contentions of the 

appellant with respect to each assignment of error presented for review and the reasons 
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Case No. 22 MA 0110

in support of the contentions, with citations to the authorities, statutes, and parts of the 

record on which appellant relies. The argument may be preceded by a summary.” Eight 

of Appellant’s ten assignments of error solely provide a heading, but include no law, 

relevant facts, or argument. The remaining two assignments fail to cite any case or 

statutory law and merely present conclusory statements. Thus, Appellant’s brief fails to

conform to the requirements of the appellate rules. Even though these violations are 

grounds for dismissal, in the interest of fairness and justice we will attempt to address 

Appellant’s concerns.

Postconviction Petition

{¶6} In order to successfully assert a postconviction petition, “the petitioner must 

demonstrate a denial or infringement of his rights in the proceedings resulting in his 

conviction sufficient to render the conviction void or voidable under the Ohio or United 

States Constitutions.” State v. Agee, 7th Dist. Mahoning No. 14 MA 0094, 2016-Ohio7183, ¶ 9, citing R.C. 2953.21(A)(1).

{¶7} The petitioner bears the burden of demonstrating “substantive grounds for 

relief” through the record or any supporting affidavits. Agee at ¶ 9. However, as a 

postconviction petition does not provide a forum to relitigate issues that could have been 

raised on direct appeal, res judicata bars many claims. Agee at ¶ 10.

Timeliness

{¶8} R.C. 2953.21(A)(2) requires a petitioner to file a petition within one year 

after the trial transcripts are filed in the court of appeals. In relevant part, R.C. 

2953.21(A)(2) provides that a postconviction petition:
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Case No. 22 MA 0110

[S]hall be filed no later than three hundred sixty-five 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[.] * * * If no appeal is taken, except as 

otherwise provided in section 2953.23 of the Revised Code, the petition 

shall be filed no later than three hundred sixty-five days after the expiration 

of the time for filing the appeal. 

{¶9} Ohio law provides a two-part exception to this rule if the petitioner can 

demonstrate that he or she meets the criteria found in R.C. 2953.23(A)(1)(a)-(b). 

Pursuant to R.C. 2953.23(A)(1)(a), the petitioner must either show that he: “was 

unavoidably prevented from discovery of the facts upon which [he] 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.”

{¶10} Appellant’s trial transcripts were filed in this Court on June 27, 2017. His 

instant petition was filed on July 7, 2022, well beyond the established deadline. Appellant 

attempts to explain his tardiness by arguing that his appellate counsel erroneously 

advised he was barred from filing any postconviction petition because he pleaded guilty. 

Appellant claims he learned that advice was erroneous, when this Court informed him in 

an appellate opinion in Holloway III that some of his claims were more appropriately raised 

in a postconviction petition.

{¶11} The law governing such petitions clearly provides only two exceptions to the 

timeliness requirement: (1) a showing that Appellant was unavoidably prevented from 

discovering the fact on which he relies, or (2) that the United States Supreme Court 
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Case No. 22 MA 0110

created a new federal or state law that applies retroactively to Appellant. Appellant 

concedes that he was aware of the facts on which he relies in this petition at the time of 

trial, and that he has not alleged any new federal or state law that applies to his case. As 

Appellant recognizes neither exception to the deadlines to file a postconviction petition 

apply, Appellant’s petition is untimely. 

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION BY FAILING TO 

ISSUE FINDINGS OF FACT AND CONCLUSIONS OF LAW IN DENYING 

APPELLANTS [SIC] POST CONVICTION RELIEF PETITION.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRORED [SIC] BY DENYING APELLANTS [SIC] 

POST CONVICTION RELIEF PETITION BECAUSE APPELLANT 

SATISFIED R.C. 2953.23(A)(1)(a). IN EXCUSING SUCH A DELAY IN 

FILING THE PETITION.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED BY DENYING APPELLANTS [SIC] PCP 

PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED IN 

CLAIM NUMBER THREE ADEQUATE EVIDENCE THAT HE WAS 

DEPRIVED OF HIS 6TH AMENDMENT RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL BY HIS COUNSELS [SIC] FAILURE TO 

INVESTIGATE THE CASE AND FILE A MOTION TO DISMISS THE 
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Case No. 22 MA 0110

INDICTMENT DUE TO THE POLICE VIOLATING HIS DUE PROCESS 

RIGHTS BY TAMPERING WITH EVIDENCE AND MAKING A FALSE 

POLICE REPORT TO SECURE AN INDICTMENT ON APPELLANT.

ASSIGNMENT OF ERROR NO. 5

THE TRIAL COURT ERRED BY DENYING APELLANTS [SIC] PCR 

PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED 

ADEQUATE EVIDENCE THAT HE WAS DEPRIVED OF HIS 6TH

AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY 

HIS COUNSELS [SIC] FAILURE TO ADEQUATELY VISIT APPELLANT 

AND PREPARE FOR TRIAL.

ASSIGNMENT OF ERROR NO. 7

THE TRIAL COURT ERRED BY DENYING APPELLANTS [SIC] PCR 

PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED IN 

CLAIM NUMBER FOUR HE WAS DEPRIVED OF HIS 6TH AMENDMENT 

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY HIS COUNSELS 

[SIC] FAILURE TO ADEQUATELY VISIT APPELLANT AND PREPARE 

FOR TRIAL.

ASSIGNMENT OF ERROR NO. 8

THE TRIAL COURT ERRED BY DENYING APPELLANTS [SIC] PCR 

PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED HE 
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Case No. 22 MA 0110

WAS DEPRIVED OF HIS 6TH AMENDMENT RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL.

ASSIGNMENT OF ERROR NO. 9

THE TRIAL COURT ERRED BY DENYING APPELLANTS [PCR] 

PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED THAT 

HE WAS DEPRIVED OF HIS 6TH AMENDMENT RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL IN CLAIM NUMBER SIX.

ASSIGNMENT OF ERROR NO. 10

THE TRIAL COURT ERRED BY DENYING APPELLANTS [PCR] 

PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED THAT 

HIS 6TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF 

COUNSEL WAS DEPRIVED IN CLAIM NUMBER SEVEN.

{¶12} As earlier discussed, Appellant has presented nothing more than a heading 

for these assignments. He provides no facts, no law, and raises no arguments. As we 

are thus unable to review these issues, Appellant’s first, second, fourth, fifth, seventh, 

eighth, ninth, and tenth assignments of error are without merit and are overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED BY DENYING APELLANTS [SIC] POST 

CONVICTION RELIEF PETITION ABSENT A HEARING BECAUSE 

APPELLANT SHOWED ADEQUATE EVIDENCE IN CLAIM NUMBER 
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Case No. 22 MA 0110

ONE THAT HE WAS DEPRIVED OF HIS 6TH AMENDMENT RIGHT TO 

EFFECTIVE ASSISTANCE OF COUNSEL.

ASSIGNMENT OF ERROR NO. 6

THE TRIAL COURT ERRED BY DENYING APELLANTS [SIC] PCR 

PETITION ABSENT A HEARING BECAUSE APPELLANT SHOWED THAT 

HE WAS DEPRIVED OF HIS 6TH AMENDMENT TO EFFECTIVE 

ASSISTANCE OF COUNSEL BY HIS COUNSELS [SIC] FAILURE TO 

INVESTIGATE THE CASE AND FILE A MOTION TO DISMISS THE 

INDICTMENT.

{¶13} Instead of addressing the errors alleged in these assignments, Appellant 

actually argues ineffective assistance of counsel. Regardless, “[t]he requirement that a 

post-conviction petition be filed timely is jurisdictional. State v. Peyatt, 7th Dist. Monroe 

No. 21 MO 0001, 2021-Ohio-3310, ¶ 12, citing R.C. 2953.23(A). Where a postconviction 

petition is untimely filed, a trial court lacks jurisdiction to hold a hearing. Id. at ¶ 15, citing 

R.C. 2953.21(F). Thus, Appellant’s third and sixth assignments of error are without merit 

and are overruled.

Conclusion

{¶14} Appellant argues that he did not realize he was eligible to file a 

postconviction petition and so was unable to timely file his petition. Because timely filing 

is jurisdictional and Appellant acknowledges neither of the two exceptions apply, his 

arguments are without merit and the judgment of the trial court is affirmed.
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Case No. 22 MA 0110

Robb, J. concurs. 

D’Apolito, P.J., concurs. 
[Cite as State v. Holloway, 2023-Ohio-3600.]

For the reasons stated in the Opinion rendered herein, Appellant’s assignments of 

error are overruled and it is the final judgment and order of this Court that the judgment 

of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.