[Cite as State v. Perry, 2012-Ohio-4273.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 97572 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

KYLE J. PERRY

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-540930 

BEFORE: Boyle, P.J., S. Gallagher, J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: September 20, 2012
ATTORNEY FOR APPELLANT 

J. Charles Ruiz-Bueno 

Charles Ruiz-Bueno Co., LPA 

36130 Ridge Road 

Willoughby, Ohio 44094

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Holly Welsh 

Assistant County Prosecutor 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY J. BOYLE, P.J.: 

{¶1} Defendant-appellant, Kyle Perry, appeals his conviction, raising two 

assignments of error: 

Assignment of Error One 

The trial court committed prejudicial error by denying, in part, 

defendant-appellant’s motion to suppress regarding the search warrant for 

the Mosley Selective Suites on July 20, 2010. 

Assignment of Error Two 

The trial court, by holding defendant-appellant 456 days in jail, violated his 

Sixth Amendment rights where there was no waiver of a speedy trial. 

{¶2} Finding no merit to the appeal, we affirm. 

Procedural History and Facts

{¶3} Perry and his co-defendant, Jimmie Ivery, were indicted on nine counts: one 

count of burglary, three counts of theft, two counts of receiving stolen property, two 

counts of having weapons while under disability, and one count of possessing criminal 

tools. The burglary count carried a repeat violent offender specification and notice of 

prior conviction. 

{¶4} The charges of the indictment arose from allegations that Perry, along with 

Ivery, burglarized the Gigliotti residence in the village of Walton Hills on July 17, 2010. 

{¶5} Walton Hills Sgt. David Kwiatkowski investigated the reported burglary, 

speaking with Mr. Gigliotti, and interviewing his neighbor, Mr. Exton, who was home 

outside at the time of the burglary. Mr. Exton provided Sgt. Kwiatkowski with a 
description of two males that he observed as well as the vehicle that he saw parked in the 

Gigliotti’s driveway — a black Cadillac. Mr. Exton also identified the Cadillac that he 

observed in the driveway from a series of pictures shown to him by Sgt. Kwiatkowski that 

he had pulled up from the internet. Based on the information he obtained, Sgt. 

Kwiatkowski sent out a “teletype” through LEADS to other police districts describing the 

vehicle and the description of the males. As a result, he learned that a similar incident 

occurred on July 16, and one of the witnesses obtained a license plate number, indicating 

that the vehicle was registered to a Kyle Perry. Another district had identified Jimmie 

Ivery as the possible other male suspect with Perry. 

{¶6} On July 20, 2010, Sgt. Kwiatkowski contacted the Wickliffe police 

department after learning from another district that Ivery had been pulled over in 

Wickliffe earlier that day, around 2:45 a.m., cited for driving under suspension, and 

arrested on an outstanding warrant. At the time of his arrest, Ivery was driving one of 

Perry’s vehicles. Ivery had also been pulled over at the Mosley Suites, where both Ivery 

and Perry were staying. The police, however, did not allow Perry to take the car and, 

instead, towed the vehicle. Prior to towing the vehicle, the Wickliffe police searched 

and inventoried the contents of the vehicle, which included some jewelry that was later 

identified as items stolen in the July 17 Walton Hills burglary. 

{¶7} In speaking with Wickliffe police, Sgt. Kwiatkowski further learned that 

Perry also had a black Cadillac — not the vehicle that had been impounded. Upon 

learning this, Sgt. Kwiatkowski drove out to the Mosley Select Suites and photographed 
Perry’s vehicle parked in the parking lot. Sgt. Kwiatkowski then observed Perry leave 

his suite and drive away in the vehicle. He proceeded to follow Perry but ultimately lost 

the Cadillac. Sgt. Kwiatkowski returned back to the hotel and spoke with someone in 

the front office, confirming that Perry and Ivery had been staying there prior to July 17 

and that they wanted to break their ten-day lease early. Additionally, according to the 

hotel employee, the person who inquired about breaking the lease appeared very anxious 

and eager to move out of the hotel room relatively quickly. 

{¶8} After obtaining all of this information, Sgt. Kwiatkowski returned back to 

his office, where Patrolman Davis obtained the written statement of Mr. Exton, 

identifying the Cadillac from a series of pictures and the written statements of the 

Gigliottis, identifying items from the photographs taken by the Wickliffe police of the 

jewelry found in connection with the stop of Ivery. Consequently, Sgt. Kwiatkowski 

obtained an arrest warrant and a search warrant for the hotel room being occupied by 

Ivery and Perry. 

{¶9} In support of the search warrant, Sgt. Kwiatkowski provided an affidavit, 

which included 20 paragraphs, detailing his experience and background, his observations 

of the Gigliottis’ house after the reported burglary, the items reported missing, and his 

investigation as described above. Based on the above sworn statements, a Lake County 

common pleas judge authorized a search warrant of the room at the Mosley Select Suites. 

 The police executed the warrant and confiscated evidence from the room. Perry and 

Ivery were both arrested and then indicted on the nine counts described above. 
{¶10} Perry and Ivery both pleaded not guilty to the charges and filed a motion to 

suppress, seeking to suppress the evidence obtained in the inventory search of the vehicle 

and the evidence obtained in the hotel room through the search warrant. The trial court 

held a hearing on their joint motion and ultimately found that the warrantless inventory 

search of the vehicle stopped on July 20 was unlawful, and therefore, suppressed the 

evidence obtained through the search of the vehicle. The trial court, however, further 

held that, after excising those paragraphs of the affidavit relating to facts derived from the 

unlawful inventory search of the vehicle, i.e., paragraphs 13, 14, and 15, “[t]he remaining 

portions of that affidavit set forth sufficient facts, on their face, to support the issuance of 

the search warrant.” In reaching this holding, the trial court specifically rejected Perry’s 

argument that certain inconsistencies in the facts presented at the suppression hearing 

invalidated the warrant. 

{¶11} Perry subsequently withdrew his not guilty plea and entered a plea of no 

contest to the charges. The trial court found Perry guilty on all nine counts, imposed a 

total prison term of four years, and ordered that the sentence be served concurrent with 

his sentence in Lake C.P. No. 10CR00730. 

{¶12} Perry now appeals, raising two assignments of error. 

Motion to Suppress

{¶13} In his first assignment of error, Perry argues that the trial court erred in only 

partially granting the motion to suppress. He contends that the trial court should have 

granted the motion to suppress in its entirety because the underlying affidavit supporting 
the search warrant was fatally flawed. Notably, he does not challenge the probable 

cause from the issuing judge’s perspective. Instead, he argues that the facts supporting 

the affidavit were made with “reckless disregard for the truth,” and therefore, the motion 

to suppress should have been granted. We disagree. 

A. Standard of Review

{¶14} Appellate review of the denial of a motion to suppress presents a mixed 

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 

N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court assumes the role of 

trier of fact, and is therefore, in the best position to resolve factual questions and evaluate 

the credibility of witnesses. State v. Carter, 72 Ohio St.3d 545, 552, 651 N.E.2d 965 

(1995). Consequently, when reviewing a ruling on a motion to suppress, deference is 

given to the trial court’s findings of fact so long as they are supported by competent, 

credible evidence. Burnside at ¶ 8. However, an appellate court reviews de novo 

whether the trial court’s conclusions of law, based on those findings of fact, are correct. 

State v. Lenard, 8th Dist. Nos. 96975 and 97570, 2012-Ohio-1636. 

B. Validity of Affidavit Supporting Search Warrant

In determining the sufficiency of probable cause in an affidavit submitted in 

support of a search warrant, “[t]he task of the issuing magistrate is simply to 

make a practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit before him, including the ‘veracity’ 

and ‘basis of knowledge’ of persons supplying hearsay information, there is 

a fair probability that contraband or evidence of a crime will be found in a 

particular place.” 
State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the 

syllabus, following and quoting from Illinois v. Gates , 462 U.S. 213, 238-239, 103 S.Ct. 

2317, 76 L.Ed.2d 527 (1983). 

{¶15} Initially, we note that a search warrant’s supporting affidavit has a 

presumption of validity. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 

L.Ed.2d (1978). A defendant who claims that a warrant is flawed because it is based 

upon a false statement must prove by a preponderance of the evidence that the affiant 

made a false statement, either intentionally, or with reckless disregard for the truth. 

State v. Tinsley, 2d Dist. No. 23542, 2010-Ohio-3535, ¶ 23, citing Franks at 155-156. 

“‘Reckless disregard’ means that the affiant had serious doubts about an allegation’s 

truth.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 31. 

{¶16} However, 

[e]ven if the affidavit contains false statements [or omissions] made 

intentionally or recklessly, a warrant based on the affidavit is still valid 

unless, with the affidavit’s false material set to one side [or with the 

omissions included], the affidavit’s remaining content is insufficient to 

establish probable cause. 

State v. Sells, 2d Dist. No. 2005-CA-8, 2006-Ohio-1859, ¶ 11, citing State v. Waddy, 63 

Ohio St.3d 424, 441, 588 N.E.2d 819 (1992). 

{¶17} “In conducting any after-the-fact scrutiny of an affidavit submitted in 

support of a search warrant, trial and appellate courts should accord great deference to the 

magistrate’s determination of probable cause, and doubtful or marginal cases in this area 
should be resolved in favor of upholding the warrant.” George, 45 Ohio St.3d 325, 544 

N.E.2d 640, paragraph two of the syllabus. 

1. Nexus to the Motel Room

{¶18} Perry argues that Sgt. Kwiatkowski’s affidavit was made with reckless 

disregard of the truth, and therefore, the trial court should have granted his motion to 

suppress. He first challenges the affidavit on the basis that Sgt. Kwiatkowski “had no 

good faith basis upon which to believe that any stolen items from the Walton Hills 

burglary were kept in the Mosley Suites room.” In support of his argument, Perry points 

to Sgt. Kwiatkowski’s following statement made on cross-examination: “I really didn’t 

have any proof that any property was being kept there.” 

{¶19} Perry, however, wrongly takes this isolated statement out of context. Sgt. 

Kwiatkowski acknowledged that he did not positively know that the stolen contraband 

was in the room, admitting that he neither saw it nor received any tips confirming that the 

contraband was there. But his testimony was consistent with the averments contained in 

the affidavit and such statements were sufficient for a magistrate to determine that 

probable cause existed that the contraband would be found in the room. Indeed, based 

on Perry and Ivery staying at the hotel at the time period immediately preceding and 

following the burglary, it was reasonable for the magistrate to conclude that any 

contraband was being stored at the room. See State v. Jones, 2d Dist. No. 23926, 

2011-Ohio-1984, ¶ 21. 
{¶20} Moreover, Perry’s argument wrongly implies that an investigator has to have 

conclusive proof that the evidence will be found in the location subject to the search 

warrant. The standard, however, is one of “probable cause.” And given the deferential 

standard of review that the trial court must afford the magistrate or judge that signed the 

warrant, we cannot say that the trial court erred in agreeing that the affidavit contained 

sufficient evidence to support the warrant, even after excising the three paragraphs. 

2. Identification of the Vehicle

{¶21} Next, Perry argues that Sgt. Kwiatkowski averred certain “facts” that “were 

made with a reckless disregard for the truth in order to create probable cause.” 

Specifically, he claims that, despite Sgt. Kwiatkowski averring that Mr. Exton 

positively identified Perry’s Cadillac in a photograph, Sgt. Kwiatkowski’s testimony at 

the suppression hearing revealed that “Mr. Exton did not identify the photograph before 

the search warrant was issued.” To the extent that Mr. Exton identified a black Cadillac 

of the same style from internet pictures, Perry claims that “[t]his flies in the face of the 

affidavit, which expressly attests that Mr. Exton identified the vehicle from the actual 

photograph of the car parked at the Mosley Suites.” 

{¶22} Perry is challenging the following paragraph contained in Sgt. 

Kwiatkowski’s affidavit: 

16. That furthermore as part of the investigation in this case, a second 

vehicle was identified as being registered to Kyle Perry, that being a black 

Cadillac, with Ohio Registration EZ * * * which has chrome colored hub 

cabs which matched the physical description of the vehicle which had been 

seen and observed by Tim Exton outside the Gigliotti residence on or about 

July 17, 2010. That a photograph of the vehicle which at the time had 
been parked at the Mosely [sic] Select Suites had been obtained by an 

investigator and subsequently displayed for Tim Exton, at which time Mr. 

Exton positively identified the vehicle as the vehicle he observed at the 

Gigliotti residence on or about July 17, 2010. 

{¶23} This issue was raised and considered at the suppression hearing. And 

while we agree that Sgt. Kwiatkowski’s affidavit could have been more precise, we find 

no basis to disturb the trial court’s ruling. As stated above, “reckless disregard” means 

that the affiant had serious doubt about the allegation’s truth. Here, based on Sgt. 

Kwiatkowski’s testimony at the suppression hearing, it is clear that he believed that Mr. 

Exton positively identified Perry’s actual vehicle. The trial court was in the best position 

to judge Sgt. Kwiatkowski’s credibility, and we therefore cannot substitute our judgment 

here on appeal. 

{¶24} For this very same reason, we find Perry’s reliance on State v. Dibble, 195 

Ohio App.3d 189, 2011-Ohio-3817, 959 N.E.2d 540 (10th Dist.), misplaced. In Dibble, 

the reviewing court affirmed the trial court’s decision granting a motion to suppress after 

the trial court concluded that the affidavit supporting the search warrant contained 

intentional or reckless falsity. In reaching its holding, the court emphasized that the trial 

judge is in the best position to judge credibility and that competent, credible evidence 

existed to support the trial judge’s decision. The same applies here. Competent, 

credible evidence exists in this record that Sgt. Kwiatkowski did not act with reckless 

disregard of the truth. There is no dispute that Mr. Exton selected a photograph of the 

same Cadillac that Perry owned and that such Cadillac was parked outside the hotel on 

July 20, 2010. 
{¶25} We further note that Sgt. Kwiatkowski’s testimony on this issue was 

confusing. Although it is clear from his testimony on cross-examination that he did not 

show Mr. Exton the photograph of Perry’s Cadillac that he took around 11:00 a.m. on 

July 20, Sgt. Kwiatkowski’s testimony on redirect suggests that Patrolman Davis — the 

same officer that obtained Mr. Exton’s written statement on July 20, prior to the issuance 

of the search warrant — did obtain a positive identification based on the photograph. 

And given that the affidavit specifically references “Investigator,” as opposed to 

“Affiant,” it does not appear to be false. But even if we agreed with Perry that this 

distinction of identifying a photograph pulled from the internet versus a photograph of the 

defendant’s actual vehicle rises to the level of reckless disregard for the truth, we still find 

that the trial court’s decision is correct. Here, only the portion that would qualify as 

“reckless disregard of the truth” would need to be excised. Thus, the last sentence of 

paragraph 16 would have been excised. Without that reference, we find that the 

affidavit’s remaining portions are sufficient to establish probable cause to search the hotel 

room. Indeed, the affidavit still establishes that Mr. Exton’s physical description of the 

vehicle that he observed at the Gigliottis matches the physical description of the vehicle 

parked outside of the Mosley Select Suites, as observed by Sgt. Kwiatkowski. 

{¶26} Accordingly, the first assignment of error is overruled. 

Speedy Trial

{¶27} Perry argues in his second assignment of error that his speedy trial rights 

were violated because he was not brought to trial within the statutory period under R.C. 
2945.71(C)(2). The state counters that Perry fails to account for the numerous motions 

and continuances that tolled the statutory period, including Perry’s incarceration related to 

his other criminal case in Lake County. 

{¶28} When reviewing a speedy trial question, the appellate court must count the 

number of delays chargeable to each side and then determine whether the number of days 

not tolled exceeded the time limits under R.C. 2945.71. State v. Ferrell, 8th Dist. No. 

93003, 2010-Ohio-2882, ¶ 20. Furthermore, this court must construe the statutes strictly 

against the state when reviewing the legal issues in a speedy trial claim. See Brecksville 

v. Cook, 75 Ohio St.3d 53, 661 N.E.2d 706 (1996). 

{¶29} R.C. 2945.71(C)(2) provides that a person against whom a felony charge is 

pending shall be brought to trial within 270 days after the person’s arrest. 

{¶30} Once the statutory limit has expired, the defendant has established a prima 

facie case for dismissal. State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 

(1986). At that point, the burden shifts to the state to demonstrate that sufficient time 

was tolled pursuant to R.C. 2945.72. Cook at 55-56. If the state has violated a 

defendant’s right to a speedy trial, then the court must dismiss the charges against the 

defendant. R.C. 2945.73(B). 

{¶31} Under R.C. 2945.72, however, speedy trial time may be tolled by several 

events, including the following: 

(D) Any period of delay occasioned by the neglect or improper act of the 

accused; 
(E) Any period of delay necessitated by reason of a plea in bar or 

abatement, motion, proceeding, or action made or instituted by the accused; 

* * * 

(H) The period of any continuance granted on the accused’s own motion, 

and the period of any reasonable continuance granted other than upon the 

accused’s own motion[.] 

{¶32} For purposes of computing time under R.C. 2945.71(C)(2), each day the 

accused is held in jail in lieu of bail on the pending charge shall be counted as three days. 

 See R.C. 2945.71(E). If the defendant is not incarcerated following his arrest, the 

speedy trial time is counted on a one-for-one basis. 

{¶33} Although Perry’s argument initially appears compelling, he fails to account 

for the numerous tolling events that occurred in this case. The state’s argument, 

however, that Perry’s incarceration in the Lake County case tolled all of his time is not 

accurate. Instead, the incarceration prevents Perry from utilizing the three-for-one 

provision during that period, i.e., starting on January 24, 2011. In this case, the docket 

reveals that Perry was arrested on July 20, 2010; his speedy trial time started running the 

following day. He was, therefore, in jail for 55 days prior to the first tolling event on 

September 13, 2010, which included the withdrawal of his counsel and his request for a 

continuance after being appointed a new attorney. Applying the three-for-one provision, 

this would equal 165 days counted against the state for purposes of calculating speedy 

trial time. 
{¶34} But from that time, Perry’s remaining time in jail until the time he pled was 

tolled by virtue of several motions filed, including his motion to suppress, supplemental 

motion to suppress, and motion to reconsider the trial court’s decision on the motion to 

suppress, and by the several continuances requested on his behalf. As for Perry’s claim 

that he expressed his desire to prevent any further continuances by virtue of his pro se 

motion filed on March 15, 2011, this argument does not negate the continuances 

requested on his behalf by his attorney. “‘A defendant’s right to be brought to trial 

within the time limits expressed in R.C. 2945.71 may be waived by his counsel for 

reasons of trial preparation and the defendant is bound by the waiver even though the 

waiver is executed without his consent.’” State v. Vaughn, 106 Ohio App.3d 775, 

785-786, 667 N.E.2d 82 (12th Dist.1995), quoting State v. McBreen, 54 Ohio St.2d 315, 

320, 376 N.E.2d 593 (1978). Accordingly, we find no support for Perry’s argument that 

his speedy trial rights were violated. 

{¶35} The second assignment of error is overruled. 

{¶36} Judgment affirmed. 

It is ordered that appellee recover of 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. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

EILEEN A. GALLAGHER, J., CONCUR