State v. Bell

[Cite as State v. Bell, 2012-Ohio-3491.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24783
v. : T.C. NO. 07CR802
DIAHNTAE BELL : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 3rd day of August , 2012.
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KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DIAHNTAE BELL, #565-818, P. O. Box 120, Lebanon, Ohio 45036
Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of
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Diahntae
Bell, filed August 23, 2011. Bell appeals from the July 25, 2011 Decision of the trial court
which overruled his pro se “Motion for Re-Sentencing of a Void Sentence.”
{¶ 2} Bell was convicted, following a trial by jury, of one count of murder
(proximate result), an unclassified felony, along with a three-year firearm specification; one
count of burglary, a felony of the third degree; a second count of burglary, a felony of the
fourth degree; and having weapons while under disability, a felony of the third degree. The
trial court sentenced Bell to fifteen years to life for murder, with an additional, consecutive,
three year term for the firearm specification; one year for burglary; twelve months for
burglary; and three years for having weapons while under disability, all to be served
consecutively, for an aggregate term of 23 years to life. On direct appeal, this Court
affirmed Bell’s conviction and sentence. State v. Bell, 2d Dist. No. 22448,
2009-Ohio-4783.
{¶ 3} Bell filed his motion for resentencing on May 27, 2011. Bell relied upon
R.C. 2945.75(A)(2), and State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d
735, asserting that the verdict form for his murder conviction failed to set forth the degree of
the offense, and that he accordingly could only have been convicted of voluntary
manslaughter.
{¶ 4} R.C. 2945.75 provides:
(A) When the presence of one or more additional elements makes an
offense one of more serious degree:
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(2) A guilty verdict shall state either the degree of the offense which
the offender is found guilty, or that such additional element or elements are
present. Otherwise, a guilty verdict constitutes a finding of guilty of the least
degree of the offense charged.
In Pelfrey, the Supreme Court of Ohio held that “pursuant to the clear language of R.C.
2945.75, a verdict form signed by a jury must include either the degree of the offense of
which the defendant is convicted or a statement that an aggravating element has been found
to justify convicting a defendant of a greater degree of a criminal offense.” Id., ¶ 14.
{¶ 5} The State responded that murder, in violation of R.C. 2903.02(B), of which
Bell was convicted, is an unclassified offense, unlike tampering with records (R.C. 2913.42),
the convicted offense in Pelfrey, which could be a misdemeanor or a felony, depending on
additional factors. The State asserted that Bell’s reliance on Pelfrey was misplaced. In
overruling Bell’s motion, the trial court adopted the reasoning set forth in the the State’s
opposing memorandum.
{¶ 6} Bell sets forth two assignments of error, which we will consider together.
They are as follows:
“THE STATE COMMITTED PLAIN AND PREJUDICIAL ERROR WHEN IT
FAILED TO FOLLOW THE MANDATE OF STATE V. PELFREY IN VIOLATION OF
APPELLANT’S CONSTITUTIONAL RIGHT TO FUNDAMENTALLY FAIR
PROCEEDINGS AND HIS RIGHTS TO BE SENTENCED IN COMPLIANCE WITH ALL
STATUTES.”
And,
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“IF THE COURT FINDS THAT THERE ARE INFERIOR DEGREES OF
AGGRAVATED MURDER, MURDER, AND VOLUNTARY MANSLAUGHTER, THEN
THE JUDGMENT OF THE APPELLANT IS VOID AND MUST BE REMANDED FOR
RESENTENCING ACCORDING TO STATE V. PELFREY.”
{¶ 7} The State responds that Bell’s appeal is barred by the doctrine of res
judicata, and further that the verdict form for murder complies with R.C. 2945.75(A)(2).
We agree.
{¶ 8} The Ohio Supreme Court, in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d
104 (1967), syllabus at ¶ 9, determined:
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 from 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.
Since Bell’s arguments relating to defects in the verdict form could have been, but were not,
argued in his direct appeal, he is precluded from raising them herein. See State v.
Cunningham, 11th Dist. Lake No. 2010-L-153, 2011-Ohio-5108 (“As the instant appeal
emanates from a collateral postconviction motion to vacate, appellant is precluded from
raising his challenges to the verdict at this stage.”)
{¶ 9} Finally, we agree with the State that the trial court’s decision on the merits
of Bell’s motion was correct. Murder is not an elevated form of voluntary manslaughter,
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which R.C. 2903.03 proscribes, and R.C. 2903.02(B) does not set forth any additional
elements that could make the offense “one of more serious degree.” In other words,
Pelfrey is inapplicable. Pursuant to R.C. 2929.02(B)(1), Bell was subject to imprisonment
for “an indefinite term of fifteen years to life” for murder.
{¶ 10} The judgment of the trial court is affirmed.
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GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Kirsten A. Brandt
Diahntae Bell
Hon. Dennis J. Langer