State v. Bell

[Cite as State v. Bell, 2020-Ohio-1397.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-627
v. : (C.P.C. No. 99CR-5384)
Darrell L. Bell, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on April 9, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee.
On brief: Darrell L. Bell, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Darrell L. Bell, appeals a decision and judgment of the
Franklin County Court of Common Pleas entered on August 20, 2019 denying his motion
to vacate and set aside the judgment and sentence. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In 1999, appellant was convicted of the stipulated lesser-included offense of
murder of Nyomi Conley; the stipulated lesser-included offense of attempted murder of
Mark Newton; and one count of having a weapon under a disability. Although the
indictment contained a death penalty specification and three firearm specifications,
appellant was not convicted of the same. Appellant was sentenced to serve an aggregate
sentence of 26 years to life. Appellant filed a direct appeal, and this court affirmed. State
v. Bell, 10th Dist. No. 00AP-739 (Mar. 30, 2001). Appellant filed a petition for
No. 19AP-627 2
postconviction relief in 2001. The trial court denied the same. Appellant appealed, but the
appeal was dismissed for failure to prosecute as appellant did not file a brief. Appellant
filed an application to reopen his appeal in 2003. This court denied the same.
{¶ 3} On April 4, 2019, appellant filed a "motion to vacate and set aside the
judgment and sentence pursuant to civil rule 60(B)(5) fraud upon the court." State of Ohio,
plaintiff-appellee, filed a memorandum contra, and appellant filed a memorandum in
opposition to the state's memorandum contra on May 6, 2019.
{¶ 4} The trial court construed the motion as a petition for postconviction relief.
On August 20, 2019, the court denied the motion because it was untimely and barred by res
judicata. The court further noted, citing R.C. 2953.23(A)(1)(b), that nothing in the record
indicated appellant was unavoidably prevented from discovering information which was
the basis of this motion and there was nothing within appellant's motion that supported by
clear and convincing evidence that, but for the constitutional error, no reasonable fact
finder would have found the petitioner guilty of the offense for which he was convicted.
II. Assignments of Error
{¶ 5} Appellant appeals and assigns the following five assignments of error for our
review:
[I.] Does a trial court abuse its discretion where it is charged
with the question of whether there was probable cause for
putting the accused on trial, and whether the indictment was
fair on its face to the court to which it was returned?
[II.] Does a trial court abuse its discretion where it is charged
with the question of whether there was probable cause for
putting the accused on trial, where the defendant is facing the
death penalty?
[III.] The trial court commits plain error and abuses its
discretion when convicting a defendant of attempted felony
murder when felony murder, alternatively, involves an
inadvertent homicide resulting from the commission of a
felony of violence. By definition, therefore, a felony murder
charge requires both a felony of violence and an unintended
death.
[IV.] The Ohio Supreme Court has established in criminal
cases that under the doctrine of cumulative error, "a
No. 19AP-627 3
conviction will be reversed when the cumulative effect of
errors in a trial deprives a defendant of a fair trial.
[V.] Where successive prosecutions are at stake, the double
jeopardy guarantee serves "a constitutional policy of finality
for the defendant's benefit.
(Sic passim.)
III. Analysis
{¶ 6} In the portion of his brief titled "Facts of the Case," appellant states the trial
court never had jurisdiction to hold him to answer at trial and that a void judgment is one
that has been imposed by a court that lacks subject-matter jurisdiction. However, appellant
does not explain why he thinks the trial court lacked jurisdiction. Nor does appellant point
to any authority to support his statement that the trial court lacked jurisdiction. In support
of his second assignment of error, appellant also states the trial court did not have
jurisdiction to proceed against him, yet does not explain why he thinks the trial court lacked
jurisdiction. Furthermore, in his second assignment of error, appellant complains about
the fact that the indictment contained a death penalty specification, yet he was not
convicted of the death penalty specification.
{¶ 7} Appellant did not raise as an assignment of error that the trial court lacked
jurisdiction or that the judgment was void. Nevertheless, because he made the statements
referenced above, we apply here the reasoning outlined in App.R.16 and 12. App.R. 16(A)(7)
requires an appellant's brief to include "argument containing the contentions of the
appellant * * * and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies." App.R. 12(A)(2)
provides that "[t]he court may disregard an assignment of error presented for review if the
party raising it fails to identify in the record the error on which the assignment of error is
based or fails to argue the assignment separately in the brief, as required under App.R.
16(A)." Finally, "[i]t is the duty of the appellant, not the appellate court, to construct the
legal arguments necessary to support the appellant's assignments of error." Bond v. Canal
Winchester, 10th Dist. No. 07AP-556, 2008-Ohio-945, ¶ 16. With this in mind, we
disregard appellant's statements that the trial court lacked jurisdiction and that the
judgment was void as he points us to no place in the record and no authority to support the
same.
No. 19AP-627 4
{¶ 8} In the first assignment of error, appellant argues the trial court abused its
discretion because there was insufficient evidence to support a finding of probable cause
and to indict him for the offense of aggravated murder of Nyomi Conley. In the second
assignment of error, appellant again focuses on the indictment and argues the trial court
abused its discretion because the offense of aggravated murder included a specification for
the death penalty. In the third assignment of error, appellant argues he was wrongly
convicted of attempted felony murder of Mark Newton because no crime of violence
occurred. In the fourth assignment of error, appellant argues cumulative error. Finally, in
the fifth assignment of error, appellant argues "the errors assigned [herein] along with the
cumulative errors assigned constitute errors so grievous that reversal on these issues
triggers the Double Jeopardy Clause and appellant can't be retried under any
circumstance." (Appellant's Brief at ix.)
{¶ 9} R.C. 2953.21(A) governs the filing of petitions for postconviction relief. State
v. Lacking, 10th Dist. No. 14AP-691, 2015-Ohio-1715, ¶ 10. A petition for postconviction
relief is a collateral civil attack on the prior criminal judgment, not an appeal of the
judgment or a venue to relitigate substantive issues raised in a direct appeal. State v.
Conway, 10th Dist. No. 17AP-504, 2019-Ohio-2260, ¶ 12; State v. Steffen, 70 Ohio St.3d
399, 410 (1994). Instead, postconviction relief affords a petitioner the means to reach
constitutional issues that could not be raised on direct appeal because the evidence
supporting such issues is not in the record. State v. Norman, 10th Dist. No. 19AP-106,
2019-Ohio-4020, ¶ 12; State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio-2309, ¶ 8.
" ' "Postconviction review is a narrow remedy, since res judicata bars any claim that was or
could have been raised at trial or on direct appeal." ' " State v. Teitelbaum, 10th Dist. No.
19AP-137, 2019-Ohio-3175, ¶ 11, quoting Conway at ¶ 12, quoting Steffen at 410.
{¶ 10} In addition to substantive limitations, a petition for postconviction relief is
bounded by statutory timeliness requirements, subject to specific, limited exceptions.
"Effective September 21, 1995, R.C. 2953.21 was amended to provide that a 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 or
adjudication,' or, if no appeal is taken, 'no later than one hundred eighty days after the
expiration of the time for filing the appeal.' " State v. Nelson, 10th Dist. No. 18AP-659,
No. 19AP-627 5
2019-Ohio-1075, ¶ 12, quoting State v. Lorraine, 11th Dist. No. 2017-T-0028, 2018-Ohio-
3325, ¶ 31, quoting former R.C. 2953.21(A)(2).1
{¶ 11} Furthermore, as relevant to the facts of this case, a court may not consider an
untimely petition unless the petitioner satisfies the two-pronged test provided in R.C.
2953.23(A)(1). State v. Muhumed, 10th Dist. No. 11AP-1001, 2012-Ohio-6155, ¶ 57; State
v. Turner, 10th Dist. No. 06AP-876, 2007-Ohio-1468, ¶ 10. Under the first prong, the
petitioner must either show 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
(2) "subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised
Code or to the filing of an earlier petition, 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." R.C. 2953.23(A)(1)(a). In the context
of R.C. 2953.23(A)(1)(a), the phrase "unavoidably prevented" means a defendant was
unaware of the facts relied on for the claim for relief and was unable to become aware of
such facts through reasonable diligence. State v. Jackson, 10th Dist. No. 18AP-758, 2019-
Ohio-4995, ¶ 33, citing Turner at ¶ 11. Under the second prong, the petitioner must, by clear
and convincing evidence, show that "but for constitutional error at trial, no reasonable
factfinder would have found the petitioner guilty of the offense of which the petitioner was
convicted or, if the claim challenges a sentence of death that, but for constitutional error at
the sentencing hearing, no reasonable factfinder would have found the petitioner eligible
for the death sentence." R.C. 2953.23(A)(1)(b).
{¶ 12} Unless the petitioner establishes an exception to the timeliness requirement,
a trial court lacks jurisdiction to consider the merits of an untimely petition for
postconviction relief. State v. Mason, 10th Dist. No. 12AP-120, 2012-Ohio-4510, ¶ 8. See
State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 22. Whether a trial court has
jurisdiction to consider an untimely petition for postconviction relief is a question of law to
which we apply a de novo standard of review. Apanovitch at ¶ 24, citing State v. Kane, 10th
Dist. No. 16AP-781, 2017-Ohio-7838, ¶ 9.
1 The statute was subsequently amended to provide that where a criminal defendant has filed a direct appeal
of the conviction, a petition for postconviction relief pursuant to R.C. 2953.21must generally 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." R.C. 2953.21(A)(2).
No. 19AP-627 6
{¶ 13} The trial transcript in this case was filed August 15, 2000.
{¶ 14} Having reviewed appellant's motion, memorandum in opposition to the
state's memorandum contra, and his appellate brief, we find the trial court did not err in
finding appellant's motion was untimely, the arguments raised therein were barred by res
judicata, and appellant did not meet the criteria to establish an exception to the timeliness
requirement in R.C. 2953.23(A)(1). Therefore, we overrule all of appellant's assignments
of error.
IV. Conclusion
{¶ 15} Having overruled appellant's five assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.