[Cite as State v. Bell, 2014-Ohio-49.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25729
v. : T.C. NO. 07CR802
DIAHNTAE BELL : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 10th day of January , 2014.
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, 565818, Warren Correctional Institute, P. O. Box 120, Lebanon, Ohio 45036 Defendant-Appellant
FROELICH, P.J.
{¶ 1} Diahntae Bell appeals from a judgment of the Montgomery County
Court of Common Pleas, which granted the State’s motion for summary judgment and 2
dismissed Bell’s petition for post-conviction relief. For the following reasons, the trial
court’s judgment will be affirmed.
I.
{¶ 2} The facts underlying Bell’s convictions are as follows:
On February 27, 2007, Cassandra Graves and Quiana Lott were
residents of an apartment located at 5157 Embassy Place in Harrison
Township. On that date, they noticed Bell coming out of an apartment
located next door at 5155 Embassy Place. That apartment was being rented
by Graves’s sister, Donitta Harvey, who was in prison at that time. Graves
and her brother Deangelo Epps were watching Harvey’s apartment while she
was in prison, and they had a key to the apartment. Bell was carrying a DVD
player identified as belonging to Harvey. When Bell was confronted by
Graves and Lott he claimed that he had permission to enter the apartment.
He ultimately relinquished the DVD player and went to another apartment
located at 5151 Embassy Place. Graves called the police to report Bell.
When the police arrived, Bell had left the scene.
Almost two hours later, Bell returned to the apartment complex where
he was observed pacing back and forth behind the apartments. Bell
confronted the residents of 5157 and claimed that he had no reason to steal
the DVD player. At that time, Lott became nervous, telephoned her brother
Diamond Washington, and asked him to come over. At one point, Bell went
back to the apartment located at 5151 and told the occupants, Lamicah Helton 3
and Lamond Chambers, that he had left his keys in 5155. Both Helton and
Chambers approached the residents of 5157, seeking to gain access to 5155 in
order to look for the keys; their requests were refused. Thereafter, Bell again
confronted the residents of 5157 and asked them to look for his keys. At that
point, Larue Bailey, another resident of 5157, had returned to the apartment.
He and Washington went over to 5155 to look for the keys, but did not find
them.
After Washington and Bailey went back inside 5157, Bell attempted
to enter 5155 through the kitchen window. He was stopped by Washington
and Bailey. Washington and Bell began to “tussle,” and a gun was pulled
out. As the men fought, Bell was shot in the hand and thereupon dropped
the gun. Washington kicked the gun over to Bailey, who was later observed
holding the gun at his side, pointed downward. At some point, the fight
ended, with Washington returning inside to 5157. Bell was then observed
walking back to the truck and retrieving a gun. Thereafter, he was observed
shooting Bailey.
Following the shooting, Bell ran back and entered Helton’s apartment,
but immediately exited through the front door. Helton and Chambers took
their children and left the apartment complex in a vehicle. The police
responded to the scene. Bailey was transported to the hospital, where he was
pronounced dead. Approximately fifteen minutes after the shooting, police
received information that Bell was inside an apartment located at 5148 4
Northcutt Place, a short distance from Embassy Place. Bell was
apprehended. A few days later, the handgun used to kill Bailey was found in
a trash can in Trotwood. No fingerprints were obtained from the gun.
State v. Bell, 2d Dist. Montgomery No. 22448, 2009-Ohio-4783, ¶ 4-7.
{¶ 3} Bell was charged with felony murder, murder, felonious assault, two counts
of burglary, and having a weapon while under disability. With the exception of one
burglary charge, all of the charges carried firearm specifications. The matter proceeded to a
jury trial, and Bell was convicted of felony murder (with a firearm specification), both
burglary counts, and having a weapon while under disability. In October 2007, the trial
court sentenced Bell to an aggregate term of 23 years to life in prison.
{¶ 4} Bell appealed from his convictions, and the transcripts of his jury trial were
filed on August 28, 2008. We affirmed Bell’s convictions. Bell, 2d Dist. Montgomery No.
22448, 2009-Ohio-4783. We denied Bell’s subsequent applications to reconsider and to
reopen his direct appeal. In May 2011, Bell filed a motion for resentencing, based on R.C.
2945.75(A)(2), and State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735.
We affirmed the trial court’s denial of that motion. State v. Bell, 2d Dist. Montgomery No.
24783, 2012-Ohio-3491.
{¶ 5} In January 2013, Bell filed a petition to vacate or set aside judgment of
conviction or sentence. He claimed that his trial counsel had rendered ineffective assistance
by failing to “advise [Bell] of a plea offer at any time prior to trial,” contrary to Missouri v.
Frye, U.S. , 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Bell supported his
petition with correspondence that he sent to his trial counsel, his attorney’s response, and an 5
affidavit. The State moved for summary judgment, arguing that Bell’s petition was
untimely and that Frye did not announce a new rule of constitutional law to be applied
retroactively. The State further argued that Bell’s petition did not demonstrate substantive
grounds for relief. The trial court found the State’s arguments persuasive and granted the
State’s motion for summary judgment. The court found “(1) Bell’s petition was not timely
filed in accordance with R.C. 2953.21[, and] (2) Bell has not demonstrated substantive
grounds for relief that would warrant a hearing.”
{¶ 6} Bell appeals from the trial court’s judgment, raising two assignments of
error.
II.
{¶ 7} Bell’s assignments of error state:
The trial court erred and demonstrated an abuse of discretion in
granting the State’s motion for summary judgment in light of the fact that the
United States Supreme Court recognized a new federal or state right per R.C.
2953.23 in Missouri v. Frye, 132 S.Ct. 1399. (Reference: Trial Court
Decision and Entry, May 27, 2013)
The trial court erred and demonstrated an abuse of discretion by fully
adopting the State’s motion for summary judgment holding that Appellant
has not demonstrated substantive grounds for relief that would warrant a
hearing. (Reference: Trial Court Decision and Entry, May 27, 2013)
{¶ 8} Petitions for post-conviction relief are governed by R.C. 2953.21 through
R.C. 2953.23. Under these statutes, any defendant who has been convicted of a criminal 6
offense and who claims to have experienced a denial or infringement of his or her
constitutional rights may petition the trial court to vacate or set aside the judgment and
sentence. R.C. 2953.21(A).
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[Cite as State v. Bell, 2014-Ohio-49.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25729
v. : T.C. NO. 07CR802
DIAHNTAE BELL : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 10th day of January , 2014.
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, 565818, Warren Correctional Institute, P. O. Box 120, Lebanon, Ohio 45036 Defendant-Appellant
FROELICH, P.J.
{¶ 1} Diahntae Bell appeals from a judgment of the Montgomery County
Court of Common Pleas, which granted the State’s motion for summary judgment and 2
dismissed Bell’s petition for post-conviction relief. For the following reasons, the trial
court’s judgment will be affirmed.
I.
{¶ 2} The facts underlying Bell’s convictions are as follows:
On February 27, 2007, Cassandra Graves and Quiana Lott were
residents of an apartment located at 5157 Embassy Place in Harrison
Township. On that date, they noticed Bell coming out of an apartment
located next door at 5155 Embassy Place. That apartment was being rented
by Graves’s sister, Donitta Harvey, who was in prison at that time. Graves
and her brother Deangelo Epps were watching Harvey’s apartment while she
was in prison, and they had a key to the apartment. Bell was carrying a DVD
player identified as belonging to Harvey. When Bell was confronted by
Graves and Lott he claimed that he had permission to enter the apartment.
He ultimately relinquished the DVD player and went to another apartment
located at 5151 Embassy Place. Graves called the police to report Bell.
When the police arrived, Bell had left the scene.
Almost two hours later, Bell returned to the apartment complex where
he was observed pacing back and forth behind the apartments. Bell
confronted the residents of 5157 and claimed that he had no reason to steal
the DVD player. At that time, Lott became nervous, telephoned her brother
Diamond Washington, and asked him to come over. At one point, Bell went
back to the apartment located at 5151 and told the occupants, Lamicah Helton 3
and Lamond Chambers, that he had left his keys in 5155. Both Helton and
Chambers approached the residents of 5157, seeking to gain access to 5155 in
order to look for the keys; their requests were refused. Thereafter, Bell again
confronted the residents of 5157 and asked them to look for his keys. At that
point, Larue Bailey, another resident of 5157, had returned to the apartment.
He and Washington went over to 5155 to look for the keys, but did not find
them.
After Washington and Bailey went back inside 5157, Bell attempted
to enter 5155 through the kitchen window. He was stopped by Washington
and Bailey. Washington and Bell began to “tussle,” and a gun was pulled
out. As the men fought, Bell was shot in the hand and thereupon dropped
the gun. Washington kicked the gun over to Bailey, who was later observed
holding the gun at his side, pointed downward. At some point, the fight
ended, with Washington returning inside to 5157. Bell was then observed
walking back to the truck and retrieving a gun. Thereafter, he was observed
shooting Bailey.
Following the shooting, Bell ran back and entered Helton’s apartment,
but immediately exited through the front door. Helton and Chambers took
their children and left the apartment complex in a vehicle. The police
responded to the scene. Bailey was transported to the hospital, where he was
pronounced dead. Approximately fifteen minutes after the shooting, police
received information that Bell was inside an apartment located at 5148 4
Northcutt Place, a short distance from Embassy Place. Bell was
apprehended. A few days later, the handgun used to kill Bailey was found in
a trash can in Trotwood. No fingerprints were obtained from the gun.
State v. Bell, 2d Dist. Montgomery No. 22448, 2009-Ohio-4783, ¶ 4-7.
{¶ 3} Bell was charged with felony murder, murder, felonious assault, two counts
of burglary, and having a weapon while under disability. With the exception of one
burglary charge, all of the charges carried firearm specifications. The matter proceeded to a
jury trial, and Bell was convicted of felony murder (with a firearm specification), both
burglary counts, and having a weapon while under disability. In October 2007, the trial
court sentenced Bell to an aggregate term of 23 years to life in prison.
{¶ 4} Bell appealed from his convictions, and the transcripts of his jury trial were
filed on August 28, 2008. We affirmed Bell’s convictions. Bell, 2d Dist. Montgomery No.
22448, 2009-Ohio-4783. We denied Bell’s subsequent applications to reconsider and to
reopen his direct appeal. In May 2011, Bell filed a motion for resentencing, based on R.C.
2945.75(A)(2), and State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735.
We affirmed the trial court’s denial of that motion. State v. Bell, 2d Dist. Montgomery No.
24783, 2012-Ohio-3491.
{¶ 5} In January 2013, Bell filed a petition to vacate or set aside judgment of
conviction or sentence. He claimed that his trial counsel had rendered ineffective assistance
by failing to “advise [Bell] of a plea offer at any time prior to trial,” contrary to Missouri v.
Frye, U.S. , 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Bell supported his
petition with correspondence that he sent to his trial counsel, his attorney’s response, and an 5
affidavit. The State moved for summary judgment, arguing that Bell’s petition was
untimely and that Frye did not announce a new rule of constitutional law to be applied
retroactively. The State further argued that Bell’s petition did not demonstrate substantive
grounds for relief. The trial court found the State’s arguments persuasive and granted the
State’s motion for summary judgment. The court found “(1) Bell’s petition was not timely
filed in accordance with R.C. 2953.21[, and] (2) Bell has not demonstrated substantive
grounds for relief that would warrant a hearing.”
{¶ 6} Bell appeals from the trial court’s judgment, raising two assignments of
error.
II.
{¶ 7} Bell’s assignments of error state:
The trial court erred and demonstrated an abuse of discretion in
granting the State’s motion for summary judgment in light of the fact that the
United States Supreme Court recognized a new federal or state right per R.C.
2953.23 in Missouri v. Frye, 132 S.Ct. 1399. (Reference: Trial Court
Decision and Entry, May 27, 2013)
The trial court erred and demonstrated an abuse of discretion by fully
adopting the State’s motion for summary judgment holding that Appellant
has not demonstrated substantive grounds for relief that would warrant a
hearing. (Reference: Trial Court Decision and Entry, May 27, 2013)
{¶ 8} Petitions for post-conviction relief are governed by R.C. 2953.21 through
R.C. 2953.23. Under these statutes, any defendant who has been convicted of a criminal 6
offense and who claims to have experienced a denial or infringement of his or her
constitutional rights may petition the trial court to vacate or set aside the judgment and
sentence. R.C. 2953.21(A).
{¶ 9} A post-conviction proceeding is not an appeal of a criminal conviction; it is
a collateral civil attack on the judgment. State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, 860 N.E.2d 77, ¶ 48, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639
N.E.2d 67 (1994); R.C. 2953.21(J). For this reason, a defendant’s petition for
post-conviction relief is not a constitutional right; the only rights afforded to a defendant in
post-conviction proceedings are those specifically granted by the legislature. Steffen, 70
Ohio St.3d at 410, 639 N.E.2d 67; State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d
905 (1999).
{¶ 10} An appellate court reviews a trial court’s denial of a petition for
post-conviction relief under an abuse of discretion standard. Gondor at ¶ 58. A trial court
abuses its discretion when it makes a decision that is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 11} Bell first argues that the trial court erred in finding that his petition for
post-conviction relief was untimely.
{¶ 12} When a direct appeal of the judgment of conviction has been taken (as in
Bell’s case), a petition for post-conviction relief must be filed “no later than one hundred and
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.” R.C. 2953.21(A)(2). Trial
courts lack jurisdiction to consider an untimely petition for post-conviction relief, unless the 7
untimeliness is excused under R.C. 2953.23(A). State v. Current, 2d Dist. Champaign No.
2012 CA 33, 2013-Ohio-1921, ¶ 16.
{¶ 13} Pursuant to R.C. 2953.23(A)(1)(a), a defendant may file an untimely
petition for post-conviction relief if (1) he was unavoidably prevented from discovering the
facts upon which he relies to present his claim, or (2) the United States Supreme Court
recognizes a new federal or state right that applies retroactively to his situation and the
petition asserts a claim based on that right. The petitioner must also show by clear and
convincing evidence that, if not for the constitutional error from which he suffered, no
reasonable factfinder could have found him guilty. R.C. 2953.23(A)(1)(b).
{¶ 14} The trial transcripts were filed in Bell’s direct appeal in August 2008; Bell
did not file his petition for post-conviction relief until January 2013. It is undisputed that
Bell filed his petition outside the 180-day period set forth in R.C. 2953.21. Bell asserts that
his petition was nevertheless timely, because his untimeliness was excused under R.C.
2953.23(A). Specifically, he argues that his trial counsel failed to inform him of a plea
offer by the State prior to trial, which constituted ineffective assistance of counsel under
Frye, U.S. , 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).
{¶ 15} Bell does not assert that he was unavoidably prevented from discovering the
facts upon which he relies, namely his trial counsel’s alleged failure to notify him of the
State’s plea offer before trial.1 Rather, he argues that Frye recognized a new federal or state
1 Bell does not even state when he learned of the State’s offer (which he claims was an offer to plead guilty to involuntary manslaughter and a possible gun specification); in his appellate brief, he merely states that he learned of the plea offer “after the trial and conviction in this matter.” Bell stated in his petition that, when he learned of the offer, “there was no provision that would allow counsel’s actions to constitute ineffectiveness of counsel” and that he could not raise such a claim until 8
right that applied to him retroactively.
{¶ 16} We have previously held that Frye did not establish a new constitutional
right that applies retroactively to situations such as Bell’s. State v. Isa, 2d Dist. Champaign
No. 2012 CA 44, 2013-Ohio-3382. We stated that Frye and Lafler v. Cooper, U.S.
, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)2 “simply examined a defendant’s existing
right to the effective assistance of counsel in the context of plea bargaining.” Isa at ¶ 9. In
so holding, we followed decisions of Ohio’s Eighth Appellate District, as well as federal
cases from the Second, Eighth, and Tenth Circuits. Id., citing State v. Hicks, 8th Dist.
Cuyahoga No. 99119, 2013-Ohio-1904, ¶ 13-14; State v. Bains, 8th Dist. Cuyahoga No.
98845, 2013-Ohio-2530, ¶ 20; United States v. Garcia-Rodriguez, 10th Cir. No. 13-8031,
2013 WL 3032772 (June 19, 2013); United States v. Echerivel, 8th Cir. No. 12-2964, 2013
WL 1296679 (Apr. 2, 2013); Gallagher v. United States, 711 F.3d 315 (2d Cir.2013).
{¶ 17} Based on the foregoing, we conclude that the trial court did not abuse its
discretion in finding that Bell’s petition was untimely. Bell’s first assignment of error is
overruled. In light of this conclusion, Bell’s second assignment of error is overruled as
moot.
III.
{¶ 18} The trial court’s judgment will be affirmed.
Frye was decided in March 2012. On June 15, 2012, Bell sent a letter to his trial attorney, asking about the plea offer. Bell’s petition thus indicates that Bell knew of the plea offer, at the latest, in June 2012, and the petition suggests that Bell knew of the offer before Frye was decided in March 2012. Bell does not address why he waited until January 2013 to file his petition. 2 Lafler concerned a situation where ineffective assistance of trial counsel caused the defendant’s nonacceptance of a plea offer, leading to a subsequent trial and a more severe sentence. 9
DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Kirsten A. Brandt Diahntae Bell Hon. Dennis J. Langer