[Cite as State v. Bullitt, 2016-Ohio-4868.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103798
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DEAUNTE BULLITT DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-565262-C
BEFORE: Stewart, J., Jones, A.J., and Keough, J.
RELEASED AND JOURNALIZED: July 7, 2016 FOR APPELLANT
Deaunte Bullitt, pro se Inmate No. 651113 Richland Correctional Institution P.O. Box 8107 Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
Mary McGrath Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} Defendant-appellant Deaunte Bullitt, pro se, appeals from the denial of his
motions to vacate his conviction, release public records, and preserve evidence. For the
following reasons, we affirm the decision of the trial court.
{¶2} In December 2013, Bullitt was found guilty by a jury of drug trafficking, drug
possession, possessing criminal tools, and tampering with evidence. He was sentenced
to an 11-year prison term. On direct appeal, Bullitt raised a single assignment of error
challenging the court’s jury instructions. This court affirmed his convictions in State v.
Bullitt, 8th Dist. Cuyahoga No. 100885, 2014-Ohio-5138.
{¶3} Following his direct appeal, Bullitt filed several pro se motions with the trial
court. In May 2015, Bullitt filed a motion to set aside his judgment of conviction and
sentence. In the motion, Bullitt argued that his trial counsel was ineffective for
numerous reasons; that his sentence violated the Eighth Amendment’s prohibition on
cruel and unusual punishment; and that the evidence against him was based on perjured
testimony. In October, Bullitt filed a motion asking the court to compel the release of
certain public records. Specifically, Bullitt wanted a recording of police radio chatter
recorded in the minutes leading up to his arrest. Lastly, in November 2015, Bullitt filed
a motion to compel/preserve evidence in which he asked the court to order the Cuyahoga
County Sheriff’s Department and the Richmond Heights Police Department to preserve evidence against him so that it could be fingerprinted and tested for his DNA. All three
motions were denied by the trial court in a single order on November 10, 2016.
{¶4} Bullitt now appeals from that order by raising five assignments of error, some
of which raise arguments not addressed in his original motions. We decline to review the
assigned errors because all three motions were properly denied on procedural grounds.
{¶5} Bullitt’s motion to vacate or set aside the judgment of conviction and
sentence was brought pursuant to Ohio’s postconviction relief statute, R.C. 2953.21.
Under the statute, petitioners have 365 days “after the date on which the trial transcript
was filed in the court of appeals in the direct appeal of the judgment of conviction” to file
a postconviction petition alleging constitutional violations. See R.C. 2953.21(A)(2).
Failure to timely file a petition under this section jurisdictionally bars the trial court from
reviewing the petition. State v. Rackley, 8th Dist. Cuyahoga No. 102962,
2015-Ohio-4504, ¶ 14. The only exceptions to the 365-day filing deadline are found in
R.C. 2953.23(A), which states:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a petition
filed after the expiration of the period prescribed in division (A) of that
section or a second petition or successive petitions for similar relief on
behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, 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.
(b) The petitioner shows by clear and convincing evidence 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.
(2) The petitioner was convicted of a felony, the petitioner is an offender for whom DNA testing was performed under sections 2953.71 to 2953.81 of the Revised Code or under former section 2953.82 of the Revised Code and analyzed in the context of and upon consideration of all available admissible evidence related to the inmate’s case as described in division (D) of section 2953.74 of the Revised Code, and the results of the DNA testing establish, by clear and convincing evidence, actual innocence of that felony offense or, if the person was sentenced to death, establish, by clear and convincing evidence, actual innocence of the aggravating circumstance or circumstances the person was found guilty of committing and that is or are the basis of that sentence of death.
As used in this division, “actual innocence” has the same meaning as in
division (A)(1)(b) of section 2953.21 of the Revised Code, and “former
section 2953.82 of the Revised Code” has the same meaning as in division
(A)(1)(c) of section 2953.21 of the Revised Code.
{¶6} In this case, the trial record was filed with the court of appeals on February
10, 2014. Bullitt did not file his petition for postconviction relief until May 7, 2015.
Accordingly, Bullitt missed the 365-day filing deadline. Bullitt does not argue that any
exceptions to the filing deadline found in R.C. 2953.23(A) apply to his case. Therefore,
the court correctly denied the motion on jurisdictional grounds. {¶7} Bullitt’s motion to compel the release of public records was also properly
denied. Bullitt asked the court to compel the release of certain evidence including a
recording of radio chatter taken on the day of his arrest, asserting that the evidence was
exculpatory and would prove his innocence. He brought this motion pursuant to R.C.
149.43, the statute outlining the availability and procedures for requesting public records.
The Supreme Court of Ohio has made clear that “‘[a] defendant in a criminal case who
has exhausted the direct appeals of her or his conviction may not avail herself or himself
of R.C. 149.43 to support a petition for postconviction relief.’” State ex rel. Sawyer v.
Cuyahoga Cty. Dept. of Children & Family Servs., 110 Ohio St.3d 343, 2006-Ohio-4574,
853 N.E.2d 657, quoting State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children &
Family Servs., 8th Dist. Cuyahoga No. 86436, 2006-Ohio-395. Because Bullitt was
attempting to use R.C. 149.43 as a means of gathering evidence to support his
postconviction petition, the trial court correctly denied the motion.
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[Cite as State v. Bullitt, 2016-Ohio-4868.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103798
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
DEAUNTE BULLITT DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-565262-C
BEFORE: Stewart, J., Jones, A.J., and Keough, J.
RELEASED AND JOURNALIZED: July 7, 2016 FOR APPELLANT
Deaunte Bullitt, pro se Inmate No. 651113 Richland Correctional Institution P.O. Box 8107 Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
Mary McGrath Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} Defendant-appellant Deaunte Bullitt, pro se, appeals from the denial of his
motions to vacate his conviction, release public records, and preserve evidence. For the
following reasons, we affirm the decision of the trial court.
{¶2} In December 2013, Bullitt was found guilty by a jury of drug trafficking, drug
possession, possessing criminal tools, and tampering with evidence. He was sentenced
to an 11-year prison term. On direct appeal, Bullitt raised a single assignment of error
challenging the court’s jury instructions. This court affirmed his convictions in State v.
Bullitt, 8th Dist. Cuyahoga No. 100885, 2014-Ohio-5138.
{¶3} Following his direct appeal, Bullitt filed several pro se motions with the trial
court. In May 2015, Bullitt filed a motion to set aside his judgment of conviction and
sentence. In the motion, Bullitt argued that his trial counsel was ineffective for
numerous reasons; that his sentence violated the Eighth Amendment’s prohibition on
cruel and unusual punishment; and that the evidence against him was based on perjured
testimony. In October, Bullitt filed a motion asking the court to compel the release of
certain public records. Specifically, Bullitt wanted a recording of police radio chatter
recorded in the minutes leading up to his arrest. Lastly, in November 2015, Bullitt filed
a motion to compel/preserve evidence in which he asked the court to order the Cuyahoga
County Sheriff’s Department and the Richmond Heights Police Department to preserve evidence against him so that it could be fingerprinted and tested for his DNA. All three
motions were denied by the trial court in a single order on November 10, 2016.
{¶4} Bullitt now appeals from that order by raising five assignments of error, some
of which raise arguments not addressed in his original motions. We decline to review the
assigned errors because all three motions were properly denied on procedural grounds.
{¶5} Bullitt’s motion to vacate or set aside the judgment of conviction and
sentence was brought pursuant to Ohio’s postconviction relief statute, R.C. 2953.21.
Under the statute, petitioners have 365 days “after the date on which the trial transcript
was filed in the court of appeals in the direct appeal of the judgment of conviction” to file
a postconviction petition alleging constitutional violations. See R.C. 2953.21(A)(2).
Failure to timely file a petition under this section jurisdictionally bars the trial court from
reviewing the petition. State v. Rackley, 8th Dist. Cuyahoga No. 102962,
2015-Ohio-4504, ¶ 14. The only exceptions to the 365-day filing deadline are found in
R.C. 2953.23(A), which states:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a petition
filed after the expiration of the period prescribed in division (A) of that
section or a second petition or successive petitions for similar relief on
behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, 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.
(b) The petitioner shows by clear and convincing evidence 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.
(2) The petitioner was convicted of a felony, the petitioner is an offender for whom DNA testing was performed under sections 2953.71 to 2953.81 of the Revised Code or under former section 2953.82 of the Revised Code and analyzed in the context of and upon consideration of all available admissible evidence related to the inmate’s case as described in division (D) of section 2953.74 of the Revised Code, and the results of the DNA testing establish, by clear and convincing evidence, actual innocence of that felony offense or, if the person was sentenced to death, establish, by clear and convincing evidence, actual innocence of the aggravating circumstance or circumstances the person was found guilty of committing and that is or are the basis of that sentence of death.
As used in this division, “actual innocence” has the same meaning as in
division (A)(1)(b) of section 2953.21 of the Revised Code, and “former
section 2953.82 of the Revised Code” has the same meaning as in division
(A)(1)(c) of section 2953.21 of the Revised Code.
{¶6} In this case, the trial record was filed with the court of appeals on February
10, 2014. Bullitt did not file his petition for postconviction relief until May 7, 2015.
Accordingly, Bullitt missed the 365-day filing deadline. Bullitt does not argue that any
exceptions to the filing deadline found in R.C. 2953.23(A) apply to his case. Therefore,
the court correctly denied the motion on jurisdictional grounds. {¶7} Bullitt’s motion to compel the release of public records was also properly
denied. Bullitt asked the court to compel the release of certain evidence including a
recording of radio chatter taken on the day of his arrest, asserting that the evidence was
exculpatory and would prove his innocence. He brought this motion pursuant to R.C.
149.43, the statute outlining the availability and procedures for requesting public records.
The Supreme Court of Ohio has made clear that “‘[a] defendant in a criminal case who
has exhausted the direct appeals of her or his conviction may not avail herself or himself
of R.C. 149.43 to support a petition for postconviction relief.’” State ex rel. Sawyer v.
Cuyahoga Cty. Dept. of Children & Family Servs., 110 Ohio St.3d 343, 2006-Ohio-4574,
853 N.E.2d 657, quoting State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children &
Family Servs., 8th Dist. Cuyahoga No. 86436, 2006-Ohio-395. Because Bullitt was
attempting to use R.C. 149.43 as a means of gathering evidence to support his
postconviction petition, the trial court correctly denied the motion.
{¶8} Lastly, the trial court did not err when it denied Bullitt’s motion to compel
and preserve evidence so that it may be fingerprinted and tested for Bullitt’s DNA.
Bullitt brought this motion pursuant to R.C. 2933.82. This provision pertains solely to
the preservation of “biological material that was in possession of any governmental
evidence retention entity during investigation and prosecution of any case or delinquent
child case * * *” involving a first- or second-degree felony homicide offense, a sexual
assault offense, or an attempted rape. See id. Because Bullitt’s convictions did not
include any such offenses, the court properly denied the motion. {¶9} Judgment affirmed.
It is ordered that appellee recover of said 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________ MELODY J. STEWART, JUDGE
LARRY A. JONES, SR., A.J., and KATHLEEN ANN KEOUGH, J., CONCUR