STATE OF OHIO v. DIAHNTAE BELL
C.A. CASE NO. 24783
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
August 3, 2012
[Cite as State v. Bell, 2012-Ohio-3491.]
T.C. NO. 07CR802
(Criminal appeal from Common Pleas Court)
Rendered on the 3rd day of August, 2012.
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
DONOVAN, J.
{1} This matter is before the Court on the pro se Notice of Appeal of Diahntae
{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
{4}
(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
{5} The State responded that murder, in violation of
{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,
{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
{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,
{10} The judgment of the trial court is affirmed.
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Kirsten A. Brandt
Diahntae Bell
Hon. Dennis J. Langer