Bell v. McConahay , 2022 Ohio 675 ( 2022 )

[Cite as Bell v. McConahay, 2022-Ohio-675.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MICHAEL BELL JUDGES:
Hon. Earle E. Wise, Jr., P.J.
Petitioner Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2022 CA 0005
TIM MCCONAHAY, WARDEN,
MANSFIELD CORRECTIONAL
INSTITUTION
Respondent OPINION
CHARACTER OF PROCEEDINGS: Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: March 9, 2022
APPEARANCES:
For Petitioner For Respondent
MICHAEL BELL, Pro se STEPHANIE L. WATSON
#A695341 Principal Assistant Attorney General
Mansfield Correctional Institution Criminal Justice Section
P.O. Box 788 30 East Broad Street – 23rd Floor
Mansfield, Ohio 44901 Columbus, Ohio 43215-4966
Richland County, Case No. 2022 CA 0005 2
Hoffman, J.
{¶1} Petitioner, Michael Bell, petitioned this Court for a Writ of Habeas Corpus
to compel Respondent, Tim McConahay, Warden of Mansfield Correctional Institution, to
release him from custody. McConahay moved to dismiss the writ and Bell responded in
opposition. For the following reasons, we grant McConahay’s Motion to Dismiss.
I. Background
{¶2} Bell has been imprisoned since September 4, 2012, and is currently at
Mansfield Correctional Institution. He was arrested in Cincinnati, Ohio and accused of the
September 4, 2012, shooting death of Marvin Jones. The state charged Bell with murder,
a firearm specification and having weapons while under disability. Bell remained in jail for
approximately fourteen months unable to post bail. He alleges in his petition the police
conducted no paraffin tests to verify he discharged and fired any gun. He also claims he
never appeared in court for any pre-trials or any other proceedings. The trial court
allegedly ordered a competency exam and thereafter conducted a hearing without Bell
being present. Bell further asserts, without his consent, the prosecutor waived his right to
appear and defense counsel allegedly agreed to the waiver.
{¶3} Bell also claims the state and trial court induced him to sign and enter into
a plea deal agreement in order to obtain a guilty plea. The agreement contains language
indicating the trial court would issue required findings under R.C. 2929.14 upon imposing
any sentence and the trial court could potentially impose sentences consecutively. On
October 31, 2013, Bell appeared in court and pled guilty to the reduced charges of
involuntary manslaughter, a gun specification and having weapons under disability. Bell
claims in doing so, the trial court did not properly comply with Crim.R. 11(C) and did not
adequately explain all potential sentencing penalties.
Richland County, Case No. 2022 CA 0005 3
{¶4} Bell also claims the trial court reneged on the plea agreement promises and
did not make the necessary findings under R.C. 2929.14. Defense counsel allegedly did
not object to these deficiencies on the record. Thereafter, the trial court imposed an actual
sentence of 17 years. Bell alleges no attorney would represent him or file an appeal on
his behalf. Bell has filed several post-sentencing motions/actions including a Motion for
Resentencing, a Post-Conviction Petition and a Motion for Delayed Appeal. All have been
unsuccessful.
{¶5} In his habeas corpus petition, Bell sets forth eight grounds upon which he
asserts he is entitled to relief, including immediate release from prison.
II. Analysis
A. Habeas corpus relief and Civ.R. 12(B)(6) standard
{¶6} To be entitled to habeas relief under R.C. 2725.01, a petitioner must show
he is being unlawfully restrained of his liberty and is entitled to immediate release from
prison or confinement. State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213, 2018-Ohio-
4184, 120 N.E.3d 776, ¶ 10. Generally, habeas relief is only available when the
petitioner’s maximum sentence has expired and he is being held unlawfully. Heddleston
v. Mack, 84 Ohio St.3d 213, 214, 702 N.E.2d 1198 (1998). Finally, habeas corpus is not
available when there is or was an adequate remedy in the ordinary course of the law.
Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-1719, 988 N.E.2d 556, ¶ 8.
{¶7} In response to Bell’s petition, McConahay requests dismissal but does not
specifically reference Civ.R. 12(B)(6). However, we will address the motion as being
made under Civ.R. 12(B)(6). Under this rule, we must presume all of the factual
allegations in the petition are true and make all reasonable inferences in favor of the
Richland County, Case No. 2022 CA 0005 4
nonmoving party. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490, 633 N.E.2d
1128 (1994). A petition may only be dismissed when, having viewed the complaint in this
way, it appears beyond doubt the relator can prove no set of facts that would entitle him
to the relief requested. Goudlock v. Voorhies, 119 Ohio St.3d 398, 2008-Ohio-4787, 894
N.E.2d 692, ¶ 7.
B. Alleged grounds for habeas relief
{¶8} We begin by noting that Bell’s petition is not subject to dismissal under R.C.
2969.25(A) or 2969.25(C) because Bell complied with these statutory requirements. He
filed with his petition a list of civil actions or appeals he has filed within the past five years.
He also filed a statement setting forth the balance of his inmate account for the preceding
six months prior to filing his petition. Therefore, we will proceed to address the merits of
Bell’s petition.
{¶9} First, Bell contends the trial court did not properly conduct the required plea
colloquy mandated by Crim.R. 11(C) and other controlling authorities of law which violates
the Fourteenth Amendment of the U.S. Constitution. In State ex rel. Lusher, v. Robinson,
5th District Richland No. 15CA60, 2016-Ohio-1461, ¶ 6 we cited Smith v. State, 11th Dist.
Ashtabula No. 2009-A-0019, 2009-Ohio-3940, for the proposition an adequate remedy at
law existed where a petitioner in a habeas corpus case claimed he was entitled to
immediate release from prison because the plea was void due to the trial court’ alleged
failure to comply with Crim.R. 11. The Smith court explained, “[P]etitioner could have
contested the propriety of the procedure during the plea hearing in a direct appeal or in a
motion to withdraw his guilty plea.” Id. at ¶ 14. Because Bell had an adequate remedy at
law available to him to challenge the plea colloquy, he is not entitled to habeas relief.
Richland County, Case No. 2022 CA 0005 5
{¶10} Bell next asserts the trial court unlawfully sentenced him by failing to make
the required findings under R.C. 2929.14, R.C. 2929.11 and R.C. 2929.12 in violation of
the Fourteenth Amendment of the U.S. Constitution. He also maintains the trial court
openly reneged on a signed plea agreement promising to only impose sentence after
making the required findings under R.C. 2929.14 and did not afford him an opportunity to
withdraw his plea.
{¶11} Bell is not entitled to relief on these grounds as he had an adequate remedy
at law to challenge the alleged sentencing errors. See McKinney v. Haviland, 162 Ohio
St.3d 150, 2020-Ohio-4785, 164 N.EW.3d 415, ¶ 10, citing State ex rel. Heston v. Judges
of the Richland Cty. Court of Common Pleas, 5th Dist. Richland No. 2019 CA 0098, 2019-
Ohio-5399, ¶ 4-5. (“McKinney’s argument that the trial court failed to make the necessary
findings under R.C. 2929.14(C)(4) raises an alleged sentencing error, for which McKinney
had an adequate remedy in the ordinary course of the law.”). Therefore, relief is not
available in habeas corpus.
{¶12} Bell also alleges the state and trial court denied him the right to appear at
nearly all proceedings and unlawfully waived his right to appear at his competency
hearing contrary to Crim.R. 43, controlling authorities and the Fourteenth Amendment to
the U.S. Constitution. Bell maintains the trial court arbitrarily denied him his procedural,
mandatory rights to a competency hearing contrary to statutory law, controlling authorities
of law and the Fourteenth Amendment to the U.S. Constitution. These arguments are not
properly raised herein since they could have pursued in a direct appeal.
{¶13} Bell next asserts he was denied effective assistance of counsel when
counsel failed to object to the state’s ex parte waiver of his procedural right to appear at
Richland County, Case No. 2022 CA 0005 6
his competency hearing which is contrary to controlling authorities of law and the Fifth,
Sixth and Fourteenth Amendments of the U.S. Constitution. Bell also maintains he was
denied effective assistance of counsel because counsel failed to file a motion to dismiss
and contest the state’s absence of any firearm and absence of proof of gun operability,
contrary to the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution. These
claims are properly dismissed because claims involving the ineffective assistance of
counsel are not cognizable in habeas corpus. Bozsik v. Hudson, 110 Ohio St.3d 245,
2006-Ohio-4356, 852 N.E.2d 1200, ¶ 7.
{¶14} Bell claims he entered into an unintelligent guilty plea contrary to Ohio
statutory laws when the state had no required proof of firearm operability, no firearm was
ever recovered and there was no evidence he fired a firearm. Bell asserts this is contrary
to controlling authorities of law, the Fifth, Sixth and Fourteenth Amendments of the U.S.
Constitution. “[T]he issue of whether [a petitioner] made an intelligent, knowing, and
voluntary guilty plea is a matter to be resolved by motion to withdraw the guilty plea, direct
appeal, or postconviction proceedings, rather than in habeas corpus.” Douglas v. Money,
85 Ohio St.3d 348, 349, 708 N.E.2d 697 (1999), citing Pollock v. Morris, 35 Ohio St.3d
117, 117-118, 518 N.E.2d 1205 (1988). Therefore, “allegations concerning the validity of
[a petitioner’s] plea are not legally sufficient to delineate a feasible claim for a writ of
habeas corpus.” Lopez v. Gansheimer, 11th Dist. Ashtabula No. 2006-A-0014, 2007-
Ohio-472, ¶ 7.
{¶15} We note in the Entry Withdrawing Plea of Not Guilty and Entering Plea of
Guilty to an Agreed Sentence, Bell indicated he understood his right to appeal a maximum
sentence, his other limited appellate rights, and that any appeal must be filed within 30
Richland County, Case No. 2022 CA 0005 7
days of his sentence. Even though the pursuit of an appeal no longer remains an available
remedy to Bell, he is not thereby entitled to an extraordinary writ. See Jackson v. Wilson,
100 Ohio St.3d 315, 2003-Ohio-6112, 798 N.E.2d 1086, ¶ 9.
{¶16} Finally, Bell’s failure to appeal does not alter our analysis. He was
represented by counsel in his criminal case and decided to plead guilty and waive his
right to appeal non-jurisdictional issues. That decision remains binding on him today. See
Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-1719, 988 N.E.2d 556, ¶ 9, citing
Jackson v. Wilson, 100 Ohio St.3d 315, 2003-Ohio-6112, 798 N.E.2d 1086, ¶ 9 (“even if
these other remedies are no longer available to [the habeas petitioner], he is not thereby
entitled to an extraordinary writ”), citing State ex rel. Gaydosh v. Twinsburg, 93 Ohio St.3d
576, 579, 757 N.E.2d 357 (2001) (“the fact that either or both of these alternative remedies
may no longer be available because of [relator’s] failure to timely pursue them does not
render them inadequate”).
III. Conclusion
{¶17} Because Bell is unable to state a claim for habeas relief, we grant
McConahay’s Motion to Dismiss under Civ.R. 12(B)(6). The clerk of courts is hereby
directed to serve upon all parties not in default notice of this judgment and its date of entry
upon the journal. See Civ.R. 58(B).
Richland County, Case No. 2022 CA 0005 8
{¶18} MOTION GRANTED.
{¶19} CAUSE DISMISSED.
{¶20} COSTS TO PETITIONER.
{¶21} IT IS SO ORDERED.
By: Hoffman, J.
Wise, Earle, P.J. and
Delaney, J. concur