[Cite as State v. Bell , 2023

- Ohio

- 2073.]



### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO , Plaintiff

- Appellee ,

vs.
WILLIE BELL , Def e ndant

- Appellant

. :

:

:

:

: APPEAL NO. C

- 2 20 372

TRIAL NO. B

- 0700957 A

O P I N I O N

.

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is : Affirmed Date of Judgment Entry on Appeal: June 23, 2023

Meli ssa A. Powers , Hamilton County Prosecuting Attorney, and P aula E. Adams , Assistant Prosecuti n g A tto r ney, for Plaintiff

- Appel l ee , Willie Bell , pro se.OHIO FIRST DISTRICT COURT OF APPEALS

2 K INSLEY , Judge

. 

### {¶1} Defendant

- appellant Willie Bell appeals th e judgment of the Hamilton County Court of Common Pleas d ismissing his “ Motion to Vacate Sentence Impartial on Counts 1 & 3 and To Appoi n t Counsel to Furthermore Liberate Claim

. ” For the following reasons, we affirm the court ’ s judgment. Factual and Procedural History 

### {¶2} In 2007, Bell was convicted of three coun ts of aggravated robbery, each with an accompanying gun specification , and one co u nt of failure to comply with the order or signal of a police officer. The trial court imposed a n aggregate 22
- year prison term for these offenses. We affirme d Bell ’ s convictions and sentences on direct appeal.
Sta te v. Bell , 1 st Dist. Hamilt on Nos. C

- 07 0 804 and C

- 07080 5 (Sept. 24, 2008 ). In 2014 and 201 8 , Bell filed postconviction motions seeking to vacate his convictions and

s entence s , arguing that the trial court lacked subject

- matter jurisdiction over his case due to “a lack of a chargin g instrument ” or a deficient charging instrument. The common pleas court denied both these motions , specifically finding that because a proper indictment had been filed, the trial court had subject

- matter ju risdiction over the proceedings leading to Bell ’ s convictions

. Bell did not appeal the denial of these
motions. 

### {¶3} In Bell ’ s most recent postc onviction m otion , he seeks to vacate his
conviction s and sentences for coun t s one and three of aggrava ted robbery. Al though Bell
raise s numerous ground s for relie f in his mot i on, most of his claims either relate to his argument s that his trial cou nsel was constitutionally ineffective for failing to investigate the charges against him or that the trial co urt lacked subject

- matter jurisdiction over his

case. Additio nally , he al s o ra ises s tatutory challenges to his sentence s
. 

### {¶4} On ap peal from the dismissal of his motion, Bell raises nine assignments of error. W e address his assignments of error out of orde r for ea se of discussion. Claims R

eviewa ble and S ubject to D is missal U nder R.C. 2953.21 et seq.OHIO FIRST DISTRICT COURT OF APPEALS

3 

### {¶5} Bell ’ s second , third, fourth , fifth, and sixth assignments o f error essentially restate the claim s made in his m otion that his trial counsel was constitutional ly ineffectiv e for failing to investigate the charges against h im and may
t h us fai rly be read to challenge the dism issal of those claims. 

### {¶6} I t is unclear from the record what standa rd the common pleas court used to review Bell ’ s motion

. But the Ohio Supreme Court has held that “[w]here a
criminal defendant , subsequent to his or h e r dire ct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21.” Sta te v. Reynol d s , 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997) ; State v. Parker , 157 Ohio St.3d 460, 2019

- Ohio

- 3848, 137 N.E.3d 1151, ¶ 16. Be cause Bell is seeking to vacate two of his convictions on cons titutional grounds, the common

p leas court should have r e viewed Be ll ’ s motion as a postconviction petiti on under the standards provided by R.C. 2953.21 et seq. 

### {¶7} Bell filed his motion well after the expiration of the time prescribed by R.C. 2953.21(A)(2). Ho weve r, a common pleas court may entertain a late
pos tconviction p etition if the petition satisfies the jurisdictional requirements of R.C.
2953.23. But Bell cannot s atisfy those requirements as the record d oes not demonstrate that he was unavoidably prevented from discovering the facts underlying his postc onviction cl a im s or that his claim s were predicated upon a new or retrospectively applicable federal or state r ight recognized by the United States Supreme Court since t he time for filing a postconviction petition had expired. Because Bell satisfied neith er the time s trictures of R.C. 2953.21(A)(2) nor the jurisdictional requirements of R.C. 2953.23(A), the post convic tion statutes did not confer upon the common pleas c ourt jurisdiction to entertain Bell ’ s postconviction claim s related to his trial counsel ’ s ineffecti v e ness , and t h ose claims were subject to dismissal

. S e e R.C.OHIO FIRST DISTRICT COURT OF APPEALS

4 2953.2 1(D) and (F) and 2953.23(A). Accordingly, we overrule the second, third, fou rth, fifth , and sixth assignments of error.

Res Judicata Bars Challenge to Subject

- Matter Jurisdict ion 

### {¶8} In his f

irst assignment of error, Be ll contends that the common pleas court erred by dismissing his claim s challenging the trial court ’ s subject

- matter jurisdiction over the criminal proceedings leading to his conviction s
. We disagree. Although a ch allenge to a court ’ s subject

- matter jur isdiction may be raised at any time,

s ee Dikong v. Ohio Supports, Inc. , 2013
- Ohio

- 33, 98 N.E.2d 949, ¶ 9 (1 st Dist.) , it may not be rep eatedly attacked. “ O nce [a] jurisdictional issue has been fully litigated and det ermined by a court that has authority to pass upon the issues, said determination is res judicata in a collateral action and can only be attacked directly by appeal. ” State
v. Stowers , 1st Dist. Hamilton No. C

- 150095, 2015
- Ohio

- 4846, ¶ 11, citing State ex rel.
Acres v . Ohio Dept. of Job and Family Servs. , 123 Ohio St.3d 54, 2009

- Ohio

- 4176, 914 N.E.2d 170. Here, the common pleas court had previously considered Bell’s challenge to the trial court’s jurisdiction based on a deficient charging instrument and, f inding that a proper indictment had been filed in the case , determined that the trial court had subject

- matter jurisdiction over Bell ’ s case
. Because Bell di d not appeal the common pleas court’s d enial of his motion s , his challenge s to the trial court’s su bject

- matte r jurisdiction are barred by res judica ta

. Accordingly, t he first assignment of error is overruled. No Jurisdiction to Review Claims Challenging Sentence s 

### {¶9} Bell ’ s seventh and eighth assi gnments of error restate the claims made in his motion that his s enten c e s are con trary to law and thus may fairly be read to challenge the dismissal of those claims. Because we hold that the common pleas court lacke d jurisdiction to consider the se claims and properly dismisse d them, we overrule these assignments of error.OHIO FIRST DISTRICT COURT OF APPEALS

5 

### {¶10} B ell ’ s sentencing claims raised statutory and not constitutional challenges to his sentence s , and thus were not reviewable under the standards pr ovided by R.C. 2953.21 et seq., governing t he proceedings upon a petition for postconviction relief

. See
R.C. 2 9 53.21(A)(1) (requiring a postconviction petitioner to demonstrate a constitutional violation in the proceedings resulting in his conviction) . N or were the sentencing claims reviewable under the court ’ s jurisdiction to correct a void judgment

. In State v

. Henderson , 161 Ohio St.3d 285, 2020

- Ohio

- 4784, 162 N.E.3d 776 , the Ohio Supreme
C ourt held that “[a] judgme nt or sentence is void only if it is rendered by a court that lacks subject

- matter jurisdiction over the case or personal jurisdiction over the def e ndant.” Id. at ¶ 43. “If [a] court has jurisdiction over the case and the person, any sentence based on an e rror in the court’s exercise of that jurisdiction is voidable.” Id . at ¶ 3 7
. 

### {¶11} Here, the court had subject

- matter jurisdiction and per sonal jurisd i ction over Bell. See Article IV, Section 4(A), Ohio Constitution; R.C. 2931.03; State v. Harper , 160 Ohio S t.3d 480, 2020

- Ohio

- 2913, 159 N.E.3d 248 , ¶ 25, quoting Smith v. Sheldon , 157 Ohio St.3d 1, 2019

- Ohio

- 1677, 131 N.E.3d 1 , ¶ 8 (“[A] com mon pleas cou r t has subject

- matter jurisdiction over felony cases.”); Henderson at ¶ 36, citing Tari v. State , 117 Ohio St. 481, 490
- 491, 159 N.E. 594 (1927) (“The court acquires jurisdiction over a person by lawfully issued process, followed by the arrest and arraignm ent of the accuse d and his plea to the charge ” [and] where a defendant “ does not object to the court’s exercise of jurisdiction over him.” )

. Because the court had jurisdiction over Bell and his criminal case, any error in imposing the sentenc es merely ren der ed Bell’s sente n ce s voidable and not subject to a collateral attack in a postconviction motion. See Henderson at ¶ 43.

Grounds N ot A sserted in P ostconviction M otion A re W a ivedOHIO FIRST DISTRICT COURT OF APPEALS

6 

### {¶12} Finally, Bell argues in his ninth assignment of err or that the trial co u rt erred by f

ailing to in form him of his right to appeal his convictions. But i t is well

- se t tled that i ssues or arguments not raised in the lower court are considered waived and may

no t be raised for the first time on appeal

. State v. Smith , 8 th Dist. Cu y ahoga No. 108499,

2020
- Oh io

- 1026, ¶ 13; State v. Jones , 1 st Dist. Hamilton No. C

- 150312 and C

- 150303, 2016

- Ohio

- 5109, ¶ 5 . Because Bell did not raise this gr ound in his postconv iction motion,

we may not consider it now . Ac co rdingly, his nint h assignment of error is overruled

. 

### {¶13} In conclus ion , b ecause the postconviction statutes did not confer jurisdiction upon the common pleas court to consider Bell ’ s claims challenging the constitutional effectiveness of his counsel or his statutory challenges to his sent e nc es, and because Bell ’ s claim challenging th e trial court ’ s subject

- matter jurisdiction was barred by res judicata, we affirm the lower court ’ s judgment d ismissing Bell ’ s motion

. J udgment af

f irmed.
B ERGERON , P. J., and W INKLER , J. , concur.

Please n ote: The court has r ecord e d its own entry on the date of the release of this opinion

.