[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. Delane y , J. -vs- Case No. 2022 CA 0005 TIM MCCONAHAY, WARDEN, MANSFIELD CORRECTIONAL INSTITUTION Respondent O P I N I O N

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 Attorne y General Mansfield Correctional Institution Criminal Justice Section P.O. Box 788 30 East Broad Street

– 23 rd Floo r Mansfield, Ohio 44901 Columbus, Ohio 43215-4966Richland Count y , Case No. 2022 CA 0005 2

Hoffman, J. {¶1} Petitioner, Michael Bell, petitioned this Court for a Writ of H abeas Corpus to compel Respondent, Tim McConahay, Warden of Mansfield Correc tional Institution, to release him from custody. McConahay moved to dismiss the writ a nd Bell responded in opposition. For the following reasons, we grant McConahay’s Mot ion to Dismiss. I. Background {¶2} Bell has been imprisoned since September 4, 2012, and is curren tly at

Mansfield Correctional Institution. He was arrested in Cincinna ti, Ohio and accused of the September 4, 2012, shooting death of Marvin Jones. The state ch arged Bell with murder, a firearm specification and having weapons while under disabili ty. Bell remained in jail for approximately fourteen months unable to post bail. He alleges i n his petition the police conducted no paraffin tests to verify he discharged and fired a ny gun. He also claims he never appeared in court for any pre-trials or any other proceed ings. The trial court allegedly ordered a competency exam and thereafter conducted a hearing without Bell being present. Bell further asserts, without his consent, the p rosecutor 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 agr eement 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 sente nces consecutively. On October 31, 2013, Bell appeared in court and pled guilty to the reduced charges of involuntary manslaughter, a gun specification and having weapon s under disability. Bell claims in doing so, the trial court did not properly comply wit h Crim.R. 11(C) and did not adequately explain all potential sentencing penalties.Richland Count y , 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/acti ons including a Motion for Resentencing, a Post-Conviction Petition and a Motion for Delay ed Appeal. All have been

unsuccessful. {¶5} In his habeas corpus petition, Bell sets forth eight grounds up on which he

asserts he is entitled to relie f, including immediate release f rom 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 petitione r must show he is being unlawfully restrained of his liberty and is entitle d to immediate release from prison or confinement. State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213, 2018-Ohio4184, 120 N.E.3d 776, ¶ 10. Generally, habeas relief is only av ailable 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, habe as corpus is not available when there is or was an adequate remedy in the ordina ry 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 bu t does not specifically reference Civ.R. 12(B)(6). However, we will addres s the motion as being made under Civ.R. 12(B)(6). Under this rule, we must presume al l of the factual allegations in the petition are true and make all reasonable in ferences in favor of theRichland Count y , 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 view ed the complaint in this way, it appears beyond doubt the relator can prove no set of fa cts 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 dismi ssal under R.C. 2969.25(A) or 2969.25(C) because Bell complied with these statu tory requirements. He filed with his petition a list of civil actions or appeals he h as filed within the past five years. He also filed a statement setting forth the balance of his inma te account for the preceding six months prior to filing his petition. Therefore, we will pro ceed to address the merits of Bell’s petition. {¶9} First, Bell contends the trial court did not properly conduct t he required plea colloquy mandated by Crim.R. 11( C) and other controlling author ities 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 hearin g 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 Count y , Case No. 2022 CA 0005 5

{¶10} Bell next asserts the trial court unlawfully sentenced him by f ailing 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 main tains the trial court openly reneged on a signed plea agreement promising to only imp ose sentence after making the required findings under R.C. 2929.14 and did not aff ord him an opportunity to withdraw his plea. {¶11} Bell is not entitled to relief on these grounds as he had an ad equate 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 fa iled 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.”). T herefore, relief is not available in habeas corpus. {¶12} Bell also alleges the state and trial court denied him the righ t to appear at nearly all proceedings and unlawfully waived his right to appea r at his competency hearing contrary to Crim.R. 43, c ontrolling authorities and the Fourteenth Amendment to

the U.S. Constitution. Bell maintains the trial court arbitrari ly 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. T hese arguments are not properly raised herein since they could have pursued in a direc t 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 atRichland Count y , Case No. 2022 CA 0005 6

his competency hearing which is contrary to controlling authori ties 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 t o file a motion to dismiss and contest the state’s absence of any firearm and absence of p roof 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 inef fective 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 contra ry 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. Be ll asserts this is contrary to controlling authorities of law, the Fifth, Sixth and Fourtee nth Amendments of the U.S. Constitution. “[T]he issue of whether [a petitioner] made an in telligent, k nowing, and voluntary guilty plea is a matter to be resolved by motion to w ithdraw the guilty plea, direct appeal, or postconviction proceedings, rather than in habeas co rpus.” 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 c oncerning 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 Enterin g 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 appe al must be filed within 30Richland Count y , Case No. 2022 CA 0005 7

days of his sentence. Even though the pursuit of an appeal no l onger 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 plea d guilty and waive his right to appeal non-jurisdictional issues. That decision remain s binding on him today. See

Billiter v. Banks , 135 Ohio St.3d 426, 2013-Ohio-1719, 988 N.E.2d 556, ¶ 9, citi ng Jackson v. Wilson , 100 Ohio St.3d 315, 2003-Ohio-6112, 798 N.E.2d 1086, ¶ 9 (“ev en if these other remedies are no longer available to [the habeas pet itioner], 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 ti mely pursue them does not render them inadequate”).

III. Conclusion {¶17} Because Bell is unable to state a claim for habeas relief, we g rant 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 thi s judgment and its date of entry upon the journal. See Civ.R. 58(B).Richland Count y , 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