[Cite as State v. Neil, 2019-Ohio-3793.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                   :
                                                            Nos. 18AP-1001
                 Plaintiff-Appellee,             :          (C.P.C. No. 12CR-5963)
                                                                 18AP-1003
                                                 :          (C.P.C. No. 13CR-1308)
v.                                                               18AP-1004
                                                 :          (C.P.C. No. 13CR-4174)
Miguel E. Neil,
                                                 :        (REGULAR CALENDAR)
                 Defendant-Appellant.
                                                 :




                                           D E C I S I O N

                                    Rendered on September 19, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
                 Swanson, for appellee.

                 On brief: Miguel E. Neil, pro se.

                  APPEALS from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} In these consolidated appeals, defendant-appellant, Miguel E. Neil, appeals
from a decision and entry of the Franklin County Court of Common Pleas denying his
successive petition for post-conviction relief. By way of background, the following facts
are taken from this court's decisions in State v. Neil, 10th Dist. No. 14AP-981, 2016-Ohio-
4762 ("Neil I"), following appellant's direct appeal of his convictions for 30 counts of
robbery and 6 counts of kidnapping in Franklin C.P. Nos. 12CR-5963 and 13CR-4174, and
State v. Neil, 10th Dist. No. 18AP-609, 2019-Ohio-2529 ("Neil II"), following appellant's
appeal from the trial court's denial of his first petition for post-conviction relief.
Nos. 18AP-1001, 18AP-1003, and 18AP-1004                                                   2

       {¶ 2} The charges against appellant "arose from a series of robberies that
occurred in 2011 and two robberies that occurred in 2012." Neil I at ¶ 2. Appellant was
indicted in case No. 12CR-5963 on "4 counts of robbery and 6 counts of kidnapping
arising out of the 2012 robberies," and he was indicted in case No. 13CR-4174 "on 26
counts of robbery and 1 count of kidnapping, arising from 13 separate robberies
committed in 2011." Neil II at ¶ 3.
       {¶ 3} The trial court joined the indictments for a single trial and, following a jury
trial beginning September 24, 2014, the jury returned verdicts finding appellant guilty of
4 counts of robbery and 5 counts of kidnapping in case No. 12CR-5963, and 26 counts of
robbery and 1 count of kidnapping in case No. 13CR-4174. The trial court sentenced
appellant by judgment entries filed October 31, 2014.
       {¶ 4} On November 25, 2014, appellant filed a notice of appeal in case No. 12CR-
5963, and on June 17, 2015, he filed a motion for leave to file a delayed appeal in case No.
13CR-4174. This court subsequently granted appellant's motion for leave to appeal, and
consolidated the two cases for appeal. In Neil I, this court affirmed the convictions in case
Nos. 12CR-5963 and 13CR-4174.
       {¶ 5} On February 3, 2016, appellant filed a pro se petition for post-conviction
relief in case No. 12CR-5963. The state subsequently filed an answer and a motion to
dismiss the petition. By decision and entry filed October 31, 2016, the trial court denied
appellant's request for post-conviction relief and granted the state's motion to dismiss.
The trial court, while treating appellant's petition for post-conviction relief "as having
been filed under both case Nos. 12CR-5963 and 13CR-4174, found the petition untimely,
and further found appellant failed to invoke an applicable exception under R.C.
2953.23(A) in order for the court to entertain an untimely petition." Neil II at ¶ 7.
       {¶ 6} Appellant filed a pro se appeal from the trial court's denial of his petition,
raising four assignments of error in which he asserted: (1) the trial court erred in failing to
serve notice of service of the judgment entry, (2) the trial court erred in dismissing his
post-conviction petition as untimely, (3) the trial court erred in denying his claims of
ineffective assistance of counsel, fair trial and due process of law, and (4) the cumulative
effect of those errors deprived him of his right to a fair trial.
Nos. 18AP-1001, 18AP-1003, and 18AP-1004                                                3

       {¶ 7} In Neil II, this court found "no abuse of discretion by the trial court in its
determination the petition was untimely and that appellant failed to establish the
applicability of a statutory exception that would permit the court to consider an untimely
petition." Id. at ¶ 23. This court thus concluded "the trial court lacked jurisdiction to
consider the petition for post-conviction relief and properly dismissed it." Id.
       {¶ 8} On August 1, 2018, appellant filed a successive petition for post-conviction
relief. On August 28, 2018, the state filed an answer and motion to dismiss the petition.
       {¶ 9} By decision and entry filed December 7, 2018, the trial court denied
appellant's petition to vacate or set aside his judgment of conviction or sentence. In its
decision, the trial court found appellant's second petition for post-conviction relief to be
untimely as to both case Nos. 12CR-5963 and 13CR-4174, and further found none of the
exceptions for an untimely petition to be applicable.
       {¶ 10} On appeal, appellant, pro se, sets forth the following five assignments of
error for this court's review:
              Assignment of error one: Appellant was deprived of his
              fundamental right to be free from illegal search and seizure in
              violation of the Fourth Amendment to the United States and
              Ohio Constitution, where police officers did not obtain a
              search warrant supported by probable cause for appellant's
              cell-site location information, then misleadingly and falsely
              presented the CSLI in two other search warrants which also
              contained multiple omissions, misleading, and false
              statements, then presented at trial prejudicing and depriving
              appellant of a fair trial.

              Assignment of error two: Appellant was deprived of his
              fundamental right to due process and a fair trial in violation of
              the Sixth Amendment to the United States and Ohio
              Constitution, due to prosecutorial misconduct where the
              prosecutor submitted false testimony that he knew was false
              which clearly affected the judgment of the jury to convict
              appellant.

              Assignment of error three: Appellant was deprived of his
              fundamental right to a fair trial in violation of the Fifth, Sixth,
              and Fourteenth Amendments to the United States and Ohio
              Constitution when trial counsel ineffectively deprived
              appellant from presenting evidence and subpoenaing
              witnesses in his favor.
Nos. 18AP-1001, 18AP-1003, and 18AP-1004                                                   4

              Assignment of error four: The cumulative effect of these
              errors deprived appellant of his fundamental right to fair trial
              in violation of the Sixth Amendment to the United States and
              Ohio Constitution.

              Assignment of error five: The trial court erred and abused
              its discretion when it denied appellant's 2953.23 petition
              denying appellant due process and a fair trial free from false
              statements from law enforcement and the prosecutor that
              went directly towards guilt.

       {¶ 11} We initially address appellant's fifth assignment of error, in which he
contends the trial court erred in finding inapplicable any of the exceptions to filing an
untimely petition for post-conviction relief under R.C. 2953.23.           More specifically,
appellant argues the trial court erred in its determination that a recent decision of the
United States Supreme Court, Carpenter v. United States, ___ U.S. ___, 138 S.Ct. 2206
(2018), did not apply retroactively to his case on collateral review.
       {¶ 12} Under Ohio law, "[a] postconviction proceeding is not an appeal of a
criminal conviction, but, rather, a collateral civil attack on the judgment." State v. Steffen,
70 Ohio St.3d 399, 410 (1994). An appellate court applies an abuse of discretion standard
in reviewing a trial court's denial of a petition for post-conviction relief. State v. Sowell,
10th Dist. No. 07AP-809, 2008-Ohio-1518, ¶ 12, citing State v. Campbell, 10th Dist. No.
03AP-147, 2003-Ohio-6305.
       {¶ 13} In accordance with R.C. 2953.21(A)(2), a petition for post-conviction relief
"shall be filed no later than three hundred sixty-five days after the date on which the trial
transcript is filed in the court of appeals in the direct appeal of the judgment of conviction
or adjudication." In the event no appeal is taken, "except as otherwise provided in section
2953.23 of the Revised Code, the petition shall be filed no later than three hundred sixty-
five days after the expiration of the time for filing the appeal." R.C. 2953.21(A)(2).
       {¶ 14} Under Ohio law, "a court may not entertain an untimely petition unless
defendant initially demonstrates either (1) he was unavoidably prevented from
discovering facts necessary for the claim for relief, or (2) the United States Supreme Court
recognized a new federal or state right that applies retroactively to persons in defendant's
situation." State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio-2309, ¶ 11, citing R.C.
2953.23(A)(1)(a). Further, if a defendant satisfies "one of those two conditions, R.C.
Nos. 18AP-1001, 18AP-1003, and 18AP-1004                                                 5

2953.23(A) requires he also must demonstrate that, but for the constitutional error at
trial, no reasonable fact finder would have found him guilty of the offenses of which he
was convicted." Id., citing R.C. 2953.23(A)(1)(b).
       {¶ 15} On appeal, appellant does not contend his successive petition was timely
under R.C. 2953.21(A)(2). In addressing the issue of timeliness, the trial court noted the
trial transcripts in appellant's direct appeal in case No. 12CR-5963 were filed February 2,
2015 and, therefore, appellant's petition "should have been filed no later than three
hundred sixty-five days after the filing of the trial transcript in the Court of Appeals,
which is February 2, 2016." (Dec. 7, 2018 Dec. & Entry at 4.) Because the petition was
not filed until August 1, 2018, the court found the petition to be untimely. We agree.
       {¶ 16} With respect to case No. 13CR-4174, the court found the petition "should
have been filed no later than three hundred sixty-five days after the expiration of his time
for filing his appeal, which was December 1, 2015." (Dec. 7, 2018 Dec. & Entry at 5.) As
such, the court found the petition filed on August 1, 2018 to be untimely. Again, we agree
with the trial court's determination.
       {¶ 17} As noted, appellant does not challenge the trial court's finding that his
petition was untimely.     He argues, however, the United States Supreme Court has
recognized a new federal and state right that applies to persons in his situation.
Specifically, appellant relies on the United States Supreme Court's recent decision in
Carpenter, in which the Supreme Court held the government's acquisition of cell-site
location information ("CSLI") records constitutes a search under the Fourth Amendment,
thereby requiring a warrant in the absence of an exception such as exigent circumstances.
       {¶ 18} Appellant similarly argued before the trial court that the Supreme Court's
decision in Carpenter was applicable to his case and, therefore, constituted a timeliness
exception under R.C. 2953.23. In addressing this issue, the trial court held that, because
appellant's case "was not on direct appeal when the Supreme Court issued its decision, the
Carpenter case is not applicable to Defendant's case and may not be considered an
exception for an untimely or successive petition." (Dec. 7, 2018 Dec. & Entry at 6.)
       {¶ 19} In general, "[a] new rule issued by the United States Supreme Court is not
retroactively applicable to cases on collateral review unless the United States Supreme
Court expressly holds it to be retroactive." State v. Jackson, 8th Dist. No. 2017-T-0041,
Nos. 18AP-1001, 18AP-1003, and 18AP-1004                                                 6

2018-Ohio-2146, ¶ 33, citing Tyler v. Cain, 533 U.S. 656, 663 (2001). As recently noted
by one federal court, the Supreme Court "did not explicitly state" that Carpenter was
retroactively applicable to cases on collateral review. In re Baker, 11th Cir. No. 18-15095-
C (Jan. 9, 2019).
       {¶ 20} In accordance with its decision in Teague v. Lane, 489 U.S. 288 (1989), the
United States Supreme Court has held that "the retroactivity of our criminal procedure
decisions turn on whether they are novel. When we announce a 'new rule,' a person
whose conviction is already final may not benefit from the decision in a habeas or similar
proceeding." Chaidez v. United States, 568 U.S. 342, 347 (2013). Rather, "[o]nly when
we apply a settled rule may a person avail herself of the decision on collateral review." Id.
There are, however, "two narrow exceptions" to the rule in Teague. Saffle v. Parks, 494
U.S. 484, 486 (1990). Specifically, "[a] new rule applies retroactively in a collateral
proceeding only if (1) the rule is substantive or (2) the rule is a ' "watershed rul[e] of
criminal procedure" implicating the fundamental fairness and accuracy of the criminal
proceeding.' " Whorton v. Bockting, 549 U.S. 406, 416 (2007), quoting Saffle at 495,
quoting Teague at 311.
       {¶ 21} Courts addressing the holding in Carpenter have held that the Supreme
Court's decision "states a new rule." United States v. Davis, D.C.M.D.Pa., No. 1:13-cr-28
(Apr. 12, 2019) (holding that "[t]he Carpenter decision clearly carves out a new
understanding of the Fourth Amendment, as it applies to wireless data," and that the
Supreme Court "did not merely apply prior case law to the facts before it," but rather
"stated a new principle on the type of conduct that constitutes a search"); United States v.
Williams, D.C.E.D.Mich. No. 2:17-cr-20758-VAR-DRG (Aug. 2, 2018) (holding that the
Supreme Court in Carpenter "announced a new rule that the Government obtaining CSLI
constituted a search and can only be legally obtained with a search warrant," and
therefore "[g]oing forward, law enforcement * * * will need to demonstrate probable
cause").
       {¶ 22} Courts have further held that "[a]lthough Carpenter announced a new rule
of law, the Supreme Court did not make the case retroactively applicable to cases on
collateral review." United States v. Marquez, D.C.W.D.Ok., No. CR-12-233-R (Aug. 13,
2018). See also Davis (new rule stated in Carpenter does not apply retroactively on
Nos. 18AP-1001, 18AP-1003, and 18AP-1004                                                  7

collateral review; exceptions in Teague do not apply as "the new rule is plainly
procedural" and "simply does not rise" to the level of a watershed rule of criminal
procedure); In re Symonett, 11th Cir. No. 19-12232-F (July 9, 2019) ("The Supreme Court
* * * has not held that Carpenter is retroactively applicable to cases on collateral review,
nor does any combination of cases necessarily dictate its retroactivity."); People v. Cutts,
62 Misc.3d 411, 414 (N.Y.2018) (analyzing Carpenter under retroactivity principles of
Teague and holding that "defendants whose convictions became final prior to Carpenter
cannot benefit from its holding").
       {¶ 23} Based on the above authorities, which we find persuasive, we agree with the
trial court's determination in this case that Carpenter does not apply retroactively to cases
on collateral review. Accordingly, the trial court did not abuse its discretion in finding
appellant did not meet the requirements of R.C. 2953.23(A)(1)(a) to bring an untimely
petition for post-conviction relief. Because appellant did not meet the requirements of
R.C. 2953.23, the trial court was without jurisdiction to consider the petition. State v.
Simms, 8th Dist. No. 83583, 2004-Ohio-3955, ¶ 22.
       {¶ 24} Appellant's fifth assignment of error is not well-taken and is overruled.
       {¶ 25} In light of our disposition of the jurisdictional issue under the fifth
assignment of error, the issues raised under appellant's first, second, third, and fourth
assignments of error, all addressing the merits of the petition, are moot. See State v.
Dugger, 10th Dist. No. 06AP-887, 2007-Ohio-1243, ¶ 10.
       {¶ 26} Accordingly, appellant's fifth assignment of error is overruled, his first,
second, third, and fourth assignments of error are rendered moot, and the judgment of
the Franklin County Court of Common Pleas is hereby affirmed.
                                                                       Judgment affirmed.

                     LUPER SCHUSTER and BRUNNER, JJ., concur.

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