[Cite as State v. Bullitt, 2016-Ohio-4868.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 103798



                                        STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                    DEAUNTE BULLITT
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-565262-C

        BEFORE: Stewart, J., Jones, A.J., and Keough, J.

        RELEASED AND JOURNALIZED: July 7, 2016
FOR APPELLANT

Deaunte Bullitt, pro se
Inmate No. 651113
Richland Correctional Institution
P.O. Box 8107
Mansfield, OH 44901



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Mary McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Deaunte Bullitt, pro se, appeals from the denial of his

motions to vacate his conviction, release public records, and preserve evidence. For the

following reasons, we affirm the decision of the trial court.

       {¶2} In December 2013, Bullitt was found guilty by a jury of drug trafficking, drug

possession, possessing criminal tools, and tampering with evidence. He was sentenced

to an 11-year prison term. On direct appeal, Bullitt raised a single assignment of error

challenging the court’s jury instructions. This court affirmed his convictions in State v.

Bullitt, 8th Dist. Cuyahoga No. 100885, 2014-Ohio-5138.

       {¶3} Following his direct appeal, Bullitt filed several pro se motions with the trial

court. In May 2015, Bullitt filed a motion to set aside his judgment of conviction and

sentence.   In the motion, Bullitt argued that his trial counsel was ineffective for

numerous reasons; that his sentence violated the Eighth Amendment’s prohibition on

cruel and unusual punishment; and that the evidence against him was based on perjured

testimony. In October, Bullitt filed a motion asking the court to compel the release of

certain public records. Specifically, Bullitt wanted a recording of police radio chatter

recorded in the minutes leading up to his arrest. Lastly, in November 2015, Bullitt filed

a motion to compel/preserve evidence in which he asked the court to order the Cuyahoga

County Sheriff’s Department and the Richmond Heights Police Department to preserve
evidence against him so that it could be fingerprinted and tested for his DNA. All three

motions were denied by the trial court in a single order on November 10, 2016.

       {¶4} Bullitt now appeals from that order by raising five assignments of error, some

of which raise arguments not addressed in his original motions. We decline to review the

assigned errors because all three motions were properly denied on procedural grounds.

       {¶5} Bullitt’s motion to vacate or set aside the judgment of conviction and

sentence was brought pursuant to Ohio’s postconviction relief statute, R.C. 2953.21.

Under the statute, petitioners have 365 days “after the date on which the trial transcript

was filed in the court of appeals in the direct appeal of the judgment of conviction” to file

a postconviction petition alleging constitutional violations.      See R.C. 2953.21(A)(2).

Failure to timely file a petition under this section jurisdictionally bars the trial court from

reviewing the petition.        State v. Rackley, 8th Dist. Cuyahoga No. 102962,

2015-Ohio-4504, ¶ 14. The only exceptions to the 365-day filing deadline are found in

R.C. 2953.23(A), which states:

       (A) Whether a hearing is or is not held on a petition filed pursuant to

       section 2953.21 of the Revised Code, a court may not entertain a petition

       filed after the expiration of the period prescribed in division (A) of that

       section or a second petition or successive petitions for similar relief on

       behalf of a petitioner unless division (A)(1) or (2) of this section applies:

       (1) Both of the following apply:

       (a) Either the petitioner shows that the petitioner was unavoidably
       prevented from discovery of the facts upon which the petitioner must rely to
       present the claim for relief, or, subsequent to the period prescribed in
       division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
       earlier petition, the United States Supreme Court recognized a new federal
       or state right that applies retroactively to persons in the petitioner’s
       situation, and the petition asserts a claim based on that right.

       (b) The petitioner shows by clear and convincing evidence that, but for
       constitutional error at trial, no reasonable factfinder would have found the
       petitioner guilty of the offense of which the petitioner was convicted or, if
       the claim challenges a sentence of death that, but for constitutional error at
       the sentencing hearing, no reasonable factfinder would have found the
       petitioner eligible for the death sentence.

       (2) The petitioner was convicted of a felony, the petitioner is an offender
       for whom DNA testing was performed under sections 2953.71 to 2953.81
       of the Revised Code or under former section 2953.82 of the Revised Code
       and analyzed in the context of and upon consideration of all available
       admissible evidence related to the inmate’s case as described in division (D)
       of section 2953.74 of the Revised Code, and the results of the DNA testing
       establish, by clear and convincing evidence, actual innocence of that felony
       offense or, if the person was sentenced to death, establish, by clear and
       convincing evidence, actual innocence of the aggravating circumstance or
       circumstances the person was found guilty of committing and that is or are
       the basis of that sentence of death.

       As used in this division, “actual innocence” has the same meaning as in

       division (A)(1)(b) of section 2953.21 of the Revised Code, and “former

       section 2953.82 of the Revised Code” has the same meaning as in division

       (A)(1)(c) of section 2953.21 of the Revised Code.

       {¶6} In this case, the trial record was filed with the court of appeals on February

10, 2014. Bullitt did not file his petition for postconviction relief until May 7, 2015.

Accordingly, Bullitt missed the 365-day filing deadline. Bullitt does not argue that any

exceptions to the filing deadline found in R.C. 2953.23(A) apply to his case. Therefore,

the court correctly denied the motion on jurisdictional grounds.
       {¶7} Bullitt’s motion to compel the release of public records was also properly

denied. Bullitt asked the court to compel the release of certain evidence including a

recording of radio chatter taken on the day of his arrest, asserting that the evidence was

exculpatory and would prove his innocence. He brought this motion pursuant to R.C.

149.43, the statute outlining the availability and procedures for requesting public records.

 The Supreme Court of Ohio has made clear that “‘[a] defendant in a criminal case who

has exhausted the direct appeals of her or his conviction may not avail herself or himself

of R.C. 149.43 to support a petition for postconviction relief.’” State ex rel. Sawyer v.

Cuyahoga Cty. Dept. of Children & Family Servs., 110 Ohio St.3d 343, 2006-Ohio-4574,

853 N.E.2d 657, quoting State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children &

Family Servs., 8th Dist. Cuyahoga No. 86436, 2006-Ohio-395. Because Bullitt was

attempting to use R.C. 149.43 as a means of gathering evidence to support his

postconviction petition, the trial court correctly denied the motion.

       {¶8} Lastly, the trial court did not err when it denied Bullitt’s motion to compel

and preserve evidence so that it may be fingerprinted and tested for Bullitt’s DNA.

Bullitt brought this motion pursuant to R.C. 2933.82. This provision pertains solely to

the preservation of “biological material that was in possession of any governmental

evidence retention entity during investigation and prosecution of any case or delinquent

child case * * *” involving a first- or second-degree felony homicide offense, a sexual

assault offense, or an attempted rape. See id. Because Bullitt’s convictions did not

include any such offenses, the court properly denied the motion.
       {¶9} Judgment affirmed.

       It is ordered that appellee recover of said appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, JUDGE

LARRY A. JONES, SR., A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
