[Cite as State v. Teitelbaum, 2019-Ohio-3175.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                   No. 19AP-137
v.                                                :           (C.P.C. No. 11CR-6440)

Daniel Teitelbaum,                                :      (ACCELERATED CALENDAR)

                 Defendant-Appellant.             :



                                         D E C I S I O N

                                      Rendered on August 8, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee.

                 On brief: Daniel Teitelbaum, pro se.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, Daniel Teitelbaum, appeals from the judgment of the
Franklin County Court of Common Pleas denying his Civ.R. 60 motion for relief from
judgment. For the following reasons, we find appellant's motion to constitute an untimely
and successive petition for postconviction relief and affirm the trial court judgment.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} In April 2014, a jury found appellant guilty of two counts of aggravated
murder, one count of aggravated burglary, and one count of tampering with evidence. The
trial court merged the aggravated murder charges and sentenced appellant to life without
the possibility of parole, to be served concurrently with a six-year sentence on the
aggravated burglary charge and one-year sentence on the tampering charge and
consecutively to two additional three-year terms for firearm specifications. Appellant filed
No. 19AP-137                                                                                2


a direct appeal asserting nine assignments of error. This court affirmed the trial court
judgment in State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524, and
subsequently denied appellant's applications for reconsideration and reopening under
App.R. 26(A) and (B). The Supreme Court of Ohio declined to accept a jurisdictional appeal
of Teitelbaum.
       {¶ 3} On July 16, 2015, appellant filed a postconviction petition, pursuant to R.C.
2953.21, asserting seven claims, including that his constitutional rights were violated by the
inclusion of false text messages and phone records and that his defense counsel was
ineffective in failing to obtain his phone records to refute the state's theory of the case,
failing to obtain a geolocation expert to challenge the state's GPS and cell phone geolocation
evidence, failing to call a certain DNA expert, and failing to challenge the state's timeline
and time of death. Appellant requested an evidentiary hearing and filed two additional
motions for expert assistance and a motion for appointment of counsel. Plaintiff-appellee,
State of Ohio, both opposed and moved to dismiss the motion. On March 21, 2016, the trial
court denied appellant's petition and motions for assistance. In early 2017, this court
denied appellant's motion for leave to file a delayed appeal of the March 21, 2016 order and
ultimately dismissed the appeal.
       {¶ 4} On February 4, 2019, appellant filed the "Motion for Relief from Judgment"
under Civ.R. 60(B) at issue in the instant appeal. The motion was based on two grounds.
First, appellant claimed that under Civ.R. 60(B)(4), a new United States Supreme Court
ruling in Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206 (2018), shows that
appellant's expectation of privacy and right to be protected against unreasonable searches
and seizures was violated, entitling him to have his conviction reversed. Second, appellant
claimed that under Civ.R. 60(B)(3), fraud, collusion, conspiracy, and obstruction of justice
by state prosecutors and defense counsel renders the judgment of conviction void.
Appellant noted that if a Civ.R. 60(B) motion is not the appropriate legal instrument, the
trial court may recast his motion as a petition for postconviction relief. On February 11,
2019, the trial court found the motion "not well taken and hereby denie[d] the same." (Feb.
11, 2019 Jgmt. at 1.)
       {¶ 5} Appellant filed a timely notice of appeal.
No. 19AP-137                                                                                  3


II. ASSIGNMENTS OF ERROR
       {¶ 6} Appellant assigns the following as trial court error:
               1. THE TRIAL COURT ABUSED ITS DISCRETION IN
               DENYING THE PLAINTIFF-APPELLANT'S MOTION
               UNDER RULES CIVIL OF PROCEDURE 60(B)(4).
               2. PLAINTIFF-APPELLANT'S 4TH AMENDMENT RIGHT
               TO BE SECURE AGAINST UNREASONABLE SEARCHES
               AND SEIZURES WAS VIOLATED BY THE STATE OF
               OHIO'S USE OF CELL-SITE LOCATION INFORMATION
               (CSLI).
               3. THE TRIAL COURT ABUSED ITS DISCRETION IN
               DENYING THE PLAINTIFF-APPELLANT'S MOTION
               UNDER RULES CIVIL OF PROCEDURE 60(B)(3).
               4. STATE PROSECUTORS AND DEFENSE COUNSEL
               COMMITTED FRAUD AND COLLUSION DURING TRIAL,
               RENDERING THE TRIAL VERDICT VOID.
III. LEGAL ANALYSIS
       A. Appellant's Second Assignment of Error
       {¶ 7} For clarity of analysis, we will address appellant's assignments of error out of
order. In appellant's second assignment of error, he asserts relief should be granted under
Civ.R. 60(B)(4) because under the United States Supreme Court case Carpenter, his fourth
amendment right to be secure against unreasonable searches and seizure was violated by
the state's use of cell-site location information ("CSLI"). Specifically, appellant argues that,
contrary to Carpenter, the government used a subpoena instead of a warrant to acquire
appellant's CSLI, the state used his CSLI to put appellant at the scene of the crime, and the
jury and this court relied on the CSLI in convicting him and affirming the convictions,
respectively. Regarding the timeliness of his motion, appellant asserts he "submitted his
'Motion for Relief from Judgment' well under one year after the Carpenter decision was
rendered." (Appellant's Brief at 11.)
       {¶ 8} Appellee counters that appellant's motion must be construed as a
postconviction petition under State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, and then
barred as an untimely and successive postconviction petition. Appellee states that even
viewed under the standards of a Civ.R. 60(B) motion, it is nonetheless untimely.
       {¶ 9} We agree with appellee that appellant's motion should be construed as a
postconviction petition in regard to his claim involving Carpenter. In Schlee, the defendant
No. 19AP-137                                                                                  4


filed a motion for relief from judgment pursuant to Civ.R. 60(B). The Supreme Court of
Ohio found the Civ.R. 60(B) motion filed by Schlee met the definition of a petition for
postconviction relief, pursuant to R.C. 2953.21(A)(1), in that it was filed subsequent to his
direct appeal, claimed a denial of constitutional rights, and sought reversal of the judgment
rendered against him. The Supreme Court concluded that since the Civ.R. 60(B) motion
filed by Schlee could have been filed as a petition for postconviction relief, resort to civil
rules was unnecessary. Therefore, the Supreme Court held that Schlee's motion for relief
from judgment was properly recast as a petition for postconviction relief when the motion
had been unambiguously presented as a Civ.R. 60(B) motion.
       {¶ 10} Similarly here, appellee filed his motion subsequent to his direct appeal,
claims a denial of constitutional rights with regard to his Carpenter claim, and seeks
reversal of the judgment rendered against him. Therefore, on the facts of this case,
appellant's motion meets the definition of a petition for postconviction relief, pursuant to
R.C. 2953.21, in regard to his Carpenter claim. Schlee at ¶ 12; State v. Davenport, 10th
Dist. No. 18AP-228, 2018-Ohio-3949, ¶ 18 ("Because Davenport filed his motion after his
direct appeal and raised constitutional claims in an attempt to vacate his convictions, the
trial court properly construed Davenport's motion as an untimely petition for
postconviction relief."); State v. Campbell, 10th Dist. No. 12AP-109, 2012-Ohio-5195, ¶ 6
(a trial court does not err in construing a motion filed after the opportunity for direct appeal
had expired and claiming a denial of constitutional rights as a petition for postconviction
relief). See also R.C. 2953.21(K), which specifies that R.C. 2953.21 "is the exclusive remedy
by which a person may bring a collateral challenge to the validity of a conviction or sentence
in a criminal case."
       {¶ 11} R.C. 2953.21(A) governs the right to seek postconviction relief. State v.
Lacking, 10th Dist. No. 14AP-691, 2015-Ohio-1715, ¶ 10. "The process only allows for 'a
collateral civil attack on the judgment' and is not a means to relitigate the substantive issues
raised in a direct appeal." State v. Conway, 10th Dist. No. 17AP-504, 2019-Ohio-2260,
¶ 12, quoting State v. Steffen, 70 Ohio St.3d 399, 410 (1994). " 'Postconviction review is a
narrow remedy, since res judicata bars any claim that was or could have been raised at trial
or on direct appeal.' " Conway at ¶ 12, quoting Steffen at 410. Successive petitions for
postconviction relief are generally prohibited. State v. Apanovitch, 155 Ohio St.3d 358,
No. 19AP-137                                                                                5


2018-Ohio-4744, ¶ 21 ("R.C. 2953.23(A) allows a prisoner to file only one postconviction
petition in most situations.").
       {¶ 12} Furthermore, a petition for postconviction relief is subject to timeliness
requirements excused only by limited exceptions defined by statute. Pertinent to the facts
here, if a direct appeal has been taken by the defendant, an R.C. 2953.21(A) petition must
generally 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." R.C. 2953.21(A)(2). "However, R.C. 2953.23(A) permits a prisoner to file an
untimely, successive petition for postconviction relief only under specific, limited
circumstances." Apanovitch at ¶ 22. R.C. 2953.23(A)(1) states in pertinent part:
               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 * * *:
               (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.
"[A] petitioner's failure to satisfy R.C. 2953.23(A) deprives a trial court of jurisdiction to
adjudicate the merits of an untimely or successive postconviction petition." Apanovitch at
¶ 36. State v. Jones, 10th Dist. No. 18AP-578, 2019-Ohio-1014, ¶ 15-17. The standard of
review for whether a petition satisfied the jurisdictional requirement for review of a
No. 19AP-137                                                                                6


successive petition under R.C. 2953.23(A) is a legal question reviewed de novo. Conway at
¶ 11.
        {¶ 13} Here, the trial transcripts in the court of appeals in the direct appeal of the
judgment of conviction was filed on January 8, 2015, and appellant filed the instant
"Motion for Relief from Judgment" on February 4, 2019. The record also shows appellant
filed a previous petition for postconviction relief in 2015. Therefore, appellant's petition
was both untimely and successive. R.C. 2953.21(A)(2); Apanovitch at ¶ 21.
        {¶ 14} Furthermore, the limited exceptions that allow a trial court to consider an
untimely or successive postconviction petition under R.C. 2953.23(A) do not apply in this
case. Regarding the first exception stated in R.C. 2953.23(A)(1)(a), the fact that no warrant
was used to obtained the cell-site location information was apparent at the time of trial.
Appellant, therefore, was not "unavoidably prevented from discovery of the facts upon
which [he] must rely to present the claim for relief." R.C. 2953.23(A)(1)(a). Regarding the
second exception stated in R.C. 2953.23(A)(1)(a), appellant has not shown Carpenter
applies retroactively to this case. Carpenter did not hold that it applies retroactively, and,
under the test for application of new judicial rulings stated in Ali v. State, 104 Ohio St.3d
328, 2004-Ohio-6592, the new judicial ruling would not apply since appellant's case
became final in 2016 when he exhausted his appellate remedies and, therefore, was not
"pending on the announcement date" of the Carpenter decision. Ali at ¶ 6; State v. Lynch,
10th Dist. No. 15AP-123, 2015-Ohio-3366, ¶ 12.
        {¶ 15} Finally, regarding R.C. 2953.23(A)(1)(b), appellant did not show by clear and
convincing evidence that, but for the alleged constitutional error at trial, no reasonable
factfinder would have found appellant guilty of the offenses. As indicated in our disposition
of appellant's direct appeal, ample evidence supported the jury's verdicts beyond the cell-
tower data, including: appellant's contentious legal battle with the victim; appellant's
journal entries showing a preoccupation with his hatred for the victim; forensic evidence
that established the victim died from the same type of gun supplied to appellant by a friend;
GPS data from a device appellant had rented; DNA found on the inside of the victim's
doorknob that was consistent with appellant's DNA; surveillance footage showing appellant
disposing of items off a bridge the evening the victim was shot; surveillance footage showing
appellant buying a change of clothes at Walmart and appearing to do something with his
No. 19AP-137                                                                                 7


license plates; evidence showing appellant grew a beard in the months leading up to the
victim's death and shaved it off immediately afterward; and testimony that a border control
agent caught appellant attempting to cross into Canada during the time appellant was being
investigated. Therefore, the limited exceptions that allow a trial court to consider an
untimely or successive postconviction petition under R.C. 2953.23(A) do not apply in this
case.
        {¶ 16} Considering all the above, we find appellant's failure to satisfy R.C.
2953.23(A) deprived the trial court of jurisdiction to adjudicate the merits of the untimely
and successive postconviction petition regarding his Carpenter claim. Apanovitch at ¶ 36,
41; Jones at ¶ 15-17. Our disposition of the jurisdictional issue renders moot appellant's
second assignment of error, which addresses the merits of his petition. Id. at ¶ 19.
        {¶ 17} Accordingly, appellant's second assignment of error is rendered moot.
App.R. 12(A)(1)(c).
        B. Appellant's First Assignment of Error
        {¶ 18} Under his first assignment of error, appellant contends the trial court's denial
of his motion under Civ.R. 60(B)(4) was insufficient and an abuse of discretion because the
decision did not include reasons, findings of fact, or cited authority in support of denial.
However, appellant has not provided a legal argument with citations to the authorities on
which he relies. Therefore, appellant has not met his burden in demonstrating error on
appeal in this regard. App.R. 16(A)(7); State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-
4763, ¶ 11 (stating general rule that an appellant bears the burden of affirmatively
demonstrating error on appeal); State v. Smith, 9th Dist. No. 15AP0001n, 2017-Ohio-359,
¶ 22 (noting that it is not the duty of an appellate court to create an argument on an
appellant's behalf).
        {¶ 19} Furthermore, as explained in our resolution of the second assignment of
error, we construe appellant's Civ.R. 60(B)(4) motion to be an untimely and successive
petition for postconviction relief. "[A] trial court need not issue findings of fact and
conclusions of law when it dismisses an untimely [postconviction-relief] petition."
(Internal quotations omitted.) State v. Strickland, 10th Dist. No. 14AP-307, 2014-Ohio-
5105, ¶ 17. Therefore, appellant's assignment of error lacks merit.
        {¶ 20} Accordingly, we overrule appellant's first assignment of error.
No. 19AP-137                                                                                  8


       C. Appellant's Third and Fourth Assignments of Error
       {¶ 21} In his third assignment of error, appellant states the trial court abused its
discretion in denying his motion under the rules of Civ.R. 60(B)(3). In appellant's fourth
assignment of error, he asserts relief should be granted under Civ.R. 60(B)(3) because of
evidence of fraud and collusion committed by the defense counsel and prosecutors related
to an alleged leak of privileged information during trial regarding the name of the victim's
gym.      Appellant asserts the leak of information was unfair, illegal, and contrary to
protections afforded by the Ohio Constitution for attorney-client communications.
According to appellant, because the conviction was procured by fraud and collusion, and
because defense counsel's cover up of the leak was intentional, the judgment is void and
neither the time limits of Civ.R. 60(B) nor res judicata apply.
       {¶ 22} As a preliminary issue, appellant does not argue his third assignment of error
separately from the fourth assignment of error as required by App.R. 16(A)(7), which
provides an appellant "shall include in its brief * * * [a]n argument containing the
contentions of the appellant with respect to each assignment of error." As stated by App.R.
12(A)(2), this court "may disregard an assignment of error presented for review if the party
raising it * * * fails to argue the assignment separately in the brief, as required under App.R.
16(A)."     Regardless, like his Carpenter claim, the collective arguments provided by
appellant under his third and fourth assignments of error were brought in what we find to
be an untimely and successive petition for postconviction relief.
       {¶ 23} R.C. 2953.21 "is the exclusive remedy by which a person may bring a
collateral challenge to the validity of a conviction or sentence in a criminal case." R.C.
2953.21(K). State v. White, 10th Dist. No. 17AP-538, 2017-Ohio-8750, ¶ 10. A motion for
relief from judgment is properly construed as an R.C. 2953.21 petition for postconviction
relief, "where a criminal defendant, subsequent to his direct appeal, files a motion seeking
to vacate or correct his sentence on the basis that his constitutional rights have been
violated." (Internal quotation omitted.) White at ¶ 8.
       {¶ 24} Here, appellee filed his motion subsequent to his direct appeal and moved to
"void" the judgment. (Appellant's Mot. at 18.) Furthermore, appellant's claim regarding
evidence of fraud and collusion committed by the defense counsel and prosecutors both
expressly invokes protections afforded by the Ohio Constitution and implicate fundamental
No. 19AP-137                                                                                                  9


fairness principles protected by his constitutional right to due process. See State v. Carter,
1st Dist. No. C-170655, 2019-Ohio-1749, ¶ 3 (construing defendant-appellant's Civ.R. 60(B)
"Motion for Relief from Judgment" as an R.C. 2953.21 petition where the appellant asserted
the trial court, his trial counsel, and the prosecuting attorney had conspired to deny him
the right to due process by participating in fraudulent acts that led to him being convicted);
Schlee at ¶ 4, 12 (finding it proper to recast the defendant-appellant's Civ.R. 60(B) motion
for relief from judgment as a petition for postconviction relief where appellant's motion
alleged prosecutorial misconduct as well as a double jeopardy claim). We note the cases
cited by appellant,1 which involved underlying civil disputes rather than postconviction
proceedings, do not support the application of Civ.R. 60(B) in similar circumstances to this
case. Therefore, considering all the above, we agree with appellee that appellant's Civ.R.
60(B) motion was an improper vehicle to challenge his convictions and that his claim as to
collusion and fraud in his motion may be construed as a petition for postconviction relief
in this case.
        {¶ 25} Under R.C. 2953.21(A)(2), appellant's petition for postconviction relief
pertaining to alleged fraud and collusion is both successive and untimely. As discussed in
the second assignment of error, under R.C. 2953.21(A)(2), appellant's petition is his second
attempt at postconviction relief and was filed on February 4, 2019, well beyond the 365-day
deadline.
        {¶ 26} Furthermore, the limited exceptions that allow a trial court to consider an
untimely or successive postconviction petition under R.C. 2953.23(A) do not apply in
regard to his fraud/collusion claim. Specifically, under R.C. 2953.23(A)(1), appellant does
not assert his claim is based on a new federal or state right that applies retroactively to him,
and appellant does not explain how he was unavoidably prevented from discovery of the
facts regarding the alleged leaking of information about the gym. To the contrary, appellant
cites the testimony and closing arguments from trial as evidence of alleged fraud and
collusion. Finally, appellant has not shown by clear and convincing evidence that, but for
the alleged leaking of information about the victim's gym, no reasonable factfinder would
have found the petitioner guilty of the offenses under R.C. 2953.23(A)(1)(b). As provided


1 Chilcote v. Kugelman, 8th Dist. No. 98873, 2013-Ohio-1896, ¶   2, and Hill v. Ross, 8th Dist. No. 99094, 2013-
Ohio-1903, ¶ 19.
No. 19AP-137                                                                                10


in more detail in the second assignment of error and indicated in our disposition of
appellant's direct appeal, ample evidence supported the jury's verdicts beyond the cell-
tower data. Therefore, the limited exceptions that allow a trial court to consider an
untimely or successive postconviction petition under R.C. 2953.23(A) do not apply in this
case.
        {¶ 27} To the extent appellant argues timeliness requirements do not apply at all to
judgments of conviction which are "void," we find appellant has not demonstrated that
appellant's judgment of conviction is void or that the timeliness requirements for
postconviction petitions do not apply in this case. (Appellant's Brief at 18.) Considering all
the above, we find appellant's failure to satisfy R.C. 2953.23(A) deprived the trial court of
jurisdiction to adjudicate the merits of the untimely and successive postconviction petition
regarding his fraud/collusion claim. Apanovitch at ¶ 36, 41; Jones at ¶ 15-17.
        {¶ 28} Accordingly, our disposition of the jurisdictional issue renders moot
appellant's third and fourth assignments of error, which address the merits of his petition.
Jones at ¶ 19; App.R. 12(A)(1)(c).
IV. CONCLUSION
        {¶ 29} The trial court lacked subject-matter jurisdiction over appellant's untimely
and successive petition for postconviction relief. Apanovitch at ¶ 36, 41; Jones at ¶ 15-17.
While generally the trial court "should dismiss a petition for postconviction relief when
jurisdiction is lacking rather than denying the petition on some other grounds," in this case
we "nevertheless conclude that the trial court did not err in its disposition of appellant's
petition, and we affirm the trial court's judgment, albeit for different reasons than the trial
court." Jones at ¶ 17, 18.
        {¶ 30} Accordingly, having overruled appellant's first assignment of error and
determined appellant's second, third, and fourth assignments of error are moot, we affirm
the judgment of the Franklin County Court of Common Pleas.
                                                                         Judgment affirmed.
                        BROWN and BEATTY BLUNT, JJ., concur.
                                     ________________
