from the Franklin County Court of Common Pleas No. 11CR-6440
O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
Teitelbaum, pro se.
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.
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
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.
ASSIGNMENTS OF ERROR
6} Appellant assigns the following as trial court
1. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
PLAINTIFF-APPELLANT'S MOTION UNDER RULES CIVIL OF
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
3. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
PLAINTIFF-APPELLANT'S MOTION UNDER RULES CIVIL ...