State v. Callahan , 2013 Ohio 5864 ( 2013 )


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  • [Cite as State v. Callahan, 2013-Ohio-5864.]
    STATE OF OHIO, MAHONING COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    STATE OF OHIO,                                 )
    )   CASE NO. 12 MA 173
    PLAINTIFF-APPELLEE,                    )
    )
    - VS -                                 )         OPINION
    )
    ADELBERT CALLAHAN,                             )
    )
    DEFENDANT-APPELLANT.                   )
    CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Common Pleas
    Court, Case No. 96 CR 339(B).
    JUDGMENT:                                          Affirmed.
    APPEARANCES:
    For Plaintiff-Appellee:                            Attorney Paul J. Gains
    Prosecuting Attorney
    Attorney Ralph M. Rivera
    Assistant Prosecuting Attorney
    21 W. Boardman St., 6th Floor
    Youngstown, OH 44503
    For Defendant-Appellant:                           Adelbert Callahan, Pro-se
    #343-590
    Marion Correctional Institution
    P.O. Box 57
    Marion, OH 43302
    JUDGES:
    Hon. Mary DeGenaro
    Hon. Joseph J. Vukovich
    Hon. Cheryl L. Waite
    Dated: December 19, 2013
    [Cite as State v. Callahan, 2013-Ohio-5864.]
    DeGenaro, P.J.
    {¶1}     Defendant-Appellant, Adelbert Callahan, appeals pro-se from the August
    31, 2012, judgment of the Mahoning County Court of Common Pleas denying his July 19,
    2012, motion entitled "Conviction Contrary to Ohio Law (Improper bindover from juvenile
    to common pleas)" and memorandum in support. Callahan's arguments are meritless.
    Callahan's motion was a delayed petition for post-conviction relief, which was untimely
    because he gave no reason for the delay. Moreover, Callahan's bindover argument is
    barred by the doctrine of res judicata. Accordingly, the judgment of the trial court is
    affirmed.
    Facts and Procedural History
    {¶2}     In 1997, after a jury trial Callahan was convicted of one count of complicity
    to aggravated murder; two counts of complicity to attempted aggravated murder and two
    counts of complicity to aggravated robbery.             Because the jury was hung on two
    aggravated murder counts, Callahan pled guilty to two counts of complicity to aggravated
    murder; and he was also convicted of the accompanying firearm specifications. The trial
    court imposed consecutive sentences totaling 103 years to life, and the judgment was
    affirmed in State v. Callahan (Callahan I), 7th Dist. No. 97 CA 224, 
    2000 WL 309392
    (Mar. 22, 2000).
    {¶3}     On July 19, 2012, Callahan filed a motion entitled "Conviction Contrary to
    Ohio Law (Improper bindover from juvenile to common pleas)" arguing that his bindover
    was improper because no mental or physical examination was performed. The State
    moved to dismiss contending Callahan's motion was an untimely post-conviction petition.
    The trial court sustained the motion.
    Untimely Post-Conviction Petition
    {¶4}     As a preliminary matter, we must address the procedural nature and
    propriety of Callahan's motion.            Callahan frames his claim in constitutional terms.
    Specifically, that the juvenile court's failure to conduct a mental or physical exam before
    considering the State's motion to bind him over to be tried as an adult violated his
    constitutional rights. "Where a criminal defendant, subsequent to his or her direct appeal,
    files a motion seeking vacation or correction of his or her sentence on the basis that his or
    -2-
    her constitutional rights have been violated, such motion is construed as a petition for
    post-conviction relief as defined in R.C. 2953.21." State v. Reynolds, 
    79 Ohio St. 3d 158
    ,
    
    679 N.E.2d 1131
    (1997), syllabus. Moreover, a defendant who appeals his conviction
    must file his post-conviction petition within one hundred eighty days from the date on
    which the trial transcript is filed in the court of appeals on the direct appeal. R.C.
    2953.21(A)(2).
    {¶5}   However, if a defendant fails to timely file his petition, he can obtain delayed
    relief pursuant to R.C. 2953.23 if he can demonstrate that the petition is based upon
    either 1) facts that he was unavoidably prevented from discovering; or 2) a new federal or
    state right recognized by the United States Supreme Court that applies retroactively to his
    situation. State v. Hill, 129 Ohio App.3d 658,661, 
    718 N.E.2d 978
    (1st Dist.1998). "In
    addition to one of these two factors, the petitioner must show by clear and convincing
    evidence that, but for the constitutional error, no reasonable trier of fact would have found
    him guilty of the offense for which he was convicted." 
    Id. A trial
    court's decision that a
    motion for post-conviction relief is untimely renders unnecessary any further inquiry into
    its merits. State v. Stores, 7th Dist. No. 12 MA 174, 2013-Ohio-4361 citing State v.
    Bryan, 7th Dist. Mahoning No. 04 MA 109, 2005-Ohio-5054, ¶6.
    {¶6}   Callahan's motion was an untimely delayed petition for post-conviction relief.
    It was filed approximately 14 years after the trial transcript was filed in his direct appeal
    and he offers no reasoning as to the delay in filing or how the petition otherwise complies
    with R.C. 2953.23. Accordingly, the trial court's decision to dismiss Callahan's motion is
    affirmed.
    Res Judicata
    {¶7}   In his sole assignment of error, Callahan asserts:
    {¶8}   "Appellant argues his Bind Over was improper due to the court not holding a
    Mental nor a Physical examination pursuant to R.C. 2151.26, his sentence and Conviction
    was Void, since the Bind-Over was defective."
    {¶9}   Even if Callahan's delayed post-conviction petition was timely, his claims
    were barred by res judicata because this argument should have been raised in his direct
    -3-
    appeal. "Under the doctrine of res judicata, a final judgment of conviction bars the
    defendant from raising and litigating in any proceeding, except an appeal from that
    judgment, any defense or any claimed lack of due process that the defendant raised or
    could have raised at the trial which resulted in that judgment of conviction or on an appeal
    from that judgment." State v. Perry, 
    10 Ohio St. 2d 175
    , 180, 
    226 N.E.2d 104
    (1967).
    Conversely, issues properly raised in a post-conviction petition are those which could not
    have been raised on direct appeal because the evidence supporting the issue is outside
    the record. State v. Milanovich, 
    42 Ohio St. 2d 46
    , 50, 
    325 N.E.2d 540
    (1975).
    {¶10} Callahan argues that his conviction and sentence were void due to an
    improper bindover because a physical and mental examination should have been
    conducted pursuant to R.C. 2151.26 and State v. Golphin, 
    81 Ohio St. 3d 543
    , 
    692 N.E.2d 608
    (1998). The issue of improper bindover was not dependent upon evidence outside
    the record and could have been raised in the common pleas court or on direct appeal.
    Further, R.C. 2151.26 was amended effective January 1, 1996, to eliminate the
    requirement. 
    Golphin, 81 Ohio St. 3d at 546
    . Callahan's bindover hearing was May 10,
    1996, several months after the amended version of R.C. 2151.26 took effect.
    {¶11} In conclusion, Callahan's assignment of error is meritless. His motion for
    resentencing was a petition for post-conviction relief; it was untimely filed and Callahan
    has offered no reason for the delay warranting dismissal on that basis alone. Further,
    Callahan's petition is additionally barred by res judicata. The basis of the argument was
    not outside the record and thus should have been raised on direct appeal. Accordingly,
    the judgment of the trial court is affirmed.
    Vukovich, J., concurs.
    Waite, J., concurs.
    

Document Info

Docket Number: 12 MA 173

Citation Numbers: 2013 Ohio 5864

Judges: DeGenaro

Filed Date: 12/19/2013

Precedential Status: Precedential

Modified Date: 10/30/2014