CLERK OF COURT PREME COURT OF C

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1 IN THE SUPREME COURT OF OHIO,< <f^., ^;^fr3 < ;^ On Appeal from the Seventh Appellate District Court for Mahoning County, Ohio Case No. 12 MA 173 STATE OF OHIO, Plaintiff/Appellee, Supreme Court No. - vs - ADELBERT CALLAHAN, Defendant/Appellant. F;;: 2 a:s EfR K 43Y "i (.'d+', T ';s r,^ j^ ^9 ^."'s+9s^.^ rd'4^ae'uf.^...sf ^`S^.f SsT 0 5 0; MEIMORANDGTM IN SUPPORT OF JURISDICTION Appearances: FOR THE vefendant/appellant FOR THE PLAINTIFF/APPELLEE ADELBERT CALLAHAN, # ('pro se' M.C.I. P.O. Box 57 Marion, Ohio F PAUL J. GAINS (#. Mahoning County Prosecutor 21 East Boardman Street, 6th Fl. Youngstown, Ohio JAN` CLERK OF COURT PREME COURT OF C

2 TABLE OF CONTENTS pages: TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT AS TO WHY THIS CASE IS OF GREAT PUBLIC INTEREST..., 1 STATEMENT OF CASE AND FACTS LAW AND ARGIIMENT : PROPOSITION OF LAW NO. 3. Whether the recharacterizatl.on-o.r reclassification of a motion for relief from a facially void judgment as a postconviction relief petition relieves a trial court from vacating it's own void judgment PROPOSITION OF LAW NO. 2 Whether the doctrine of res judicata is applicable to a void judgment, and especially so where it's invalidity is predicated on a lack of subject-matter jurisdiction for want of proper juvenile 'bindover' procedures. see: U.S.C.A. Const. Amend. 6. see also: O.R.C ; and, Juv. R CONCLUSION < CERTIFICATE OF SERVICE [I - i -

3 TABLE OF AUTHORITIES pages: Basso v. Utah Power & Light Co., 495 F. 2d 906, ,,,,,,,. 3 Goodson v. McDonough Power Equip., Inc. (1983, 2 Ohio St. 3d 193, 202, 443 N.E. 2d 978, Grava v. Parkman Twp., 73 Ohio St. 3d 379.,,,,,,, Hill v. Buchanan, 6 Ohio Supp. 20 (1941 WL 3363, ,,,,,., 3 In re marriage of Hampshire, 261 Kan. 854, 862, 934 P. 2d , 2 Joyce v. United States, 474 F 2d State ex rel. Post v. Speck, 2010 WZ (3rd Dist....,.,,,, 3 State v. Golphin, 81 Ohio St. 3d 543, 692 N.E. 2d ,,,, 4 State v. Mitchell, 187 Ohio App. 3d 15, 2010 Ohio App, LEXIS 1473.,,,. 3,5 State v. Simpkins, 117 Ohio St. 3d State v. Whatley, 9th Dist. No , 2008 Ohio 6128,.., O.R.C ,5 Crim. R. 2(C Juv. R > > ,5 U.S.C.A. Const. Amend. 6., Additional authorities: - ii -

4 STATEMENT AS TO UTHY THIS CASE IS OF GREAT PUBLIC INTEREST [T]his case is of great public interest because it invokes the public policy that no person shall be deprived of life, liberty or property without due process of law. This case is also of great public interest because it's lies upon a substantive departure from the prescribed modes and forms of law upon which juvenile offenders are bound-over to adult courts in this state. Juvenile bindover procedures are not 'discretionary,' rather, they are mandatory and constitute the sole basis of the adult court's subject matter jurisdiction in a criminal case. There is in turn a compelling public interest (set upon well recognized public policy that the statutory and constitutional protections designed to protect children in the courts of this state, be fully and pain-stakirigly employed if justice is to in fact satisfy the appearance of justice. Ultimately, *** there is a legitimate public interest that the courts of this state both 'apply the law as written' and no:t assume jurisdiction where, as here, none exists. So say basic fairness and due process of law. STATEMENT OF CASE AND FACTS [T]his case originated in the Mahoning County Common Pleas Court as the criminal matter entitled: State of Ohio v. Adelbert Callahan, Case No. 96 CR 339(B, therein charging the offense(s of: (1 two counts of complicity to attempt aggravated murder, O.R.C. 29 and, (2 two counts of complicity to commit aggravated robbery, O.R.C. 29 After initially entering pleas of not guilty, appellant was later tried (1

5 by a jury, and because the jury was hung on the counts alleging aggravated murder, appellant pled guilty to two counts of complicity to aggravated murder with accoinpanying firearm specifications and was ultimately sentenced to 'consecutive' prison terms totally (103 one-hundred years to life. On: 'July 12, 2012' appellant filed a [pro se] motion entitled: "Conviction Contrary to Ohio Law (Improper Bindover from juvenile to common pleas" on the proposition that `no mental or physical examination was performed as otherwise required by law. The trial court granted the State's motion to dismiss on the basis that the proceedings was actually an untimely or successive postconviction relief petition and that appellant was also res judicata from raising his jurisdictional challenge(s. A timely 'appeal as of right' followed to the Ohio Seventh Appellate District Court, and that court affirmed the judgment of the trial court on the binary basis' of: (1 res judicata; and, (2 postconviction relief as urged by the State of Ohio. The instant proposed appeal as of right does thus follow. LAW AND ARGUMENT : PROPOSITION OF LAW NO. 1 Whether the recharacterization or reclassification of a motion for relief from a facially void judgment as a postconviction relief petition relieves a trial court from vacating it's own void judgment. [I]n raising this constitutional proposition, appellant does so from the position that: "A judgment is void if the court acted in a manner inconsistent with due process. A void judgment is a nullity and may be vacated at any time." see: In re marriage of Hampshire, 261 Kan. 854, 862, 934 P. 2d 58 (1997. (2

6 [a]nd that: "There is no discretion to ignore jurisdiction." see: Joyce v. United States, 474 F. 2d 315. It has equally been held, that: "Jurisdiction can be challenged at any time.11 see: Basso V. Utah Power & Light Co., 495 F. 2d 906, 910. We also recognize, that: "All proceedings founded on a void judgment are themselves regarded as invalid, and the void judgment is regarded as a nullity and the situation is the same as if there were no judgment and the parties litigant are left in the same position they were in before the trial." see: Hill v. Buchanan, 6 Ohio Supp. 230 (1941 WL 3363, In: State v. Mitchell, 187 Ohio App, 3d 315, 2010 Ohio App. LEXIS 1473, the court explicitly held, that: "A sentence that is null and void impairs the underlying conviction as a final appealable order, Crim. R 32(C... " id., at: HN7. Naturally, **i'"a void judgment is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act." id., at: HN6. Ultimately, it has been held, that: "Void judgments can be attacked at any time. Civ. R. 60(B 1970 staff notes; State v. Simpkins, 117 Ohio St. 3d 420, at: ^[23; and, Gahanna v. Jones-Williams (1997, 117 Ohio App. 3d 399, 404 ("A void judgment 'can be attacked by motion, on appeal, or collaterally without time restrictions." id., see: State ex rel. Post v. Speck, 2010 (3

7 WL (3rd Dist., at: 11. [ajnd that: "A void judgment can be attacked in post-conviction relief proceedings even if the matter could have been, but was not, raised on direct appeal. If the appellants' sentences are void, the doctrine of res judicata is inapplicable." see: State v. Simpkins, 117 Ohio St. 3d 420, at: 30. The same effect occurs with respect to an *unconstitutional juvenile bondover procedure where no 'mental' or 'physical' examination was performed as otherwise required in unmistakable mandatory language under: O.R.C ; and. Juv. R. 30. see also: State v. Golphin, 81 Ohio St. 3d 543, 692 N.E. 2d 608. We further recognize, that: "Without a proper bindover procedure under R.C , a juvenile court's jurisdiction is exclusive and cannot be waived.'r id., at syllabus. There is no question from the record that the bindover procedures were fatally flawed and accordingly, the trial court never obtained competent lawful subject-matter jurisdiction as a matter of law and fact. In the absence of subject-matter jurisdiction, the recharacterization or reclassification of appellant's request and constitutional right to relief was and is not implicated by the court.'s attempted to 'elevate form over substance.' Without subject-matter jurisdiction, the judgment of the trial court was and is a mere nullity and void, and accordinglv, it must be remembered, that: "Further, a trial court, confronted with an untimely or successive petition for postconviction relief that challenges a sentence that is void, must ignore the procedural irregularities of the petition and, instead, vacate the void sentence and resentence the defendant." see: State v. Dist. No , 2008 Ohio (4

8 So says basic fairness and due process of law. It was constitutional error of the first magnitude for the trial court to *unconstitutionally assume subject-matter jurisdiction in the first place let alone denying appellant's good faith motion for reli.ef from that void judgment under the guise or subterfuge of: O.R.C 'Justice must satisfy the appearance of justice' Such then is not the case at bar. This action respectfully follows. PROPOSITION OF LAW NO. 2 Whether the doctrine of res judicata is applicable to a void judgment, and especially so where it's invalidity is predicated on a lack of subject-matter jurisdiction for want of proper juvenile 'bindover' procedures, see: U.S.C.A. Const. Amend. 6. see also: O.R.C ; and, Juv. R. 30. [A]s was stated above, **` the doctrine of res judicata is inapplicable to a void j udgment, and a void judgment is the only result of a court actino without subject-matter j urisdiction. id. "The doctrine of res judicata is defined as a valid, final judgment rendered upon the merits that bars all subsequent actions based upon any claim arising out of the transaction or occurence that was the subject matter of the previous action." see: State v. Mitchell, 187 Ohio App. 3d 315, at: HN5. The Supreme Court of Ohio qualified the doctrine in: Grava v. Parkinan Township, 73 Ohio St. 3d 379, holding that: I I (5

9 "The doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time, but rather a rule of fundamental and substantial justice, or public policy and of private peace. The doctrine may be said to adhere in legal systems as a rule of justice. Hence, the position has been taken that the doctrine of res judicata is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice." id. [a]nd that: "Underlying all discussion of the problem must be the principle of fundamental fairness in the due process sense. The public policy underlying the principle of res judicata must be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which to present his case ;;-':'::." id. (emphasis added, citing: 46 Am. Jur. 2d (1994, , Judgments, Section 522; and, Goodson v. McDonough Power Equip., Inc. (1983, 2 Ohio St. 3d E.93, 202, 2 OBR 732, , 443 N.E. 2d 978, Each of the lower courts however employed the doctrine 'as an instrument of oppression' and so rigidly so as to both (1 defeat the ends of justice; and, (2 to work an injustice of constitutional proportion. Clearly, if the 'bindover procedures' (which are mandatory were not met, then the trial court was 'divest of jurisdiction' to entertain any proceedings in the matter while subject-matter jurisdiction was inherently retained by the juvenile court. So says the established rule of law to which this action does thus respectfully follow. CONCLUSION: [4J]herefore, and for each of those substantive reasons stated above and made evident in the record, this Court should accept jurisdiction in and (6

10 over this matter and permit appellant a full and fair adjudication on the merits of his claims. tr]elief is accordingly sought. [E]xecuted this ^^ day of January, Adelbert Callahan, # M.C.I. P.O. Box 57 Marion, Ohio CERTIFICATE OF SERVICE: This is to certify that the foregoing was duly served by United States Mail on the Office of the Mahoning County Prosecutor, at: 21 East Boardman Street, 6th Floor Youngstown, Ohio [o]n this ^ dav of January, [] Adelbert Callahan, # M.C.I. P.O. Box 57 Marion, Ohio (7

11 STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS DEC SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, -VS- ADELBERT CALLAHAN, DEFENDANT-APPELLANT CASE NO. 12 MA 173 OPINION CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case.No. 96 CR 339(B. JUDGMENT: Affirmed. APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: Attorney Paul J. Gains Prosecuting Attorney Attorney Ralph M. Rivera Assistant Prosecuting Attorney 21 W. Boardman St., 6th Floor Youngstown, OH Adelbert Callahan, Pro-se # Marion Correctional Institution P.O. Box 57 Marion, OH JUDGES: Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Dated: December 19, 2013

12 -1- 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 {12} 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!, 7th Dist. No. 97 CA 224, 2000 WL (Mar. 22, {13} 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 mtion. 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,

13 -2- files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such motion is construed as a petition for post-conviction relief as defined in R.C " State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997, synabus. 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. {15} However, if a defendant fails to timely file his petition, he can obtain delayed relief pursuant to R.C 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 "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. Biyan, 7th Dist. Mahoning No. 04 MA 109, 2005-Ohio-5054, 76. { 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 Accordingly, the trial court's decision to dismiss Callahan's motion is affirmed. Res Judicata (17 In his sole assignment of error, Callahan asserts: {18} "Appellant argues his Bind Over was improper due to the court not holding a Mental nor a Physical examination pursuant to R.C , his sentence and Conviction was Void, since the Bind-Over was defective." {19} Even if Callahan's delayed post-conviction petition was timely, his claims

14 -3- were barred by res judicata because this argument should have been raised in his direct 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 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 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 took effect. {111} 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. APPROVED: 1*kI44_qd0 - JUDGE MARY D ENARO

15 STATE OF OHIO IN THE COURT OF APPEALS OF OHIO MAHONING COUNTY SS: SEVENTH DISTRICT, ^,,^._,._- ;:.t,^ `l,;i STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 12 MA 173,.., ^^ ^ '.%j `,^'-3^; -VS- JUDGMENT ENTRY ADELBERT CALLAHAN, 1 DEFENDANT-APPELLANT. For the reasons stated in the opinion rendered herein, Appellant's sole assignment of error is meritiess. It is the final judgment and order of this Court that the judgment of the Common Pleas Court, Mahoning County, Ohio is affirmed. Costs taxed against Appellant. JUDGES.