[Cite as State v. Chavis, 2015-Ohio-5549.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :              No. 15AP-557
                                                                (C.P.C. No. 00CR-6605)
v.                                                  :
                                                               (REGULAR CALENDAR)
Jeremy L. Chavis,                                   :

                 Defendant-Appellant.               :



                                             D E C I S I O N

                                    Rendered on December 31, 2015


                 Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond,
                 for appellee.

                 Jeremy L. Chavis, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Jeremy L. Chavis, pro se, appeals from a decision and
entry of the Franklin County Court of Common Pleas denying his "Motion to Vacate a
Void Judgment." For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} On November 27, 2001, the trial court entered judgment against Chavis
finding him guilty, pursuant to jury verdict, of two counts of aggravated murder, both
with specifications, for the shooting deaths of Shannon Hawk and James Reynolds. The
trial court sentenced Chavis to 30 years to life imprisonment on each count, to be served
consecutively, plus an additional three years imprisonment for the firearm specification.
Chavis appealed his convictions, and this court affirmed. State v. Chavis, 10th Dist. No.
01AP-1456, 2003-Ohio-512 ("Chavis I").
No. 15AP-557                                                                             2


        {¶ 3} On March 26, 2008, Chavis filed a purported Civ.R. 60(B) motion to vacate
the judgment of his conviction, asserting various challenges to his sentence under State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856. The trial court construed Chavis's motion as a
petition for postconviction relief pursuant to R.C. 2953.21 and denied his petition in an
April 22, 2008 decision and entry. Chavis appealed the trial court's denial of his petition
but never filed an appellate brief with this court despite receiving two extensions of time
to file. This court sua sponte dismissed his appeal for failure to file a brief. State v.
Chavis, 10th Dist. No. 08AP-435 (Sept. 18, 2008) (journal entry of dismissal) ("Chavis
II").
        {¶ 4} More than 11 years after this court issued its decision in his direct appeal,
Chavis filed with this court, on April 1, 2014, a motion for delayed reconsideration
instanter and a contemporaneous motion for reconsideration of this court's decision in
Chavis I. Chavis argued for the first time in his motion for reconsideration that he had
been a juvenile at the time of the commission of the crimes and the common pleas court
improperly exercised jurisdiction over the matter without a transfer of jurisdiction from
the juvenile court. In an April 22, 2014 memorandum decision, this court denied Chavis's
motion for delayed reconsideration instanter, rendering moot his motion for
reconsideration. State v. Chavis, 10th Dist. No. 08AP-435 (Apr. 22, 2014) (memorandum
decision) ("Chavis III").
        {¶ 5} On May 20, 2014, Chavis filed with the trial court a "Motion to Vacate a
Void Judgment," arguing that the trial court lacked subject-matter jurisdiction over his
case because the juvenile court did not first follow the bindover procedures contained in
former R.C. 2151.26.        Chavis postured his motion as a successive petition for
postconviction relief, and he argued that because he was only 16 years old at the time of
the commission of the offenses but the state indicted and tried him as an adult, the
common pleas court's exercise of subject-matter jurisdiction was contrary to former R.C.
2151.26(E).    In a May 23, 2014 entry, the trial court denied Chavis's successive
postconviction petition as both untimely and barred by res judicata.        Chavis timely
appeals.
II. Assignments of Error
        {¶ 6} Chavis assigns the following errors for our review:
No. 15AP-557                                                                               3


               [1.] The trial court erred when it dismissed [Chavis's] Motion
               to Vacate a Void Judgment based upon the trial court's lack of
               subject matter jurisdiction where the underlying alleged
               offense was committed when [Chavis] was Sixteen years of
               age and the prosecution did not begin until [Chavis] was
               Twenty-one years of age without benefit of a bind over
               hearing in the juvenile court as required by Ohio law.

               [2.] Application of the 1997 statutes, R.C. 2151.26 and
               2151.011(B)(6), violated the Retroactivity Clause of the Ohio
               Constitution. Though 21 years old at the time of the
               indictment, Chavis contends that he had a right to juvenile
               treatment under the law as it existed at the time of the offense
               in 1996. He insists that the amended statutes are
               unconstitutionally retroactive as applied to his situation
               because, without benefit of those statutes, the common pleas
               court lacked jurisdiction to try him as an adult unless there
               had first been a bind over proceeding in the juvenile court.

III. Standard of Review and Applicable Law
       {¶ 7} " '[A] trial court's decision granting or denying a postconviction petition
filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court's finding on a petition for postconviction relief
that is supported by competent and credible evidence.' " State v. Sidibeh, 10th Dist. No.
12AP-498, 2013-Ohio-2309, ¶ 7, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, ¶ 58. Further, we review a trial court's decision to deny a postconviction petition
without a hearing under an abuse of discretion standard. State v. Boddie, 10th Dist. No.
12AP-811, 2013-Ohio-3925, ¶ 11, citing State v. Campbell, 10th Dist. No. 03AP-147, 2003-
Ohio-6305, ¶ 14.     An abuse of discretion connotes a decision that is unreasonable,
arbitrary, or unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
       {¶ 8} As a general matter, a petition for postconviction relief is a collateral civil
attack on a criminal judgment, not an appeal of the judgment. Sidibeh at ¶ 8, citing State
v. Steffen, 70 Ohio St.3d 399, 410 (1994). A petition for postconviction relief " 'is a means
to reach constitutional issues which would otherwise be impossible to reach because the
evidence supporting those issues is not contained in the record.' " Id., quoting State v.
Murphy, 10th Dist. No. 00AP-233 (Dec. 26, 2000). Thus, a postconviction petition does
No. 15AP-557                                                                                4


not provide a petitioner a second opportunity to litigate his or her conviction. Id., citing
State v. Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio-3321, ¶ 23. Instead, R.C. 2953.21
affords a petitioner postconviction relief " 'only if the court can find that there was such a
denial or infringement of the rights of the prisoner as to render the judgment void or
voidable under the Ohio Constitution or the United States Constitution.' " Id., quoting
State v. Perry, 10 Ohio St.2d 175 (1967), paragraph four of the syllabus.
       {¶ 9} A trial court may not entertain a second postconviction petition unless the
petitioner initially demonstrates either (1) he was unavoidably prevented from
discovering the facts necessary for the claim for relief, or (2) the United States Supreme
Court recognized a new federal or state right that applies retroactively to persons in the
petitioner's situation. R.C. 2953.23(A)(1)(a). If the petitioner can satisfy one of those two
conditions, he must also demonstrate that but for the constitutional error at trial no
reasonable finder of fact would have found him guilty. R.C. 2953.23(A)(1)(b).
       {¶ 10} The doctrine of res judicata places another significant restriction on the
availability of postconviction relief. Sidibeh at ¶ 12. " 'Under the doctrine of res judicata,
a final judgment of conviction bars a convicted defendant who was represented by counsel
from raising and litigating in any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have been raised by
the defendant at the trial, which resulted in that judgment or conviction, or on an appeal
from that judgment.' " (Emphasis deleted.) State v. Cole, 2 Ohio St.3d 112, 113 (1982),
quoting Perry at paragraph nine of the syllabus. "Res judicata also implicitly bars a
petitioner from 're-packaging' evidence or issues which either were, or could have been,
raised in the context of the petitioner's trial or direct appeal." Hessler at ¶ 27.
       {¶ 11} Further, a petitioner is not automatically entitled to an evidentiary hearing
on a postconviction petition. Sidibeh at ¶ 13, citing State v. Jackson, 64 Ohio St.2d 107,
110-13 (1980). To warrant an evidentiary hearing, the petitioner bears the initial burden
of providing evidence demonstrating a cognizable claim of constitutional error. Id., citing
R.C. 2953.21(C); Hessler at ¶ 33. The trial court may deny the petitioner's postconviction
petition without an evidentiary hearing "if the petition, supporting affidavits,
documentary evidence, and trial record do not demonstrate sufficient operative facts to
No. 15AP-557                                                                                 5


establish substantive grounds for relief." Sidibeh at ¶ 13, citing State v. Calhoun, 86 Ohio
St.3d 279 (1999), paragraph two of the syllabus.
IV. First and Second Assignments of Error – Petition for Postconviction
    Relief

       {¶ 12} Chavis's first and second assignments of error are interrelated, and we
address them jointly. Taken together, they assert the trial court erred in denying Chavis's
motion to vacate a void judgment.
       {¶ 13} In his first assignment of error, Chavis argues the trial court erred in
denying his motion to vacate a void judgment. We agree with the parties and the trial
court in their construing Chavis's motion as a successive petition for postconviction relief.
State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12 (noting "[c]ourts may recast
irregular motions into whatever category necessary to identify and establish the criteria by
which the motion should be judged").
       {¶ 14} As we outlined above, there are certain limits to a second petition for
postconviction relief. R.C. 2953.23(A). A trial court lacks jurisdiction to entertain an
untimely or successive petition for postconviction relief unless the petitioner establishes
that one of the exceptions in R.C. 2953.23(A) applies. State v. Campbell, 10th Dist. No.
12AP-109, 2012-Ohio-5195, ¶ 9. As applicable here, a trial court may not entertain a
second postconviction petition unless the petitioner initially demonstrates either (1) he
was unavoidably prevented from discovering the facts necessary for the claim for relief, or
(2) the United States Supreme Court recognized a new federal or state right that applies
retroactively to persons in the petitioner's situation.      R.C. 2953.23(A)(1)(a).     If the
petitioner can satisfy one of those two conditions, he must also demonstrate that but for
the constitutional error at trial, no reasonable finder of fact would have found him guilty.
R.C. 2953.23(A)(1)(b).
       {¶ 15} Here, Chavis does not assert that the United States Supreme Court has
recognized a new federal or state right that applies retroactively to his situation.
Therefore, the court "may not entertain" Chavis's second postconviction petition unless he
demonstrates (1) that he was unavoidably prevented from discovering the facts necessary
for his claim for relief, and (2) that but for a constitutional error, no reasonable factfinder
would have found him guilty.
No. 15AP-557                                                                               6


       {¶ 16} In denying Chavis's second postconviction petition, the trial court noted
that Chavis did not explain "why it took him eleven years to determine he was allegedly
only sixteen years old at the time of the offenses." (May 23, 2014 Entry.) The trial court
also concluded that because Chavis did not raise this argument during his direct appeal,
res judicata operated to bar the argument.
       {¶ 17} We agree with the trial court that Chavis does not adequately explain why it
took him so long to determine that being a juvenile at the time of the offenses was a
potential factual basis for relief. Thus, it seems Chavis failed to demonstrate that he was
unavoidably prevented from discovering the facts necessary for his claim for relief. This
conclusion, however, does not end our analysis, as Chavis asserts the judgment against
him was void ab initio for lack of subject-matter jurisdiction. "Because subject matter
jurisdiction goes to the power of the court to adjudicate the merits of a case, it can never
be waived and may be challenged at any time." State v. Smith, 10th Dist. No. 06AP-1059,
2007-Ohio-2873, ¶ 9, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11.
Thus, if Chavis is correct that the trial court lacked subject-matter jurisdiction over his
initial conviction, his failure to properly invoke the trial court's jurisdiction to hear his
successive postconviction petition does not bar this court from reviewing his jurisdictional
argument at this time. See, e.g., Wells Fargo Bank, N.A. v. Perkins, 10th Dist. No. 13AP-
318, 2014-Ohio-1459, ¶ 10 (noting a judgment rendered by a court lacking subject-matter
jurisdiction is void ab initio, and Ohio courts possess the inherent authority to vacate a
void judgment at any time), citing Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraphs
three and four of the syllabus.
       {¶ 18} The state indicted Chavis on November 16, 2000. The offenses occurred,
however, on or about June 26, 1996. Chavis averred in the affidavit accompanying his
motion to vacate a void judgment that his date of birth is August 6, 1979, meaning he was
only 16 years old at the time of the commission of the offenses but 21 years old at the time
of the indictment. Chavis argues that because he was a juvenile at the time of the
commission of the offenses, the common pleas court could not have subject-matter
jurisdiction over the matter until the juvenile court conducted the bindover procedure
outlined in former R.C. 2151.26.
No. 15AP-557                                                                               7


       {¶ 19} Former R.C. 2151.26(E), in effect when the state indicted Chavis in 2000
and when the trial court tried, convicted, and sentenced him, provided in part: "[n]o
person, either before or after reaching eighteen years of age, shall be prosecuted as an
adult for an offense committed prior to becoming eighteen years of age, unless the person
has been transferred as provided in * * * this section." Relying on former R.C. 2151.26(E),
Chavis asserts that because he was never subject to a bindover procedure in juvenile
court, the judgment rendered against him in the common pleas court is void. See State v.
Wilson, 73 Ohio St.3d 40 (1995), paragraphs one and two of the syllabus (holding
"[a]bsent a proper bindover procedure pursuant to [former] R.C. 2151.26, the juvenile
court has the exclusive subject matter jurisdiction over any case concerning a child who is
alleged to be a delinquent," and "[t]he exclusive subject matter jurisdiction of the juvenile
court cannot be waived").
       {¶ 20} Chavis's argument, however, ignores R.C. 2151.23, in effect at the time of his
indictment, trial, and conviction. In pertinent part, R.C. 2151.23(I) provides:
               If a person under eighteen years of age allegedly commits an
               act that would be a felony if committed by an adult and if the
               person is not taken into custody or apprehended for that act
               until after the person attains twenty-one years of age, the
               juvenile court does not have jurisdiction to hear or determine
               any portion of the case charging the person with committing
               that act. In those circumstances * * * the case charging the
               person with committing the act shall be a criminal
               prosecution commenced and heard in the appropriate court
               having jurisdiction of the offense as if the person had been
               eighteen years of age or older when the person committed the
               act.

Thus, the General Assembly "declared the juvenile court's lack of jurisdiction over a
person 21 years of age who is apprehended for an offense committed prior to the person's
18th birthday." State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, ¶ 14. Chavis was not
apprehended until after he had attained 21 years of age. Given the plain language of R.C.
2151.23(I), we do not agree with Chavis that the common pleas court lacked subject-
matter jurisdiction over his conviction.
       {¶ 21} Despite the plain language of R.C. 2151.23(I), Chavis nonetheless argues in
his second assignment of error that the judgment of conviction rendered against him is
No. 15AP-557                                                                                 8


void because R.C. 2151.23(I) is unconstitutionally retroactive. The General Assembly
enacted R.C. 2151.23(I) as part of a series of amendments to the juvenile statutes in 1997,
but Chavis contends he is entitled to juvenile treatment under the law as it existed at the
time of the offense in 1996.      Chavis did not challenge the constitutionality of R.C.
2151.23(I) in the trial court, and he arguably waives this argument for purposes of appeal.
State v. Golden, 10th Dist. No. 13AP-927, 2014-Ohio-2148, ¶ 11 (noting "[f]ailure to raise
the issue of the constitutionality of a statute or its application at the trial court level
generally constitutes waiver of that issue and need not be heard for the first time on
appeal"), citing State v. Adams, 10th Dist. No. 12AP-83, 2012-Ohio-5088, ¶ 43. However,
because the constitutionality of R.C. 2151.23(I) goes to Chavis's jurisdictional argument,
we will address it.
       {¶ 22} The Supreme Court of Ohio has established a two-part test for determining
unconstitutional retroactivity. State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, ¶ 14,
citing Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100 (1988), paragraphs one
and two of the syllabus. First, the court must determine whether the General Assembly
expressly intended that the statute apply retroactively. Id. at ¶ 14. If so, the second part of
the test asks whether the statute is "substantive, rendering it unconstitutionally
retroactive, as opposed to merely remedial." (Emphasis sic.) Bielat v. Bielat, 87 Ohio
St.3d 350, 353 (2000), citing State v. Cook, 83 Ohio St.3d 404, 410-11.
       {¶ 23} "Because R.C. 1.48 establishes a presumption that statutes operate
prospectively only, '[t]he issue of whether a statute may constitutionally be applied
retrospectively does not arise unless there has been a prior determination that the General
Assembly specified that the statute so apply.' " Cosby v. Franklin Cty. Dept. of Job &
Family Servs., 10th Dist. No. 07AP-41, 2007-Ohio-6641, ¶ 16, quoting Van Fossen at
paragraph one of the syllabus. Courts must construe statutes as applying prospectively
only unless there is a "clear pronouncement by the General Assembly that the statute
applies retroactively."   LaSalle at ¶ 14.    A mere suggestion that the statute applies
retroactively is insufficient to overcome the presumption of prospective application. Hyle
v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, ¶ 13.
       {¶ 24} The Supreme Court has previously considered whether R.C. 2151.23(I) is
unconstitutionally retroactive. In Walls, the Supreme Court found "an express legislative
No. 15AP-557                                                                              9


intent that the juvenile statutes apply retroactively."     Walls at ¶ 14.    However, the
Supreme Court rejected the argument that R.C. 2151.23(I) was a substantive change
because it conferred jurisdiction where it was previously lacking, noting that
" '[a]pplication of a new jurisdictional rule usually "takes away no substantive right but
simply changes the tribunal that is to hear the case." ' " Id. at ¶ 18, quoting Landgraf v.
USI Film Prods., 511 U.S. 244, 274 (1994), quoting Hallowell v. Commons, 239 U.S. 506,
508 (1916). Thus, the Supreme Court held in Walls that applying the version of R.C.
2151.23(I) in effect at the time the state commenced criminal proceedings did not impair
substantive rights within the meaning of unconstitutional retroactivity. Id. at ¶ 19.
       {¶ 25} Chavis also asserts that application of the 1997 amendments to the juvenile
statutes are unconstitutional as applied to him because, when retroactively applied, they
constitute ex post facto laws prohibited by the United States Constitution, Article I,
Section 10. "[T]he Ex Post Facto Clause applies only to criminal statutes." Cook at 415. It
"is aimed at laws that 'retroactively alter the definition of crimes or increase the
punishment for criminal acts.' " California Dept. of Corr. v. Morales, 514 U.S. 499, 504
(1995), quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990), citing Calder v. Bull, 3 U.S.
386, 390 (1798). Chavis argues application of the amended juvenile statutes to his case
invoke the third Calder factor, which prohibits as ex post facto any law that inflicts a
greater punishment for a crime than the law in effect at the time of the commission of the
crime. See Walls at ¶ 22, citing Calder. Chavis argues the former versions of the juvenile
statutes would have provided him the possibility of remaining in the juvenile system
where the potential punishments are not as severe as those imposed in the general
division of the common pleas court.
       {¶ 26} Again, however, the Supreme Court has considered and rejected this
argument. The defendant in Walls, like Chavis, had been charged as an adult with
aggravated murder for conduct that occurred when he was under the age of 18 but was not
apprehended or indicted until after attaining the age of 21. As the Supreme Court stated,
"[w]hile Walls perhaps remained eligible for retention within the jurisdiction of the
juvenile court under a technical reading of the old statutes, the practical reality is that
Walls had virtually no chance of being kept in the juvenile system." Id. at ¶ 31. "Any
bindover hearing under the [former] statute would have been simply a procedural step in
No. 15AP-557                                                                                10


the process of transferring Walls for prosecution as an adult," especially "for an offense as
serious as aggravated murder."        Id. at ¶ 41.    Thus, the Supreme Court concluded
"application of the amended statutes did not increase his available punishment in any
manner other than a speculative and attenuated one. Such a change in the measure of
punishment is not enough to constitute an ex post facto violation." Id.
         {¶ 27} Thus, in accordance with the Supreme Court's decision in Walls, we hold
that application of the 1997 amendment to R.C. 2151.23(I) to Chavis did not violate the Ex
Post Facto Clause. Id. at ¶ 49. Chavis is unable to demonstrate that the application of the
1997 amendments to the juvenile statutes increased his available punishment in anything
other than a speculative and attenuated manner, which is not enough to render a law in
violation of the Ex Post Facto Clause. Id. Chavis's challenge to the constitutionality of
R.C. 2151.23(I) therefore fails, and Chavis does not demonstrate that the common pleas
court lacked subject-matter jurisdiction over the criminal proceedings against him,
rendering the judgment against him void ab initio. We conclude, therefore, that the trial
court did not abuse its discretion in denying Chavis's successive petition for
postconviction relief. Accordingly, we overrule Chavis's first and second assignments of
error.
V. Disposition
         {¶ 28} Based on the foregoing reasons, the trial court did not abuse its discretion in
denying Chavis's successive petition for postconviction relief, and the judgment of his
conviction was not void ab initio for lack of subject-matter jurisdiction. Having overruled
Chavis's two assignments of error, we affirm the decision and entry of the Franklin
County Court of Common Pleas.
                                                                         Judgment affirmed.

                             KLATT and BRUNNER, JJ., concur.
