[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.
