State v. Deems

[Cite as State v. Deems, 2020-Ohio-4076.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 19AP-857
v. : (C.P.C. No. 90CR-3846)

Timothy R. Deems, : (ACCELERATED CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on August 11, 2020

On brief: Ron O'Brien, Prosecuting Attorney, and Daniel J.
Stanley, for appellee.

On brief: Timothy R. Deems, pro se.

APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
{¶ 1} Defendant-appellant, Timothy R. Deems, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion to vacate his judgment of
conviction. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant was born April 24, 1975. On May 13, 1990, when appellant was 15
years old, he was involved in an attempted robbery at a Foodland store. During the robbery,
the victim, Mansi Humeidan, was shot and killed.
{¶ 3} The record shows that plaintiff-appellee, State of Ohio, filed a motion in the
juvenile court, pursuant to Juv.R. 30 and former R.C. 2151.26, seeking an order transferring
the matter to the common pleas court, general division, for prosecution of appellant as an
No. 19AP-857 2

adult.1 On August 9, 1990, the juvenile court conducted an evidentiary hearing on
appellee's motion. On August 10, 1990, the juvenile court issued a journal entry wherein
the court found that there was "probable cause to believe that the child committed the act
* * * and such act would constitute a felony if committed by an adult." (Aug. 10, 1990
Journal Entry at 1.) The juvenile court concluded that on review of appellant's juvenile
record, appellant was "not amenable to * * * rehabilitation" and that "the safety of the
community require[d] that the child be placed under legal restraint for a period extending
beyond his majority." (Aug. 10, 1990 Journal Entry at 2.) In the August 10, 1990 journal
entry, the juvenile court also made a finding that: "A mental and physical examination of
the child was conducted as previously Ordered by the Court and such examinations were
admitted into evidence." (Aug. 10, 1990 Journal Entry at 1.)
{¶ 4} The juvenile court granted appellee's motion and transferred the case to the
common pleas court. On August 30, 1990, a Franklin County Grand Jury indicted appellant
on three separate charges with specifications. Count 1 of the indictment charged appellant
with aggravated murder with prior calculation and design, in violation of R.C. 2903.01, and
aggravated murder while committing or attempting to commit aggravated robbery, also in
violation of R.C. 2903.01. Count 2 of the indictment charged appellant with aggravated
robbery, in violation of R.C. 2911.01, a felony of the first degree. All three of the charges in
the indictment were accompanied by a three-year firearm specification.
{¶ 5} On May 22, 1991, the trial court made a determination that appellant was
competent to stand trial for the charges in the indictment. On August 7, 1991, appellant
withdrew his plea of not guilty and pleaded guilty to aggravated murder while committing
or attempting to commit aggravated robbery with a firearm specification and attempted
aggravated robbery with a firearm specification. The trial court sentenced appellant, as to
Count 1, to life in prison with parole eligibility after serving 20 years with an additional 3
years for the firearm specification and a $25,000 fine. As to Count 2, the trial court
sentenced appellant to a prison term of 3 to 15 years with an additional 3 years for the
firearm specification. The trial court ordered appellant to serve the prison terms
consecutively but merged the 2 firearm specifications.

1 A copy of the motion is not part of the record in this case.
No. 19AP-857 3

{¶ 6} Appellant did not appeal to this court from the judgment of conviction and
sentence. However, on October 22, 2019, more than 29 years after appellant was
sentenced, appellant filed a motion to vacate the judgment of conviction. In his motion,
appellant alleges the adult court did not have jurisdiction to hear and determine the
criminal charges brought against him because the juvenile court failed to properly transfer
the case. More particularly, appellant argues the juvenile court failed to satisfy the physical
examination requirement of former R.C. 2151.26(A)(1) and former Juv.R. 30 prior to
transferring the case to adult court.
{¶ 7} In appellee's memorandum in opposition to appellant's motion to vacate his
conviction and sentence, appellee argued that appellant's motion should be construed as
an untimely motion for postconviction relief, res judicata barred appellant's motion, and
the motion was without merit because a physical examination of appellant was, in fact,
conducted prior to the transfer of the case to the common pleas court. In support of the
memorandum in opposition, appellee attached a copy of the juvenile court's August 30,
1990 journal entry and what appellee claims to be a copy of a July 25, 1990 examination
report authored by Haheswora Nanda Biadya, M.D.2
{¶ 8} On November 26, 2019, the trial court denied appellant's motion. The trial
court first construed appellant's motion as a motion for postconviction relief brought
pursuant to R.C. 2953.21 and denied the motion as untimely filed. In the alternative, the
trial court determined that res judicata barred appellant's motion. Finally, the trial court
determined that even if appellant's motion were considered on the merits, the motion fails
because the juvenile court did, in fact, comply with the physical examination requirement
of former Juv.R. 30 and former R.C. 2151.26(A)(1).
{¶ 9} Appellant timely appealed to this court from the November 26, 2019
judgment.
II. ASSIGNMENT OF ERROR
{¶ 10} Appellant assigns the following as trial court error:
The trial court erred and due process was denied when the
court overruled the Defendant's motion asserting that his
judgment of conviction was void ab initio because the juvenile
court failed to conduct a physical examination of the

2 The report of appellant's physical examination is not part of the record in this case.
No. 19AP-857 4

Defendant prior to transferring jurisdiction to the general
division of the court of common pleas.
III. LEGAL ANALYSIS
A. Assignment of Error
{¶ 11} In appellant's sole assignment of error, appellant contends the trial court
erred, for a number of reasons, when it denied his motion to vacate the August 7, 1991
judgment. We disagree.
{¶ 12} The transfer of a criminal matter involving a minor from the juvenile court to
the general division of the common pleas court for the prosecution of a minor as an adult is
"a statutory process that 'is generally referred to as a bindover procedure.' " Smith v. May,
__ Ohio St.3d __, 2020-Ohio-61, ¶ 3, quoting State v. Wilson, 73 Ohio St.3d 40, 43 (1995).
Under the statutory scheme, " '[t]he juvenile court has exclusive original jurisdiction * * *
[c]oncerning any child who on or about the date specified in the complaint, indictment, or
information is alleged * * * to be * * * a delinquent * * * child.' But if a child is old enough
and is alleged to have committed an act that would be a felony if committed by an adult, the
juvenile court may (or may be required to) transfer its jurisdiction to the appropriate adult
court for criminal prosecution." Smith at ¶ 3, quoting R.C. 2151.23(A)(1).
{¶ 13} Appellant's primary argument in this case is that the failure of the juvenile
court to include a physical examination in the course of its bindover investigation was a
jurisdictional defect that prevented the common pleas court from obtaining jurisdiction to
try appellant as an adult. Under Ohio law, a writ of habeas corpus is the appropriate remedy
where "[a] party [is] detained pursuant to the judgment of a court * * * if the court lacked
jurisdiction to enter the judgment." Stahl v. Shoemaker, 50 Ohio St.2d 351, 354 (1977).
"However, non-jurisdictional errors afford no basis for issuing the writ [as] [h]abeas corpus
is not a substitute for appeal." Id.
{¶ 14} We agree with appellant that where a trial court receives an untimely petition
for postconviction relief that challenges a void conviction or sentence, it must ignore the
procedural irregularities, vacate the void sentence, and resentence the offender. State v.
Smotherman, 10th Dist. No. 16AP-471, 2016-Ohio-8133, ¶ 8. However, as set forth below,
appellant's conviction and sentence in this matter were not void but merely voidable.
{¶ 15} When appellant committed the offenses at issue, the bindover statute, former
R.C. 2151.26, provided in relevant part:
No. 19AP-857 5

(A)(1) * * * After a complaint has been filed alleging that a
child is a delinquent child for committing an act that would
constitute a felony if committed by an adult, the court at a
hearing may transfer the case for criminal prosecution to the
appropriate court having jurisdiction of the offense, after
making the following determinations:
***
(c) After an investigation, including a mental and physical
examination of the child made by a public or private agency
or a person qualified to make the examination, and after
consideration of all relevant information and factors, * * * that
there are reasonable grounds to believe that:
(i) He is not amenable to care or rehabilitation * * * in any
facility designed for * * * delinquent children;
(ii) The safety of the community may require that he be
placed under legal restraint * * *.
(Emphasis sic.) State v. Golphin, 81 Ohio St.3d 543, 545 (1998). See 144 Ohio Laws, Part
II, 2745-46.
{¶ 16} At the time appellant committed the offenses, former Juv.R. 30(B) contained
similar language as follows:
If the court finds probable cause, it shall continue the
proceedings for full investigation. The investigation shall
include a mental and physical examination of the child by a
public or private agency or by a person qualified to make the
examination.
(Emphasis sic.) Golphin at 545.
{¶ 17} Golphin is a case decided by the Supreme Court of Ohio under similar facts
to those presented herein. In Golphin, a juvenile offender was convicted of murder in adult
court after the juvenile court relinquished jurisdiction. The court of appeals reversed. The
Supreme Court affirmed the judgment of the court of appeals, holding that because the
juvenile court failed to comply with former R.C. 2151.26 by requiring mental and physical
examinations of defendant, the common pleas court lacked jurisdiction over him. Id. at
547.
{¶ 18} In determining whether the failure of the juvenile court to include a physical
examination in the investigation constituted a jurisdictional defect in the bindover
proceedings, the Golphin court stated:
No. 19AP-857 6

R.C. 2151.26 requires that an investigation be conducted
before bindover, and, in 1994 and 1995, the statute expressly
required that the background investigation include both a
mental and physical examination. It follows that the court's
bindover order in the case at bar was, at best, premature. The
record fails to show the completion of the full investigation
required to be conducted by statute before the court was
authorized to make the critical determinations of whether
Golphin was amenable to rehabilitation within the juvenile
system and whether the safety of the community required that
he be placed under legal restraint. See, also State v. Douglas
(1985), 20 Ohio St. 3d 34, 36, 20 Ohio B. Rep. 282, 284, 485
N.E.2d 711, 712 ("As long as sufficient, credible evidence
pertaining to each factor [enumerated in Juv.R. 30(E)] exists
in the record before the court, the bind-over order should not
be reversed in the absence of an abuse of discretion."
[Emphasis added.])
Moreover, this court held unanimously in Gaskins v. Shiplevy
(1995), 74 Ohio St. 3d 149, 656 N.E.2d 1282, that a juvenile
who alleged that he had been given no mental and physical
examination prior to relinquishment of jurisdiction by a
juvenile court stated a claim which, if true, demonstrated that
the common pleas court that convicted him of a crime lacked
jurisdiction over him. We discern no convincing reason to
depart from this existing precedent in resolving the cause
before us.3
Id. at 546.
{¶ 19} The Golphin court relied on its prior ruling in Gaskins v. Shiplevy, 74 Ohio
St.3d 149 (1995) ("Gaskins I"), in concluding that the physical examination requirement of
former R.C. 2151.26 and Juv.R. 30 was jurisdictional in nature. The Supreme Court,
however, in Smith recently overruled Gaskins I.
{¶ 20} In Smith, four delinquency complaints were filed in juvenile court against
appellant, Ja'Relle Smith, who was then 16 years old. Based on his age and the severity of
the charges, the cases were transferred to adult court, where Smith was convicted of 5 felony
counts and sentenced to an aggregate prison term of 16 years. In 2017, he filed a pro se
petition for a writ of habeas corpus in the court of appeals alleging that the juvenile court

3 The Golphin court "acknowledge[d] that the General Assembly amended R.C. 2151.26, effective January 1,
1996, to eliminate the requirement that a juvenile be given a physical examination prior to relinquishment of
juvenile court jurisdiction [and] in July 1997, Juv.R. 30 was amended to accord with the new statute by
deleting all references to physical examination of juveniles." Id. at 546.
No. 19AP-857 7

had not fully complied with the procedures for transferring jurisdiction to the adult court
because it had not timely notified his father of a hearing in one of the juvenile court cases
that led to the transfer of some of the charges. The court denied the writ, and Smith
appealed to the Supreme Court.
{¶ 21} The Supreme Court held that the failure to provide timely notice did not
prevent the juvenile court from transferring subject-matter jurisdiction to the adult court.
In so holding, the court determined that deviation from a bindover procedure creates a
jurisdictional defect only if the applicable statute clearly makes the procedure a prerequisite
to the transfer of subject-matter jurisdiction to an adult court. Id. at ¶ 29. In analyzing the
current bindover statute, R.C. 2152.12(G), the Supreme Court concluded that nothing in the
statutory language suggested that the provision of notice was a prerequisite to the transfer
of subject-matter jurisdiction to an adult court. Id. Accordingly, the Supreme Court found
the juvenile court's failure to timely notify defendant's father of a hearing did not prevent
the juvenile court from transferring subject-matter jurisdiction to the adult court. Id. at
¶ 32. The Supreme Court also determined that because the alleged defect in the bindover
proceedings was not jurisdictional, defendant had had a valid remedy at law through
appeal. Id. at ¶ 35.
{¶ 22} In overruling Gaskins I, the Smith court noted that on remand following
Gaskins I, "the warden presented evidence showing that Gaskins had affirmatively waived
his right to [the physical and mental] examinations." Smith at ¶ 25 citing Gaskins v.
Shiplevy, 76 Ohio St.3d 380, 381 (1996) ("Gaskins II"). The Smith court then observed: "In
Gaskins I, this court had viewed all the requirements of the bindover procedure as
jurisdictional (and thus not waivable). Gaskins I at 151. But Gaskins II held that the
evidence of waiver showed that there had been 'full compliance with the bindover
procedure,' id. at 382, thus signaling that the mandates of the bindover statute were not
jurisdictional after all." Smith at ¶ 25.
{¶ 23} Even though the Supreme Court, in Smith, did not expressly overrule
Golphin, and even though Smith was decided under the current version of the bindover
statute, which does not include a physical examination requirement, because the Smith
court expressly overruled Gaskins I and rejected the reasoning applied therein, we conclude
that, pursuant to Smith, the juvenile court's alleged failure to require a physical
No. 19AP-857 8

examination prior to transferring the case to the common pleas court did not deprive the
common pleas court of jurisdiction to try appellant as an adult. Smith at ¶ 35.
{¶ 24} While we believe Smith is dispositive of the jurisdictional issue, we note that
in 2018, the Supreme Court decided Johnson v. Sloan, 154 Ohio St.3d 476, 2018-Ohio-
2120, a case virtually on all fours with the instant case. The facts of that case are as follows.
In December 1986, when Johnson was 15 years old, he and his older brother Charles
embarked on a crime spree during which they committed the robbery and murder of
Christine Kozak, along with several other robberies. The juvenile court transferred the two
cases against Johnson to the common pleas court. In one of those cases, Johnson was
convicted of the aggravated murder of Kozak.
{¶ 25} In 2016, Johnson filed a petition for a writ of habeas corpus in the murder
case alleging that the common pleas court lacked jurisdiction due to his allegedly defective
transfer from the juvenile court. More particularly, Johnson alleged that he was never given
the mandatory physical examination, even though the transfer order indicated that a
physical examination had occurred. The Eleventh District Court of Appeals granted the
state's motion to dismiss the petition on finding that the physical examination had been
conducted as evidence by the journal entry from the juvenile court. Id. at ¶ 16. Johnson
appealed to the Supreme Court.
{¶ 26} In concluding that Johnson's petition for a writ of habeas corpus failed to
state a claim, the Johnson court reviewed the current state of the law, including Golphin
and the two Gaskins decisions:
Absent a proper bindover, the juvenile court has exclusive
subject-matter jurisdiction over any case concerning a child
who is alleged to be delinquent. State v. Wilson, 73 Ohio St.3d
40, 44, 1995-Ohio-217, 652 N.E.2d 196 (1995). If the juvenile
court fails to comply with the mandatory requirements of the
bindover statute, its purported transfer to adult court is
ineffective and any judgment issued by the adult court is void.
Johnson v. Timmerman-Cooper, 93 Ohio St.3d 614, 617,
2001-Ohio-1803, 752 N.E.2d 1153 (2001). If the juvenile
court fails to require a physical examination when required by
statute, the resulting judgment in the adult court is void. State
v. Golphin, 81 Ohio St.3d 543, 547, 1998-Ohio-336, 692
N.E.2d 608 (1998).
In Gaskins v. Shiplevy, 74 Ohio St.3d 149, 151, 1995-Ohio-
262, 656 N.E.2d 1282 (1995) ["Gaskins I"], an inmate sought
No. 19AP-857 9

a writ of habeas corpus, alleging that he had been transferred
from juvenile court to adult court without the mandatory
physical and mental examinations. We held that if the
bindover was improper, his conviction in adult court would be
void and Gaskins would be entitled to habeas relief. Id. at 151.
We remanded the case to the court of appeals to determine
whether the bindover was proper.
On remand, the court of appeals ordered the warden to
respond to Gaskins's petition and ultimately dismissed the
petition based on a statement in the transfer order that
Gaskins had waived his right to the physical and mental
examinations. We affirmed, holding that
[s]ince Gaskins' claims of improper bindover
below * * * are rebutted by the juvenile court
journal entry incorporated in [the warden's
response], the court of appeals did not err in
denying his requested habeas corpus relief
without first holding a hearing, waiting for the
completion of discovery, or requiring Gaskins's
presence before the court.
Gaskins v. Shiplevy, 76 Ohio St.3d 380, 382-383, 1996-Ohio-
387, 667 N.E.2d 1194 (1996) ("Gaskins II"). We also noted
that habeas relief is not available to an inmate who has an
adequate remedy at law and that Gaskins could have pursued
other remedies to challenge the transfer order. Id. at 383.
The facts in Gaskins II are analogous to those presented by
Johnson in this case. Based on that authority, the court of
appeals was correct to dismiss his petition for failure to state
a claim cognizable in habeas corpus.
(Emphasis sic.) Johnson at ¶ 14-17.
{¶ 27} Even though the Johnson court cited the Golphin case with apparent
approval, the Johnson court affirmed the dismissal of Johnson's habeas petition because
he possessed an adequate remedy at law to raise the physical examination issue in his direct
appeal from his conviction and sentence. By expressly relying on Gaskins II in affirming
the court of appeals, however, the Johnson court agreed that the physical examination
requirement of former R.C. 2151.26(A)(1) was waivable. As the Supreme Court
subsequently stated in Smith, "Gaskins II held that the evidence of waiver showed that
there had been 'full compliance with the bindover procedure,' id. at 382, thus signaling that
the mandates of the bindover statute were not jurisdictional after all." Smith, 2020-Ohio-
61, at ¶ 25.
No. 19AP-857 10

{¶ 28} In light of the decisions of the Supreme Court in Johnson and Smith, we are
convinced that the alleged error in the journal entry transferring appellant's case to the
common pleas court was not the type of error that would deprive the general division of
jurisdiction to try appellant as an adult. Accordingly, we find the juvenile court's alleged
failure to satisfy the physical examination requirement of former R.C. 2151.26(A)(1) prior
to transferring the case to adult court resulted in, at most, a violation of appellant's statutory
due process rights.
{¶ 29} Under Ohio law, where a criminal defendant, subsequent to his or her direct
appeal, files a motion seeking vacation or correction of his or her conviction or sentence on
the basis that his or her constitutional rights have been violated, such a motion is a petition
for postconviction relief as defined in R.C. 2953.21. State v. Randlett, 10th Dist. No. 06AP-
1073, 2007-Ohio-3546, ¶ 17.4 Because we have determined the alleged defect in the
bindover proceedings are not jurisdictional in nature, we hold the trial court correctly
construed appellant's motion to vacate his conviction and sentence as a petition for
postconviction relief pursuant to R.C. 2953.21.
{¶ 30} R.C. 2953.21(A) provides in part that subject to certain exceptions in R.C.
2953.23, a petition for postconviction relief shall be filed no later than 365 days after the
date on which the trial transcript is filed in the court of appeals in the direct appeal of the
judgment of conviction or adjudication. R.C. 2953.21(A)(2); Smotherman, 2016-Ohio-
8133, at ¶ 7. In the event no appeal is taken, the petition shall be filed no later than 365
days after the expiration of the time for filing the appeal. R.C. 2953.21(A)(2); Smotherman
at ¶ 7. There is no dispute that appellant did not meet this deadline as he filed his petition
29 years after his conviction and sentence became final.
{¶ 31} R.C. 2953.23(A)(1) provides that a court may not entertain an untimely
petition for postconviction relief unless certain conditions are met. Smotherman at ¶ 8.
Before a court may consider an untimely petition for postconviction relief, a petitioner must
demonstrate that: (1) he was unavoidably prevented from discovering the facts on which
his petition relies or that the petitioner's claim relies on a newly created federal or state
right; and (2) clear and convincing evidence demonstrates that no reasonable factfinder

4R.C. 2953.21(K) provides: "Subject to the appeal of a sentence for a felony that is authorized by section
2953.08 of the Revised Code, the remedy set forth in this section is the exclusive remedy by which a person
may bring a collateral challenge to the validity of a conviction or sentence in a criminal case."
No. 19AP-857 11

would have found him guilty in the absence of the alleged constitutional error. Id. "A trial
court lacks subject-matter jurisdiction over an untimely or successive petition for
postconviction relief unless the petition satisfies the criteria set forth under R.C.
2953.23(A)." State v. Conway, 10th Dist. No. 17AP-90, 2019-Ohio-382, ¶ 8, citing State v.
Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 36 ("a petitioner's failure to satisfy R.C.
2953.23(A) deprives a trial court of jurisdiction to adjudicate the merits of an untimely or
successive postconviction petition"). Appellant made no claim in the trial court that any of
the R.C. 2953.23(A)(1) exceptions applied to his petition. Because appellant's petition is an
untimely petition for postconviction relief, and because appellant failed to produce
evidence to support a finding that any of the R.C. 2953.23(A)(1) exceptions applied, the trial
court lacked jurisdiction to entertain appellant's petition. Conway; Apanovitch. See also
State v. Kane, 10th Dist. No. 16AP-781, 2017-Ohio-7838; State v. Jones, 10th Dist. No.
18AP-578, 2019-Ohio-1014, ¶ 15, appeal not accepted, 156 Ohio St.3d 1478, 2019-Ohio-
3148.
{¶ 32} This court has previously advised that trial courts should dismiss a petition
for postconviction relief when jurisdiction is lacking, rather than denying the petition on
some other grounds. See, e.g., State v. Banks, 10th Dist. No. 12AP-96, 2012-Ohio-3770,
¶ 11 ("the trial court did not err in denying appellant's petition, though technically the
petition should have been dismissed for lack of jurisdiction"); State v. Mangus, 10th Dist.
No. 06AP-1105, 2009-Ohio-6563, ¶ 13 (affirming denial of postconviction petition as
untimely filed even though trial court should have dismissed the petition for lack of
jurisdiction); State v. Russell, 10th Dist. No. 05AP-391, 2006-Ohio-383, ¶ 10 (the trial court
did not err in denying appellant's petition on the merits, though technically the petition
should have been dismissed for lack of jurisdiction); State v. Elkins, 10th Dist. No. 10AP-6,
2010-Ohio-4605, ¶ 17 (though the untimely postconviction petition should have been
dismissed for lack of jurisdiction, the trial court did not err by denying the petition on the
merits). Accordingly, we conclude that even though the trial court should have dismissed
appellant's petition for the lack of jurisdiction rather that denying the petition, we agree
with the trial court's disposition of appellant's petition, and we affirm the trial court's
judgment. Because the trial court lacked jurisdiction to entertain appellant's motion, there
No. 19AP-857 12

is no need for this court to address the merits of the motion or the affirmative defense of
res judicata.
{¶ 33} For the foregoing reasons, appellant's assignment of error is overruled.
IV. CONCLUSION
{¶ 34} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRUNNER, J., concurs.
NELSON, J., concurs in judgment.
NELSON, J., concurring in judgment.
{¶ 35} Because I believe that the record in this case obviates the claimed
jurisdictional concerns, I agree in affirming the judgment of the trial court.
_____________