[Cite as State v. Nix,
2025-Ohio-756.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 24AP-557
v. : (C.P.C. No. 09CR-4017)
Delshaun Nix, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 6, 2025
On brief: [Shayla D. Favor], Prosecuting Attorney, and
Taylor M. Mick, for appellee.
On brief: Delshaun Nix, pro se.
APPEAL from the Franklin County Court of Common Pleas
EDELSTEIN, J.
{¶ 1} Defendant-appellant, Delshaun Nix, pro se, appeals from the August 7, 2024
judgment of the Franklin County Court of Common Pleas denying his motion to vacate its
September 10, 2009 judgment of conviction for three counts of aggravated robbery and one
count of involuntary manslaughter. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL OVERVIEW
{¶ 2} On April 3, 2009, a complaint was filed in the Franklin County Juvenile Court
(“juvenile court”) charging Mr. Nix, then age 17, with aggravated murder, four counts of
aggravated robbery, two counts of kidnapping, and attendant firearm specifications.
{¶ 3} Pursuant to R.C. 2152.12(A), the state sought bindover of the case to the
general division of the common pleas court (“adult court”) for prosecution of Mr. Nix as an
adult. After conducting a probable cause hearing on that motion, the juvenile court found
No. 24AP-557 2
Mr. Nix was subject to bindover and the state had established probable cause to believe Mr.
Nix had committed the charged offenses with a firearm. Based on these findings, the
juvenile court relinquished its jurisdiction and transferred the matter to adult court.
{¶ 4} On September 4, 2009, Mr. Nix was charged in adult court, via a bill of
information, with three counts of aggravated robbery and one count of involuntary
manslaughter with a firearm specification, all felonies of the first degree. Then, with the
assistance of counsel, Mr. Nix pled guilty to all four counts. The trial court proceeded to
sentencing and imposed the jointly recommended aggregate prison sentence of 20 years.
(See Sept. 4, 2009 Tr. at 31-32.) Mr. Nix’s convictions and sentence were memorialized in
the trial court’s September 10, 2009 judgment entry. He did not appeal from that final
judgment.
{¶ 5} In June 2024, Mr. Nix, acting pro se, filed a motion requesting the trial court
vacate his convictions, alleging various constitutional claims. On August 7, 2024, the trial
court entered a judgment finding it lacked jurisdiction to consider Mr. Nix’s untimely
postconviction petition and dismissing his petition without addressing the merits.
{¶ 6} Mr. Nix timely appealed from that decision and now asserts the following
four assignments of error for our review:
[I.] THE TRIAL COURT ERRED WHEN IT DENIED MY
UNTIMELY PETITION TO VACATE OR SET ASIDE
JUDGMENT OF CONVICTION OR SENTENCE ON
GROUNDS THAT I DIDN’T HAVE ANY APPLICABLE
FACTORS FOR FILING AN UNTIMELY PETITION.
[II.] EQUAL PROTECTION VIOLATION OF BOTH THE
UNITED STATES, AND OHIO CONSTITUTION ART. I, 2.
[III.] MISSTATEMENT OF FACTS VIOLATES APPELLANTS
U.S. CONSTITUTIONAL RIGHT TO DUE PROCESS.
[IV.] INEFFECTIVE ASSISTANCE OF COUNSEL VIOLATES
THE U.S. CONSTITUTIONS SIXTH AMENDMENT.
(Sic passim.)
II. ANALYSIS
{¶ 7} In his first assignment of error, Mr. Nix contends the trial court erred in
finding it lacked jurisdiction to consider his postconviction petition. We disagree.
No. 24AP-557 3
{¶ 8} Postconviction proceedings in Ohio constitute “a collateral civil attack on the
judgment.” State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). Found in R.C. 2953.21 and
2953.23, Ohio’s statutory framework governing postconviction proceedings permits
individuals convicted of criminal offenses to petition for postconviction relief if they fall
within one of four statutorily defined categories. State v. Miller,
2023-Ohio-3448, ¶ 19
(Kennedy, C.J., concurring in judgment only), citing R.C. 2953.21(A)(1)(a)(i) through (iv).
{¶ 9} But this statutory scheme imposes significant limitations. Petitioners are
generally restricted to filing a single petition, and strict time constraints apply. State v.
Johnson, 2024-Ohio-134, ¶ 1, citing R.C. 2953.23 and 2953.21(A)(2). Where—as is the case
here—no direct appeal from the original judgment of conviction and sentence was taken,
R.C. 2953.21(A)(2) requires a postconviction petition to be filed “no later than three
hundred sixty-five days after the expiration of the time for filing the appeal,” except as
otherwise provided in R.C. 2953.23.
{¶ 10} Mr. Nix’s motion to vacate his conviction is untimely under R.C.
2953.21(A)(2). Mr. Nix was convicted and sentenced on September 4, 2009, and the trial
court entered its written judgment memorializing his convictions and 20-year prison
sentence on September 10, 2009. Mr. Nix’s deadline to appeal from that judgment expired
on October 12, 2009. See App.R. 4(A)(1); App.R. 14(A). Mr. Nix did not file a direct appeal.
Thus, in order for his postconviction petition to be considered timely under R.C.
2953.21(A), it needed to be filed by October 12, 2010. Since Mr. Nix’s postconviction
petition was filed on June 28, 2024, the trial court did not err in finding his petition to be
untimely.
{¶ 11} A trial court lacks jurisdiction to entertain an untimely petition for
postconviction relief unless the petitioner demonstrates that one of the R.C. 2953.23(A)
exceptions applies. State v. Apanovitch, 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.”). The first exception to considering an
untimely petition for postconviction relief is set forth at R.C. 2953.23(A)(1). Specifically,
the petitioner must show either he was unavoidably prevented from discovering the facts
necessary to present his claim for relief or the United States Supreme Court has recognized
a new federal or state right that applies retroactively to persons in the petitioner’s situation.
No. 24AP-557 4
R.C. 2953.23(A)(1)(a). If the petitioner is able to show that one of these threshold
conditions applies, he must further show “by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found [him] guilty.” R.C.
2953.23(A)(1)(b).
{¶ 12} The second exception to considering an untimely petition for postconviction
relief is set forth at R.C. 2953.23(A)(2). This exception applies to petitioners convicted of a
felony offense and for whom DNA testing was performed under specific statutes where “the
results of the DNA testing establish, by clear and convincing evidence, actual innocence of
that felony offense.” R.C. 2953.23(A)(2).
{¶ 13} In this case, Mr. Nix did not argue in the trial court that either of the
exceptions in R.C. 2953.23(A) permitting consideration of untimely postconviction
petitions applied. Mr. Nix did not assert a claim based on a right newly recognized by the
United States Supreme Court that would apply retroactively to persons in his situation. See
R.C. 2953.23(A)(1). Nor is his postconviction petition related to a claim of actual innocence
based on DNA testing. See R.C. 2953.23(A)(2). And while Mr. Nix relies on what he
describes as newly discovered evidence to support his petition for postconviction relief, he
has not explained how he was unavoidably prevented from discovering that evidence, as
required by R.C. 2953.23(A)(1). Thus, we conclude the trial court properly found that,
pursuant to R.C. 2953.23(A) and 2953.21(D), it lacked authority to consider Mr. Nix’s
untimely postconviction petition. As such, we overrule Mr. Nix’s first assignment of error.
{¶ 14} Mr. Nix alleges an equal protection violation in his second assignment of
error, due process violations in his third assignment of error, and claims his 2009 trial
counsel was ineffective in his fourth assignment of error. However, the only issue before
this court is whether the trial court erred in finding it lacked jurisdiction to consider his
postconviction petition. Having already found that Mr. Nix’s petition was untimely and the
trial court lacked jurisdiction to consider it, we thus lack jurisdiction to consider the
constitutional arguments Mr. Nix makes in his remaining assignments of error. As such,
we overrule Mr. Nix’s second, third, and fourth assignments of error.
No. 24AP-557 5
III. CONCLUSION
{¶ 15} Having overruled Mr. Nix’s four assignments of error, we affirm the August 7,
2024 judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and DINGUS, JJ., concur.
