State v. Hill , 2019 Ohio 4429 ( 2019 )

[Cite as State v. Hill, 2019-Ohio-4429.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2019CA00067
:
CHRISTOPHER HILL :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2014CR0778
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 28, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. CHRISTOPHER HILL, PRO SE
STARK CO. PROSECUTOR Inmate No. FW-8711
KATHLEEN O. TATARSKY SCI Retreat
110 Central Plaza South, Ste. 510 660 State Route 11
Canton, OH 44702-1413 Hunlock Creek, PA 18621
Stark County, Case No. 2019CA00067 2
Delaney, J.
{¶1} Appellant Christopher Hill appeals from the Judgment Entry – Denying
Seventh Petition to Vacate or Set Aside Judgment of Conviction or Sentence of the Stark
County Court of Common Pleas filed on April 17, 2019. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following statement of the procedural history of this case is taken in
part from our decision in State v. Hill, 5th Dist. Stark No. 2018CA00110, 2018-Ohio-5385[Hill V].
{¶3} On July 29, 2014, appellant pled guilty to one count of having weapons
while under disability in violation of R.C. 2923.13, one count of domestic violence in
violation of R.C. 2919.25, and one count of intimidation of an attorney, victim, or witness
in a criminal case in violation of R.C. 2921.04. Appellant was represented by counsel.
Pursuant to a negotiated plea, appellee agreed to drop a felonious assault charge with a
repeat violent offender specification. By judgment entry filed August 14, 2014, the trial
court sentenced appellant to an aggregate term of twenty-four months in prison.
{¶4} On August 27, 2014, appellant filed a pro se direct appeal to this Court
which was dismissed for failure to prosecute. A subsequent motion for leave to file a
delayed appeal was denied.
{¶5} On September 8, 2014, appellant filed a pro se motion to withdraw his guilty
plea in the trial court. The trial court denied the motion to withdraw his plea on February
24, 2015. Appellant appealed the judgment and we affirmed in State v. Hill, 5th Dist. Stark
No. 2015CA00036, 2015-Ohio-3312 [Hill I].
Stark County, Case No. 2019CA00067 3
{¶6} On September 15, 2014, appellant filed a petition to vacate or set aside
judgment of conviction or sentence. Appellant claimed he did not use a gun to threaten
the victim, and that he was denied effective assistance of trial counsel. Appellant attached
an affidavit of the victim wherein she averred she could not recall the incident with
appellant as she was intoxicated at the time, and he did not put a gun to her face. By
judgment entry filed February 24, 2015, the trial court denied the petition on the basis of
res judicata. The decision was affirmed on appeal for reasons other than res judicata.
State v. Hill, 5th Dist. Stark No. 2015 CA 00041, 2015–Ohio–3311 [Hill II].
{¶7} On July 18, 2016, appellant filed a second petition to vacate or set aside
judgment of conviction or sentence. Appellant again claimed ineffective assistance of
counsel, and claimed he had newly discovered evidence in the form of a crime lab report
indicating the gun in question did not contain his fingerprints, and an audio recording of
the victim's statement to police wherein she allegedly gave conflicting versions of the
incident. Also, appellant attached another affidavit from the victim wherein she averred
she made up the entire story because she was angry with appellant. By judgment entry
filed November 8, 2016, the trial court denied the petition as untimely and the petition
failed to set forth sufficient operative facts to establish grounds for relief. Appellant's
appeal to this court was dismissed at his request.
{¶8} On January 9, 2017, appellant filed a third petition to vacate or set aside
judgment of conviction or sentence based upon newly discovered evidence and actual
innocence, essentially reasserting the same arguments contained in the previous two
petitions, and further arguing the previously submitted crime lab report proved his actual
innocence because his DNA/fingerprints were not found on the gun. Appellant included
Stark County, Case No. 2019CA00067 4
the “newly discovered” investigative report and the arrest report to his same arguments.
By judgment entry filed March 13, 2017, the trial court denied the petition as untimely and
the petition failed to set forth sufficient operative facts to establish grounds for relief. No
appeal was taken.
{¶9} On May 2, 2017, appellant filed a fourth petition to vacate or set aside
judgment of conviction or sentence based upon new evidence and actual innocence,
again reasserting the same arguments contained in the previous three petitions. By
judgment entry filed June 22, 2017, the trial court denied the petition as untimely and the
petition failed to set forth sufficient operative facts to establish grounds for relief. The
decision was affirmed on appeal. State v. Hill, 5th Dist. Stark No. 2017CA00118, 2017–
Ohio–7671 [Hill III].
{¶10} On November 20, 2017, appellant filed a fifth petition to vacate and set
aside judgment of conviction and sentence based upon new evidence and actual
innocence, specifically challenging his conviction for weapons under disability. Appellant
claimed he had newly discovered evidence in the form of the state's July 26, 2017
response to his motion for leave to file delayed appeal and motion to dismiss filed with
this court, wherein the state mentioned in committing the felonious assault on the victim,
appellant used a hammer and not a gun. Because he did not use a gun, appellant argued
he should not have been encouraged to plead guilty to the weapons under disability
offense. As a result, appellant argued he was denied the effective assistance of counsel
and his plea was not voluntarily and intelligently made. Also, appellant again argued the
DNA evidence. By judgment entry filed November 28, 2017, the trial court denied the
petition, expressly incorporating its findings of fact and conclusions of law from its
Stark County, Case No. 2019CA00067 5
previous entry filed June 22, 2017, which this court affirmed on appeal. The trial court
also found it was not required to issue new findings of fact and conclusions of law on a
successive petition for post-conviction relief. We affirmed the trial court's judgment in
State v. Hill, 5th Dist. Stark No. 2017CA00235, 2018-Ohio-1270 [Hill IV].
{¶11} On June 8, 2018, Appellant filed a “Post Conviction Petition for
Reinstatement of Right to File a Direct Appeal with the Assistance of Counsel, and to
Begin Time Limitation for Filing PCRA Petition, or Vacate Judgment of Convictions and
Sentences.” In his motion, he requested the trial court reinstate his direct appeal rights
because he was never appointed appellate counsel upon his request. If he was permitted
to file a direct appeal, appellant argued his petitions for post-conviction relief would no
longer be untimely. He next argued his trial counsel was ineffective.
{¶12} The trial court denied the motion on July 23, 2018. It found appellant's sixth
petition for post-conviction relief was successive and untimely. It further found it did not
have the authority to reinstate his ability to file a direct appeal of his conviction and
sentence.
{¶13} We affirmed the trial court’s judgment in State v. Hill, 5th Dist. Stark No.
2018CA00110, 2018-Ohio-5385 [Hill V].
{¶14} On April 1, 2019, appellant filed a pro se “Petition to Vacate or Set Aside
Judgment of Conviction and Sentence Based upon New Facts Which Were Unavoidably
Prevented from Discovery.” Appellant asserted he pled to having a weapon while under
disability, but the disability was due to a PA attempted-murder conviction which he does
not in fact have. Appellant further alleged ineffective assistance of trial counsel arising
from the same allegation: counsel was ineffective in failing to investigate whether
Stark County, Case No. 2019CA00067 6
appellant had a conviction of attempted murder. Appellant asserted his remaining
offenses and guilty pleas stemmed from the unfounded weapons under disability charge
and must therefore be vacated. We note this is the same factual basis as appellant’s
“Post Conviction Petition for Reinstatement of Right to File a Direct Appeal with the
Assistance of Counsel, and to Begin the Time Limitation for Filing a PCRA Petition, or
Vacate Judgment of Convictions and Sentences” filed on June 8, 2018, and denied by
the trial court on July 23, 2018. We affirmed that decision in Hill V, supra.
{¶15} In the instant case, the trial court denied appellant’s April 1, 2019 Petition
via Judgment Entry dated April 17, 2019.
{¶16} It is from this decision that appellant now appeals.
{¶17} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶18} “THE PCRA COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT’S PETITION TO VACATE OR SET ASIDE JUDGMENT OF CONVICTION
AND SENTENCE BASED UPON NEW FACTS WHICH WERE UNAVOIDABLY
PREVENTED FROM DISCOVERY WHERE APPELLANT MET THE EXCEPTION TO
THE UNTIMELY REQUIREMENTS PURSUANT TO THE OHIO REV. CODE ANN. §
2953.21(A)(1). AND TRIAL/PLEA COUNSEL WAS INEFFECTIVE FOR
INADEQUATELY ADVISING APPELLANT TO PLEAD GUILTY TO HAVING A WEAPON
UNDER DISABILITY (WHERE THE DISABILITY IS A PRIOR CONVICTION FOR
ATTEMPTED MURDER IN MONTGOMERY COUNTY, PA) WHICH HE DOES NOT
HAVE, RENDERING HIS GUILTY PLEAS VOID.”
Stark County, Case No. 2019CA00067 7
ANALYSIS
{¶19} In his sole assignment of error, appellant argues the trial court should have
granted his seventh untimely petition for post-conviction relief. We disagree.
{¶20} We first note this case is before this court on the accelerated calendar which
is governed by App.R. 11.1. Subsection (E), determination and judgment on appeal,
provides in relevant part: “The appeal will be determined as provided by App.R. 11.1. It
shall be sufficient compliance with App.R. 12(A) for the statement of the reason for the
court's decision as to each error to be in brief and conclusionary form.”
{¶21} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts, and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist.1983).
{¶22} This appeal shall be considered in accordance with the aforementioned
rules.
{¶23} Appellant’s seventh petition for post-conviction relief is untimely and does
not meet any exceptions to the timeliness requirements under R.C. 2953.21(A)(2). R.C.
2953.21(A)(2) states that, “Except as otherwise provided in section 2953.23 of the
Revised Code, a petition under division (A)(1) of this section shall be filed no later than
three hundred sixty-five 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 or, if the direct
appeal involves a sentence of death, the date on which the trial transcript is filed in the
supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of
Stark County, Case No. 2019CA00067 8
the Revised Code, the petition shall be filed no later than three hundred sixty-five days
after the expiration of the time for filing the appeal.” In this case, appellant filed a direct
appeal, which was dismissed for want of prosecution. Appellant had 365 days after the
expiration of the time for filing his appeal to file his petition for post-conviction relief.
{¶24} Further, appellant has not shown that he was unavoidably prevented from
the discovery of the facts, there has been a new constitutional right recognized and there
was a constitutional error at trial, or he was convicted of a felony and DNA established
“actual innocence.” R.C. 2953.23(A)(1) and (2). His seventh petition for post-conviction
relief is untimely.
{¶25} Appellant’s multiple petitions for post-conviction relief have also been
determined to be successive petitions that did not satisfy the requirements of R.C.
2953.23. Hill V., supra, at ¶ 24. We agree with the trial court this is another successive
petition for post-conviction for relief.
{¶26} Any other arguments raised by appellant are barred under the doctrine of
res judicata. As stated by the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175(1967), paragraphs eight and nine of the syllabus, the doctrine of res judicata is applicable
to petitions for post-conviction relief. The Perry court explained the doctrine at 180–181
as follows:
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
Stark County, Case No. 2019CA00067 9
at trial, which resulted in that judgment of conviction, or on an appeal
from that judgment.
{¶27} Appellant’s claims of counsel’s ineffectiveness have also been addressed
multiple times. His continued re-assertion of this argument is barred by res judicata. As
we noted in Hill V at ¶ 28:
Hill entered a guilty plea to the charge of having a weapon
under disability. A guilty plea waives any defect in either the
preliminary process or the indictment. Gibson v. Wilson, 5th Dist.
Richland No. 08CA85, 2009-Ohio-829, 2009 WL 449182, ¶ 14 citing
State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351, 1992-Ohio-130.
We have previously found Hill's trial counsel provided effective
representation and affirmed the validity of Hill's guilty plea in State v.
Hill, 5th Dist. No. 2015CA00036, 2015-Ohio-3312 and State v. Hill,
5th Dist. 2017CA00235, 2018-Ohio-1270.
{¶28} The trial court lacked jurisdiction to consider appellant’s untimely,
successive petition for post-conviction relief. His claim of ineffective assistance of
counsel is barred by res judicata. We therefore overrule appellant’s sole assignment of
error and affirmed the judgment of the trial court.
Stark County, Case No. 2019CA00067 10
CONCLUSION
{¶29} Appellant’s sole assignment of error is overruled and the judgment of the
Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.