State v. Hill

[Cite as State v. Hill, 2018-Ohio-1270.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
CHRISTOPHER HILL : Case No. 2017CA00235
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2014CR0778
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 30, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO CHRISTOPHER HILL, Pro Se
Prosecuting Attorney Inmate No. FW-8711
By: KATHLEEN O. TATARSKY SCI Retreat
Assistant Prosecuting Attorney 660 State Route 11
110 Central Plaza South, Suite 510 Hunlock Creek, PA 18621
Canton, OH 44702-1413
Stark County, Case No. 2017CA00235 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, Christopher Hill, appeals the November 28, 2017
judgment entry of the Court of Common Pleas of Stark County, Ohio denying his petition
for postconviction relief. Defendant-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} 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. The plea was made pursuant to a plea
deal wherein the state 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.
{¶ 3} 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 delayed
appeal was denied.
{¶ 4} 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 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.
Stark County, Case No. 2017CA00235 3
{¶ 5} 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.
{¶ 6} 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
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.
{¶ 7} 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
Stark County, Case No. 2017CA00235 4
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.
{¶ 8} 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
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 postconviction relief.
{¶ 9} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 10} "TRIAL/PLEA COUNSEL WAS INEFFECTIVE FOR INADEQUATELY
ADVISING APPELLANT TO PLEAD GUILTY, RENDERING HIS GUILTY PLEAS VOID,
Stark County, Case No. 2017CA00235 5
AND PCRA COURT ERRED/ABUSED ITS DISCRETION BY DENYING APPELLANT'S
PETITION W/OUT HEARING AND W/OUT ISSUING FINDINGS OF FACT REGARDING
NEW EVIDENCE RECENTLY OBTAINED WHICH PROVES HIS ACTUAL
INNOCENCE."
II
{¶ 11} "A PLEA NOT VOLUNTARILY AND INTELLIGENTLY MADE HAS BEEN
OBTAINED IN VIOLATION OF DUE PROCESS AND IS VOID, AND PCRA COURT
ERRED/ABUSED ITS DISCRETION BY DENYING APPELLANT'S PETITION W/OUT
HEARING AND W/OUT ISSUING FINDINGS OF FACT REGARDING NEW EVIDENCE
RECENTLY OBTAINED WHICH PROVES HIS ACTUAL INNOCENCE."
III
{¶ 12} "APPELLANT WAS CONVICTED OF A FELONY AND DNA TESTING
ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE, ACTUAL INNOCENCE,
AND HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL RENDERING HIS
GUILTY PLEAS VOID, AND PCRA COURT ERRED/ABUSED ITS DISCRETION BY
DENYING HIS PETITION W/OUT HEARING AND W/OUT ISSUING FINDINGS OF
FACT REGARDING NEW EVIDENCE RECENTLY OBTAINED AND DNA EVIDENCE
WHICH PROVES HIS ACTUAL INNOCENCE."
IV
{¶ 13} "APPELLANT WAS CONVICTED OF A FELONY AND DNA TESTING
ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE, ACTUAL INNOCENCE,
AND HE WAS DENIED DUE PROCESS OF LAW BY WAY OF PROSECUTORIAL
MISCONDUCT RENDERING HIS GUILTY PLEAS VOID, AND PCRA COURT
Stark County, Case No. 2017CA00235 6
ERRED/ABUSED ITS DISCRETION BY DENYING HIS PETITION W/OUT HEARING
AND W/OUT ISSUING FINDINGS OF FACT REGARDING NEW EVIDENCE
RECENTLY OBTAINED AND DNA EVIDENCE WHICH PROVES HIS ACTUAL
INNOCENCE."
I, II, III, IV
{¶ 14} In all of his assignments of error, appellant claims the trial court erred in
denying his petition for postconviction relief without holding a hearing and without issuing
findings of fact on the new evidence, i.e., the state's July 26, 2017 response. Appellant
claims ineffective assistance of counsel, his plea was not voluntarily and intelligently
made, and prosecutorial misconduct, all pertaining to his weapons under disability
conviction which he pled guilty to. Appellant also rehashes his arguments of actual
innocence because of the DNA evidence. We disagree with appellant's claims.
{¶ 15} In its November 28, 2017 judgment entry denying appellant's fifth petition
for postconviction relief, the trial court expressly incorporated its findings of fact and
conclusions of law from its previous judgment 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 postconviction relief.
{¶ 16} In the June judgment entry denying appellant's fourth petition for
postconviction relief, the trial court found the petition was untimely and the petition failed
to set forth sufficient operative facts to establish grounds for relief.
{¶ 17} As determined by the trial court, appellant's fifth petition for postconviction
relief was clearly untimely pursuant to R.C. 2953.21(A)(2). Based upon appellant's past
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filings, the subject petition was a successive petition for postconviction relief. R.C.
2953.23 states the following:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a petition
filed after the expiration of the period prescribed in division (A) of that
section or a second petition or successive petitions for similar relief on
behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must rely to
present the claim for relief, or, subsequent to the period prescribed in
division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized a new federal
or state right that applies retroactively to persons in the petitioner's situation,
and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have found
the petitioner guilty of the offense of which the petitioner was convicted or,
if the claim challenges a sentence of death that, but for constitutional error
at the sentencing hearing, no reasonable factfinder would have found the
petitioner eligible for the death sentence.
Stark County, Case No. 2017CA00235 8
(2) The petitioner was convicted of a felony, the petitioner is an
offender for whom DNA testing was performed under sections 2953.71 to
2953.81 of the Revised Code or under former section 2953.82 of the
Revised Code and analyzed in the context of and upon consideration of all
available admissible evidence related to the inmate's case as described in
division (D) of section 2953.74 of the Revised Code, and the results of the
DNA testing establish, by clear and convincing evidence, actual innocence
of that felony offense or, if the person was sentenced to death, establish, by
clear and convincing evidence, actual innocence of the aggravating
circumstance or circumstances the person was found guilty of committing
and that is or are the basis of that sentence of death.
{¶ 18} In reviewing appellant's fifth petition for postconviction relief, we find
appellant did not satisfy the requirements of R.C. 2953.23. Appellant pled guilty to the
charges, including the weapons under disability count. The state's July 26, 2017
response to a motion does not constitute "evidence." Even if accepted as evidence, the
state's arguments about the hammer were in relation to the felonious assault count which
was dropped. Attachments to appellant's petition establish the gun for the weapons under
disability charge was found in the couch console in the home appellant shared with the
victim.
{¶ 19} 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
Stark County, Case No. 2017CA00235 9
applicable to petitions for postconviction 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 at trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.
{¶ 20} Upon review, we find the trial court did not err in denying appellant's fifth
petition for postconviction relief.
{¶ 21} Assignments of Error I, II, III, and IV are denied.
Stark County, Case No. 2017CA00235 10
{¶ 22} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
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