State v. Hill

[Cite as State v. Hill, 2014-Ohio-3409.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98366
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RONDELL L. HILL
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-11-551296-A
Application for Reopening
Motion No. 476600
RELEASE DATE: August 5, 2014
APPELLANT
Rondell Hill
Inmate No. 624-139
Lorain Correctional Institution
2075 S. Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kevin R. Filiatraut
Assistant County Prosecutor
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} On July 10, 2014, the applicant, Rondell Hill, pursuant to App.R. 26(B) and State
v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court’s
judgment in State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-3210, in which this court
modified Hill’s conviction for aggravated murder to murder, because there was insufficient
evidence for the element of prior calculation and design, and then remanded the case for
resentencing. Hill now claims that his appellate counsel was ineffective for not arguing that his
trial counsel should have asked for a lesser included offense instruction on voluntary
manslaughter and that the prosecutor committed prejudicial misconduct by presenting perjured
evidence and expressing personal opinions during closing argument. For the following reasons,
this court denies the application to reopen.
{¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective assistance of
appellate counsel to be filed within 90 days from journalization of the decision unless the
applicant shows good cause for filing at a later time. The July 2014 application was filed
approximately 500 days after this court’s decision. Thus, it is untimely on its face.
{¶3} Hill endeavors to show good cause by stating that he did not obtain the transcript
until October 2013 and that his appellate counsel failed to argue the above-listed “dead bang
winners.” However, the lack of a transcript does not state good cause for an untimely filing.
State v. Lawson, 8th Dist. Cuyahoga No. 84402, 2005-Ohio-880, reopening disallowed,
2006-Ohio-3839. In State v. Nicholson, 8th Dist. Cuyahoga No. 82825, 2004-Ohio-2394,
reopening disallowed, 2006-Ohio-3020, this court rejected the applicant’s claim that appellate
counsel’s failure to raise “dead bang winners” stated good cause for untimely filing. As the
Supreme Court of Ohio stated in State v. Reddick, 72 Ohio St.3d 88, 90-91, 1995-Ohio-249, 647
N.E.2d 784: “Neither Murnahan nor App.R. 26(B) was intended as an open invitation for
persons sentenced to long periods of incarceration to concoct new theories of ineffective
assistance of appellate counsel in order to have a new round of appeals.”
{¶4} Accordingly, this court denies the application to reopen.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR