[Cite as State v. Hill, 2014-Ohio-3416.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100536



                                           STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                           RONDELL L. HILL

                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CR-11-551296

        BEFORE: Rocco, P.J., Keough, J., and Kilbane, J.

        RELEASED AND JOURNALIZED: August 7, 2014

                                                 -i-
FOR APPELLANT

Rondell L. Hill, pro se
#624-139
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY:    Kevin R. Filitraut
         James M. Price
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:

       {¶1} Defendant-appellant Rondell L. Hill, proceeding pro se, appeals from

the trial court’s judgment entry of resentence after this court remanded Hill’s case

for that purpose in State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578

(“Hill I”), appeal not accepted, 136 Ohio St.3d 1450, 2013-Ohio-3210, 991 N.E.2d

257.

       {¶2} Hill presents five assignments of error. Four of them present additional

challenges to his conviction as modified in Hill I. The second assignment of error

challenges as “contrary to law” the sentence that the trial court imposed pursuant to

this court’s order of remand.

       {¶3} Because the issues relating to his conviction and his trial counsel’s

performance are barred by the doctrines of res judicata and law of the case, they are

inappropriate matters for consideration in this appeal, and Hill’s assignments of

error that relate to them are overruled. Moreover, because the trial court imposed

the correct sentence upon remand, Hill’s second assignment of error also is

overruled. Hill’s sentence is affirmed.

       {¶4} A brief background to Hill’s case is provided by quoting as follows

from Hill I:
      Defendant-appellant, Rondell L. Hill * * * , challenges his conviction and
sentence for aggravated murder. Because we find there was insufficient evidence
that Hill acted with prior calculation and design, one of the elements of aggravated
murder, we modify Hill’s conviction from aggravated murder to murder, vacate his
sentence, and remand for resentencing.

      ***

       After the state rested, the trial court denied Hill’s Crim.R. 29(A) motion for
acquittal. Hill did not call any witnesses and did not testify in his own defense. The
state requested a jury instruction on the lesser included offense of murder, which
the court granted. The jury subsequently found Hill guilty of aggravated murder
and the firearm specifications, and the trial court sentenced him to three years on
the firearm specification, consecutive to 30 years for aggravated murder, i.e., life
without parole eligibility until after 33 years in prison.

      ***

      In his first assignment of error, Hill contends that the trial court erred in
denying his Crim.R. 29(A) motion for acquittal because there was insufficient
evidence that he committed aggravated murder.

      ***

       The evidence in this case indicates a sudden eruption of events, not prior
calculation and design. Accordingly, there was insufficient evidence to support
Hill’s conviction for aggravated murder. There was, however, sufficient evidence
that Hill committed murder in violation of R.C. 2903.02, which provides that “[n]o
person shall purposefully cause the death of another.”

      * * * Hill’s conviction for aggravated murder is modified to the lesser
included offense of murder. * * *

      The first assignment of error is sustained in part; Hill’s conviction is
modified accordingly.

      In his second assignment of error, Hill contends that his conviction * * * was
against the manifest weight of the evidence
***.
            ***

             * * * In light of th[e] evidence [presented], Hill’s conviction for murder is
      not against the manifest weight of the evidence. His second assignment of error is
      therefore overruled.

            ***

             In his fourth assignment of error, Hill contends that he was denied his
      constitutional right to effective assistance of counsel because his lawyer did not
      request a jury instruction regarding self-defense.

            ***

             There was no evidence that Hill had a bona fide belief that he was in
      imminent danger and his only means of escape was to use force; rather, the
      testimony was that [the victim] did not have a gun and the argument never escalated
      into a physical fight. Furthermore, self-defense was inconsistent with Hill’s theory
      of the case that he was not the shooter. Accordingly, Hill has failed to demonstrate
      that counsel’s performance fell below an objective standard or that he was
      prejudiced by such performance.

            The fourth assignment of error is therefore overruled.

            ***

             In his sixth assignment of error, Hill argues that his sentence is contrary to
      law. In his seventh assignment of error, Hill contends that the trial court improperly
      gave him a longer sentence because he did not testify at trial or express remorse at
      sentencing. Because we are remanding for resentencing, these assignments of error
      are overruled as moot.

           Hill’s aggravated murder conviction is vacated, the conviction is modified to
      murder, and the matter is remanded for re-sentencing.

(Emphasis added; citations omitted.)
      {¶5} On remand, the trial court conducted a resentencing hearing and

imposed a prison term of three years for the firearm specification prior to and

consecutive with a term of 15 years to life.

      {¶6} Hill filed the instant appeal from the trial court’s order of resentence.

He presents the following assignments of error.

            I. Appellant was denied effective assistance of counsel as
      guaranteed by Section 10 Article I of the Ohio Constitution and the
      Sixth and Fourteenth Amendments to the United States Constitution
      when trial counsel failed to request a jury instruction on voluntary
      manslaughter under R.C. 2903.03 and involuntary manslaughter under
      R.C. 2903.04.

             II. Appellant’s sentence is contrary to law.

            III. Appellant’s convictions are unconstitutional and denied
      Appellant of his Fifth, Sixth, and Fourteenth Amendment rights to the
      United States Constitution and Article I, Section 10 of the Ohio
      Constitution.

             IV. The trial court erred in denying Appellant’s motion for
      acquittal as to the charges when the state failed to present sufficient
      evidence against the Appellant.

            V. Appellant’s convictions are against the manifest weight of
      the evidence and Appellant seeks to have a new trial under Criminal
      Rules 33(A) and (B).

      {¶7} Appellant’s first, third, fourth, and fifth assignments of error all present

issues that result from this court’s decision in Hill I to modify Hill’s conviction. In

effect, Hill seeks to vacate the finding of guilt on a charge of murder with firearm

specifications.   However, because the Ohio Supreme Court declined to accept
Hill’s appeal from this court’s decision in Hill I, litigation of these issues is barred

by the doctrines of res judicata and law of the case. State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph three of the syllabus; State v.

Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, ¶11,15; State v. Hines, 8th

Dist. Cuyahoga No. 95319, 2011-Ohio-2393, ¶ 13.

       {¶8} Accordingly, Hill’s first, third, fourth, and fifth assignments of error are

overruled.

       {¶9} In his second assignment of error, Hill asserts that the trial court

imposed a sentence that is “contrary to law” because the trial court both at the

sentencing hearing and in the journal entry failed to (1) impose fifteen “full” years,

(2) mention anything about parole eligibility, and (3) mention that Hill “had a

firearm on or about his person or under his control while committing the offense.”

This court does not agree.

       {¶10} R.C. 2929.02 governs the penalties for murder and states in pertinent

part that a person who is convicted of that offense “shall be imprisoned for an

indefinite term of fifteen years to life * * *.” R.C. 2929.02(B)(1). The statute

thus required the trial court to sentence Hill to an indefinite term of fifteen years to

life in prison, and that is exactly what the trial court did.

       {¶11} This court previously has determined that the trial court was under no

duty to pronounce specifically that Hill must serve a “full” fifteen years to life.
State v. Rembert, 8th Dist. Cuyahoga No. 99707, 2014-Ohio-300, ¶ 14-15; compare

State v. Harding, 10th Dist. Franklin No. 10AP-370, 2011-Ohio-557. This court

has also indicated that the trial court lacked authority to discuss parole eligibility.

State v. Kemp, 8th Dist. Cuyahoga No. 97913, 2013-Ohio-163, at ¶ 74-76.

      {¶12} As to Hill’s sentence on the firearm specification, this court affirmed

that portion of his sentence in Hill I by stating the following at ¶ 26-30:

            The evidence demonstrated that both Hill and [the victim] were
      calm as they walked toward Hill’s house but that their argument about
      the money quickly escalated again. Taylor testified that only a few
      moments later, he heard three shots, and then saw Hill put his gun in
      his pants and run away. We can reach no other conclusion from this
      evidence but that Hill’s decision to kill * * * was * * * the result of the
      sudden eruption (again) of his argument with [the victim] about the
      money.

             The fact that Hill shot [the victim] three times does not indicate
      prior calculation and design. * * * [T]he evidence was that the shots
      were fired in succession, indicating that the act was one continuous
      course of events. * * *

             The evidence in this case indicates a sudden eruption of events,
      not prior calculation and design. Accordingly, there was insufficient
      evidence to support Hill’s conviction for aggravated murder. There
      was, however, sufficient evidence that Hill committed murder in
      violation of R.C. 2903.02 * * * .

             Accordingly, Hill’s conviction for aggravated murder [with
      firearm specifications] is modified to the lesser included offense of
      murder. * * *

            The first assignment of error is sustained in part; Hill’s
      conviction is modified accordingly.
      {¶13} Hill I, therefore, clearly left intact the jury’s finding of guilt on the

firearm specification, along with the three-year prison sentence imposed for that

conviction. See State v. Smith, 121 Ohio St.3d 409, 2009-Ohio-787, 905 N.E.2d

151, ¶ 15, citing State v. Lytle, 49 Ohio St.3d 154, 157, 551 N.E.2d 950 (1990).

Under these circumstances, the trial court was not required to specify either at the

resentencing hearing or in the journal entry that the jury previously made a finding

that he “had a firearm on or about his person while committing the offense” of

murder. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142;

State ex rel. Snead v. Ferenc, 138 Ohio St.3d 136, 2014-Ohio-43, 4 N.E.3d 1013.

      {¶14} Hill’s second assignment of error is, accordingly, also overruled.

      {¶15} Hill’s sentence is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.           The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR
