[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
Stark County, Case No. 2017CA00235                                                          7


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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