[Cite as State v. Hill, 2017-Ohio-7671.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                    :       Hon. W. Scott Gwin, J.
                                              :       Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
CHRISTOPHER HILL                              :       Case No. 2017CA00118
                                              :
        Defendant-Appellant                   :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 2014-CR-0778




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     September 18, 2017




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. 2017CA00118                                                            2

Wise, Earle, J.

       {¶ 1} Plaintiff-Appellant, Christopher Hill, appeals the June 22, 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. 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.

       {¶ 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
Stark County, Case No. 2017CA00118                                                           3


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

petition failed to set forth sufficient operative facts to establish grounds for relief.
Stark County, Case No. 2017CA00118                                              4


      {¶ 8} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶ 9} "PCRA COURT ERRED/ABUSED ITS DISCRETION BY DENYING

APPELLANT'S POST CONVICTION PETITION BASED ON THE DOCTRINE OF RES

JUDICATA, DESPITE THE FACT THAT HE HAS NEW EVIDENCE WHICH PROVES

HIS ACTUAL INNOCENCE AND WHICH MEETS THE EXCEPTION TO THE UNTIMELY

REQUIREMENTS PURSUANT TO OHIO R.C. §§2953.23(A)(1) AND (2), AND THAT HE

WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL."

                                           II

      {¶ 10} "PCRA COURT ERRED/ABUSED ITS DISCRETION BY DENYING

APPELLANT'S POST CONVICTION PETITION BASED ON THE DOCTRINE OF RES

JUDICATA, DESPITE THE FACT THAT HE HAS NEW EVIDENCE WHICH PROVES

HIS ACTUAL INNOCENCE AND WHICH MEETS THE EXCEPTION TO THE UNTIMELY

REQUIREMENTS PURSUANT TO OHIO R.C. §§2953.23(A)(1) AND (2), AND THAT HE

WAS DENIED DUE PROCESS OF LAW."

                                          III

      {¶ 11} "PCRA COURT ERRED/ABUSED ITS DISCRETION WHEN IT FAILED TO

ACKNOWLEDGE/CONSIDER            AND    ADDRESS        APPELLANT'S   SCIENTIFIC/DNA

EVIDENCE REGARDING HIS ACTUAL INNOCENCE. ESSENTIALLY, DEEMING THE

EVIDENCE UNDISPUTED."
Stark County, Case No. 2017CA00118                                                          5


                                           I, II, III

       {¶ 12} In Assignments of Error I and II, appellant claims the trial court erred in

denying his petition for postconviction relief on the basis of res judicata. In Assignment

of Error III, appellant claims the trial court erred in failing to address his scientific DNA

evidence regarding his actual innocence. We disagree with appellant's claims.

       {¶ 13} In its June 22, 2017 judgment entry denying appellant's fourth petition for

postconviction relief, the trial court never mentioned res judicata. The trial court denied

the petition as untimely and the petition failed to set forth sufficient operative facts to

establish grounds for relief.

       {¶ 14} As determined by the trial court, appellant's fourth petition for postconviction

relief was clearly untimely pursuant to R.C. 2953.21(A)(2). Based upon appellant's past

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
Stark County, Case No. 2017CA00118                                                         6


     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.

            (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.
Stark County, Case No. 2017CA00118                                                         7


       {¶ 15} In reviewing appellant's fourth petition for postconviction relief, we find

appellant did not satisfy the requirements of R.C. 2953.23.

       {¶ 16} In addition, appellant's arguments 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 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.



       {¶ 17} In reviewing appellant's fourth petition for postconviction relief, we find the

arguments therein could have been raised on direct appeal or on appeal of one of his

previous denials for postconviction relief.

       {¶ 18} As for appellant's claim that the trial court failed to address his scientific

DNA evidence, the crime lab report attached to his fourth petition for postconviction relief

was also attached to his second and third petitions for postconviction relief and does not

constitute "newly discovered" evidence. Moreover, the crime lab report merely indicated

the gun was swabbed for DNA typing, but no results were given.
Stark County, Case No. 2017CA00118                                                        8


       {¶ 19} Upon review, we find the trial court did not err in denying appellant's fourth

petition for postconviction relief.

       {¶ 20} Assignments of Error I, II, and III are denied.

       {¶ 21} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Gwin, J. concur.




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