[Cite as State v. Hill, 2011-Ohio-3644.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                  :       Hon. Sheila G. Farmer, J.
                                            :       Hon. John W. Wise, J.
-vs-                                        :
                                            :
MATTHEW HILL                                :       Case No. CT11-0020
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Case No. CR2004-0030



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                          July 22, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

RON WELCH                                       MATTHEW L. HILL, PRO SE
27 North Fifth Street                           #478-775
Suite 201                                       Noble Correctional Institution
Zanesville, OH 43701                            15708 McConnelsville Road
                                                Caldwell, OH 43724
Muskingum County, Case No. CT11-0020                                                     2

Farmer, J.

       {¶1}   By entry filed September 24, 2004, appellant, Matthew Hill, was sentenced

to an aggregate term of twenty-two years in prison on two counts of felonious assault

(R.C. 2903.11), each with a firearm specification (R.C. 2941.145).

       {¶2}   Appellant filed an appeal, challenging the trial court's imposition of

consecutive, maximum sentences. Appellant argued the trial court failed to conduct the

required judicial fact-finding prior to imposing consecutive, maximum sentences, and

the offenses should have been merged because they were allied offenses. This court

denied the assignments of error and affirmed appellant's conviction and sentence.

State v. Hill, Muskingum App. No. CT2004-0047, 2006-Ohio-2565, nunc pro tunc.

       {¶3}   On April 24, 2006, appellant filed with the trial court a motion to vacate or

set aside judgment of conviction or sentence pursuant to Civ.R. 60(B)(4), (5), and (6).

By journal entry filed March 7, 2007, the trial court denied the motion.

       {¶4}   Appellant filed an appeal, again challenging his sentence.         Appellant

argued he was entitled to resentencing pursuant to Apprendi v. New Jersey (2000), 530

U.S. 466, Blakely v. Washington (2004), 542 U.S. 296, and State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856. This court denied the assignments of error and affirmed the

trial court's decision. State v. Hill, Muskingum App. No. CT07-23, 2007-Ohio-6763.

       {¶5}   On November 4, 2008, the United States District Court for the Southern

District of Ohio, Eastern Division, issued an opinion and order vacating appellant's

sentence and ordering a resentence within sixty days. Hill v. Sheets (S.D.Ohio 2008),

627 F.Supp.2d 810. The District Court found ineffective assistance of counsel for failing

to preserve appellant's Blakely claim. Following a hearing on December 29, 2008, the
Muskingum County, Case No. CT11-0020                                                   3


trial court again sentenced appellant to an aggregate term of twenty-two years in prison.

See, Amended Entry filed April 3, 2009.

       {¶6}   Appellant filed an appeal which was dismissed on May 15, 2009 for failure

to file a timely notice of appeal.

       {¶7}   On April 14, 2011, appellant filed a motion to correct illegal sentence

pursuant to R.C. 2941.25(A), claiming the trial court erred in sentencing him to

consecutive sentences because the offenses were allied offenses. By journal entry filed

April 20, 2011, the trial court denied the motion.

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

consideration. Assignment of error is as follows:

                                              I

       {¶9}   "THE TRIAL COURT ERRED BY DENYING DEFENDANT-APPELLANT'S

MOTION TO CORRECT ILLEGAL SENTENCE IN VIOLATION OF HIS RIGHTS

UNDER THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION AND SECTION16, ARTICLE 1 OF THE OHIO CONSTITUTION."

       {¶10} Preliminarily, we note this case comes to us on the accelerated calendar.

App.R. 11.1, which governs accelerated calendar cases, provides in pertinent part the

following:

       {¶11} "(E) Determination and judgment on appeal

       {¶12} "The appeal will be determined as provided by App. R. 11.1. It shall be

sufficient compliance with App. R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.
Muskingum County, Case No. CT11-0020                                                        4


         {¶13} "The decision may be by judgment entry in which case it will not be

published in any form."

         {¶14} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts, and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Association (1983), 11 Ohio App.3d 158.

         {¶15} This appeal shall be considered in accordance with the aforementioned

rules.

                                               I

         {¶16} Appellant claims the trial court erred in denying his motion to correct illegal

sentence. We disagree.

         {¶17} In his motion to correct illegal sentence filed April 14, 2011, appellant

argued the trial court erred in sentencing him to consecutive sentences because the

offenses were allied offenses (R.C. 2941.25).

         {¶18} In his original appeal, State v. Hill, Muskingum App. No. CT2004-0047,

2006-Ohio-2565, ¶11, appellant assigned the following error:

         {¶19} " 'III. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNTS

THREE (3) AND FOUR (4) AS THEY WERE ALLIED OFFENSES AND CRIMES OF

SIMILAR IMPORT PURSUANT TO R.C. 2941.25.' "

         {¶20} After review, this court at ¶71 concluded the following:

         {¶21} "Upon review, this Court finds that Appellant committed two separate acts

of felonious assault, albeit on the same victim, and therefore the offenses are not allied
Muskingum County, Case No. CT11-0020                                                    5


offenses of similar import but are offenses of dissimilar import. As such, appellant was

properly convicted and sentenced for both of the felonious assault counts."

      {¶22} We find the arguments herein to be res judicata. Res judicata is defined

as "[a] valid, final judgment rendered upon the merits bars all subsequent actions based

upon any claim arising out of the transaction or occurrence that was the subject matter

of the previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331,

syllabus.

      {¶23} In support of his argument, appellant cites this court to State v. Johnson,

128 Ohio St.3d 153, 2010-Ohio-6314, wherein the Supreme Court of Ohio recently

reviewed a two-step analysis for allied offenses. We note appellant is not entitled to the

benefit of any new case law after the disposition of his direct appeal. State v. Rhodes,

Licking App. No. 05CA98, 2006-Ohio-3996.

      {¶24} The sole assignment of error is denied.
Muskingum County, Case No. CT11-0020                                         6


      {¶25} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                       _s/ Sheila G. Farmer__________________




                                       _s/ William B. Hoffman________________




                                       __s/ John W. Wise____________________


                                                      JUDGES




SGF/db 714
Muskingum County, Case No. CT11-0020                                            7


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
MATTHEW HILL                            :
                                        :
       Defendant-Appellant              :         CASE NO. CT11-0020




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs

to appellant.




                                        _s/ Sheila G. Farmer__________________




                                        _s/ William B. Hoffman________________




                                        __s/ John W. Wise____________________


                                                        JUDGES
