[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
