[Cite as State v. Hill, 2011-Ohio-3920.]


                                IN THE COURT OF APPEALS
                        FIRST APPELLATE DISTRICT OF OHIO
                                 HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :      APPEAL NO. C-100554
                                                    TRIAL NO. B-9103654
         Respondent-Appellee,                :
                                                          D E C I S I O N.
   vs.                                       :

GENESIS L. HILL,                             :

         Petitioner-Appellant.               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 10, 2011



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for Respondent-Appellee,

Ravert J. Clark, for Petitioner-Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

        {¶1}    Petitioner-appellant Genesis L. Hill appeals from the Hamilton County

Common Pleas Court’s judgment dismissing his postconviction petition seeking relief

from his death sentence on the ground of mental retardation or, in the alternative,

“diminished intellectual capacity.” We affirm the court’s judgment.

        {¶2}    In 1991, a Hamilton County jury found Hill guilty of aggravated murder,

aggravated burglary, and kidnapping in connection with the death of his infant

daughter. For the aggravated murder, the trial court imposed a sentence of death. Hill

unsuccessfully challenged his convictions in direct appeals to this court, the Ohio

Supreme Court, and the United States Supreme Court,1 and in postconviction petitions

filed in 19962 and 2000.3 His petition for a writ of habeas corpus remains pending

before the United States District Court for the Southern District of Ohio.

        {¶3}    On October 21, 2009, Hill filed with the common pleas court a third

postconviction petition. In his petition, Hill cited the United States Supreme Court’s

decision in Atkins v. Virginia4 in support of his claim seeking relief from his death

sentence on the ground that he is mentally retarded. He later amended his petition to

seek, in the alternative, a new sentencing hearing for the purpose of determining

whether, in light of “the change[d] national consensus against imposing the death

penalty on mentally retarded offenders identified in Atkins[,] * * * [his] diminished

intellectual capacity is        sufficiently   mitigating     to   outweigh      the aggravating




1 See State v. Hill (Dec. 22, 1994), 1st Dist. Nos. C-910916 and C-940487, affirmed, 75 Ohio St.3d
195, 1996-Ohio-222, 661 N.E.2d 1068, certiorari denied sub nom. Hill v. Ohio (1996), 519 U.S.
895, 117 S.Ct. 241.
2 See State v. Hill (Nov. 21, 1997), 1st Dist. No. C-961052, discretionary appeal not allowed (1998),
81 Ohio St.3d 1468, 690 N.E.2d 1288.
3 See State v. Hill (Dec. 24, 2003), 1st Dist. No. C-030384, appeal not accepted for review, 102
Ohio St.3d 1448, 2004-Ohio-2263, 808 N.E.2d 398.
4 (2002), 536 U.S. 304, 122 S.Ct. 2242.




                                                 2
                     OHIO FIRST DISTRICT COURT OF APPEALS



circumstances and justify imposition of a [life] sentence.” The common pleas court

dismissed the petition as amended. This appeal followed.

       {¶4}    Hill presents on appeal five assignments of error. He contends that the

common pleas court erred in (1) failing to make findings of fact and conclusions of law

concerning his alternative claim for relief, (2) failing to “address” his alternative claim,

(3) dismissing his postconviction petition on the ground that it was late, (4) applying to

his Atkins claim a “heightened burden of proof,” and (5) failing to conduct an

evidentiary hearing on his postconviction claims.

                                       I. Hill’s Atkins Claim

       {¶5}    We address first Hill’s third and fifth assignments of error to the extent

that they challenge the dismissal of his postconviction Atkins claim without an

evidentiary hearing, and his fourth assignment of error, challenging                    the

constitutionality of the court’s “application of a heightened burden of proof” in

reviewing this claim. These challenges are untenable.

       {¶6}    In June 2002, the Supreme Court ruled in Atkins that executing a

mentally retarded offender violates the proscription against cruel and unusual

punishment contained in the Eighth Amendment to the United States Constitution.5

The Supreme Court in Atkins left to the states the task of establishing procedures and

substantive standards for adjudicating an Atkins claim. In December 2002, the Ohio

Supreme Court in State v. Lott6 determined that R.C. 2953.21 et seq., governing the

proceedings on a petition for postconviction relief, provided “a suitable statutory

framework for reviewing [an] Atkins claim” advanced by an offender who had been

sentenced to death before the Lott decision.7

5 Id.
6 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011.
7 Id. at ¶13.




                                              3
                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶7}    The postconviction statutes confer upon a common pleas court

jurisdiction to entertain a collateral challenge to a judgment of conviction based on a

state or federal constitutional violation that occurred during the proceedings resulting

in the conviction, if the petitioner satisfies either R.C. 2953.21’s time limits or R.C.

2953.23’s jurisdictional requirements.8 R.C. 2953.21, in relevant part, requires that a

postconviction petition be filed within 180 days after the trial transcript was filed in the

direct appeal to the court of appeals.9 R.C. 2953.23 closely circumscribes the common

pleas court’s jurisdiction to entertain a late or successive postconviction petition: the

petitioner must show either that he was unavoidably prevented from discovering the

facts upon which his claim depends, or that his claim is predicated upon a new,

retrospectively applicable federal or state right recognized by the United States

Supreme Court since the period prescribed by R.C. 2953.21 expired;10 and when the

claim challenges a death sentence, the petitioner must “show[] by clear and convincing

evidence that, * * * but for constitutional error at the sentencing hearing, no reasonable

factfinder would have found the petitioner eligible for the death sentence.”11

                                 A. “Heightened burden of proof”?

        {¶8}    As a preliminary matter, we note that the supreme court in Lott excused

from R.C. 2953.23(A)(1)(b)’s clear-and-convincing-evidence jurisdictional standard any

petitioner who had been sentenced to death before the Atkins decision, and who filed a

8 See R.C. 2953.21(A)(1)(a) and 2953.23(A).
9 See R.C. 2953.21(A)(2).
10 See R.C. 2953.23(A)(1)(a). The citations in this case are to the postconviction statutes as
amended effective October 29, 2003. In December 2002, when Lott was decided, R.C.
2953.23(A)(1) and 2953.23(A)(2) similarly permitted a common pleas court to entertain a late or
successive postconviction challenge to a death sentence if “(a) 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 “(b) Subsequent to the period prescribed in [R.C.
2953.21](A)(2) * * * 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,” and “[t]he petitioner shows by
clear and convincing evidence that, * * * but for constitutional error at the sentencing hearing, no
reasonable factfinder would have found the petitioner eligible for the death sentence.”
11 R.C. 2953.23(A)(1)(b).




                                                 4
                         OHIO FIRST DISTRICT COURT OF APPEALS



postconviction Atkins claim within 180 days of the Lott decision. For those petitioners,

the court declared, the common pleas court “shall decide whether the petitioner is

mentally retarded by using the preponderance-of-the-evidence standard.”12 But the

court held that a petitioner who files a postconviction Atkins claim “more than 180 days

after [the Lott] decision must meet the statutory [jurisdictional] standards for untimely

and successive petitions for postconviction relief.”13

           {¶9}    Hill was sentenced to death before Atkins was decided, but he filed his

Atkins claim nearly seven years after Lott was decided. Thus, the common pleas court

had jurisdiction to entertain Hill’s postconviction Atkins claim only upon his

satisfaction of the R.C. 2953.23 jurisdictional requirements, including R.C.

2953.23(A)(1)(b)’s requirement that he prove by clear and convincing evidence

outcome-determinative constitutional error in the imposition of his death sentence.

           {¶10} In his fourth assignment of error, Hill challenges the common pleas

court’s review of his postconviction Atkins claim under R.C. 2953.23(A)(1)(b)’s clear-

and-convincing-evidence jurisdictional standard. He argues that the court’s review of

his claim under the “heightened” standard applicable to Atkins claims filed more than

180 days after the Lott decision, rather than the preponderance-of-the-evidence

standard applicable to Atkins claims filed within 180 days after the Lott decision,

violated the rights guaranteed to him under the Equal Protection Clauses of the United

States and Ohio Constitutions, because no rational basis supports the underlying

distinction.




12   Lott, 97 Ohio St.3d at ¶17 and 24.
13   Id. at ¶24.


                                              5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} But an inferior court must follow the controlling authority of a higher

court, leaving to the higher court the prerogative of overruling its own decision.14 The

supreme court in Lott held that a postconviction Atkins claim filed more than 180 days

after the Lott decision must satisfy the R.C. 2953.23 jurisdictional standards.15 The

common pleas court was not free to proceed, nor is this court free to decide, otherwise.

Accordingly, we overrule Hill’s fourth assignment of error.

                      B. No jurisdiction to entertain Hill’s Atkins claim.

       {¶12} Hill’s postconviction Atkins claim satisfied the first R.C. 2953.23

jurisdictional requirement.     R.C. 2953.23(A)(1)(a) requires a late or successive

postconviction petitioner to show either (1) that he was unavoidably prevented from

discovering the facts upon which his claim depends, or (2) that his claim is predicated

upon a new, retrospectively applicable federal or state right recognized by the United

States Supreme Court since the R.C. 2953.21 filing time expired. Hill was sentenced to

death before the 2002 decision in Atkins. And the supreme court in Lott held that a

postconviction Atkins claim filed by an offender sentenced to death before the Atkins

decision satisfies the R.C. 2953.23(A)(1)(a) jurisdictional requirement because the

Supreme Court in Atkins “ha[d] recognized a new federal right applying retroactively to

convicted defendants facing the death penalty.”16

       {¶13} But Hill failed to satisfy the second R.C. 2953.23 jurisdictional

requirement.    R.C. 2953.23(A)(1)(b) required that he also “show[] by clear and

convincing evidence that, * * * but for constitutional error at the sentencing hearing, no

reasonable factfinder would have found [him] eligible for the death sentence.” Thus,


14
   See Johnson v. Microsoft Corp., 156 Ohio App.3d 249, 2004-Ohio-761, 805 N.E.2d 179, ¶11,
following Rodriguez de Quijas v. Shearson/Am. Exp. Inc. (1989), 490 U.S. 477, 484, 109 S.Ct.
1917.
15 See Lott, 97 Ohio St.3d at ¶24.
16 Id. at ¶17.




                                             6
                      OHIO FIRST DISTRICT COURT OF APPEALS



Hill bore the burden of demonstrating the claimed Eighth Amendment violation by

offering in support of his claim clear and convincing evidence demonstrating that he is,

in the words of the Supreme Court in Atkins, “so impaired as to fall within the range of

mentally retarded offenders [against] who[se] [execution] there [had emerged] a

national consensus.”17 This he failed to do.

                                1. The mental-retardation criteria.

        {¶14} The supreme court in Lott provided three criteria for evaluating a death-

eligible defendant’s claim that he is mentally retarded.18              The defendant must

demonstrate (1) that he suffers from “significantly subaverage intellectual functioning,”

(2) that he has experienced “significant limitations in two or more adaptive skills, such

as communication, self-care, and self-direction,” and (3) that his intellectual and

adaptive-skills limitations had manifested themselves before the age of 18.19

        {¶15} Hill offered in support of his postconviction petition the 2001 affidavit of

clinical psychologist Michael M. Gelbort. Hill’s counsel had engaged Dr. Gelbort in

1999 to conduct a neuropsychological evaluation of Hill to determine if he

demonstrated brain or neurocognitive deficits or dysfunction. Dr. Gelbort interviewed

and tested Hill, examined records, and compiled a social history. Dr. Gelbort also

reviewed a “comprehensive mitigation report” provided in 1998 by Dr. Robert L. Smith.

The report “synthesized [Hill’s] long history of mental illness, drug dependency, and

detailed physical and sexual abuse.” Dr. Gelbort concluded that, at the time of his

offense, Hill had suffered from “long standing” “organic brain impairment” and had

“lacked the substantial capacity to appreciate the criminality of his conduct.”20

17 See Atkins, 536 U.S. at 317.
18 See Lott, 97 Ohio St.3d at ¶18; see, also, Atkins, 536 U.S. at 309, fn. 3.
19 Lott, 97 Ohio St.3d at ¶12; accord State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890
N.E.2d 263, ¶176.
20 See State v. Bedford, 1st Dist. No. C-100735, 2011-Ohio-2054, ¶24 (citing State v. Carter, 157
Ohio App.3d 689, 2004-Ohio-3372, 813 N.E.2d 78, ¶22, to hold that the determination of a


                                               7
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} Hill also supported his petition with the February 2010 affidavit of

clinical psychologist Karen Salekin. Dr. Salekin did not examine Hill, and she expressly

declined to provide an opinion concerning Hill’s intellectual disability. But based upon

the affidavits of Drs. Gelbort and Smith, Dr. Salekin concluded that “Hill * * *

require[d] a comprehensive evaluation of intellectual disability.”

       {¶17} In March 2010, the common pleas court, at Hill’s request, appointed

clinical psychologist David A. Ott to evaluate Hill for purposes of his Atkins claim. Dr.

Ott evaluated Hill based on clinical interviews with Hill and his family members,

available records, and the affidavits of Drs. Gelbort, Smith, and Salekin. Dr. Ott’s

report was admitted as a joint exhibit at the hearing on Hill’s postconviction petition.

       {¶18} The supreme court in Lott had formulated its mental-retardation criteria

based upon the clinical definitions of mental retardation cited with approval by the

Supreme Court in Atkins21 and provided in a 1992 manual published by the American

Association of Mental Retardation (“AMMR”)22 and in the 2000 Diagnostic and

Statistical Manual of Mental Disorders published by the American Psychiatric

Association (“DSM”).23 Dr. Ott evaluated Hill under the diagnostic standards set forth

in the 2000 DSM and in a manual published in 2010 by the AMMR’s successor, the

American Association on Intellectual and Developmental Disabilities (“AAIDD”). In its

2010 manual, the AAIDD defined what is now known as “intellectual disability” as

“characterized by significant limitations both in intellectual functioning and in adaptive

behavior as expressed in conceptual, social, and practical adaptive skills, * * *


postconviction Atkins claim may be informed by expert testimony offered at trial for other
purposes).
21 See Atkins, 536 U.S. at 308, fn. 3; Lott, 97 Ohio St.3d at ¶12.
22 American Association of Mental Retardation, Mental Retardation: Definition, Classification,
and Systems of Supports (9 Ed.1992)
23 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4
Ed.2000).


                                              8
                     OHIO FIRST DISTRICT COURT OF APPEALS



originat[ing] before age 18.”24 In Dr. Ott’s opinion, Hill did not meet either the DSM or

the AAIDD criteria for a diagnosis of intellectual disability.

       {¶19} Over-70 presumption. The court in Lott cautioned that an IQ test score

is merely one measure of intellectual functioning that “alone [is] not sufficient to make

a final determination on [the mental-retardation] issue.”25 Nevertheless, the court held

that an IQ score above 70 gives rise to “a rebuttable presumption that [the] defendant is

not mentally retarded.”26

       {¶20} IQ tests administered in 1985 (when Hill was 13 years old), in 1988

(when he was 17), in 1998 (when he was 27), and in 1999 (when he was 28) yielded full-

scale scores of 85, 84, 77, and 75, respectively. Thus, Hill is presumptively not mentally

retarded.

       {¶21} Intellectual functioning. Concerning Hill’s intellectual functioning, Dr.

Gelbort concluded, based on the full-scale score of 75 on the test he administered in

1999, that Hill operated in the “borderline mentally deficient range.” Dr. Ott found that

Hill’s 85 and 84 IQ scores on tests administered before age 18 “were consistent with

intellectual functioning within the borderline range of abilities,” but that his 77 and 75

IQ scores on tests administered after age 18 “were consistent with intellectual

functioning within the range of intellectual disability.”

       {¶22} Adaptive functioning.           With respect to Hill’s conceptual adaptive

behavior, Dr. Ott found “important deficits” in Hill’s self-direction skills, as reflected in

his willingness as a teenager to give away money or belongings to develop or maintain

friendships. Dr. Ott also found a significant functional academic deficit in arithmetic,



24 American Association on Intellectual and Developmental Disabilities, Intellectual Disability:
Definition, Classification, and Systems of Supports 1 (11 Ed.2010).
25 Lott, 97 Ohio St.3d at ¶12.
26 Id.




                                               9
                     OHIO FIRST DISTRICT COURT OF APPEALS



but otherwise found Hill’s academic achievement, along with his communication skills,

to be “consistent with his intellectual abilities as assessed.” Dr. Ott found no deficits in

Hill’s money-concepts skills. And although he found Hill’s safety skills to be “variable,”

Dr. Ott concluded that Hill’s unsafe behaviors were unrelated to an intellectual or

developmental disability.

       {¶23} Concerning Hill’s social adaptive behavior, Dr. Ott found that, as a boy,

Hill had exhibited age-appropriate interpersonal skills and peer relationships. But Dr.

Ott found that Hill’s later relationships with older women possibly “reflect[ed] a

continuation of [the] sexual exploitation” involved in his sexual abuse as a teenager and

in a relationship in which he had provided sexual favors in exchange for drugs or

alcohol. Dr. Ott characterized as “conflicting” the available information concerning the

social skills of gullibility, naivete, and avoiding victimization: reports of sexual

exploitation, bullying, and victimization were tempered by Hill’s assertion that he had

endured being taken advantage of by his peers to avoid “circumstances in his home.”

This willingness to endure exploitation to develop and maintain friendships, along with

Hill’s feelings concerning his family’s limited resources and his academic difficulties,

suggested to Dr. Ott that Hill had also experienced “difficulties” concerning his self-

esteem. But Dr. Ott noted that Hill’s “difficulties” with the social skills of responsibility,

following rules and directions, and obeying laws, including his absenteeism from school

and work and his contact with the juvenile-justice system, had not emerged until he

entered adolescence and began to use substances.

       {¶24} With respect to Hill’s practical adaptive behavior, Dr. Ott discerned no

significant deficits concerning Hill’s daily-living and self-care activities, his

instrumental activities of daily living, his transportation and community-use skills, or




                                             10
                      OHIO FIRST DISTRICT COURT OF APPEALS



his home-living skills. But Dr. Ott found Hill’s occupational skills “rather limited,”

because tardiness and absenteeism had precluded Hill from holding a job long enough

to support himself.

       {¶25} Onset before age 18. Finally, concerning Hill’s functioning before the

age of 18, Dr. Ott found no significant deficits in Hill’s intellectual functioning and

“early difficulties” only in Hill’s conceptual adaptive skills, as shown by his retention in

multiple primary grades. In Dr. Ott’s assessment, “more significant adaptive problems

* * * developed as * * * Hill entered adolescence.”

                            2. Over-70 presumption not rebutted.

       {¶26} Dr. Ott based his evaluation of Hill upon clinical interviews and available

records, including the affidavits of Drs. Gelbort, Smith, and Salekin upon which Hill’s

postconviction Atkins claim depended.        Dr. Ott found significant deficits in Hill’s

intellectual functioning after age 18, but not before. Dr. Ott also found that Hill had

exhibited deficits in his practical-adaptive occupational skills and in the conceptual

adaptive skills of avoiding victimization, functional academics (i.e., arithmetic), and

following rules/obeying laws. But because many of these deficits had emerged as Hill

entered adolescence and began to engage in “significant use of substances and

delinquent activity,” Dr. Ott concluded that the “available information [did] not support

the presence of substantial deficits in adaptive functioning to the degree required to

meet this prong of the diagnostic criteria.” And in the absence of significant deficits in

intellectual functioning before age 18, Dr. Ott concluded that Hill did not meet either

the DSM or the AAIDD criteria for a diagnosis of intellectual disability.

       {¶27} Thus, the record before us does not demonstrate significant limitations

in Hill’s intellectual or adaptive functioning. We, therefore, hold that Hill has failed to




                                            11
                    OHIO FIRST DISTRICT COURT OF APPEALS



rebut the presumption, arising from his over-70 IQ scores, that he is not mentally

retarded.

                   3. Atkins claim subject to dismissal without a hearing.

       {¶28} R.C. 2953.21(C) authorizes an evidentiary hearing on a postconviction

petition. But a postconviction claim is subject to dismissal without a hearing, when the

petitioner has failed to submit with his petition evidentiary material setting forth

sufficient operative facts to demonstrate substantive grounds for relief.27      Thus, the

purpose of an R.C. 2953.21(C) hearing is to aid the court in deciding a postconviction

claim on its merits. And the statute cannot be read to mandate a hearing on a

postconviction claim that the court is without jurisdiction to entertain on its merits.

       {¶29} The determination that a defendant is not, by the Lott court’s definition,

mentally retarded will not be disturbed on appeal if it was supported by some

competent and credible evidence.28 The court below had before it competent and

credible evidence to support a finding that Hill is not mentally retarded. Thus, Hill

failed to show by clear and convincing evidence the claimed Eighth Amendment

violation. In turn, he failed to satisfy the R.C. 2953.23 jurisdictional requirement of

outcome-determinative constitutional error in the execution of his death sentence.

       {¶30} Because the common pleas court had no jurisdiction to entertain Hill’s

late postconviction Atkins claim, the court properly declined to conduct an evidentiary

hearing on the claim, and the claim was subject to dismissal. Therefore, we overrule

the third and fifth assignments of error as they pertain to the dismissal of Hill’s Atkins

claim without an evidentiary hearing.



27 See R.C. 2953.21(C); State v. Pankey (1981), 68 Ohio St.2d 58, 428 N.E.2d 413; State v.
Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819.
28 See State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶45.




                                            12
                        OHIO FIRST DISTRICT COURT OF APPEALS



                                           II. Non-Atkins Claim

          {¶31} The balance of Hill’s assignments of error challenge the common pleas

court’s disposition of his alternative postconviction claim. In his amended petition,

Hill asserted that “even if [he] * * * does not meet the legal definition of mentally

retarded so as to bar the death penalty entirely,” the Supreme Court’s recognition in

Atkins of an evolved national consensus concerning executing the mentally retarded

required consideration of his “diminished intellectual capacity” as a mitigating factor in

a new penalty-phase hearing. His first and second assignments of error challenge the

court’s failure to “address” or to make findings of fact and conclusions of law

concerning this claim, and his third and fifth assignments of error challenge the

dismissal of the claim without an evidentiary hearing. We are not persuaded.

                       A. No jurisdiction to entertain Hill’s non-Atkins claim.

          {¶32} By the terms of the postconviction statute, “the violation upon which the

petitioner relies to establish his right to relief must be of constitutional dimension.”29

Hill did not specify the constitutional fundament for his alternative claim. But the

claim is expressly alternative to, and thus not predicated upon, the constitutional

principle declared in Atkins that executing the mentally retarded violates the Eighth

Amendment’s proscription against cruel and unusual punishment.

          {¶33} Like his Atkins claim, Hill advanced his non-Atkins claim in his third

postconviction petition and well after the prescribed time. Hill failed to demonstrate

either that he had been unavoidably prevented from discovering the facts upon which

his non-Atkins claim depended, or that the claim was predicated upon a new,

retrospectively applicable federal or state right recognized by the United States

Supreme Court since the time for filing the claim expired. Thus, because Hill’s non-

29   State v. Powell (1993), 90 Ohio App.3d 260, 264, 629 N.E.2d 13; see R.C. 2953.21(A)(1)(a).


                                                 13
                      OHIO FIRST DISTRICT COURT OF APPEALS



Atkins claim did not satisfy either R.C. 2953.21’s time restrictions or R.C. 2953.23’s

jurisdictional requirements, the common pleas court had no jurisdiction to entertain

the claim, and the claim was subject to dismissal30 without an evidentiary hearing.31

We, therefore, overrule the third and fifth assignments of error to the extent of their

challenge to the dismissal of that claim without a hearing.

                 B. No duty to make findings of fact and conclusions of law

        {¶34} In his first assignment of error, Hill contends that the common pleas

court erred in failing to make and file findings of fact and conclusions of law concerning

his non-Atkins claim. In his second assignment of error, he contends that the court

erred in failing to “address” the claim. Our conclusion that the common pleas court had

no jurisdiction to entertain Hill’s non-Atkins claim is dispositive of these challenges.

        {¶35} R.C. 2953.21(G) requires a common pleas court to journalize findings of

fact and conclusions of law when it denies a petition for postconviction relief. But when

a court has no jurisdiction to entertain a late or successive petition, the court’s

disposition of the petition need not include findings of fact and conclusions of law.32

        {¶36} Hill’s non-Atkins claim did not satisfy either R.C. 2953.21’s time

restrictions or R.C. 2953.23’s jurisdictional requirements. Therefore, the common

pleas court had no jurisdiction to “address” the claim on its merits.                  And R.C.

2953.21(G) did not require the court to journalize findings of fact and conclusions of

law concerning the claim.

        {¶37} Nevertheless, the court below made and filed findings of fact and

conclusions of law. In its findings of fact and conclusions of law, the court “overruled”



30 See R.C. 2953.21(C), 2953.23(A), and 2953.23(B).
31 R.C. 2953.21(C) and 2953.21(E).
32 See State ex rel. Carroll v. Corrigan (1999), 84 Ohio St.3d 529, 705 N.E.2d 1330; State v. Byrd
(2001), 145 Ohio App.3d 318, 762 N.E.2d 1043.


                                               14
                     OHIO FIRST DISTRICT COURT OF APPEALS



Hill’s “petition[] and amended petition[]” because Hill had “failed to meet the statutory

standards for an untimely and successive petition” and had “failed to demonstrate that

he is mentally retarded under the standards set forth in State v. Lott.” Then, by

separate entry, and “for the reasons set forth in” its findings of fact and conclusions of

law, the court “dismissed” “the [p]etition.” Thus, the court must be said to have

“address[ed]” (albeit other than on the merits) Hill’s non-Atkins claim.

       {¶38} Accordingly, we overrule the first assignment of error, because R.C.

2953.21(G) did not require the court to journalize findings of fact and conclusions of

law concerning Hill’s non-Atkins claim. And we overrule the second assignment of

error because the common pleas court had no jurisdiction to “address” the claim on its

merits, and because the court, in fact, “address[ed]” the claim in its findings of fact and

conclusions of law and, by reference, in its entry dismissing Hill’s petition.

                                         III. Conclusion

       To summarize, the common pleas court had no jurisdiction to entertain Hill’s

late and successive postconviction Atkins claim because Hill failed to satisfy the R.C.

2953.23 jurisdictional requirement of outcome-determinative constitutional error in

the imposition of his death sentence. Therefore, the petition was subject to dismissal

without an evidentiary hearing.

       The court also had no jurisdiction to entertain Hill’s late and successive non-

Atkins claim because Hill failed to satisfy the R.C. 2953.23 jurisdictional requirement

of demonstrating either that he had been unavoidably prevented from discovering

the facts upon which the claim depended, or that the claim was predicated upon a

new, retrospectively applicable federal or state right recognized by the United States

Supreme Court since the time for filing the claim expired. Therefore, the claim was




                                            15
                      OHIO FIRST DISTRICT COURT OF APPEALS



subject to dismissal without an evidentiary hearing and without findings of fact and

conclusions of law.

       Accordingly, we affirm the judgment of the common pleas court.

                                                                Judgment affirmed.

DINKELACKER, P.J., SUNDERMANN and CUNNINGHAM, JJ.



Please Note:

       The court has recorded its own entry on the date of the release of this

decision.




                                        16
