[Cite as State v. Hill, 2013-Ohio-314.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                    :       Hon. William B. Hoffman, J.
                                              :       Hon. Sheila G. Farmer, J.
-vs-                                          :
                                              :
MATTHEW HILL                                  :       Case No. CT2012-0005
                                              :
        Defendant-Appellant                   :       OPINION




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



JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     January 31, 2013




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

RON WELCH                                             ERIC J. ALLEN
27 North Fifth Street                                 713 South Front Street
Zanesville, OH 43701                                  Columbus, OH 43206
Muskingum County, Case No. CT2012-0005                                                   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, 5th Dist. No. CT2004-0047, 2006-Ohio-2565, Nunc Pro Tunc.

       {¶3}   On April 14, 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, 530 U.S.

466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), 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, 5th Dist. No. CT07-23, 2007-Ohio-6763.

       {¶5}   On November 4, 2008, pursuant to a writ of habeas corpus, 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, 627 F.Supp.2d 810 (S.D.Ohio 2008). The District Court found

ineffective assistance of counsel for failing to preserve appellant's Blakely claim.
Muskingum County, Case No. CT2012-0005                                                   3


Following a hearing on December 29, 2008, the trial court again sentenced appellant to

an aggregate term of twenty-two years in prison. See, Amended Entry filed April 3,

2009.

        {¶6}   On May 5, 2009, appellant filed an appeal which was dismissed on May

15, 2009 for failure to file a timely notice of appeal (Case No. CT2009-0023).

        {¶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, again challenging his sentence.        This court

denied appellant's assignments of error on the basis of res judicata. State v. Hill, 5th

Dist. No. CT11-0020, 2011-Ohio-3644.

        {¶9}   On January 31, 2012, appellant filed a motion for leave to appeal the trial

court's amended entry filed April 3, 2009. This court granted the motion on March 14,

2012, and this matter is now before this court for consideration. Assignments of error

are as follows:

                                              I

        {¶10} "THE TRIAL COURT ERRED BY FAILING TO MERGE COUNTS THREE

(3) AND FOUR (4) AS THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT

PURSUANT TO R.C. 2941.25."

                                             II

        {¶11} "THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO

MAXIMUM, CONSECUTIVE SENTENCES."
Muskingum County, Case No. CT2012-0005                                                   4


                                            I, II

       {¶12} Appellant once again challenges his sentence, claiming the trial court

erred in failing to merge the two felonious assault counts as they were allied offenses of

similar import, and erred in sentencing appellant to maximum, consecutive sentences.

We disagree.

       {¶13} After the trial court sentenced appellant via amended entry filed April 3,

2009, the subject of this appeal, appellant filed a 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.

       {¶14} Appellant filed an appeal, arguing the trial court erred in denying his

motion because the offenses were in fact allied offenses and therefore he should not

have been sentenced to consecutive sentences.           This court reviewed appellant's

arguments therein and denied them on the basis of res judicata as the court had already

determined the issue in State v. Hill, 5th Dist. No. CT2004-0047, 2006-Ohio-2565, Nunc

Pro Tunc. See, State v. Hill, 5th Dist. No. CT11-0020, 2011-Ohio-3644, ¶18-22. We

once again deny appellant's arguments under the doctrine of res judicata.

       {¶15} As for any additional arguments on maximum, consecutive sentences

under State v. Kalish, 120 Ohio St.3d 23 (2008), we note the 2004 opinion also denied

appellant's arguments on maximum, consecutive sentences under the more stringent

requirement of judicial fact-finding prior to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-

856. See, State v. Hill, 5th Dist. No. CT2004-0047, 2006-Ohio-2565, Nunc Pro Tunc,
Muskingum County, Case No. CT2012-0005                                            5


Assignments of Error I and II. Any arguments on the issue of maximum, consecutive

sentences are barred by res judicata.

      {¶16} Assignments of Error I and II are denied.

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

is hereby affirmed.

By Farmer, J.

Delaney, P. J. and

Hoffman, J. concur.




                                           s/ Sheila G. Farmer________________



                                           s/ Patricia A. Delaney______________



                                           _s/ William B. Hoffman_____________

                                                        JUDGES




SGF/sg 111
[Cite as State v. Hill, 2013-Ohio-314.]


                 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. CT2012-0005




        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/ Patricia A. Delaney______________



                                                _s/ William B. Hoffman_____________

                                                             JUDGES
