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State v. Hill

Court of Appeals of Ohio, Fifth District, Stark

March 30, 2018

STATE OF OHIO Plaintiff-Appellee
v.
CHRISTOPHER HILL Defendant-Appellant

          Appeal from the Court of Common Pleas, Case No. 2014CR0778

          For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney By: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney

          For Defendant-Appellant CHRISTOPHER HILL, Pro Se

          Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, EARLE, JUDGE.

         {¶ 1} Plaintiff-Appellant, Christopher Hill, appeals the November 28, 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. The plea was made pursuant to a plea deal wherein the state agreed to drop a felonious assault charge with a repeat violent offender specification. 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 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. The decision was affirmed on appeal. State v. Hill, 5th Dist. Stark No. 2017CA00118, 2017-Ohio-7671.

         {¶ 8} On November 20, 2017, appellant filed a fifth petition to vacate and set aside judgment of conviction and sentence based upon new evidence and actual innocence, specifically challenging his conviction for weapons under disability. Appellant claimed he had newly discovered evidence in the form of the state's July 26, 2017 response to his motion for leave to file delayed appeal and motion to dismiss filed with this court, wherein the state mentioned in committing the felonious assault on the victim, appellant used a hammer and not a gun. Because he did not use a gun, appellant argued he should not have been encouraged to plead guilty to the weapons under disability offense. As a result, appellant argued he was denied the effective assistance of counsel and his plea was not voluntarily and intelligently made. Also, appellant again argued the DNA evidence. By judgment entry filed November 28, 2017, the trial court denied the petition, expressly incorporating its findings of fact ...


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