Court of Appeals of Ohio, Eighth District, Cuyahoga
from the Cuyahoga County Court of Common Pleas Case No.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting Attorney,
Michael Hilton, pro se.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE.
Defendant-appellant, Michael Hilton, appeals the trial
court's decision denying his motion to vacate his
sentence. For the reasons that follow, we affirm the trial
2} In 2006, Hilton was sentenced to life in prison
on multiple counts of rape of a person under 13 years of age,
gross sexual imposition, and kidnapping. In State v.
Hilton, 8th Dist. Cuyahoga No. 89220, 2008-Ohio-3010,
this court reversed Hilton's convictions on eight counts
of rape, eight counts of gross sexual imposition, and three
counts of kidnapping; this court affirmed his convictions on
five counts of rape, five counts of gross sexual imposition,
and ten counts of kidnapping; the case was remanded for
resentencing. In August 2008, Hilton was resentenced to life
Following resentencing, Hilton filed multiple appeals and
postconviction motions seeking to challenge and set aside his
convictions and sentence. Each appeal was dismissed and each
motion challenging his convictions was denied. In January
2018, Hilton again challenged his sentence by seeking to
vacate his sentence, arguing (1) the imposition of maximum
sentences was not supported by the record; (2) the imposition
of consecutive sentences was not supported by the record; and
(3) the court did not make any statutory findings prior to
imposing the maximum or consecutive sentences. The motion was
denied and Hilton's appeal of that decision was
dismissed. See State v. Hilton, 8th Dist. Cuyahoga
No. 106815 (May 28, 2018).
4} In June 2018, Hilton filed another motion to
vacate his sentence, raising the same arguments that were
raised in his January 2018 motion. Again, the motion was
denied. Hilton now appeals that decision, raising the
following assignment of error:
The appellant's motion to vacate sentence should have
been granted because his sentence is contrary to law and
therefore void, in that the consecutive sentences were
imposed in violation of [R.C.] 2929.14(E)(4) and the trial
court's finding that each count merited the maximum
sentence is not supported by the record and such sentence is
void, and must be vacated as contrary to Ohio law.
5} The crux of Hilton's appeal is that the trial
court failed to make the requisite statutory findings prior
to imposing consecutive sentences, and that the record does
not support the imposition of maximum or consecutive
sentences. And because no findings were made, following the
passage of H.B. 86 in 2011 requiring judicial fact-finding,
his sentence is contrary to law and void.
6} At the outset, we find that Hilton's
arguments are barred by res judicata because any argument
challenging his sentence could have been raised on direct
appeal. The doctrine of res judicata establishes that "a
final judgment of conviction bars the convicted defendant
from raising and litigating in any proceeding, except an
appeal from that judgment, any defense or any claimed lack of
due process that was raised or could have been raised by the
defendant at the trial which resulted in that judgment of
conviction or on an appeal from that judgment."
State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d
7} Hilton raised ten assignments of error in his
direct appeal and not one challenged his prison sentence, let
alone the length of that sentence where both maximum and
consecutive sentences were imposed. Moreover, after Hilton
was resentenced following this court's remand order in
Hilton, he did not timely appeal his new sentence.
And when he finally attempted to appeal his sentence, the
appeal was ultimately dismissed for failing to file the
record. See State v. Hilton, 8th Dist. Cuyahoga No.
92362 (Jan. 13, 2019). Accordingly, res judicata bars the
arguments Hilton now raises in this appeal.
8} Even considering his arguments, we would find
that they lack merit. See State v. Smith, 8th Dist.
Cuyahoga No. 101105, 2014-Ohio-5547 (rejecting the exact
arguments raised herein). In 2008, at the time of
Hilton's original sentencing and resentencing, the trial
court was not required to engage in judicial fact-finding
before imposing nonminimum, maximum, or consecutive
sentences. State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the
syllabus. Moreover, the General Assembly's enactment of
H.B. 86 in 2011 reviving the judicial fact-finding
requirement prior to imposing consecutive sentences was not
retroactive. See Am.Sub.H.B. No. 86, Section 4,
effective September 30, 2011 ("The amendments * * *
apply to a person who commits an offense specified or
penalized under those sections on or after the effective date
of this section and to a person to whom division (B) of
section 1.58(B) of the Revised Code makes the amendments
9} Accordingly, Hilton's assignment of ...