State v. Danny Lee Hill

• Decision Date: 16 June 1995
• Docket Number: (ACCELERATED)94-T-5116,95-LW-1746
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. DANNY LEE HILL, Defendant-Appellant. ACCELERATED CASE NO. 94-T-5116
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee, v. DANNY LEE HILL, Defendant-Appellant.

No. (ACCELERATED)94-T-5116

95-LW-1746 (11th)

Court of Appeals of Ohio, Eleventh District, Trumbull County.

June 16, 1995

OPINION

Criminal Appeal from the Court of Common Pleas Case No. 85 CR 317

HON DONALD R. FORD, P.J., HON. JUDITH A. CHRISTLEY, J., HON. MARY CACIOPPO, J., Ret., Ninth Appellate District, sitting by assignment.

DENNIS WATKINS, TRUMBULL COUNTY PROSECUTOR, PATRICK F. McCARTHY ASSISTANT PROSECUTOR, 3rd Floor, Administration Building, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee)

ATTY PAUL CROUSHORE, 601 South High Street, Columbus, OH 43215 (For Defendant-Appellant)

FORD P.J.

Appellant, Danny Lee Hill, is before this court appealing the trial court's decision denying his post-conviction relief petition. Appellant was found guilty of aggravated murder with specifications, kidnaping, rape, aggravated arson, and felonious sexual penetration. The three-judge panel imposed the death penalty and, also, sentenced appellant to various terms of incarceration for the other offenses. On appeal, this court affirmed the trial court's decision in State v. Hill (Nov. 27, 1989), Trumbull App. Nos. 3720 and 3745, unreported ("Hill I"). The Supreme Court of Ohio affirmed these decisions in State v. Hill (1992), 64 Ohio St.3d 313 ("Hill II").

Subsequently, appellant filed a post-conviction relief petition with the trial court. Appellee responded to the application by filing a motion for judgment pursuant to R.C. 2953.21(C). The court, without conducting a hearing, denied appellant's petition and filed findings of fact and conclusions of law. Appellant timely perfected this appeal, raising the following assignments of error:

"1. The trial court erred to the prejudice of petitioner-appellant in overruling his petition as to the claims for relief and for so ruling without holding an evidentiary hearing (Findings 5-18).

"2. The trial court erred to the prejudice of petitioner-appellant in denying petitioner clarification of and subsequently ruling upon the states 'motion for judgment pursuant to R.C. 2953.21(C)' (Journal entry of June 29, 1994).

"3. The trial court erred to the prejudice of petitioner in denying the petitioner access to physical evidence for testing which evidence was critical to the conviction and the testing of which may reveal the petitioner's actual innocence (Entry of June 30, 1994)."

In the first assignment, appellant alleges that the court erred by not holding an evidentiary hearing prior to denying his petition. He presents sixteen sub-arguments in support of this assigned error. However after reviewing each, we do not perceive error.

R.C. 2953.21 provides in part:

"(C) Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. ***

"(D) Within ten days after the docketing of the petition, *** the prosecuting attorney shall respond by answer or motion. ***

"(E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing ***."

Initially it should be noted that R.C. 2953.21(C) and (E) permit the court to dispose of a petition for relief without a hearing. The statute provides that the court "shall determine whether there are substantive grounds for relief" and must have a hearing "[u]nless the petition and the files and records of the case show the petitioner is not entitled to relief ***." (Emphasis added.) R.C. 2953.21(C) and (E).

Therefore, if the court can resolve the averments contained within the petitioner's request based upon the material contained within the petition, and the files and records, it may properly dismiss the matter without conducting a hearing. State v. Milanovich (1975), 42 Ohio St.2d 46.

Furthermore, while reviewing a motion for post-conviction relief, the court may apply the doctrine of res judicata. "[T]his court has found res judicata to be a proper basis upon which to dismiss without hearing an R.C. 2953.21 petition. State v. Perry (1967), 10 Ohio St.2d 175 ***." State v. Cole (1982), 2 Ohio St.3d 112. Moreover, application of res judicata is appropriate for issues which could have been raised on direct appeal. Id. at 114.

"Under the doctrine of res judicata, a final judgement of conviction bars a convicted defendant who was represented by counsel 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 trial, which resulted in that judgment of conviction, or on an appeal from that judgement." (Emphasis sic.) Perry, paragraph nine of the syllabus.

In applying Perry, this court noted: "[c]ertainly, as the issues involve evidence dehors the trial record, they should have been raised originally by way of a petition for post conviction relief. But as the issues were raised, and were finally adjudged, they may not be relitigated." State v. Tomey (Dec. 17, 1993), Trumbull App. No. 92-T-4678, unreported, 8. Additionally, if the allegations do not raise sufficient operative facts to warrant an evidentiary hearing, the court may summarily dispose of the matter. See State v. Kilbreath (Aug. 23, 1993), Stark App. No. CA-9187, unreported, 5.

In the first sub-argument, appellant alleges that his convictions were void or voidable because the three-judge panel did not indicate whether it unanimously found appellant to be the principal or whether it unanimously found the murder to be committed with prior calculation and design. Appellant postulates that such an omission constitutes error, but he does not provide any citation to authority which supports this proposition nor does he advance any reasoning to advocate this premise. Furthermore, as this matter was tried to a three-judge panel rather than to a jury, "unless the record clearly shows otherwise, this court will assume regularity and/or lack of prejudicial error" by the tribunal. Hill I, at 38; See, also, State v. White (1968), 15 Ohio St. 2d 146, 151. Finally, as this issue could have been raised during the first appeal, appellant is precluded from presenting it now, and the trial court properly concluded that this issue was barred by res judicata.Perry;Cole.

In the second sub-argument, appellant claims that he was entitled to an evidentiary hearing on the issue of whether the appellee improperly withheld evidence from him. This issue was addressed previously by this court and, therefore, was properly dismissed by the trial court under the principle of res judicata. As noted in Hill I, appellant was afforded the opportunity to continue the matter to prepare for the witnesses, but his counsel declined the trial court's offer and we, therefore, concluded that the trial court did not error. Hill I at 49. Furthermore, this court opined that "[a]ppellant failed to show that the state did not make a good faith effort to supply all [discovery materials] to him [prior to the start of the trial]." Id. At 50. Similarly, this issued was addressed by the Supreme Court of Ohio which overruled appellant's claimed error on this issue. Hill II at 327-328. Pursuant to Perry and Cole, the trial court properly dismissed appellant's claim.

In the third sub-argument appellant alleges that he was entitled to an evidentiary hearing on the issue of whether the trial court considered non-statutory "aggravating factors." Specifically, he claims that the court, in imposing the death penalty, relied upon improper remarks of the prosecutor. As noted previously, this matter was tried to a three-judge panel rather than to a jury, and "unless the record clearly shows otherwise, this court will assume regularity and/or lack of prejudicial error" by the tribunal. Hill I, at 38; White at 51. Additionally, we dismissed appellant's claims regarding alleged prosecutorial misconduct in appellant's ninth sub-argument infra. Nothing in the record reflects any irregularity. As such, the trial court was not obligated to hold an evidential hearing on this issue. Furthermore, while not specifically raised on appeal, this court concluded that the trial court's discussion of the nature and circumstances of the offense was acceptable when considering the aggravating circumstances.

"However, the trial court's analysis of the aggravating circumstances weighed against the mitigating factors support its conclusion. The court indicated it considered the underlying facts of each of the specifications in the weighing process. *** All are appropriately considered by the court and are against the fabric of mitigation." Hill I at 71.

Additionally, this argument has been rejected by the Supreme Court of Ohio in State v. Moreland (1990), 50 Ohio St. 3d 58,69. Finally, this issue could have been raised on direct appeal. Appellant's failure to do so permits summary adjudication by the trial court under res judicata. Perry; Cole.

In the fourth sub-argument appellant claims that the trial court should have taken evidence to determine whether the court failed to consider all of the mitigating factors. This issue was raised initially by appellant in the first appeal. This court rejected appellant's claim stating "R.C 2929.04(B) allows for the consideration of several mitigating factors, including 'any factors that are relevant to the issue of whether the defendant should...