[This opinion has been published in Ohio Official Reports at
78 Ohio St.3d 174.]
THE STATE OF OHIO, APPELLEE, V. HILL, APPELLANT.
[Cite as State v. Hill, 1997-Ohio-293.]
Appellate procedure—Application for reopening appeal from judgment and
conviction based on claim of ineffective assistance of appellate counsel—
Application denied when applicant fails to show good cause for failing to
file his application within ninety days after journalization of the appellate
judgment.
(No. 96-2370—Submitted March 4, 1997—Decided April 16, 1997.)
APPEAL from the Court of Appeals for Hamilton County, No. C-920497.
__________________
{¶ 1} Appellant, Jeffrey D. Hill, was convicted of the aggravated murder of
his mother and sentenced to death. He was also sentenced to prison terms for
several associated felonies. The court of appeals affirmed the convictions and
sentence. State v. Hill (Dec. 22, 1993), Hamilton App. No. C-920497, unreported,
1993 WL538902. On direct appeal as of right, we also affirmed. State v. Hill
(1995), 73 Ohio St.3d 433,
653 N.E.2d 271, certiorari denied Hill v. Ohio (1996),
516 U.S. ___,
116 S.Ct. 788,
133 L.Ed.2d 738. Subsequently, we issued a stay of
execution to allow Hill to file a petition for post-conviction relief. State v. Hill
(1996),
76 Ohio St.3d 1428,
667 N.E.2d 412.
{¶ 2} On or about July 2, 1996, Hill filed an application for reopening with
the court of appeals pursuant to App.R. 26(B) and State v. Murnahan (1992), 63
Ohio St.3d 60,
584 N.E.2d 1204, alleging ineffective assistance of appellate counsel
before that court. The court of appeals noted that Hill’s application was untimely
under App.R. 26(B) for not having been filed within ninety days from the
journalization of the decision of the court of appeals.
SUPREME COURT OF OHIO
{¶ 3} Hill argued before the court of appeals that good cause existed for the
late filing because one attorney, who represented him initially before the court of
appeals on his direct appeal, also represented him in his direct appeal to the
Supreme Court. The court of appeals, however, noted that another attorney who
also represented Hill before the Supreme Court on direct appeal had not represented
him before the court of appeals. Further, Hill had already raised in his appeal to
the Supreme Court his claim of alleged ineffective assistance of appellate counsel
before the court of appeals. Thus, the court of appeals found no good cause for the
late filing and denied Hill’s application for reopening the appeal. Hill now appeals
that decision to this court.
__________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellee.
Gary W. Crim, for appellant.
__________________
Per Curiam.
{¶ 4} We affirm the judgment of the court of appeals for the reasons stated
in its journal entry, which is appended hereto.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________
APPENDIX
STATE OF OHIO, Plaintiff-Appellee vs. JEFFREY D. HILL, Defendant-Appellant.
No. C-920497
ENTRY DENYING APPLICATION FOR REOPENING.
{¶ 5} This cause came on to be considered upon the application of
defendant-appellant Jeffrey D. Hill for reopening the appeal wherein judgment was
January Term, 1997
entered by this court in State v. Hill (Dec. 22, 1993), Hamilton App. No. C-920497,
unreported, and the memoranda filed by the parties in connection therewith.
{¶ 6} App.R. 26(B)(2)(b) requires a showing of good cause for filing an
application to reopen more than ninety days after journalization of the appellate
judgment. Appellant argues that there is good cause for filing this application
approximately two and one-half years after this court’s judgment was journalized
because the same attorney participated in representing appellant in the direct
appeals of his capital case to this court and to the Ohio Supreme Court (and,
apparently, in subsequent motions).
{¶ 7} In State v. Williams (1996), 74 Ohio St.3d 454, 455,
659 N.E.2d 1253,
1253, the court held that:
“[I]ssues of ineffective assistance of appellate counsel must be raised at the
first opportunity to do so. Thus, in capital cases in which the death penalty has
been imposed for offenses committed before January 1, 1995, such issues must be
raised in the first appeal as of right in this court, unless, because of unusual
circumstances, applying the doctrine of res judicata would be unjust. See State v.
Murnahan [(1992), 63 Ohio St.3d 60, 66,
584 N.E.2d 1204, 1209].”
{¶ 8} Considering that appellant also received new counsel on appeal to the
Ohio Supreme Court, that such counsel did raise in the Supreme Court the issue of
ineffective assistance of counsel before the Court of Appeals, and that many of the
issues appellant now attempts to raise have already been addressed in the Supreme
Court’s decision, we find no injustice in applying the doctrine of res judicata.
{¶ 9} Therefore, appellant’s application for reopening is denied.
__________________
3
