[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
State v. Hill
Combined Opinion