State v. Hill - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State v. Hill, 90 Ohio St.3d 571, 2001-Ohio-20.]

THE STATE OF OHIO, APPELLEE, v. HILL, APPELLANT.
[Cite as State v. Hill (2001), 90 Ohio St.3d 571.]
Appellate procedure -- Application for reopening appeal from judgment of
conviction based on claim of ineffective assistance of appellate counsel --
Denial of application by court of appeals affirmed albeit for different
reasons.
(No. 00-1299 -- Submitted November 28, 2000 -- Decided January 17, 2001.)
APPEAL from the Court of Appeals for Hamilton County, Nos. C-910916.
__________________

Per Curiam. Appellant, Genesis Hill, was convicted of aggravated
burglary and the kidnapping and aggravated murder of his six-month-old
daughter, Domika Dudley, and sentenced to death. He was also sentenced to
prison for kidnapping and aggravated burglary. The court of appeals affirmed the
convictions and sentence. State v. Hill (Dec. 21, 1994), Hamilton App. Nos. C-
910916 and C-940487, unreported, 1994 WL 721580. On direct appeal as of
right, we also affirmed. State v. Hill (1996), 75 Ohio St.3d 195, 661 N.E.2d 1068,
certiorari denied, Hill v. Ohio (1996), 519 U.S. 895, 117 S.Ct. 241, 136 L.Ed.2d
170.

Subsequently, the trial court denied Hill's petition for post-conviction
relief, and the court of appeals affirmed that denial of relief. State v. Hill (Nov.
21, 1997), Hamilton App. No. C-961052, unreported, 1997 WL 727587, and we
declined to accept Hill's appeal. State v. Hill (1998), 81 Ohio St.3d 1468, 690
N.E.2d 1288. On April 1, 1998, we revoked a stay of execution previously
granted. State v. Hill (1998), 81 Ohio St.3d 1498, 691 N.E.2d 1059. Hill also
filed a petition for habeas corpus in the United States District Court, which is
pending. See Hill v. Mitchell (S.D.Ohio 1998), 30 F.Supp.2d 997.

SUPREME COURT OF OHIO

On October 1, 1999, 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 found that Hill had "failed to show good cause
for filing his application more than ninety days after this Court's judgment was
journalized, as required by App.R. 26(B)(2)(b)." State v. Hill (June 8, 2000),
Hamilton App. No. C-910916, unreported. Hence, that court denied Hill's
application to reopen his appeal.

The cause is now before this court upon an appeal as of right.

We affirm the judgment of the court of appeals, albeit for different
reasons. The two-pronged analysis found in Strickland v. Washington (1984), 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess
whether Hill has raised a "genuine issue," as to the ineffectiveness of appellate
counsel, in his request to reopen under App.R. 26(B)(5). State v. Spivey (1998),
84 Ohio St.3d 24, 25, 701 N.E.2d 696, 697; State v. Reed (1996), 74 Ohio St.3d
534, 535, 660 N.E.2d 456, 458. See, also, Walker v. Gibson (C.A.10, 2000), 228
F.3d 1217, 1237; United States v. Cook (C.A.10, 1995), 45 F.3d 388, 395; Boyd v.
Ward (C.A.10, 1999), 179 F.3d 904, 914. To show ineffective assistance, Hill
must prove that his counsel were deficient for failing to raise the issues he now
presents and that there was a reasonable probability of success had he presented
those claims on appeal. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d
373, paragraph three of the syllabus.

Moreover, to justify reopening his appeal, Hill "bears the burden of
establishing that there was a `genuine issue' as to whether he has a `colorable
claim' of ineffective assistance of counsel on appeal." State v. Spivey, 84 Ohio
St.3d at 25, 701 N.E.2d at 697. We find that Hill has failed to do so.

In his initial appeal to the court of appeals, Hill's allegedly ineffective
appellate counsel raised twenty-nine assignments of error on appeal. "Counsel
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January Term, 2001
could have reasonably decided they could not add * * * more issues without
`burying good arguments * * * in a verbal mound made up of strong and weak
contentions.' " State v. Campbell (1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339,
353, quoting Jones v. Barnes (1983), 463 U.S. 745, 753, 103 S.Ct. 3308, 3313, 77
L.Ed.2d 987, 994. Hill also relies in part upon evidence outside the trial record to
support his claim of ineffective appellate assistance. Yet appellate counsel cannot
properly refer to facts outside the record. "A reviewing court cannot add matter
to the record before it, which was not a part of the trial court's proceedings, and
then decide the appeal on the basis of the new matter." State v. Ishmail (1978), 54
Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the syllabus.
Accord State v. Coleman (1999), 85 Ohio St.3d 129, 133, 707 N.E.2d 476, 483.

Finally, many issues on Hill's list were waived at trial, and some were
precluded by settled law. Other issues "may have had arguable merit, but are
`sufficiently problematical that the refusal to raise them cannot be assailed as an
unreasonable professional judgment.' " State v. Campbell, 69 Ohio St.3d at 53,
630 N.E.2d at 353, quoting Cunningham v. Henderson (C.A. 2, 1984), 725 F.2d
32, 36.

Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________

Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, and Angela Miller, Assistant
Public Defender, for appellant.
__________________
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