State v. HillState v. Hill
OPINION
Dennis Watkins, Trumbull County Prosecutor and Charles L. Morrow, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481, and Stephen Maher, Special Assistant Prosecutor, Senior Assistant Attorney General, 30 East Broad Street, 23rd Floor, Columbus, OH 43215 (For Plaintiff-Appellee).
Stephen Newman, Federal Public Defender, Calland M. Ferraro, Assistant Federal Public Defender, and Matthew Gay, Assistant Federal Public Defender, Capital Habeas Unit, 1660 West Second Street, Suite 750, Cleveland, OH 44113 (For Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} The issue before this Court is a narrow one. When an individual sentenced to death previously filed a petition for postconviction relief under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 and it was denied, may he file a
{¶2} Appellant, Danny Lee Hill, appeals after the trial court issued judgment entry recasting appellant‘s
{¶3} Appellant has raised two assignments of error arguing the following: (1) the trial court erred by recasting his
{¶4} Having reviewed the record and the applicable caselaw, we find appellant‘s first assignment of error to have merit. The trial court erred when it concluded appellant‘s
{¶5} Therefore, we reverse the judgment of the Trumbull County Court of Common Pleas, and this case is remanded for the trial court to consider appellant‘s
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Substantive and Procedural History
{¶6} Appellant‘s convictions are based on the murder of Raymond Fife on September 10, 1985. The factual record is set forth in detail in State v. Hill, 11th Dist. Trumbull Nos. 3720 and 3745, 1989 WL 142761 (Nov. 27, 1989), and State v. Hill, 64 Ohio St.3d 313, 595 N.E.2d 884 (1992).
{¶7} Although appellant raised issues of his intellectual disability during the mitigation
Initial Petition for Postconviction Relief pursuant to Atkins:
{¶8} In 2002, the United States Supreme Court determined the Eighth Amendment‘s bar against cruel and unusual punishment prohibits the imposition of the death penalty for “mentally retarded”1 persons. Atkins at 321.
{¶9} In the wake of Atkins, the Ohio Supreme Court set forth three criteria for establishing whether a person is intellectually disabled. State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011. Under Lott, a defendant was required to demonstrate: “(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age of 18.” Id. at ¶ 12. The court further held that “[w]hile IQ tests are one of the many factors that need to be considered, they alone are not sufficient to make a final determination on this issue,” and “there is a rebuttable presumption that a defendant is not mentally retarded if his or her IQ is above 70.” Id.
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{¶10} In 2003, as a result of the Atkins and Lott decisions, appellant filed a petition to vacate his death sentence through a petition for postconviction relief under
{¶11} The State retained Dr. J. Gregory Olley, a professor at the University of North Carolina at Chapel Hill and a director of the university‘s Center for the Study of Development and Learning. Id. Hill retained as his expert Dr. David Hammer, a professor at the Ohio State University and the director of psychology services at the university‘s Nisonger Center. Id. The court, through the Forensic Center of Northeast Ohio, retained Dr. Nancy Huntsman, of the Court Psychiatric Clinic of Cleveland. Id.
{¶12} The experts evaluated appellant and determined that he was malingering and therefore resorted to collateral sources such as appellant‘s school records and evaluations performed at the time of his sentencing and institutional records obtained during his incarceration to reach their conclusions. Id. at ¶ 17.
{¶13} At the Atkins evidentiary hearing, Dr. Olley, the State‘s expert, testified that appellant was not mentally disabled. Id. at ¶ 18. Dr. Huntsman came to the same conclusion while appellant‘s expert, Dr. Hammer, concluded he qualified for a diagnosis of “mild” intellectual disability. Id.
{¶14} In 2006, the trial court rejected appellant‘s petition for postconviction relief and appellant appealed to this Court in State v. Hill, 177 Ohio App.3d 171, 2008-Ohio-3509, 894 N.E.2d 108 (11th Dist.). One of appellant‘s assignments of error in that appeal
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Case No. 2023-T-0039 argued that the trial court erred in determining he was not a person with intellectual disability.
{¶15} Reviewing the trial court‘s denial of his postconviction relief petition under an abuse of discretion standard, this Court concluded appellant satisfied the first
Subsequent judicial precedent:
{¶16} After appellant‘s Atkins postconviction petition was denied, the United States Supreme Court rendered decisions in Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), Moore v. Texas, 581 U.S. 1, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017) (”Moore I“), and Moore v. Texas, 586 U.S. 1, 139 S.Ct. 666, 203 L.Ed.2d 1 (2019) (”Moore II“), which struck down state-court decisions on intellectual disability by applying updated medical diagnostic standards.
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{¶17} After those decisions, the Supreme Court of Ohio decided State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, and announced the Lott test for intellectual disability was outdated. Id. at ¶ 100. Specifically, the Court in Ford held that the Lott test was “the wrong standard” because of its rebuttable presumption that an offender is not intellectually disabled where the offender‘s IQ score is above 70 and its requirement of finding significant limitations in two or more adaptive skills. Id. at ¶ 94-95, 97.
{¶18} The updated, and current, test Ohio courts must consider in determining intellectual disability is: (1) intellectual-functioning deficits (indicated by an IQ score of approximately 70 or lower); (2) significant adaptive deficits in any of the three adaptive-skill sets (conceptual, social, and practical); and (3) the onset of these deficits while the defendant was a minor. State v. Williams, 2021-Ohio-241, 167 N.E.3d 527 (11th Dist.), appeal not allowed, 163 Ohio St.3d 1493, 2021-Ohio-2270, 169 N.E.3d 1276, ¶ 30, citing Ford at 100.
Appellant‘s reevaluation under current judicial precedent:
{¶19} After appellant exhausted his State court remedies through direct appeals and his petition for postconviction relief, he pursued Federal habeas relief under Atkins. Those proceedings concluded with the United States Supreme Court denying a writ of certiorari for his Atkins claim in June 2022. Hill v. Shoop, — U.S. —, 142 S.Ct. 2579, 213 L.Ed.2d 1134 (2022).
{¶20} During the pendency of appellant‘s petition for certiorari, Dr. Olley, the State‘s expert witness in appellant‘s initial Atkins claim, reevaluated appellant in light of
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6 the new standards set forth in Ford. Dr. Olley concluded that appellant “has been a person with intellectual disability since early childhood.”
{¶21} In July 2022, appellant filed a “Civil Rule 60(B) Motion for Reconsideration of Determination Under Atkins v. Virginia with Request for Evidentiary Hearing.” Appellant argued that under
{¶22} The State moved to dismiss appellant‘s
{¶23} In response, appellant argued that
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Case No. 2023-T-0039 under the appropriate and current standard. Appellant also argued that he was entitled to a second postconviction relief petition because the Ford decision was necessitated by new United States Supreme Court rulings in Moore I and II.
{¶24} The State replied appellant was actually trying to have his death sentence vacated rather than seeking relief from the postconviction judgment and, because of this, his remedies were confined to postconviction relief.
{¶25} On May 3, 2023, the trial court issued a nunc pro tunc judgment entry recasting appellant‘s
{¶26} The court then concluded that appellant failed to satisfy the requirements for filing a second petition because he had not been unavoidably prevented from discovering the facts he relied upon to present it. The court said that appellant had known the historical facts of the case and Dr. Olley‘s change of opinion about appellant‘s intellectual disability in light of Ford “is not the type of historical fact contemplated by
{¶27} The trial court further concluded that
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8 Court did not create a new state or federal right. Instead, Hall, Moore I, and Moore II merely analyzed the application of Atkins claims.
{¶28} Finally, the trial court found appellant could not demonstrate “by clear and convincing evidence” that but for a constitutional error at trial he would not have been found guilty as required under
{¶29} Appellant timely appealed, raising two assignments of error.
Assignments of Error and Analysis
{¶30} Appellant‘s first assignment of error states:
{¶31} “[1.] The Trial Court Erred In Holding That Civil Rule 60(B) Is An Improper Vehicle For Seeking Relief From A Prior Post-Conviction Judgment. (T.d. 446, pp. 4-5).”
{¶32} Appellant filed a
{¶33} Appellant argues this was improper because he sought relief from the judgment in his original Atkins postconviction relief petition, and not the judgment of conviction itself. As the Atkins petition was a collateral civil matter, he argues there is no need to rely on
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Postconviction relief:
{¶34} The procedures for postconviction relief are set forth in
{¶35} “[A] postconviction proceeding is not an appeal of a criminal conviction but, rather, a collateral civil attack on the judgment.” State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). A postconviction petitioner “receives no more rights than those granted by the statute.” Id. “This means that any right to postconviction relief must arise from the statutory scheme enacted by the General Assembly.” State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, at ¶ 35.
{¶36} “[C]ases of postconviction relief pose difficult problems for courts, petitioners, defense counsel and prosecuting attorneys alike.” State v. Milanovich, 42 Ohio St.2d 46, 51, 325 N.E.2d 540 (1975).
Cases long considered to be fully adjudicated are reopened, although memories may be dim and proof difficult. The courts justifiably fear frivolous and interminable appeals from prisoners who have their freedom to gain and comparatively little to lose. Yet these very difficulties make imperative the duty of courts to carefully exercise their judicial functions, and, most importantly, the duty of prosecuting attorneys to exercise their functions as adversaries, within the procedural framework set out in
R.C. 2953.21 .
Civ.R. 60(B):
{¶37} Ordinarily, a movant filing a
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10 Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). Appellant must demonstrate: (1) a meritorious claim or defense to raise if relief is granted; (2) entitled to relief under one of the subsections of
{¶39}
{¶40}
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Death is Different:
{¶41} Finally, the overriding principle, applicable to any death penalty case, is that “death is different.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (plurality opinion). In capital proceedings, courts must “aspire to a heightened standard of reliability.” Id. “This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.” Id. “[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, 463 U.S. 992, 998-999, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).
Recasting motions under State v. Schlee:
{¶42} In State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, the Ohio Supreme Court determined that a trial court may recast a
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Case No. 2023-T-0039 granted.” Id. at ¶ 3. Schlee was again convicted after his new trial and the court of appeals again affirmed his conviction on direct appeal. Id.
{¶43} Schlee then filed a
{¶44} Under
{¶45} The Ohio Supreme Court said that court “may recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged.” Schlee at ¶ 12.
{¶46} Therefore, when a defendant in a criminal case files a
(1) filed subsequent to [the defendant‘s] direct appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment void, and (4) asked for vacation of the judgment and sentence.
Id. at ¶ 12, quoting State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997).
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{¶47} The court said that the motion Schlee filed met the above criteria and therefore “could have been filed as petition for postconviction relief. Thus, it was not necessary to look to the Civil rules or other applicable law for guidance in the way
{¶48} For our purposes, it is important to note that in Schlee, the defendant received a new trial, was convicted, and did not file a petition for postconviction relief after his second trial. Therefore, the Ohio Supreme Court applied
{¶49} The threshold issue is whether the motion is an “irregular motion.” When a motion is irregular, a court may recast it. However, where the motion is in conformity with the applicable rules of procedure, there is no need to recast it. While a postconviction relief petition is the exclusive remedy to bring a collateral challenge to the validity of a conviction or sentence, once brought, the Civil rules necessarily control that collateral challenge. See State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, 137 N.E.3d 1151, ¶ 33, quoting
{¶50} In State v. Adams, 12th Dist. Butler No. CA2010-12-321, 2011-Ohio-1721, ¶ 12, the State appealed, asking the court to recast the defendant‘s
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Case No. 2023-T-0039 previously filed a postconviction relief petition, which the trial court dismissed as untimely. Id. at ¶ 3. The defendant filed a
{¶51} The case before this Court is unlike Schlee. In 2003, appellant filed a petition for postconviction relief. A civil judgment was entered in relation to that petition. As noted above, a petition for postconviction relief is “a collateral civil attack on the judgment.” Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Thus, unlike Schlee, appellant need not resort to
{¶52} Appellant‘s
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15 recasting appellant‘s
{¶53} Accordingly, appellant‘s first assignment of error has merit.
{¶54} Appellant‘s second assignment of error states:
{¶55} “[2.] Even If Mr. Hill Is Not Entitled To Relief Under Rule 60(B), The Trial Court Erred In Concluding That Mr. Hill Failed to Meet The Requirements For A Second Post-Conviction Petition Under
{¶56} As we have determined the trial court erred in recasting appellant‘s
{¶57} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas is reversed, and this case is remanded for the trial court to consider appellant‘s
MATT LYNCH, J.,
ROBERT J. PATTON, J.,
concur.
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