State
v.
Hill

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGAAug 31, 2018
2018 Ohio 3564 (Ohio Ct. App. 2018)

No. 106017

08-31-2018

STATE OF OHIO PLAINTIFF-APPELLEE v. CHRISTOPHER HILL DEFENDANT-APPELLANT

ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender By: Erika B. Cunliffe Assistant Public Defender Courthouse Square Suite 200 310 Lakeside Avenue Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Fallon Radigan Frank Romeo Zeleznikar Assistant Prosecuting Attorneys Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113


JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION GRANTED Cuyahoga County Court of Common Pleas
Case No. CR-17-614706-A
Application for Reopening
Motion No. 519209

ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Assistant Public Defender
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O'Malley
Cuyahoga County Prosecutor
By: Fallon Radigan


Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} Christopher Hill, pursuant to App.R. 26(B), timely seeks to reopen his appeal, State v. Hill, 8th Dist. Cuyahoga No. 106017, 2018-Ohio-1401, claiming that appellate counsel was ineffective for failing to address the key issues surrounding his involuntary manslaughter conviction. We grant the application for reopening.

{¶2} App.R. 26(B) provides a means to assert an ineffective assistance of appellate counsel claim. In order to be successful, the application for reopening must demonstrate "a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5). This condition can be satisfied by demonstrating a claim of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5. Therefore, Hill must show that appellate counsel was deficient for failing to raise an issue and there was a reasonable probability of success had the issue been asserted in the direct appeal. Id.

{¶3} In his direct appeal, Hill's attorney alleged that his involuntary manslaughter conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Within these assignments of error, appellate counsel argued that Hill was acquitted of aggravated robbery, so the involuntary manslaughter conviction could not stand. Counsel further argued that the jury was improperly instructed on the offense that underpinned the involuntary manslaughter conviction: drug trafficking. Appellate counsel contended that aggravated robbery was the proper predicate offense even though the indictment and jury instructions identified the unindicted felony of drug trafficking as the predicate offense.

{¶4} We affirmed Hill's conviction for involuntary manslaughter based, in part, on a lack of argument going to the essential issue in the case. "The issue is whether Hill knowingly sold or offered to sell controlled substances, an issue that has not been addressed in the appellate briefing by either party, and whether Hill's conduct in trafficking drugs created the foreseeable risk of the victim's death." Hill, 8th Dist. Cuyahoga No. 106017, 2018-Ohio-1401, at ___ 11, citing App.R. 16(A)(7).

{¶5} Having already determined that Hill's appellate counsel failed to argue the determinative issue in the assignments of error that were raised, we must turn to prejudice and determine whether Hill presents a colorable claim of ineffective assistance of appellate counsel. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ___ 28. See also Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (whether there is a reasonable probability of a different result).

{¶6} Involuntary manslaughter, as set forth in R.C. 2903.04(A), provides that no person shall cause the death of another "as a proximate result of the offender's committing or attempting to commit a felony." A "proximate result" is akin to "proximate cause." State v. Muntaser, 8th Dist. Cuyahoga No. 81915, 2003-Ohio-5809, ¶ 38. A proximate result of criminal conduct is an action that "(1) caused the result, in that but for the conduct the result would not have occurred, and (2) the result must have been foreseeable." Id., citing State v. Lovelace, 137 Ohio App.3d 206, 738 N.E.2d 418 (1st Dist.1999).

{¶7} This court has previously set forth the parameters of foreseeability in this context of involuntary manslaughter:

A defendant cannot be held responsible for consequences no reasonable person could expect to follow from his conduct, but he will be held responsible for consequences which are direct, normal, and reasonably inevitable when viewed in the light of ordinary experience. State v. Losey (1985), 23 Ohio App. 3d 93, 95, 491 N.E.2d 379. It is not necessary that the defendant "be in a position to foresee the precise consequence of his conduct; only that the consequence be foreseeable in the sense that what actually transpired was natural and logical in that it was within the scope of the risk created by his conduct." Id. at 96.

State v
. Wilson, 182 Ohio App.3d 171, 2009-Ohio-1681, 912 N.E.2d 133, ¶ 24-26 (8th Dist.).

{¶8} The state argues there is no probability of a different result because sufficient evidence of drug trafficking existed, along with evidence that Hill could reasonably foresee that his drug trafficking activity could result in death. The state points to the fact that Deon Bulger, the individual who actually caused the victim's death, was a known member of the Heartless Felons gang. Hill knew of Bulger's gang affiliation and should have foreseen that arranging a drug transaction between an individual associated with such a violent gang could result in death. Further the state points to testimony adduced at trial that indicates that drug transactions often result in violence.

{¶9} Prior opinions of this court have supported this reasoning: "As courts have acknowledged, drug transactions are dangerous endeavors that can often lead to robbery or deadly violence." Id. at ¶ 29, citing State v. Marshall, 175 Ohio App.3d 488, 2008-Ohio-955, 887 N.E.2d 1227 (1st Dist.).

{¶10} Hill counters that our opinion affirming his conviction recognized that evidence exists in the record that establishes that Jonathan Mentor, the drug dealer with whom Bulger was to transact business, did not carry a firearm. Hill, 8th Dist. Cuyahoga No. 106017, 2018-Ohio-1401, at ___ 12; tr. 446, 452-453. Therefore, Hill asserts, he could not reasonably foresee that death would result from this drug transaction. This contrasts with the drug-dealer defendant in Wilson who was armed. Wilson at ___ 29. This may not sufficiently distinguish the cases to justify a different result, but the failure to at least argue these issues on appeal does constitute a genuine issue of whether Hill was deprived of effective assistance of counsel. Hill is not required to demonstrate that he would be successful had these arguments been advanced, but only that there is a reasonable probability. There exists a genuine issue as to whether Hill was deprived of the effective assistance of counsel. As a result, his application is well taken.

{¶11} Hill has failed to set forth a proposed assignment of error for review on reopening. The closest Hill gets is the previously quoted passage from our opinion setting forth the key issue in the case. Therefore, the appeal will be limited to a determination of "whether Hill knowingly sold or offered to sell controlled substances * * * and whether Hill's conduct in trafficking drugs created the foreseeable risk of the victim's death." Hill, 8th Dist. Cuyahoga No. 106017, 2018-Ohio-1401, at ___ 11.

{¶12} The court appoints Erika Cunliffe, Assistant Public Defender, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio, 44113, telephone 216-443-6911, to represent Hill. Counsel is instructed to apply for compensation within 30 days after journalization of this court's final decision in the reopened appeal. Loc.App.R. 46(C).

{¶13} The clerk of the court of appeals is instructed to reassemble the record in 8th Dist. Cuyahoga No. 106017 as it existed during this court's original review of the judgment in State v. Hill, Cuyahoga C.P. No. CR-17-614706-A.

{¶14} Hill's brief on the merits is due 20 days from the date of this entry. Appellee's brief is due within 20 days of the filing of Hill's brief. Hill's reply brief, if any, is due within 10 days of the filing of appellee's brief. All briefs shall conform to the appellate rules, including the local rules.

{¶15} Application for reopening is granted. /s/_________
SEAN C. GALLAGHER, JUDGE EILEEN A. GALLAGHER, A.J., and
TIM MCCORMACK, J., CONCUR