State v. Sands , 2020 Ohio 5472 ( 2020 )

[Cite as State v. Sands, 2020-Ohio-5472.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-L-072
- vs - :
JOSEPH A. SANDS, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 06 CR
000401.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Joseph A. Sands, pro se, PID# A664-601, Marion Correctional Institution, 940 Marion-
Williamsport Road, P.O. Box 57, Marion, OH 43302 (Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Joseph A. Sands, appeals from the judgment of the
Lake County Court of Common Pleas, denying his motion “to dismiss a void sentence.”
For the following reasons, we affirm the judgment of the lower court.
{¶2} On June 16, 2006, Sands was indicted by the Lake County Grand Jury for
two counts of Engaging in a Pattern of Corrupt Activity (Counts 1 and 2), felonies of the
first degree, in violation of R.C. 2923.32(A)(1); four counts of Conspiracy to Commit
Aggravated Murder (Counts 3-6), felonies of the first degree, in violation of R.C.
2923.01(A)(1); and eight counts of Conspiracy to Commit Aggravated Arson (Counts 7-
14), felonies of the second and third degree, in violation of R.C. 2909.02(A)(1) and
(2) and 2923.01(A)(1). The charges arose from Sands’ plot to murder Painesville
Municipal Court Judge Michael Cicconetti, North Perry Police Chief Denise Mercsak,
North Perry Mayor Tom Williams, and North Perry Prosecutor Joseph Gurley. Pursuant
to the court’s November 30, 2006 Judgment Entry, the parties agreed prior to trial to
merge counts 1 and 2 into a single count of Engaging in a Pattern of Corrupt Activity
(Count 1) and the remaining counts were re-numbered as counts 2-13. Following a trial,
the jury found Sands guilty of the sole count of Engaging in a Pattern of Corrupt Activity
(Count 1), three counts of Conspiracy to Commit Aggravated Murder (renumbered Counts
2, 3 and 5), and two counts of Conspiracy to Commit Aggravated Arson (renumbered
Counts 6 and 7) and not guilty of the remaining offenses. In a December 11, 2006
Judgment Entry of Sentence, the court merged Counts 2, 3, 5, 6, and 7. Sands was
ordered to serve consecutive sentences of 10 years on Count 1 and 10 years on the
merged counts, for a total term of twenty years in prison.
{¶3} Sands’ conviction and sentence were affirmed on direct appeal. State
v. Sands, 11th Dist. Lake No. 2007-L-003, 2008-Ohio-6981. Sands has filed numerous
appeals which have been found, with one exception, to lack merit. State v. Sands, 11th
Dist. Lake No. 2012-L-096, 2013-Ohio-2822; State v. Sands, 11th Dist. Lake No. 2016-
L-124, 2017-Ohio-5857; State v. Sands, 11th Dist. Lake No. 2017-L-009, 2017-Ohio-
5860; State v. Sands, 11th Dist. Lake No. 2017-L-104, 2018-Ohio-2457; State v. Sands,
11th Dist. Lake No. 2019-L-050, 2019-Ohio-4736; State v. Sands, 11th Dist. Lake Nos.
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2019-L-022 and 023, 2019-Ohio-4925; and State v. Sands, 11th Dist. Lake No. 2020-L-
038, 2020-Ohio-3935; see State v. Sands, 11th Dist. Lake No. 2015-L-134, 2016-Ohio-
7150 (error found in the imposition of post-release control).
{¶4} On April 29, 2020, Sands filed a Motion for Leave of Court to File a Motion
to Dismiss a Void Sentence in which he argued that the court erred by sentencing him to
prison terms for both Counts One and Two since the parties had agreed these counts
would merge for the purposes of sentencing. On June 5, 2020, the trial court issued a
Judgment Entry denying Sands’ motion.
{¶5} Sands timely appeals and raises the following assignment of error:
{¶6} “The Trial court Abused its Discretion and Committed Plain Error Per
Crim.R. 52(B) to the Prejudice of the defendant when the court Revived a Merger Count,
The court Consider[ed] Allied Offenses of Similar import, R.C. 2941.25(A) and the court
Changed the Identity of the Charge[d] Offense in Count(2) and imposed a Ten Year
Prison Term for a[] Charge Not Founded by the Grand Jury a Violation [of] Crim.R. 7(C)
and a Violation of the Defendant[’s] United States Constitutional Rights Amendment 5,
14.” (sic)
{¶7} Sands argues that because Count Two in the indictment was for Engaging
in a Pattern of Corrupt Activity, he could not be convicted of the renumbered Count Two,
Conspiracy to Commit Aggravated Murder, as he was not properly indicted for such an
offense and it was a “new criminal charge.” He contends, then, that his conviction and
sentence for Conspiracy to Commit Aggravated Murder are void.
{¶8} Sands’ argument is barred by the doctrine of res judicata. “[A] convicted
defendant is precluded under the doctrine of res judicata from raising and litigating in any
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proceeding, except an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the trial which
resulted in that judgment of conviction or on appeal from that judgment.” State v. Szefcyk,
77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996); State v. McGowan, 11th Dist. Ashtabula
No. 2016-A-0052, 2017-Ohio-7124, ¶ 7 (“[t]he doctrine of res judicata bars the further
litigation in a criminal case of issues that were or could have been raised previously in a
direct appeal”). Here, there is no question that Sands has raised numerous appeals
before this court, but has failed to raise the present argument, although he could have
done so on direct appeal.
{¶9} Sands argues that the doctrine of res judicata does not apply because the
court did not have subject matter jurisdiction to convict or sentence him for Conspiracy to
Commit Aggravated Murder because it was a new charge for which he was not indicted.
{¶10} It has been held that certain matters are not subject to application of res
judicata, such as instances where the defendant’s sentence is void. Sands, 2020-Ohio-
3935, at ¶ 11. A void sentence exists “only if the sentencing court lacks jurisdiction over
the subject matter of the case or personal jurisdiction over the accused.” State v.
Henderson, __ Ohio St.3d __, 2020-Ohio-4784, __ N.E.3d __, ¶ 27. The court here had
subject matter jurisdiction, or power to hear the case, as Sands was indicted on felony
counts, subjecting him to the court’s jurisdiction. See McGowan at ¶ 20 (“[t]he indictment
properly invoked the trial court’s subject-matter jurisdiction on the indicted crimes”).
Sands was indicted for all of the offenses for which he was convicted, invoking the subject
matter jurisdiction of the court.
{¶11} Sands presents no legal grounds for finding that renumbering counts in an
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indictment renders his conviction or sentence void or deprives the court of jurisdiction.
Other courts have found that similar matters are barred by the doctrine of res judicata.
State v. Taylor, 9th Dist. Summit No. 28734, 2018-Ohio-2394, ¶ 12 (“[w]here, as here,
there is a claim that the count numbers on the verdict forms and in the sentencing entry
do not correspond to the count numbers in the indictment, that alleged error is cognizable
on direct appeal”); State v. Moore, 8th Dist. Cuyahoga No. 97775, 2012-Ohio-2935, ¶ 12-
13 (the argument that the lower court erred by renumbering charges on the jury verdict
forms from the counts charged in the indictment was barred by res judicata).
{¶12} It is further evident that, even considering the merits of Sands’ claim, the
court committed no error and his argument is wholly unsupported by the law. Sands was
properly indicted for the relevant offense of Conspiracy to Commit Aggravated Murder; it
was simply numbered Count Three in the indictment and renumbered Count Two for
presentation to the jury. This was the same offense, under the same statutory section
and with the same elements, for which he was convicted and he had been fully apprised
of this charge by the indictment. The trial court merely renumbered the counts in the
indictment for the ease of consideration by the jury since the original Counts One and
Two were merged prior to trial. The law does not support a conclusion that error was
committed in such an instance. Moore at ¶ 17 (“[T]he renumbering of Count 7 in the jury
verdict forms was not error [and was done] [t]o avoid confusion in the minds of the jury *
* *. It is clear in the instant case that Moore was convicted for the crimes with which he
was charged in the indictment.”); State v. Washington, 9th Dist. Summit No. 18199, 1997
WL 775666, *7 (Nov. 26, 1997) (“the different numbering of the counts in the indictment
and verdict forms” was not error as renumbering was done to avoid confusion); see also
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State v. Moyer, 11th Dist. Ashtabula No. 98-A-0011, 1999 WL 339256, *3-4 (May 7, 1999)
(where defendant argued the trial court failed to follow certain local rules when
renumbering counts, no prejudice resulted since “[a] review of the record reveals that the
renumbered counts correspond to the exact same charges that remained from the
fourteen-count indictment”).
{¶13} The sole assignment of error is without merit.
{¶14} For the foregoing reasons, the Judgment Entry of the Lake County Court of
Common Pleas, denying Sands’ motion to dismiss a void sentence, is affirmed. Costs to
be taxed against appellant.
THOMAS R. WRIGHT, J.,
MARY JANE TRAPP, J.,
concur.
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