STATE OF OHIO, Plaintiff-Appellee, v. JOSEPH A. SANDS, Defendant-Appellant.
CASE NO. 2020-L-072
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
2020-Ohio-5472
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 06 CR 000401.
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
{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. 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
{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
{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
{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
{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.