[Cite as State v. King, 2017-Ohio-4258.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
RICHARD KING : Case No. CT2017-0021
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2004-0327
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 12, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX RICHARD KING, pro se
Prosecuting Attorney #489-103
North Central Correctional Institution
By: GERALD V. ANDERSON II P.O. Box 1812
Assistant Prosecuting Attorney Marion, Ohio 43302
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No.CT2017-0021 2
Baldwin, J.
{¶1} Appellant Richard King appeals a judgment of the Muskingum County
Common Pleas Court overruling his motion to resentence. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 10, 2004, the Muskingum County Grand Jury indicted
appellant on sixty-two counts of pandering obscenity involving a minor in violation of R.C.
2907.321(A)(1) and (5). The charges were felonies of the second and fourth degrees. A
jury trial commenced on January 25, 2005. The jury found appellant guilty of all of the
charges except one, which was dismissed. As memorialized in an entry filed on March 7,
2005, the trial court sentenced appellant to an aggregate term of thirty-six and one-half
years in prison and classified him as a sexual predator/habitual sexual offender.
{¶3} Appellant filed an appeal. Pursuant to an Opinion filed on January 19, 2006,
this Court affirmed appellant's convictions, but remanded the matter to the trial court to
comply with the mandates of R.C. 2929.14(E)(4). State v. King, 5th Dist. Muskingum App.
No. CT05–0017, 2006–Ohio–226.
{¶4} Upon remand, the trial court resentenced appellant to the same sentence
as memorialized in an entry filed on March 8, 2006. Appellant filed an appeal. This Court
affirmed the resentencing. State v. King, 5th Dist. Muskingum App. No. CT06–0020,
2006–Ohio–6566.
{¶5} On October 20, 2005, August 15, 2006, October 8, 2008, March 13, 2009,
September 15, 2009, November 2, 2010, and July 14, 2011, appellant filed
motions/petitions for postconviction relief on several issues including resentencing,
evidentiary issues, ineffective assistance of counsel, and request for new trial. The trial
Muskingum County, Case No.CT2017-0021 3
court denied the motions/petitions and appellant filed appeals. This Court affirmed the
trial court's decisions. State v. King, 5th Dist. Muskingum No. CT2006–0021, 2007–Ohio–
2810; State v. King, 5th Dist. Muskingum No. CT2007–0004, 2007–Ohio–5297; State v.
King, 5th Dist. Muskingum No. CT2008–0062, 2009–Ohio–412; State v. King, 5th Dist.
Muskingum No. CT09–CA–22, 2009–Ohio–3854; State v. King, 5th Dist. Muskingum No.
CT2009–0047, 2010–Ohio–798; State v. King, 5th Dist. Muskingum No. CT2011–0006,
2011–Ohio–4529; State v. King, 5th Dist. Muskingum No. CT2012–0018, 2012–Ohio–
4070.
{¶6} On September 29, 2015, appellant filed a Motion to Vacate Void Conviction,
challenging the trial court's subject matter jurisdiction because the indictment was invalid
or void. By Journal Entry filed on October 20, 2015, the trial court denied the motion.
Appellant then appealed. Pursuant to an Opinion filed on April 29, 2016 in State v. King,
5th Dist. Muskingum No. CT2015–0058, 2016-Ohio-2788, this Court affirmed the
judgment of the trial court.
{¶7} Appellant, on September 27, 2016, filed a Motion to Correct Void Sentence.
Appellant, in his motion, argued that his sentence was void because the trial court, in its
March 8, 2006 entry, did not make findings pursuant to R.C. 2929.13. Pursuant to an
entry filed on October 6, 2016, the trial court denied appellant’s motion, finding that
appellant’s sentence was not void. We affirmed on appeal pursuant to an opinion filed
January 27, 2017. State v. King, 5th Dist. Muskingum No. CT2017-0021.
{¶8} Appellant filed a “Motion to Resentence” on February 23, 2017, arguing that
the jury verdict form did not contain sufficient information to make his conviction on count
one a second degree felony, and it therefore should have been reduced to a fourth degree
Muskingum County, Case No.CT2017-0021 4
felony. He argued his sentence was void pursuant to R.C. 2945.75(A)(2). The trial court
overruled the motion, finding it was an untimely, successive petition for postconviction
relief, and further that the motion was barred by the doctrine of res judicata. Appellant
assigns two errors:
{¶9} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
RESENTENCE AS THE JURY FOUND APPELLANT GUILTY OF A FOURTH DEGREE
FELONY ON COUNT ONE AND THE TRIAL COURT IMPROPERLY SENTENCED
APPELLANT AS IF IT WERE A FELONY OF THE SECOND DEGREE, THUS MAKING
APPELLANT’S SENTENCE VOID.
{¶10} “II. THE TRIAL COURT MISAPPLIED THE DOCTRINE OF RES
JUDICATA TO APPELLANTS [SIC]MOTION FOR RESENTENCE [SIC] IN THIS CASE
WHEN THE MERITS OF THE MOTION HAVE NEVER BEEN DECIDED BECAUSE
APPELLANT’S SENTENCE IS VOID.”
I., II.
{¶11} Appellant argues that his sentence is void based on R.C. 2945.75(A)(2),
which provides:
(A)When the presence of one or more additional elements makes an
offense one of more serious degree:
(2) A guilty verdict shall state either the degree of the offense of which the
offender is found guilty, or that such additional element or elements are
present. Otherwise, a guilty verdict constitutes a finding of guilty of the least
degree of the offense charged.
Muskingum County, Case No.CT2017-0021 5
{¶12} We have previously held that a sentence is not rendered void by the court’s
failure to comply with R.C. 2945.75(A)(2), and the claim must be raised on direct appeal.
State v. Brown, 5th Dist. Richland No. 09 CA 137, 2010-Ohio-2757, ¶15-17; State v.
Garver, 5th Dist. Holmes 10-CA-11, 2011-Ohio-2349, ¶18.
{¶13} Accordingly, appellant’s claim should have been raised on direct appeal
from his sentence, and is now barred by the doctrine of res judicata. Pursuant to the
doctrine of res judicata, a final judgment of conviction bars a convicted defendant who
was represented by counsel from raising and litigating in any proceeding except an
appeal from that judgment, any defense or any claimed lack of due process that was
raised or could have been raised on direct appeal from that judgment. State v. Perry, 10
Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus (1967). Appellant has
filed ten appeals subsequent to his resentencing at the direction of this Court in 2006,
and has had ample opportunity to raise issues related to that sentencing.
Muskingum County, Case No.CT2017-0021 6
{¶14} The first and second assignments of error are overruled. The judgment of
the Muskingum County Common Pleas Court is affirmed. Costs are assessed to
appellant.
By: Baldwin, J.
Gwin, P.J. and
Earle Wise, J. concur.
State v. King
Combined Opinion