[Cite as State v. King, 2018-Ohio-1696.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. CT2017-0091 : RICHARD KING : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2004-0327
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 30, 2018
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX RICHARD KING, PRO SE MUSKINGUM COUNTY PROSECUTOR #489-103 North Central Correctional Institution GERALD V. ANDERSON II P.O. Box 1812 27 North Fifth St., P.O. Box 189 Marion, OH 43302 Zanesville, OH 43702-0189 Muskingum County, Case No. CT2017-0091 2
Delaney, J.
{¶1} Defendant-Appellant Richard King appeals the November 3, 2017 judgment
entry of the Muskingum County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 10, 2004, the Muskingum County Grand Jury indicted King
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 King 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 King to an aggregate term of 36 ½ years in prison and classified
him as a sexual predator/habitual sexual offender.
{¶3} King filed an appeal. Pursuant to an Opinion filed on January 19, 2006, this
Court affirmed King'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 King to the same sentence as
memorialized in an entry filed on March 8, 2006. King 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, King filed motions/petitions
for postconviction relief on several issues including resentencing, evidentiary issues,
ineffective assistance of counsel, and request for new trial. The trial court denied the Muskingum County, Case No. CT2017-0091 3
motions/petitions and King 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, King 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. King
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} King, on September 27, 2016, filed a Motion to Correct Void Sentence. King
argued in his motion 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 King's motion, finding that King'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} King filed a “Motion to Resentence” on February 23, 2017, arguing the jury
verdict form did not contain sufficient information to make his conviction on count one a
second degree felony, and therefore it should have been reduced to a fourth degree Muskingum County, Case No. CT2017-0091 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. We affirmed
the trial court’s judgment in State v. King, 5th Dist. Muskingum No. CT2017-0021, 2017-
Ohio-4258.
{¶9} King filed a “Motion to Correct Sentence” on July 10, 2017. He argued his
sentence of eight years for his conviction on count one, a second degree felony in
violation of R.C. 2907.321(A)(1), was contrary to law. He argued he should have been
sentenced to an 18-month prison term. An 18-moth prison term is commensurate with a
fourth degree felony. The trial court denied the motion on November 3, 2017, finding the
motion was an untimely successive petition for postconviction relief and barred by res
judicata.
{¶10} It is from this decision King now appeals.
ASSIGNMENT OF ERROR
{¶11} King raises one Assignment of Error:
{¶12} “THE APPELLANT’S SENTENCE IS CONTRARY TO LAW AND THE
TRIAL COURT ERRED WHEN IT DENIED HIS MOTION TO CORRECT SENTENCE BY
TREATING IT AS A PETITION FOR POST-CONVICTION RELIEF AND STATING IT
WAS BARRED BY THE DOCTRINE OF RES JUDICATA.”
ANALYSIS
{¶13} The State contends King raises the identical arguments in the July 10, 2017
motion entitled “Motion to Correct Sentence” as he did in his February 23, 2017 motion
entitled “Motion to Resentence.” In both motions, King argued he was improperly Muskingum County, Case No. CT2017-0091 5
convicted and sentenced on count one. The trial court denied his February 23, 2017
motion as a successive petition for postconviction relief and as barred by res judicata. We
affirmed the decision in State v. King, 2017-Ohio-4258. The trial court denied the July 10,
2017 motion as a successive petition for postconviction relief and found it was also barred
by the doctrine of res judicata. Upon review of the motions, we agree he raises the same
arguments.
{¶14} Based upon King’s past filings, the July 10, 2017 motion was a successive
petition for postconviction relief. R.C. 2953.23 governs successive petitions and states
the following in pertinent part, as subsection (A)(2) is not applicable sub judice:
(A) Whether a hearing is or is not held on a petition filed pursuant to section
2953.21 of the Revised Code, a court may not entertain a petition filed after
the expiration of the period prescribed in division (A) of that section or a
second petition or successive petitions for similar relief on behalf of a
petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must rely to
present the claim for relief, or, subsequent to the period prescribed in
division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized a new federal
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. King, 2018-Ohio-1696.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. CT2017-0091 : RICHARD KING : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2004-0327
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 30, 2018
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX RICHARD KING, PRO SE MUSKINGUM COUNTY PROSECUTOR #489-103 North Central Correctional Institution GERALD V. ANDERSON II P.O. Box 1812 27 North Fifth St., P.O. Box 189 Marion, OH 43302 Zanesville, OH 43702-0189 Muskingum County, Case No. CT2017-0091 2
Delaney, J.
{¶1} Defendant-Appellant Richard King appeals the November 3, 2017 judgment
entry of the Muskingum County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 10, 2004, the Muskingum County Grand Jury indicted King
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 King 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 King to an aggregate term of 36 ½ years in prison and classified
him as a sexual predator/habitual sexual offender.
{¶3} King filed an appeal. Pursuant to an Opinion filed on January 19, 2006, this
Court affirmed King'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 King to the same sentence as
memorialized in an entry filed on March 8, 2006. King 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, King filed motions/petitions
for postconviction relief on several issues including resentencing, evidentiary issues,
ineffective assistance of counsel, and request for new trial. The trial court denied the Muskingum County, Case No. CT2017-0091 3
motions/petitions and King 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, King 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. King
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} King, on September 27, 2016, filed a Motion to Correct Void Sentence. King
argued in his motion 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 King's motion, finding that King'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} King filed a “Motion to Resentence” on February 23, 2017, arguing the jury
verdict form did not contain sufficient information to make his conviction on count one a
second degree felony, and therefore it should have been reduced to a fourth degree Muskingum County, Case No. CT2017-0091 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. We affirmed
the trial court’s judgment in State v. King, 5th Dist. Muskingum No. CT2017-0021, 2017-
Ohio-4258.
{¶9} King filed a “Motion to Correct Sentence” on July 10, 2017. He argued his
sentence of eight years for his conviction on count one, a second degree felony in
violation of R.C. 2907.321(A)(1), was contrary to law. He argued he should have been
sentenced to an 18-month prison term. An 18-moth prison term is commensurate with a
fourth degree felony. The trial court denied the motion on November 3, 2017, finding the
motion was an untimely successive petition for postconviction relief and barred by res
judicata.
{¶10} It is from this decision King now appeals.
ASSIGNMENT OF ERROR
{¶11} King raises one Assignment of Error:
{¶12} “THE APPELLANT’S SENTENCE IS CONTRARY TO LAW AND THE
TRIAL COURT ERRED WHEN IT DENIED HIS MOTION TO CORRECT SENTENCE BY
TREATING IT AS A PETITION FOR POST-CONVICTION RELIEF AND STATING IT
WAS BARRED BY THE DOCTRINE OF RES JUDICATA.”
ANALYSIS
{¶13} The State contends King raises the identical arguments in the July 10, 2017
motion entitled “Motion to Correct Sentence” as he did in his February 23, 2017 motion
entitled “Motion to Resentence.” In both motions, King argued he was improperly Muskingum County, Case No. CT2017-0091 5
convicted and sentenced on count one. The trial court denied his February 23, 2017
motion as a successive petition for postconviction relief and as barred by res judicata. We
affirmed the decision in State v. King, 2017-Ohio-4258. The trial court denied the July 10,
2017 motion as a successive petition for postconviction relief and found it was also barred
by the doctrine of res judicata. Upon review of the motions, we agree he raises the same
arguments.
{¶14} Based upon King’s past filings, the July 10, 2017 motion was a successive
petition for postconviction relief. R.C. 2953.23 governs successive petitions and states
the following in pertinent part, as subsection (A)(2) is not applicable sub judice:
(A) Whether a hearing is or is not held on a petition filed pursuant to section
2953.21 of the Revised Code, a court may not entertain a petition filed after
the expiration of the period prescribed in division (A) of that section or a
second petition or successive petitions for similar relief on behalf of a
petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must rely to
present the claim for relief, or, subsequent to the period prescribed in
division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized a new federal
or state right that applies retroactively to persons in the petitioner's situation,
and the petition asserts a claim based on that right. Muskingum County, Case No. CT2017-0091 6
(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted or, if the
claim challenges a sentence of death that, but for constitutional error at the
sentencing hearing, no reasonable factfinder would have found the
petitioner eligible for the death sentence.
{¶15} In reviewing appellant's motion/petition for postconviction relief, we find
King did not satisfy the requirements of R.C. 2953.23.
{¶16} We further find that King’s motion for postconviction relief is 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). King has filed eleven 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.
{¶17} King’s sole Assignment of Error is overruled. Muskingum County, Case No. CT2017-0091 7
CONCLUSION
{¶18} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Delaney, J.,
Wise, P.J. and
Baldwin, J., concur.