State v. Sands

2016 Ohio 7150

• Court: Ohio Court of Appeals
• Decided: September 30, 2016
• Docket: 2015-L-134
• Status: Published

Opinion

[Cite as State v. Sands, 2016-Ohio-7150.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2015-L-134 - vs - :

JOSEPH A. SANDS, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 06 CR 000401.

Judgment: Affirmed in part, vacated in part and remanded.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, 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, P.O. Box 57, 940 Marion-Williamsport Rd., Marion, OH 43302 (Appellant).

COLLEEN MARY O’TOOLE, J.

{¶1} Joseph A. Sands appeals from the judgment entry of the Lake County

Court of Common Pleas, denying his motions for sentencing, for establishment of a date

certain for oral hearing, and for a conveyance order. We affirm, but vacate Mr. Sands’

sentence in part, and remand for a new sentencing hearing. {¶2} In November 2006, Mr. Sands was found guilty, following jury trial, of one

count of engaging in a pattern of corrupt activity, a felony of the first degree; three

counts of conspiracy to commit aggravated murder, felonies of the first degree; and two

counts of conspiracy to commit aggravated arson, felonies of the first degree. See

State v. Sands, 11th Dist. Lake No. 2007-L-003, 2008-Ohio-6981, ¶23 (“Sands I”). For

sentencing purposes, the trial court merged the conspiracy counts, and sentenced Mr.

Sands to ten years imprisonment on the count of engaging in a pattern of corrupt

activity, and ten years for conspiracy, the counts to be served consecutively, for a total

term of imprisonment of 20 years. Id. The convictions arose from Mr. 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. Id. at ¶6.

{¶3} Mr. Sands appealed, and this court affirmed. Sands I at ¶195. The

Supreme Court of Ohio denied a motion for delayed appeal. State v. Sands, 127 Ohio

St.3d 1443, 2010-Ohio-5762.

{¶4} Mr. Sands was also tried and convicted on federal charges stemming from

his plot. He was sentenced on those charges to ten years of imprisonment. From the

record, it appears he has completed his federal sentence, and has been transferred to

the correctional facility in Marion, Ohio, to serve his state sentence.

{¶5} Since the commencement of his imprisonment, Mr. Sands has filed

numerous actions in both the federal and Ohio courts. He filed the motions in this case

between July 17, 2015, and August 11, 2015. The trial court’s judgment entry denying

the motions was filed November 20, 2015. Mr. Sands timely noticed this appeal,

2 assigning seven errors. The first reads: “The judgment of conviction and sentence for

count one, engaging in a pattern of corrupt activity, Ohio’s version of ‘RICO,’ are illegal

and void as the indictment either fails to charge an offense, of the language of count

one, per se, negates the offense it attempts to charge.”

{¶6} It is somewhat difficult to ascertain exactly what Mr. Sands’ arguments in

support of this assignment of error are. As stated at oral argument in this case, it

appears his principal contention is that he cannot be found guilty of engaging in a

pattern of corrupt activity, based on his conviction on a single count of conspiracy.

{¶7} This argument was raised, and rejected by this court, in Sands I at ¶137-

144. Further, it is substantively untrue. As this court held in Sands I, at ¶137-144:

{¶8} “Mr. Sands argues in his second assignment of error that the evidence is

insufficient to sustain his conviction for one count of engaging in a pattern of corrupt

activity because he was sentenced for only one conspiracy. We find this argument to

be wholly without merit, as the state offered sufficient evidence that Mr. Sands was

conspiring to engage in multiple predicate offenses.

{¶9} “* * *

{¶10} “While Mr. Sands is challenging the sufficiency of the evidence as to a

pattern of engaging in corrupting activity, he is actually making a legal argument that he

cannot be convicted of one conspiracy and be found guilty of engaging in a pattern of

corrupt activity at the same time. Mr. Sands fails to realize that while he was sentenced

on only one count of conspiracy, he was convicted of conspiracy for five predicate

offenses. Specifically, the state introduced sufficient evidence of conspiracy to commit

the aggravated murder of Mayor Williams, Judge Cicconetti, and Prosecutor Gurley,

3 and that Mr. Sands conspired to commit aggravated arson against both Mayor Williams

and his property.

{¶11} “Pursuant to R.C. 2923.32(A)(1), Engaging in a pattern of corrupt activity,

‘(n)o person (* * *) associated (* * *) with, any enterprise shall conduct or participate in,

directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity.’

{¶12} “Further, R.C. 2923.31(E) defines a ‘pattern of corrupt activity’ as ‘two or

more incidents of corrupt activity, whether or not there has been a prior conviction, that

are related to the affairs of the same enterprise, are not isolated, and are not so closely

related to each other and connected in time and place that they constitute a single

event.’

{¶13} “There was ample evidence that Mr. Sands intended to construct pipe

bombs, throw them into these three victims’ homes, and further, ‘shoot the head off of

Judge Cicconetti.’ From the many recordings of Mr. Sands’ own discussions with Mr.

Green, Mr. Sands intended to kill Mayor Williams first, before his sentencing on April 20,

Mr. Gurley would be killed by a month later, and then depending on the circumstances,

it might take ‘over a year’ to shoot the judge. The evidence gathered included all the

equipment necessary to make multiple pipe bombs, loaded with shrapnel and ether, as

well as an extremely large quantity of various ammunition, handguns, shotguns, and

rifles. A ‘dry run’ was conducted on Mayor Williams’ home where Mr. Sands planned to

run out of a vehicle and throw a pipe bomb through Mayor Williams’ bay window. There

was a handwritten note with the intended targets’ names and addresses, and numerous

recorded conversations in which Mr. Sands detailed the plans. Thus, the state

introduced more than sufficient evidence to support Mr. Sands’ convictions for the

4 multiple predicate offenses of the conspiracy to commit the aggregate murder of three

victims, and conspiracy to commit aggravated arson against Mayor Williams and his

property.

{¶14} “Mr. Sands was ultimately sentenced for one conspiracy, because for

purposes of sentencing, there was one overall conspiracy to commit several predicate

offenses. Thus, R.C. 2923.01(F), states: ‘A person who conspires to commit more than

one offense is guilty of one conspiracy, when the offenses are the object of the same

agreement or continuous conspiratorial relationship.’

{¶15} “Mr. Sands, however, was convicted of conspiracy to commit aggravated

murder on three counts, one for each victim, and two counts of aggravated arson, one

for Mayor Williams, and the second for his property. Thus, he was convicted for

conspiring to commit five predicate offenses. The evidence was surely sufficient in this

case to support Mr. Sands’ conviction for engaging in a pattern of corrupt activity since

he was attempting to commit five crimes.”

{¶16} Under his first assignment of error, Mr. Sands also argues that the time

frame alleged in the indictment for his murderous activities is insufficient, as a matter of

law, to support a conviction for engaging in a pattern of corrupt activity. The indictment

provides that the offenses alleged therein occurred between March 1, 2006, and April 9,

2006.

{¶17} This argument was not raised in any of Mr. Sands’ motions presented to

the trial court, and is waived for purposes of appeal. Quick v. Jenkins, 7th Dist.

Columbiana No. 13 CO 4, 2013-Ohio-4371, ¶27.

5 {¶18} We are aware that Mr. Sands strongly disagrees with our interpretation of

the law regarding engaging in a pattern of corrupt activity as applied to his case: it is an

issue he has raised in various guises to this court on various occasions. At oral

argument, his reasoning was detailed and vigorous. Nevertheless, we stand with our

prior determination that he was both properly indicted, and convicted, of this crime. If

he disagrees with our opinion, he can appeal to the Supreme Court of Ohio.

{¶19} The first assignment of error lacks merit.

{¶20} The second assignment of error reads:

{¶21} “Appellant’s sentence and conviction for count one, engaging in a pattern

of corrupt activity, are illegal and void as a matter of law, where R.C. 2923.32(A)(1)

requires two or more underlying offenses, where the state and trial court ‘maintained’

‘only one conspiracy’ charged multiplicitously in counts 2, 3, 5, 6, and 7, until after the

jury determined guilt, but ‘merged’ them prior to imposing sentence, disposing of the

‘pattern of corrupt activity’ element as not only allied offenses of similar import, but as

involving ‘only one conspiracy’ implicating double jeopardy; the grand jury lacked legal

power, authority, and/or jurisdiction to indict the appellant for RICO; and the trial court

lacks legal power, authority and/or jurisdiction to render judgment of conviction and

impose sentence for the RICO charge.”

{¶22} Mr. Sands argues that by merging the various conspiracy charges against

him for sentencing, the trial court negated any “pattern” of corrupt activity. This

argument was raised, and disposed of, in Sands I, at ¶187-194. That opinion and

judgment remains res judicata.

{¶23} The second assignment of error lacks merit.

6 {¶24} The third assignment of error reads:

{¶25} “The trial court and the State of Ohio were divested of jurisdiction over the

appellant’s criminal case and/or to sentence or ‘resentence’ the appellant after the trial

court and/or state transferred custody of the appellant to the federal government, where

the appellant was tried, convicted, and fully served a ten-year sentence, without the

state or federal government having sought or issued a governor’s warrant, or any other

type of document required to legally transfer custody of the appellant to the federal

government; and where the state made no attempt whatsoever during said ten-year

sentence, to have the appellant returned to Ohio to impose a valid sentence.”

{¶26} Mr. Sands observes that custody of his person has exchanged between

the federal government and the State of Ohio on several occasions. He asserts that

any such exchange was illegal without the signature of the Governor of Ohio upon an

extradition warrant. This is untrue. The statutes he cites – R.C. 2963.01, R.C. 2963.05,

and R.C. 2963.06 – do not stand for this proposition.

{¶27} The third assignment of error lacks merit.

{¶28} The fourth assignment of error reads: “The sentence is unlawful and not

authorized by law, and therefore illegal and void where the trial court failed to comply

with all mandatory statutory sentencing provisions when pronouncing the ‘attempted

sentence’; and the sentence violates double constitutional jeopardy prohibitions.”

{¶29} Mr. Sands cites authority that the trial court must make certain findings

pursuant to R.C. 2929.24(C)(4) when imposing consecutive sentences, and it did not do

so. This is incorrect. Pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the

7 trial court was not required to make findings when imposing consecutive sentences at

the time of Mr. Sands’ sentencing.

{¶30} The fourth assignment of error lacks merit.

{¶31} The fifth assignment of error reads:

{¶32} “The failure of the trial court to dispose of counts four, and eight through

fourteen in the judgment entry of sentence results in a judgment entry that does not fully

determine the case; that is not final or appealable under Article IV, §3(B)(2) of the Ohio

Constitution, R.C. 2505.02, and/or R.C. 2953.02, and causes any appeal taken from

such judgment to be ‘obiter dictum’; and the appellant’s criminal case has never left the

trial court.”

{¶33} Mr. Sands notes he was not found guilty by the jury of certain charges for

which he was indicted by the grand jury. He postulates that the failure of the trial court

to deal with these charges in its judgment entry of sentence renders that entry

interlocutory, not final, and not appealable.

{¶34} It is true that a trial court must file a judgment entry disposing of each and

every charge against a defendant, whether the defendant was found guilty or not, in

order to make the judgment entry of sentence final and appealable. State v. Johnson,

4th Dist. Scioto No. 14CA3660, 2015-Ohio-3370, ¶10. However, the disposition of

charges on which a defendant is found not guilty need not be contained in the judgment

entry of sentence. Id. at ¶11. Here, the trial court disposed of the charges on which the

jury did not find Mr. Sands guilty in a judgment entry filed December 1, 2006.

{¶35} The fifth assignment of error lacks merit.

8 {¶36} The sixth assignment of error reads: “The postrelease control imposed by

the trial court is illegal, void, and unenforceable as a matter of law.” Mr. Sands asserts

the trial court erred in putting in the journal entry of sentence, “that post release control

is mandatory in this case up to a maximum of five years [.]” He asserts the trial court

was required to state that post release control was mandatory for five years, and that

the judgment entry is thus, void.

{¶37} Mr. Sands is correct that the language used by the trial court voids that

portion of his sentence relating to postrelease control. See State v. Jones, 2d Dist.

Montgomery No. 26228, 2015-Ohio-1749, ¶5. We further note the same error pertains

to the language used by the trial court at the sentencing hearing. However, any error in

the imposition of postrelease control may be corrected by the trial court, since Mr.

Sands is still in state custody. Id. at ¶6. Consequently, we vacate that portion of Mr.

Sands’ sentence relating to postrelease control. On remand, the trial court will hold a

new sentencing hearing to correct the imposition of postrelease control. R.C.

2929.191(C).

{¶38} The sixth assignment of error has merit, to the extent indicated.

{¶39} The seventh assignment of error reads: “The judgment and sentence are

illegal and void where the trial court ‘merged’ count 2 ‘RICO’ with counts 3, 5, 6, and 7,

and imposed sentence thereon, where count 2 ‘RICO’ was dismissed prior to trial, not

submitted to the jury, and where the appellant was not found guilty of count 2 ‘RICO’ by

the jury.”

{¶40} Mr. Sands was originally indicted on two counts of engaging in a pattern of

corrupt activity. Only one was submitted to the jury. The trial court never merged any

9 count for engaging in a pattern of corrupt activity with the counts for conspiracy, as Mr.

Sands seems to argue.

{¶41} The seventh assignment of error lacks merit.

{¶42} The judgment of the Lake County Court of Common Pleas is affirmed, but

Mr. Sands’ sentence relating to postrelease control is vacated. This matter is remanded

for a new sentencing hearing. All pending motions are hereby overruled.

DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.