[Cite as State v. King,
2016-Ohio-2788.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
RICHARD KING : Case No. CT2015-0058
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2004-0327
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 29, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GERALD V. ANDERSON, II RICHARD KING, Pro Se
27 North Fifth Street #489103
P.O. Box 189 North Central Correctional Institution
Zanesville, OH 43702-0189 670 Marion Williamsport Road E.
Marion, OH 43302
Muskingum County Case No. CT2015-0058 2
Farmer, P.J.
{¶1} On November 10, 2004, the Muskingum County Grand Jury indicted
appellant, Richard King, on sixty-two counts of pandering obscenity involving a minor in
violation of R.C. 2907.321(A)(1) and (5). A jury trial commenced on January 25, 2005.
The jury found appellant guilty as charged. By entry filed 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.
{¶2} Appellant filed an appeal. By opinion and judgment entry filed 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, Muskingum App. No.
CT05-0017, 2006-Ohio-226.
{¶3} Upon remand, the trial court resentenced him to the same sentence. See,
Entry filed March 8, 2006. Appellant filed an appeal. This court affirmed the resentencing.
State v. King, Muskingum App. No. CT06-0020, 2006-Ohio-6566.
{¶4} 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
court denied the motions/petitions. 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.
Muskingum County Case No. CT2015-0058 3
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.
{¶5} 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 October 20, 2015, the trial court denied the motion.
{¶6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
APPELLANT'S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE
OHIO CONSTITUTION BY LITIGATING IN A MATTER IN WHICH THE TRIAL COURT
DID NOT ENJOY SUBJECT-MATTER JURISDICTION."
II
{¶8} "THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
APPELLANT'S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE
OHIO CONSTITUTION BY FAILING TO SUA SPONTE VACATE THE VOID ENTRY
AND DISMISS APPELLANT'S CASE WITH PREJUDICE."
III
{¶9} "APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL
COURT COMMITTED PLAIN ERROR AS IT PERMITTED THE PROSECUTOR TO
AMEND THE INDICTMENT WITHOUT RESUBMISSION OF THE CAUSE TO THE
Muskingum County Case No. CT2015-0058 4
GRAND JURY IN VIOLATION OF HIS UNITED STATES CONSTITUTION FIFTH
AMENDMENT AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."
IV
{¶10} "THE APPELLANT'S UNITED STATES CONSTITUTION FOURTEENTH
AMENDMENT AND OHIO CONSTITUTION ARTICLE I, SECTION 16 RIGHTS OF DUE
PROCESS OF LAW WAS VIOLATED AS APPELLANT'S SENTENCE IS CONTRARY
TO LAW AND THE RECORD DOES NOT SUPPORT THE IMPOSED SENTENCE."
V
{¶11} "THE APPELLANT'S RIGHT OF DUE PROCESS UNDER THE UNITED
STATES CONSTITUTION FOURTEENTH AMENDMENT AND OHIO CONSTITUTION
ARTICLE I, SECTION 16 WAS VIOLATED WHEN HE WAS RE-SENTENCED
PURSUANT TO STATE V. FOSTER, 845 N.E.2d 470 WHEN THE TRIAL COURT
LACKED SUBJECT-MATTER JURISDICTION TO RE-SENTENCE APPELLANT."
I, II, III, IV, V
{¶12} Appellant claims the trial court erred in denying his September 29, 2015
motion to vacate void conviction, as the trial court lacked subject matter jurisdiction
because the indictment was invalid or void and therefore his sentence was contrary to
law. We disagree.
{¶13} At the outset, we note appellant's September 29, 2015 motion was a petition
for postconviction relief under R.C. 2953.21. State v. Reynolds, 79 Ohio St.3d 158 (1997).
{¶14} In his appellate brief at 3, appellant specifically argues: "The Trial Court was
without subject-matter jurisdiction to render a judgment against the Appellant, nor was it
permitted to litigate the matters involving this case when it permitted the amendment of
Muskingum County Case No. CT2015-0058 5
the indictment to reflect dates of offenses that were not presented to the Grand Jury and
to charge crimes that are subsequent to the date of the filing of the indictment."
{¶15} "Because subject-matter jurisdiction goes to the power of the court to
adjudicate the merits of a case, it can never be waived and may be challenged at any
time." Pratts v. Hurley, 102 Ohio St.3d 81,
2004-Ohio-1980, ¶ 11, citing United States v.
Cotton,
535 U.S. 625 (2002).
{¶16} The November 10, 2004 indictment contained sixty-two counts of pandering
obscenity involving a minor. The charges arose from images discovered on appellant's
computer that had been seized on March 23, 2004. Sixty-one of the counts contained
this date. On the morning of trial, January 25, 2005, the state amended the indictment to
reflect more accurate dates for the offenses, established from information retrieved from
the specific images. Defense counsel did not object (T. at 10-11), stating the state was
within its authority pursuant to Crim.R. 7(D) which states the following in pertinent part:
"The court may at any time before, during, or after a trial amend the indictment,
information, complaint, or bill of particulars, in respect to any defect, imperfection, or
omission in form or substance, or of any variance with the evidence, provided no change
is made in the name or identity of the crime charged." Changing the date on the offenses
did not change the name or identity of the crime charged. Appellant's arguments on the
lack of subject matter jurisdiction are without merit.
{¶17} In addition, any challenge to the indictment could have been raised on direct
appeal which appellant failed to do; therefore, the challenge is barred under the doctrine
of res judicata. State v. Allen, 5th Dist. Muskingum No. CT2013-0006; State v. Lowery,
2nd Dist. Montgomery No. 24198, 2011-Ohio-2827. As stated by the Supreme Court of
Muskingum County Case No. CT2015-0058 6
Ohio in State v. Perry,
10 Ohio St.2d 175 (1967), paragraphs eight and nine of the
syllabus, the doctrine of res judicata is applicable to petitions for postconviction relief.
The Perry court explained the doctrine at 180-181 as follows:
Under 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 by the defendant at trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.
{¶18} Furthermore, based upon appellant's past filings, the subject 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
Muskingum County Case No. CT2015-0058 7
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.
(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.
{¶19} In reviewing appellant's motion/petition for postconviction relief, we find
appellant did not satisfy the requirements of R.C. 2953.23.
{¶20} Upon review, we find the trial court did not err in denying appellant's
motion/petition.
{¶21} Assignments of Error I, II, III, IV, and V are denied.
Muskingum County Case No. CT2015-0058 8
{¶22} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Farmer, P.J.
Hoffman, J. and
Wise, J. concur.
SGF/sg 422
