State v. Sands

[Cite as State v. Sands, 

.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


 STATE OF OHIO,                                     :      OPINION

                  Plaintiff-Appellee,               :
                                                           CASE NO. 2020-L-078
         - vs -                                     :

 JOSEPH A. SANDS,                                   :

                  Defendant-Appellant.              :


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

 Judgment: Affirmed.


 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, 940 MarionWilliamsport Road, P.O. Box 57, Marion, OH 43302 (Defendant-Appellant).


MATT LYNCH, J.

        {¶1}      Defendant-appellant, Joseph A. Sands, appeals from the Lake County

Court of Common Pleas’ denial of his motion for a hearing on revival of a dormant

judgment. For the following reasons, we affirm the judgment of the lower court.

        {¶2}      On November 22, 2006, Sands was convicted of Engaging in a Pattern of

Corrupt Activity, a felony of the first degree, in violation of R.C. 2923.32(A)(1); three

counts of Conspiracy to Commit Aggravated Murder, felonies of the first degree, in
violation of R.C. 2923.01(A)(1); and two counts of Conspiracy to Commit Aggravated

Arson, felonies of the second and third degree, in violation of R.C. 2909.02(A)(1) and (2)

and 2923.01(A)(1). The convictions related to Sands’ plot to murder Painesville Municipal

Court Judge Michael Cicconetti, North Perry Mayor Tom Williams, and North Perry

Prosecutor Joseph Gurley. Sands was sentenced to a prison term of 20 years.

       {¶3}   Sands’ convictions and sentence were affirmed on direct appeal. State

v. Sands, 11th Dist. Lake No. 2007-L-003, 

. 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, 

; State v. Sands, 11th Dist. Lake No. 2016-

L-124, 

; State v. Sands, 11th Dist. Lake No. 2017-L-009, 2017-Ohio-

5860; State v. Sands, 11th Dist. Lake No. 2017-L-104, 

; State v. Sands,

11th Dist. Lake Nos. 2019-L-022 and 023, 

; State v. Sands, 11th Dist.

Lake No. 2020-L-038, 

; and State v. Sands, 11th Dist. Lake No. 2020-L-

072, 

; 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 March 9, 2017, the Lake County Clerk of Courts sent a letter to the

Marion Correctional Institution (MCI) cashier’s office requesting that it “apply any funds

on account for [Sands] … toward [his] court cost obligation.” The letter stated that a

certified copy of the judgment entry ordering court costs and a bill of costs were enclosed,

showing Sands owed $2,732.90. On April 16, 2019, Sands filed a “Motion for a Cease

and Decease Order” (sic), in which he requested that the trial court waive his court costs

due to indigency and order the clerk of courts to cease requests for payment of costs until

a hearing was held on his ability to pay. This motion was denied in a May 8, 2019




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Judgment Entry. Sands filed a second motion on May 16, 2019, arguing removal of the

funds from his account was not permitted without an order of garnishment. This motion

was denied in a May 29, 2019 Judgment Entry.

      {¶5}   Sands appealed from the May 8, 2019 entry, raising issues relating to the

May 29 entry. State v. Sands, 11th Dist. Lake No. 2019-L-050, 

. This

court noted the foregoing procedural deficiency, but, nonetheless, rejected the substance

of his argument that funds could not be withheld from his inmate account without a

garnishment hearing and held he was afforded due process from the procedures set forth

in R.C. 5120.133 and Ohio Adm.Code 5120-5-03. Id. at ¶ 13.

      {¶6}   On May 19, 2020, Sands filed a “Motion for Leave of Court to File Motion

for a Hearing Upon the Trial Court Revive a Dormant Judgment of Dec. 11, 2006 Pursuant

to Compl.Loc.R. 3.04.” (Sic.) In his motion, he argued that the trial court had “revived a

dormant judgment” for costs on March 9, 2017, when the letter and the certified judgment

of conviction from December 11, 2006, were sent to MCI ordering payment of costs. He

argued that the December 11 judgment was a dormant judgment upon which the court

could not collect without notifying him and conducting a hearing. The trial court denied

the motion on June 5, 2020.

      {¶7}   Sands timely appeals and raises the following assignments of error:

      {¶8}   “[1.] The trial court committed prejudic[ial] error when the court revive[d] its

dormant judgment entry that is barred by the (10) year statute of limitation R.C.

2325.18(A) in violation of the defendant[’s] [U]nited [S]tates constitutional rights due

process amendment 14.

      {¶9}   “[2.] The trial court committed prejudic[ial] error when the trial court failed




                                             3
to notify the defendant and conduct a hearing prior to reviving its Dec. 11[,] 2006 dormant

judgment for cost by giving the defendant a[n] opportunity to challenge the court dormant

judgment R.C. 2925.17 in violation of the defendant[’s] [U]nited [S]tates constitutional

rights amendment 14.” (Sic.)

       {¶10} The State argues that this appeal is barred by the doctrine of res judicata.

We agree.

       {¶11} “[A] convicted defendant is precluded under the doctrine of res judicata 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 the trial which resulted in that judgment of conviction or on appeal from that

judgment.” State v. Szefcyk, 

, 

 (1996). Moreover,

“‘[p]rinciples of res judicata prevent relief on successive, similar motions raising issues

which were or could have been raised originally.’” State v. Hall, 11th Dist. Trumbull No.

2010-T-0053, 

, ¶ 7, citing Brick Processors, Inc. v. Culbertson, 

, 

 (8th Dist.1981), paragraph one on the syllabus; State v.

Kleiner, 11th Dist. Geauga No. 2012-G-3077, 

, ¶ 14. Pursuant to the

doctrine of res judicata, “[a] valid, final judgment rendered upon the merits bars all

subsequent actions based upon any claim arising out of the transaction or occurrence

that was the subject matter of the previous action.” State v. Bene, 11th Dist. Lake Nos.

2019-L-070, et al., 

, citing Grava v. Parkman Twp., 

, 

 (1995), syllabus.

       {¶12} Sands takes issue with the clerk of courts’ letter dated March 9, 2017,

ordering MCI to apply funds from his inmate account to his costs, characterizing said letter




                                             4
as a revival of a dormant judgment and arguing that he did not get a hearing before the

court “revived” the judgment ordering that he pay fees. Sands, however, already filed

multiple motions in the trial court, on April 16, 2019, and May 16, 2019, raising issues with

the letter/order to MCI, which were denied, as well as a subsequent appeal, initiated on

June 3, 2019, and addressed in Sands, 

. In those motions and appeal,

he raised the argument that he was entitled to a hearing, although not the issue of revival

specifically. Sands should have previously raised the present issues in those motions

and appeal, since they relate to the same subject matter and court order/letter. Nothing

prevented Sands from raising the alleged errors previously and he is not permitted to

raise a different legal argument each time he discovers one. See State v. Raulston, 11th

Dist. Portage No. 2019-P-0035, 

 (“[r]es judicata promotes judicial

economy and the finality of judgments on issues that a defendant had a fair opportunity

to be heard”).

       {¶13} Courts have found that arguments challenging whether a judgment was

properly revived must be raised in an appeal from that judgment. State v. Wright, 2d Dist.

Montgomery No. 27016, 

 (failure to appeal judgment reviving costs

resulted in res judicata where the defendant attempted to subsequently challenge it with

a new motion); State v. Norris, 5th Dist. Stark No. 2018CA00007, 

(where the issues raised in the argument of improper revival of a dormant judgment entry

were repetitive of prior claims, defendant was “barred by res judicata from raising this

claim again”); State v. Zuranski, 8th Dist. Cuyahoga No. 85091, 

(issues regarding imposition of court costs should have been raised in an appeal from the

order reviving the court’s judgment). In this case, while the court did not actually issue a




                                             5
judgment entry stating it was reviving its prior entry and Sands is challenging the clerk’s

letter/order that MCI collect funds on the basis that it essentially constituted a revival of

the judgment ordering costs in 2006, he has already had the opportunity to challenge this

order.

         {¶14} Sands contends that he is not barred from raising these issues due to res

judicata because he is filing a direct appeal from a final judgment. This contention is

unsupported by law, as the existence of a final order has no bearing on whether res

judicata applies. As is evident in this case, Sands has repeatedly filed motion after motion

in order to obtain final orders from which he can appeal, and many of his arguments in

these appeals have been found to be barred by the doctrine of res judicata. The purposes

of res judicata are to promote finality and judicial economy, principles which are

particularly pertinent in the present case, where Sands has filed 13 appeals and 10

original actions in this court, all stemming from the same convictions.

         {¶15} Sands also argues that the State failed to raise the issue of res judicata

below. The State, although not responsive to every filing made by Sands including the

motion giving rise to this appeal, has repeatedly objected to his filings in the trial court

and on appeal as barred by res judicata, including in its appellate brief here. Under the

circumstances of this case, where it is evident the matter is barred by the doctrine of res

judicata, and given this court’s consistent application of the doctrine of res judicata where

the defendant habitually files unmeritorious and repeated motions, although not raised in

a response to a defendant’s motion, we do not find merit in his position. State v. Mitchell,

11th Dist. Portage No. 2019-P-0105, 

; Sands, 

; State v. Stoutamire, 11th Dist. Trumbull No. 2013-T-0107, 

, ¶




                                             6
14-16.

         {¶16} The sole assignment of error is without merit.

         {¶17} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, denying Sands’ motion for a hearing on revival of a dormant judgment,

is affirmed. Costs to be taxed against appellant.


MARY JANE TRAPP, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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