State v. Sands , 2020 Ohio 6682 ( 2020 )

[Cite as State v. Sands, 2020-Ohio-6682.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-L-076
- 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 Karen A. Sheppert, 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 Marion-
Williamsport Road, P.O. Box 57, Marion, OH 43302 (Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Joseph A. Sands, appeals from the judgment of the
Lake County Court of Common Pleas, denying his motion to dismiss the judgment of his
conviction. For the following reasons, we affirm the judgment of the lower court.
{¶2} On June 16, 2006, Sands was indicted by the Lake County Grand Jury for
two counts of Engaging in a Pattern of Corrupt Activity, felonies of the first degree, in
violation of R.C. 2923.32(A)(1); four counts of Conspiracy to Commit Aggravated Murder,
felonies of the first degree, in violation of R.C. 2923.01(A)(1); and eight 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 charges arose from
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. Sands was convicted of Engaging in a Pattern of Corrupt
Activity, three counts of Conspiracy to Commit Aggravated Murder, and two counts of
Conspiracy to Commit Aggravated Arson. He was sentenced to a prison term of 20 years.
{¶3} Sands’ conviction and sentence were affirmed on direct appeal. State
v. Sands, 11th Dist. Lake No. 2007-L-003, 2008-Ohio-6981. 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, 2013-Ohio-2822; State v. Sands, 11th Dist. Lake No. 2016-
L-124, 2017-Ohio-5857; State v. Sands, 11th Dist. Lake No. 2017-L-009, 2017-Ohio-
5860; State v. Sands, 11th Dist. Lake No. 2017-L-104, 2018-Ohio-2457; State v. Sands,
11th Dist. Lake No. 2019-L-050, 2019-Ohio-4736; State v. Sands, 11th Dist. Lake Nos.
2019-L-022 and 023, 2019-Ohio-4925; and State v. Sands, 11th Dist. Lake No. 2020-L-
038, 2020-Ohio-3935.
{¶4} In State v. Sands, 11th Dist. Lake No. 2015-L-134, 2016-Ohio-7150, we
reversed the trial court’s judgment in part as the court erred in its advisement regarding
postrelease control, misstating the proper time period. This court held that “the language
used by the trial court voids that portion of [Sands’] sentence relating to postrelease
control,” vacated that portion of his sentence, and remanded for the lower court to “hold
a new sentencing hearing to correct the imposition of postrelease control.” Id. at ¶ 37.
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On November 15, 2016, the trial court, after holding a hearing, issued a Judgment Entry
Nunc Pro Tunc. The Entry stated that the court “issues a correction to the judgment entry
filed on December 11, 2006, to include in the judgment the statement that defendant will
be supervised under section 2967.28 of the Revised Code after the defendant leaves
prison.” It further noted that this entry corrected its initial sentencing entry by deleting the
incorrect postrelease control advisement and substituting in a new postrelease control
notification.
{¶5} On March 20, 2020, Sands filed a Motion of the Defendant to Dismiss the
Judgment of Conviction, as it is Void in its Present Form, arguing that the trial court had
failed to issue a single document that stated both the fact of conviction and the correct
sentence. The trial court denied the motion in a June 5, 2020 Judgment Entry.
{¶6} Sands timely appeals and raises the following assignment of error:
{¶7} “The trial court of Lake County Painesville, Ohio has committed prejudic[ial]
error, by dismissing the appellant[’]s motion, based on the fact of law, that the appellant[’]s
judgment entry of sentence of 2006 is void in its present form, and does not comply with
Crim.R. 32(C) and R.C. 2505.02 [causing] the appellant[’]s judgment entry of sentence
not to be [a] final appealable order under Ohio law.”
{¶8} Sands argues that he is entitled to a final entry, which the lower court has
not issued, because there is no single judgment entry containing both the complete
sentence and the conviction. This argument is based on the fact that the nunc pro tunc
entry issued on November 15, 2016, states the revised postrelease control
advisement/sanction but does not restate the entire sentence and the fact of conviction.
In support, he cites to State v. Baker, 119 Ohio St.3d 197, 893 N.E.2d 163, 2008-Ohio-
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3330, which held that a judgment of conviction must be a single document that “include[s]
the sentence and the means of conviction, whether by plea, verdict, or finding by the
court, to be a final appealable order under R.C. 2505.02.” Id. at ¶ 19.1 The State argues
that his appeal is barred by the doctrine of res judicata.
{¶9} “[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, 77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996); State v.
McGowan, 11th Dist. Ashtabula No. 2016-A-0052, 2017-Ohio-7124, ¶ 7 (“[t]he doctrine
of res judicata bars the further litigation in a criminal case of issues that were or could
have been raised previously in a direct appeal”). Sands has previously appealed to this
court and raised the same issue that the November 15, 2016 “amended nunc pro tunc
judgment entry is void and not a final appealable order.” Sands, 2017-Ohio-5857, at ¶ 8.
This court found that argument lacked merit and the court properly corrected postrelease
control by way of a nunc pro tunc entry. Id. at ¶ 9.
{¶10} Sands argues that the doctrine of res judicata does not apply because the
failure to issue a final order can be raised at any time. It has been held that where the
trial court has not issued a final, appealable order due to, inter alia, failure to comply with
Crim.R. 32 and the one judgment rule, the doctrine of res judicata does not act as a bar
to an appeal. State v. Alston, 9th Dist. Lorain No. 19CA011532, 2020-Ohio-4258, ¶ 8;
1. As clarified in State v. Lester, 130 Ohio St.3d 303, 958 N.E.2d 142, 2011-Ohio-5204, Crim.R. 32 requires
that for an entry to be final, it need not include the manner of the conviction but must contain the fact of the
conviction. Id. at ¶ 11-12.
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State v. Jama, 10th Dist. Franklin No. 11AP-210, 2012-Ohio-2466, ¶ 48 (“[w]e decline to
apply the doctrine of res judicata to the circumstances at hand where there was not a final
appealable order in effect * * * from which an appeal could be filed”). “[R]es judicata
cannot apply if the trial court never issued a final, appealable order.” State ex rel.
McIntyre v. Summit Cty. Court of Common Pleas, 144 Ohio St.3d 589, 2015-Ohio-5343,
45 N.E.3d 1003, ¶ 7.
{¶11} We find that Sands was not denied a final, appealable order. When this
court determined there had been an error in the manner in which Sands was advised on
postrelease control, this court vacated that portion of his sentence and remanded for the
lower court to correct the imposition of postrelease control pursuant to R.C. 2929.191(C).
The lower court addressed exactly that and issued a nunc pro tunc entry which substituted
the correct advisement. While we recognize that an initial final, appealable order of
conviction must contain required elements including the fact of conviction and the
sentence, case law supports a conclusion that a subsequent entry stating amended
postrelease control is sufficient to satisfy R.C. 2929.191 and create a final appealable
order. “[W]hen a trial court corrects postrelease control pursuant to R.C. 2929.191, the
entry that corrects postrelease control is a final, appealable order and the original
judgment of conviction stands with the nunc pro tunc entry as a judgment of conviction”
and a defendant does not have a “right to a single document containing his nunc pro tunc
postrelease control correction and his original judgment of conviction.” State ex rel.
Evans v. Medina Cty. Court of Common Pleas, 9th Dist. Medina No. 20CA0012-M, 2020-
Ohio-2979, ¶ 9-10. In State v. Williams, 9th Dist. Summit No. 27101, 2014-Ohio-1608,
the court noted that the procedure anticipated for correction of postrelease control
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notifications was a limited resentencing hearing, and that “[i]f the Supreme Court viewed
R.C. 2929.191 as requiring trial courts to reissue the original sentencing entry along with
the post-release control notification, it could have so specified.” Id. at ¶ 11-12, citing R.C.
2929.191 and State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶
26. Thus, “an entirely new sentencing entry” is not required for a limited remand on
postrelease control. (Citation omitted.) Id. at ¶ 12; also State v. Cox, 2d Dist. Green No.
2020-CA-14, 2020-Ohio-5030, ¶ 24.
{¶12} Based on the foregoing authority, we find no grounds to order a new entry
be issued by the trial court. We further recognize that since Sands was already permitted
to appeal from the nunc pro tunc entry at issue, it is evident we accepted the order as
final and appealable at that time as well and Sands is not entitled to an entry other than
the one already properly issued by the trial court on November 15, 2016.
{¶13} The sole assignment of error is without merit.
{¶14} For the foregoing reasons, the Judgment Entry of the Lake County Court of
Common Pleas, denying Sands’ motion to dismiss the judgment of his conviction, is
affirmed. Costs to be taxed against appellant.
THOMAS R. WRIGHT, J.,
MARY JANE TRAPP, J.,
concur.
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