[Cite as State v. Sands, 2013-Ohio-2822.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2012-L-096
        - vs -                                       :

JOSEPH A. SANDS,                                     :

                 Defendant-Appellant.                :


Civil 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: 30611-160, Manchester FCI, P.O. Box 4000,
Manchester, KY, 40962 (Pro Se Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Joseph A. Sands appeals from the August 13, 2012 judgment entry of the

Lake County Court of Common Pleas, denying his petition for postconviction relief. In

doing so, the trial court found the petition untimely, procedurally improper, in part, and

barred by res judicata, in part. This court agrees, and affirms.

        {¶2}     In November 2006, Mr. Sands was convicted 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 generally State v. Sands,

11th Dist. No. 2007-L-003, 2008-Ohio-6981, ¶23. For purposes of sentencing, 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 terms to be served consecutively, for a total of twenty years

imprisonment. Id. Mr. Sands’ convictions arose from his plot to murder Painseville

Municipal Court Judge Michael Ciconetti, 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. Id. at ¶195. Thereafter, the

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

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

       {¶4}   In August 2011, Mr. Sands petitioned the trial court for postconviction

relief, pursuant to R.C. 2953.21. The trial court denied the petition, and this appeal

timely ensued. Mr. Sands assigns four errors:

       {¶5}   “[1.] The appellant was denied his constitutional right to the effective

assistance of counsel on appeal.

       {¶6}   “[2.] The appellant was denied his constitutional right to effective

assistance of counsel at trial.

       {¶7}   “[3.] The appellant was denied his constitutional right to the effective

assistance of counsel at trial.

       {¶8}   “[4.] The appellant was denied his right to the effective assistance of

counsel at sentencing.”




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       {¶9}   Initially, the court notes that the trial court, before considering Mr. Sands’

petition on its merits, found it untimely filed, and denied it without hearing on that basis.

This court agrees. As the trial court noted, R.C. 2953.21(A)(2) provides that a petition

for postconviction relief must be filed within one hundred eighty days after the date the

trial transcript is filed in the court of appeals. This provision may only be overridden if

R.C. 2953.23(A)(1) or (2) applies. R.C. 2953.23(A)(1) is limited to instances in which

the petitioner shows that he or she was unavoidably prevented from discovery of the

facts pertinent to the claim for relief, or in which the United States Supreme Court has

recognized a new federal or state right, which applies retroactively to the petitioner’s

situation. R.C. 2953.23(A)(2) applies only to instances where DNA testing establishes

by clear and convincing evidence that the petitioner is actually innocent. As Mr. Sands

made neither of these claims in his petition, the trial court was mandated to deny it.

R.C. 2953.23(A).

       {¶10} On this basis alone, the judgment of the trial court is affirmed. However,

the court will briefly discuss the assignments of error made.

       {¶11} An appellate court reviews the grant or denial of a petition for

postconviction relief for abuse of discretion. State v. Smith, 8th Dist. No. 94110, 2010-

Ohio-4492, ¶9.     The term “abuse of discretion” is one of art, connoting judgment

exercised by a court which neither comports with reason, nor the record. State v.

Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when

the trial court “applies the wrong legal standard, misapplies the correct legal standard,

or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d

401, 2008-Ohio-1720, ¶15 (8th Dist.2008).




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       {¶12} By his first assignment of error, Mr. Sands alleges his appellate counsel

was ineffective. In State v. Love, 11th Dist. No. 2007-L-030, 2007-Ohio-6256, ¶18, this

court held: “[C]laims regarding ineffective assistance of appellate counsel are not

cognizable in postconviction proceedings brought pursuant to R.C. 2953.21. Morgan v.

Eads, 104 Ohio St.3d 142, 2004 Ohio 6110, at ¶6, * * *. Such claims must be raised by

an application for reopening filed pursuant to App.R. 26(B). Morgan at ¶7.” (Parallel

citation omitted.) Consequently, this court will not entertain this argument. The first

assignment of error lacks merit on this basis.

       {¶13} By his second assignment of error, Mr. Sands alleges trial counsel was

ineffective for failure to investigate his claims regarding alibi witnesses.

       {¶14} “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 the trial,

which resulted in that judgment of conviction, or on an appeal from that judgment.”

(Emphasis sic.) State v. Perry, 10 Ohio St.2d 175, paragraph nine of the syllabus

(1967).

       {¶15} On his direct appeal, Mr. Sands alleged some forty-three instances of

ineffective assistance of counsel, which we thoroughly discussed, finding all without

merit. Sands, 2008-Ohio-6981, at ¶32-135. Trial counsel’s alleged failure to investigate

Mr. Sands’ claim that he had alibi witnesses who could absolve him does not seem to

be amongst those raised on direct appeal – but it could, and should have been. This is

not a fact which Mr. Sands was unable to discover at the time of trial or appeal, possibly




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bringing R.C. 2953.23(A)(1)(a) into play. This assignment of error is barred by res

judicata, and lacks merit.

         {¶16} By his third assignment of error, Mr. Sands alleges trial counsel was

ineffective for failing to require the state to turn over notes made by the informant

working with the state, Jason Green. This assignment of error is factually incorrect. On

direct appeal, this court noted:

         {¶17} “Mr. Sands’ rendition of the side-bar discussions as to these notes is

incorrect. It is clear that defense counsel requested production of the notes on two

occasions and the court instructed the state to produce the ‘notes’ if indeed they were in

the possession of the state or its witness. There is nothing in this record to demonstrate

that the notes were in the possession of the state or its witness, or were actually

produced or introduced at trial.” Id. at ¶68.

         {¶18} Apart from being factually wrong, this assignment of error is obviously

barred by res judicata, as this court has already considered it, and rejected it. It lacks

merit.

         {¶19} On December 10, 2012, January 7, 2013, and January 29, 2013, Mr.

Sands filed pleadings variously described as “reply” briefs, or a “petition” to address this

court. They are substantially the same, and appear to be in support of his second and

third assignments of error, in that they cite to the decision of the United States Supreme

Court in Sanders v. United States, 373 U.S. 1 (1963), for the proposition that res

judicata has no place in proceedings for a writ of habeas corpus. In response, this court

notes this is not a habeas proceeding, but a petition for postconviction relief, a purely

legal remedy provided by the State of Ohio. The court further notes the Supreme Court




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of Ohio recently held that “[r]es judicata bars [appellant] from using habeas corpus to

obtain a successive appellate review of the same claim.” Cool v. Turner, 135 Ohio

St.3d 185, 2013-Ohio-85. The claims of ineffective assistance of trial counsel raised by

the second and third assignments of error have already been reviewed, and rejected, by

this court.

       {¶20} Further, on February 19, 2013, Mr. Sands submitted supplemental

authority, also apparently in support of his second and third assignments of error,

directing the court’s attention to the decisions of the United States Supreme Court in

Lafler v. Cooper, __ U.S. ___, 132 S.Ct. 1376 (2012); and Missouri v. Frye, ___ U.S.

___, 132 S.Ct. 1399 (2012.) In Lafler, the Court held that ineffective assistance of

counsel can be found if a defendant shows that counsel’s advice led to the rejection of a

plea deal which the trial court would most likely have accepted, and which would have

resulted in a less onerous conviction or sentence. Id. at 1388-1389. In Frye, the Court

held that ineffective assistance of counsel may extend to situations where trial counsel

fails to notify a defendant of the terms of a plea offer. Id. at 1409-1411.

       {¶21} Mr. Sands does not allege in his petition that trial counsel counseled him

to reject a favorable plea deal, or failed to communicate such a deal. Lafler and Frye

are inapplicable.

       {¶22} By his fourth assignment of error, Mr. Sands alleges that trial counsel was

ineffective at sentencing, by failing to obtain merger of his convictions for engaging in a

pattern of corrupt activity, and conspiracy, for sentencing purposes. He believes that

since the evidence regarding his plot to commit arson and murder supported each

conviction, he can only be sentenced for one crime.           He has twice submitted as




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supplemental authority R.C. 2923.01, governing the crime of conspiracy, as further

support.

      {¶23} Mr. Sands is arguing that the crimes for which he was convicted are allied

offenses of similar import.   This issue was raised on direct appeal, and squarely

rejected. Sands, 2008-Ohio-6981, ¶187-194. In that opinion, this court noted that R.C.

2923.32(B)(1), concerning engaging in a pattern of corrupt activity, specifically allows a

defendant to be convicted of conspiracy as well. Id. at ¶191.

      {¶24} This assignment of error is barred by res judicata, and lacks merit.

      {¶25} The assignments of error being without merit, the judgment of the Lake

County Court of Common Pleas is affirmed.

      {¶26} It appearing from the record that appellant is indigent, costs are waived.



DIANE V. GRENDELL, J., concurs,

THOMAS R. WRIGHT, J., concurs in judgment only.




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