[Cite as State v. King, 2018-Ohio-1696.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. CT2017-0091
                                                :
 RICHARD KING                                   :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
                                                    Court of Common Pleas, Case No.
                                                    CR2004-0327



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             April 30, 2018




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 D. MICHAEL HADDOX                                  RICHARD KING, PRO SE
 MUSKINGUM COUNTY PROSECUTOR                        #489-103
                                                    North Central Correctional Institution
 GERALD V. ANDERSON II                              P.O. Box 1812
 27 North Fifth St., P.O. Box 189                   Marion, OH 43302
 Zanesville, OH 43702-0189
Muskingum County, Case No. CT2017-0091                                                  2

Delaney, J.

        {¶1} Defendant-Appellant Richard King appeals the November 3, 2017 judgment

entry of the Muskingum County Court of Common Pleas.

                        FACTS AND PROCEDURAL HISTORY

        {¶2} On November 10, 2004, the Muskingum County Grand Jury indicted King

on sixty-two counts of pandering obscenity involving a minor in violation of R.C.

2907.321(A)(1) and (5). The charges were felonies of the second and fourth degrees. A

jury trial commenced on January 25, 2005. The jury found King guilty of all of the charges

except one, which was dismissed. As memorialized in an entry filed on March 7, 2005,

the trial court sentenced King to an aggregate term of 36 ½ years in prison and classified

him as a sexual predator/habitual sexual offender.

        {¶3} King filed an appeal. Pursuant to an Opinion filed on January 19, 2006, this

Court affirmed King'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, 5th Dist. Muskingum App. No.

CT05–0017, 2006–Ohio–226.

        {¶4} Upon remand, the trial court resentenced King to the same sentence as

memorialized in an entry filed on March 8, 2006. King filed an appeal. This Court affirmed

the resentencing. State v. King, 5th Dist. Muskingum App. No. CT06–0020, 2006–Ohio–

6566.

        {¶5} On October 20, 2005, August 15, 2006, October 8, 2008, March 13, 2009,

September 15, 2009, November 2, 2010, and July 14, 2011, King 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
Muskingum County, Case No. CT2017-0091                                                    3


motions/petitions and King 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.

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.

        {¶6} On September 29, 2015, King 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 on October 20, 2015, the trial court denied the motion. King

then appealed. Pursuant to an Opinion filed on April 29, 2016 in State v. King, 5th Dist.

Muskingum No. CT2015–0058, 2016–Ohio–2788, this Court affirmed the judgment of the

trial court.

        {¶7} King, on September 27, 2016, filed a Motion to Correct Void Sentence. King

argued in his motion that his sentence was void because the trial court, in its March 8,

2006 entry, did not make findings pursuant to R.C. 2929.13. Pursuant to an entry filed on

October 6, 2016, the trial court denied King's motion, finding that King's sentence was not

void. We affirmed on appeal pursuant to an opinion filed January 27, 2017. State v.

King, 5th Dist. Muskingum No. CT2017–0021.

        {¶8} King filed a “Motion to Resentence” on February 23, 2017, arguing the jury

verdict form did not contain sufficient information to make his conviction on count one a

second degree felony, and therefore it should have been reduced to a fourth degree
Muskingum County, Case No. CT2017-0091                                                   4


felony. He argued his sentence was void pursuant to R.C. 2945.75(A)(2). The trial court

overruled the motion, finding it was an untimely, successive petition for postconviction

relief, and further that the motion was barred by the doctrine of res judicata. We affirmed

the trial court’s judgment in State v. King, 5th Dist. Muskingum No. CT2017-0021, 2017-

Ohio-4258.

       {¶9} King filed a “Motion to Correct Sentence” on July 10, 2017. He argued his

sentence of eight years for his conviction on count one, a second degree felony in

violation of R.C. 2907.321(A)(1), was contrary to law. He argued he should have been

sentenced to an 18-month prison term. An 18-moth prison term is commensurate with a

fourth degree felony. The trial court denied the motion on November 3, 2017, finding the

motion was an untimely successive petition for postconviction relief and barred by res

judicata.

       {¶10} It is from this decision King now appeals.

                               ASSIGNMENT OF ERROR

       {¶11} King raises one Assignment of Error:

       {¶12} “THE APPELLANT’S SENTENCE IS CONTRARY TO LAW AND THE

TRIAL COURT ERRED WHEN IT DENIED HIS MOTION TO CORRECT SENTENCE BY

TREATING IT AS A PETITION FOR POST-CONVICTION RELIEF AND STATING IT

WAS BARRED BY THE DOCTRINE OF RES JUDICATA.”

                                       ANALYSIS

       {¶13} The State contends King raises the identical arguments in the July 10, 2017

motion entitled “Motion to Correct Sentence” as he did in his February 23, 2017 motion

entitled “Motion to Resentence.” In both motions, King argued he was improperly
Muskingum County, Case No. CT2017-0091                                                       5


convicted and sentenced on count one. The trial court denied his February 23, 2017

motion as a successive petition for postconviction relief and as barred by res judicata. We

affirmed the decision in State v. King, 2017-Ohio-4258. The trial court denied the July 10,

2017 motion as a successive petition for postconviction relief and found it was also barred

by the doctrine of res judicata. Upon review of the motions, we agree he raises the same

arguments.

       {¶14} Based upon King’s past filings, the July 10, 2017 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

       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.
Muskingum County, Case No. CT2017-0091                                                     6


       (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.

       {¶15} In reviewing appellant's motion/petition for postconviction relief, we find

King did not satisfy the requirements of R.C. 2953.23.

       {¶16} We further find that King’s motion for postconviction relief is barred by the

doctrine of res judicata. Pursuant to 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 on direct appeal

from that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine

of the syllabus (1967). King has filed eleven appeals subsequent to his resentencing at

the direction of this Court in 2006, and has had ample opportunity to raise issues related

to that sentencing.

       {¶17} King’s sole Assignment of Error is overruled.
Muskingum County, Case No. CT2017-0091                                  7


                               CONCLUSION

       {¶18} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Delaney, J.,

Wise, P.J. and

Baldwin, J., concur.
