[Cite as State v. King, 2017-Ohio-4258.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
RICHARD KING                                 :       Case No. CT2017-0021
                                             :
        Defendant - Appellant                :       OPINION



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




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 12, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    RICHARD KING, pro se
Prosecuting Attorney                                 #489-103
                                                     North Central Correctional Institution
By: GERALD V. ANDERSON II                            P.O. Box 1812
Assistant Prosecuting Attorney                       Marion, Ohio 43302
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No.CT2017-0021                                               2

Baldwin, J.

       {¶1}   Appellant Richard King appeals a judgment of the Muskingum County

Common Pleas Court overruling his motion to resentence. Appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

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

appellant 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 appellant 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 appellant to an aggregate term of thirty-six and one-half

years in prison and classified him as a sexual predator/habitual sexual offender.

       {¶3}   Appellant filed an appeal. Pursuant to an Opinion filed on 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, 5th Dist. Muskingum App.

No. CT05–0017, 2006–Ohio–226.

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

as memorialized in an entry filed on March 8, 2006. Appellant 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, 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
Muskingum County, Case No.CT2017-0021                                               3


court denied the motions/petitions and 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.

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, 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 on October 20, 2015, the trial court denied the motion.

Appellant 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}   Appellant, on September 27, 2016, filed a Motion to Correct Void Sentence.

Appellant, in his motion, argued 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 appellant’s motion, finding that

appellant’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}   Appellant filed a “Motion to Resentence” on February 23, 2017, arguing that

the jury verdict form did not contain sufficient information to make his conviction on count

one a second degree felony, and it therefore should have been reduced to a fourth degree
Muskingum County, Case No.CT2017-0021                                                 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. Appellant

assigns two errors:

      {¶9}   “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

RESENTENCE AS THE JURY FOUND APPELLANT GUILTY OF A FOURTH DEGREE

FELONY ON COUNT ONE AND THE TRIAL COURT IMPROPERLY SENTENCED

APPELLANT AS IF IT WERE A FELONY OF THE SECOND DEGREE, THUS MAKING

APPELLANT’S SENTENCE VOID.

      {¶10} “II.      THE TRIAL COURT MISAPPLIED THE DOCTRINE OF RES

JUDICATA TO APPELLANTS [SIC]MOTION FOR RESENTENCE [SIC] IN THIS CASE

WHEN THE MERITS OF THE MOTION HAVE NEVER BEEN DECIDED BECAUSE

APPELLANT’S SENTENCE IS VOID.”

                                               I., II.

      {¶11} Appellant argues that his sentence is void based on R.C. 2945.75(A)(2),

which provides:

      (A)When the presence of one or more additional elements makes an

      offense one of more serious degree:

      (2) A guilty verdict shall state either the degree of the offense of which the

      offender is found guilty, or that such additional element or elements are

      present. Otherwise, a guilty verdict constitutes a finding of guilty of the least

      degree of the offense charged.
Muskingum County, Case No.CT2017-0021                                             5


      {¶12} We have previously held that a sentence is not rendered void by the court’s

failure to comply with R.C. 2945.75(A)(2), and the claim must be raised on direct appeal.

State v. Brown, 5th Dist. Richland No. 09 CA 137, 2010-Ohio-2757, ¶15-17; State v.

Garver, 5th Dist. Holmes 10-CA-11, 2011-Ohio-2349, ¶18.

      {¶13} Accordingly, appellant’s claim should have been raised on direct appeal

from his sentence, and is now 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). Appellant has

filed ten 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.
Muskingum County, Case No.CT2017-0021                                        6


      {¶14} The first and second assignments of error are overruled. The judgment of

the Muskingum County Common Pleas Court is affirmed.        Costs are assessed to

appellant.


By: Baldwin, J.

Gwin, P.J. and

Earle Wise, J. concur.
