[Cite as State v. King, 2016-Ohio-2788.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. William B. Hoffman, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
RICHARD KING                                 :       Case No. CT2015-0058
                                             :
        Defendant-Appellant                  :       OPINION




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




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    April 29, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GERALD V. ANDERSON, II                               RICHARD KING, Pro Se
27 North Fifth Street                                #489103
P.O. Box 189                                         North Central Correctional Institution
Zanesville, OH 43702-0189                            670 Marion Williamsport Road E.
                                                     Marion, OH 43302
Muskingum County Case No. CT2015-0058                                                      2

Farmer, P.J.

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

appellant, Richard King, on sixty-two counts of pandering obscenity involving a minor in

violation of R.C. 2907.321(A)(1) and (5). A jury trial commenced on January 25, 2005.

The jury found appellant guilty as charged. By entry filed 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.

       {¶2}    Appellant filed an appeal. By opinion and judgment entry filed 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, Muskingum App. No.

CT05-0017, 2006-Ohio-226.

       {¶3}    Upon remand, the trial court resentenced him to the same sentence. See,

Entry filed March 8, 2006. Appellant filed an appeal. This court affirmed the resentencing.

State v. King, Muskingum App. No. CT06-0020, 2006-Ohio-6566.

       {¶4}    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

court denied the motions/petitions. 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.
Muskingum County Case No. CT2015-0058                                                     3

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.

       {¶5}   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 October 20, 2015, the trial court denied the motion.

       {¶6}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶7}   "THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

APPELLANT'S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT

OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE

OHIO CONSTITUTION BY LITIGATING IN A MATTER IN WHICH THE TRIAL COURT

DID NOT ENJOY SUBJECT-MATTER JURISDICTION."

                                             II

       {¶8}   "THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

APPELLANT'S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT

OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE

OHIO CONSTITUTION BY FAILING TO SUA SPONTE VACATE THE VOID ENTRY

AND DISMISS APPELLANT'S CASE WITH PREJUDICE."

                                             III

       {¶9}   "APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL

COURT COMMITTED PLAIN ERROR AS IT PERMITTED THE PROSECUTOR TO

AMEND THE INDICTMENT WITHOUT RESUBMISSION OF THE CAUSE TO THE
Muskingum County Case No. CT2015-0058                                                     4


GRAND JURY IN VIOLATION OF HIS UNITED STATES CONSTITUTION FIFTH

AMENDMENT AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."

                                             IV

      {¶10} "THE APPELLANT'S UNITED STATES CONSTITUTION FOURTEENTH

AMENDMENT AND OHIO CONSTITUTION ARTICLE I, SECTION 16 RIGHTS OF DUE

PROCESS OF LAW WAS VIOLATED AS APPELLANT'S SENTENCE IS CONTRARY

TO LAW AND THE RECORD DOES NOT SUPPORT THE IMPOSED SENTENCE."

                                             V

      {¶11} "THE APPELLANT'S RIGHT OF DUE PROCESS UNDER THE UNITED

STATES CONSTITUTION FOURTEENTH AMENDMENT AND OHIO CONSTITUTION

ARTICLE I, SECTION 16 WAS VIOLATED WHEN HE WAS RE-SENTENCED

PURSUANT TO STATE V. FOSTER, 845 N.E.2d 470 WHEN THE TRIAL COURT

LACKED SUBJECT-MATTER JURISDICTION TO RE-SENTENCE APPELLANT."

                                      I, II, III, IV, V

      {¶12} Appellant claims the trial court erred in denying his September 29, 2015

motion to vacate void conviction, as the trial court lacked subject matter jurisdiction

because the indictment was invalid or void and therefore his sentence was contrary to

law. We disagree.

      {¶13} At the outset, we note appellant's September 29, 2015 motion was a petition

for postconviction relief under R.C. 2953.21. State v. Reynolds, 79 Ohio St.3d 158 (1997).

      {¶14} In his appellate brief at 3, appellant specifically argues: "The Trial Court was

without subject-matter jurisdiction to render a judgment against the Appellant, nor was it

permitted to litigate the matters involving this case when it permitted the amendment of
Muskingum County Case No. CT2015-0058                                                    5


the indictment to reflect dates of offenses that were not presented to the Grand Jury and

to charge crimes that are subsequent to the date of the filing of the indictment."

       {¶15} "Because subject-matter jurisdiction goes to the power of the court to

adjudicate the merits of a case, it can never be waived and may be challenged at any

time." Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11, citing United States v.

Cotton, 535 U.S. 625 (2002).

       {¶16} The November 10, 2004 indictment contained sixty-two counts of pandering

obscenity involving a minor. The charges arose from images discovered on appellant's

computer that had been seized on March 23, 2004. Sixty-one of the counts contained

this date. On the morning of trial, January 25, 2005, the state amended the indictment to

reflect more accurate dates for the offenses, established from information retrieved from

the specific images. Defense counsel did not object (T. at 10-11), stating the state was

within its authority pursuant to Crim.R. 7(D) which states the following in pertinent part:

"The court may at any time before, during, or after a trial amend the indictment,

information, complaint, or bill of particulars, in respect to any defect, imperfection, or

omission in form or substance, or of any variance with the evidence, provided no change

is made in the name or identity of the crime charged." Changing the date on the offenses

did not change the name or identity of the crime charged. Appellant's arguments on the

lack of subject matter jurisdiction are without merit.

       {¶17} In addition, any challenge to the indictment could have been raised on direct

appeal which appellant failed to do; therefore, the challenge is barred under the doctrine

of res judicata. State v. Allen, 5th Dist. Muskingum No. CT2013-0006; State v. Lowery,

2nd Dist. Montgomery No. 24198, 2011-Ohio-2827. As stated by the Supreme Court of
Muskingum County Case No. CT2015-0058                                                       6

Ohio in State v. Perry, 10 Ohio St.2d 175 (1967), paragraphs eight and nine of the

syllabus, the doctrine of res judicata is applicable to petitions for postconviction relief.

The Perry court explained the doctrine at 180-181 as follows:



              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 trial, which resulted in that judgment of

       conviction, or on an appeal from that judgment.



       {¶18} Furthermore, based upon appellant's past filings, the subject 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
Muskingum County Case No. CT2015-0058                                                        7


       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.

              (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.



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

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

       {¶20} Upon review, we find the trial court did not err in denying appellant's

motion/petition.

       {¶21} Assignments of Error I, II, III, IV, and V are denied.
Muskingum County Case No. CT2015-0058                                        8


      {¶22} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.




SGF/sg 422
