[Cite as State v. Sands , 2020-Ohio-5472.]

IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2020-L-072 - vs - : JOSEPH A. SANDS, : Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Cas e No. 06 CR 000401.

Jud g ment: Affirmed.

Charles E. Coulson , Lake County Prosecutor, and Karen A. Sheppert , Assistant Prosecutor, Lake County Administration Building, 105 Main Stree t, P.O. Box 490, Painesville, OH 44077 ( For Plaintiff-Appellee )

. Joseph A. Sands , pro se, PID# A664-601, Marion Correctional Institution, 940 M arionWilliamsport Road, P.O. B ox 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 dismi ss a void sentence.” 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 J ury for two counts of Engaging in a Pattern of Corrupt Activity (Counts 1 and 2), felonies of the first degree, in violation of R.C. 2923.32(A)(1); four counts o f Conspiracy to Commit2 Aggravated Murder (Counts 3-6), felonies of the first degree, i n violation of R.C. 2923.01(A)(1); and eight counts of Conspiracy to Commit Aggrava ted Arson (Counts 7- 14), 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 m urder Painesville Municipal Court Judge Michael Cicconetti, North Perry Police Ch ief Denise Mercsak, North Perry Mayor Tom Williams, and North Perry Prosecutor Jose ph Gurley. Pursuant to the court’s November 30, 2006 Judgment Entry, the parties ag reed prior to trial to merge counts 1 and 2 into a single count of Engaging in a Patte rn of Corrupt Activity (Count 1) and the remaining counts were re-numbered as counts 2 -13. Following a trial, the jury found Sands guilty of the sole count of Engaging in a Pattern of Corrupt Activity (Count 1), three counts of Conspiracy to Commit Aggravated Murd er (renumbered Counts 2, 3 and 5), and two counts of Conspiracy to Commit Aggravated Arson (renumbered Counts 6 and 7) and not guilty of the remaining offenses. In a December 11, 2006 Judgment Entry of Sentence, the court merged Counts 2, 3, 5, 6, and 7. Sands was ordered to serve consecutive sentences of 10 years on Count 1 a nd 10 years on the merged counts, for a total term of twenty years in prison. {¶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 fi led numerous appeals which have been found, with one exception, to lack meri t. 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-Ohio5860; 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.3 2019-L-022 and 023, 2019-Ohio-4925; and State v. Sands , 11th Dist. Lake No. 2020-L038, 2020-Ohio-3935; see State v. Sands , 11th Dist. Lake No. 2015-L-134, 2016-Ohio7150 (error found in the imposition of post-release control). {¶4} On April 29, 2020, Sands filed a Motion for Leave of Court to F ile a Motion to Dismiss a Void Sentence in which he argued that the court er red by sentencing him to prison terms for both Counts One and Two since the parties had agreed these counts would merge for the purposes of sentencing. On June 5, 2020, t he trial court issued a Judgment Entry denying Sands’ motion. {¶5} Sands timely appeals and raises the following assignment of err or: {¶6} “The Trial court Abused its Discretion and Committed Plain Erro r Per Crim.R. 52(B) to the Prejudice of the defendant when the court Revived a Merger Count, The court Consider[ed] Allied Offenses of Similar import, R.C. 2941.25(A) and the court Changed the Identity of the Charge[d] Offense in Count(2) and i mposed a Ten Year Prison Term for a[] Charge Not Founded by the Grand Jury a Viol ation [of] Crim.R. 7(C) and a Violation of the Defendant[’s] United States Constitution al Rights Amendment 5, 14.” (sic) {¶7} Sands argues that because Count Two in the indictment was for E ngaging in a Pattern of Corrupt Activity, he could not be convicted of the renumbered Count Two, Conspiracy to Commit Aggravated Murder, as he was not properly indicted for such an offense and it was a “new criminal charge.” He contends, then, that his conviction and sentence for Conspiracy to Commit Aggravated Murder are void. {¶8} Sands’ argument is barred by the doctrine of res judicata. “[A ] convicted defendant is precluded under the doctrine of res judicata from raising and litigating in any4 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 defend ant 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 ju dicata bars the further litigation in a criminal case of issues that were or could have been raised previously in a direct appeal”). Here, there is no question that Sands has rai sed numerous appeals before this court, but has failed to raise the present argument , although he could have done so on direct appeal. {¶9} Sands argues that the doctrine of res judicata does not apply b ecause the court did not have subject matter jurisdiction to convict or se ntence him for Conspiracy to Commit Aggravated Murder because it was a new charge for which he was not indicted. {¶10} It has been held that certain matters are not subject to applic ation of res judicata, such as instances where the defendant’s sentence is v oid. Sands , 2020-Ohio3935, at ¶ 11. A void sentence exists “only if the sentencing court lacks jurisdiction over the subject matter of the case or personal jurisdiction over th e accused.” State v.

Henderson , __ Ohio St.3d __, 2020-Ohio-4784, __ N.E.3d __, ¶ 27. The co urt here had subject matter jurisdiction, or power to hear the case, as Sand s was indicted on felony counts, subjecting him to the court’s jurisdiction. See McGowan at ¶ 20 (“[t]he indictment properly invoked the trial court’s subject-matter jurisdiction on the indicted crimes”).

Sands was indicted for all of the offenses for which he was con victed, invoking the subject matter jurisdiction of the court. {¶11} Sands presents no legal grounds for finding that renumbering co unts in an5 indictment renders his conviction or sentence void or deprives the court of jurisdiction. Other courts have found that similar matters are barred by the doctrine of res judicata. State v. Taylor , 9th Dist. Summit No. 28734, 2018-Ohio-2394, ¶ 12 (“[w]here, a s here, there is a claim that the count numbers on the verdict forms an d in the sentencing entry do not correspond to the count numbers in the indictment, that alleged error is cognizable on direct appeal”); State v. Moore , 8th Dist. Cuyahoga No. 97775, 2012-Ohio-2935, ¶ 12- 13 (the argument that the lower court erred by renumbering char ges on the jury verdict forms from the counts charged in the indictment was barred by r es judicata). {¶12} It is further evident that, even considering the merits of Sand s’ claim, the court committed no error and his argument is wholly unsupported by the law. Sands was properly indicted for the relevant offense of Conspiracy to Com mit Aggravated Murder; it was simply numbered Count Three in the indictment and renumbere d Count Two for presentation to the jury. This was the same offense, under the same statutory section and with the same elements, for which he was convicted and he h ad been fully apprised of this charge by the indictment. The trial court merely renum bered the counts in the indictment for the ease of consideration by the jury since the original Counts One and Two were merged prior to trial. The law does not support a con clusion that error was

committed in such an instance. Moore at ¶ 17 (“[T]he renumbering of Count 7 in the jury verdict forms was not error [and was done] [t]o avoid confusion in the minds of the jury *

* *. It is clear in the instant case that Moore was convicted for the crimes with which he was charged in the indictment.”); State v. Washington , 9th Dist. Summit No. 18199, 1997 WL 775666, *7 (Nov. 26, 1997) (“the different numbering of the counts in the indictment and verdict forms” was not error as renumbering was done to avo id confusion); s ee also6 State v. Moyer , 11th Dist. Ashtabula No. 98-A-0011, 1999 WL 339256, *3-4 (May 7, 1999) (where defendant argued the trial court failed to follow certai n local rules when renumbering counts, no prejudice resulted since “[a] review of the record reveals that the renumbered counts correspond to the exact same charges that rem ained from the fourteen-count indictment”). {¶13} The sole assignment of error is without merit. {¶14} For the foregoing reasons, the Judgment Entry of the Lake Count y Court of Common Pleas, denying Sands’ motion to dismiss a void sentence, is affirmed. Costs to be taxed against appellant.

THOMAS R. WRIGHT, J., MARY JANE TRAPP, J.,

concur.