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State v. Sands

Court of Appeals of Ohio, Eleventh District

June 28, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
JOSEPH A. SANDS, Defendant-Appellant.

Civil Appeal from the Lake County Court of Common Pleas, Case No. 06 CR 000401.

Charles E. Coulson, Lake County Prosecutor and Teri R. Daniel, Assistant Prosecutor, Lake County Administration (For Plaintiff-Appellee).

Joseph A. Sands, pro se, PID: 30611-160, Manchester FCI, (Pro Se Appellant).

OPINION

COLLEEN MARY OTOOLE, 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."

{¶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 ...


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