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State v. King

Court of Appeals of Ohio, Fifth District, Muskingum

June 12, 2017

STATE OF OHIO Plaintiff - Appellee
v.
RICHARD KING Defendant-Appellant

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

          For Plaintiff-Appellee D. MICHAEL HADDOX, Prosecuting Attorney, By: GERALD V. ANDERSON II, Assistant Prosecuting Attorney.

          For Defendant-Appellant RICHARD KING, pro se

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          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 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 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 ...


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