State v. Lindsay , 2021 Ohio 4526 ( 2021 )

[Cite as State v. Lindsay, 2021-Ohio-4526.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2021 CA 0068
WENDELL R. LINDSAY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2010 CR 0419
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 22, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
GARY BISHOP WENDELL R. LINDSAY
PROSECUTING ATTORNEY PRO SE
JODIE SCHUMACHER NORTH CENTRAL CORR. INSTITUTION
ASSISTANT PROSECUTOR P. O. Box 1812
38 South Park Street, Second Floor Marion, Ohio 43302
Mansfield, Ohio 44902
Richland County, Case No. 2021 CA 0068 2
Wise, John, J.
{¶1} Appellant Wendell R. Lindsay appeals his conviction and sentence entered
in the Richland County Common Pleas Court on October 27, 2010.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS
{¶3} For purposes of this Opinion, the relevant facts and procedural history are
as follows:
{¶4} On March 4, 2010, the ten-year-old victim approached her guidance
counselor at school and told her “my mother's boyfriend has been raping me.” (T. 197).
During the investigation into the sexual assault, the victim disclosed her mother's
boyfriend, Appellant, had come into the room she shared with her younger sister on the
morning of March 4, 2010, pulled down her underwear, and stuck his tongue in her vagina.
(T. at 198; 269). This was not the first time a sexual incident had occurred. The victim told
the social worker who interviewed her Appellant had placed his mouth on her vagina
approximately six times and penetrated her vagina with his penis a total of seven times.
(T. at 271).
{¶5} After the disclosures, the victim's father took her to the hospital for a sexual
assault examination. The nurse who performed the exam found physical evidence
consistent with the victim's allegations. As part of the examination, swabs were taken of
the victim's pubic area and the underwear she was wearing at the time of the examination
were collected. DNA collected from the underwear and the pubic area of the victim was
consistent with Appellant's DNA.
Richland County, Case No. 2021 CA 0068 3
{¶6} The Richland County Grand Jury indicted Appellant on five counts of rape,
five counts of sexual battery, and five counts of gross sexual imposition. Following the
jury trial, Appellant was convicted of one count of rape, one count of sexual battery, and
one count of gross sexual imposition. The jury returned verdicts of not guilty on the
remaining charges.
{¶7} On October 27, 2010, the trial court conducted a sentencing hearing. The
trial court found the three charges were allied offenses. The state elected to go forward
on the charge of rape and requested Appellant be sentenced to ten years to life. The trial
court merged the offenses for sentencing purposes and imposed a term of incarceration
of ten years to life.
{¶8} Appellant filed a direct appeal. This Court affirmed Appellant's convictions
and sentence in State v. Wendell Lindsay, 5th Dist. Richland No. 2010–CA–0134, 2011–
Ohio–4747. The Ohio Supreme Court did not accept Appellant’s appeal for review. State
v. Lindsay, 131 Ohio St.3d 1555, 2012–Ohio–2263, 967 N.E.2d 765.
{¶9} On December 14, 2011, Appellant filed an application to reopen his appeal,
which this Court denied on January 26, 2012. Appellant filed a motion to reconsider,
which we also denied. Appellant appealed our denial to the Ohio Supreme Court, which
the Court dismissed on June 7, 2012.
{¶10} On September 26, 2012, Appellant filed an amended motion for acquittal
pursuant to Crim.R. 29. The trial court considered Appellant's motion for acquittal as a
petition for post-conviction relief.
{¶11} On February 26, 2013, Appellant filed a motion for new trial
Richland County, Case No. 2021 CA 0068 4
{¶12} In February, 2013, Appellant filed a petition for writ of habeas corpus in the
United States District Court, N.D. Ohio, Eastern Division. Upon review, the magistrate
judge recommended the petition be dismissed with prejudice. Lindsay v. Tibbals, N.D.
Ohio No. 1:13–CV–00309, 2014 WL 11128199.
{¶13} On March 18, 2013, the trial court found Appellant’s Motion for
Acquittal/Motion for Post-Conviction Relief untimely and found Appellant’s arguments
were barred by the doctrine of res judicata.
{¶14} Appellant appealed the trial court's judgment entry to this Court, which we
affirmed in State v. Lindsay, 5th Dist. Richland No. 13CA28, 2013–Ohio–3332.
{¶15} By Judgment Entry filed January 17, 2014, the trial court denied Appellant's
February 26, 2013, motion for new trial.
{¶16} Appellant appealed the judgment to this Court, but the appeal was
dismissed for failure to prosecute.
{¶17} On April 5, 2016, Appellant filed an Application for DNA Testing. The state
filed a response, arguing, pursuant to R.C. §2953.74(A), the DNA test conducted on the
biological evidence in the case was a definitive DNA test; therefore, the trial court was
statutorily required to reject Appellant's application.
{¶18} Appellant also filed a Motion for Resentencing/Sentence Reduction. The
state responded Appellant's motion should be denied as an untimely and successive
petition for post-conviction relief.
{¶19} On March 24, 2016, the trial court denied both motions and Lindsay
appealed.
Richland County, Case No. 2021 CA 0068 5
{¶20} In Case No. 16CA38, Appellant appealed the trial court's judgment denying
his Application for DNA Testing.
{¶21} In Case No. 16CA39, Appellant appealed the trial court's judgment denying
his Motion for Resentencing/Sentence Reduction.
{¶22} This Court affirmed both judgments in State v. Lindsay, 5th Dist. Richland
No. 16CA38, 2017-Ohio-594, and State v. Lindsay, 5th Dist. Richland No. 16CA39, 2017-
Ohio-595.
{¶23} On June 18, 2018, Appellant filed a motion entitled, “‘Subject matter-
Jurisdiction’ violations of defendant's constitutional rights under the United States, and
Ohio Constitution: Plain Error.” The trial court considered the motion to be Appellant's
third petition for post-conviction relief.
{¶24} By Judgment Entry filed August 2, 2018, the trial court denied the motion,
finding the petition for post-conviction relief was successive, untimely, and barred by res
judicata.
{¶25} Appellant appealed to this Court, which affirmed the trial court’s decision.
State v. Lindsay, 5th Dist. Richland No. 18CA87, 2019-Ohio-157.
{¶26} On May 3, 2019, Appellant filed a Motion for New Trial and an Amendment
to the motion on May 24, 2019.
{¶27} By Judgment Entry filed June 10, 2019, the trial court overruled the motion,
finding the motion was untimely and further that Appellant failed to offer new evidence
which could not have been discovered prior to trial or within 120 days after trial.
{¶28} Appellant appealed to this Court, which affirmed the trial court’s decision.
State v. Lindsay, 5th Dist. Richland No. 2019 CA 0059, 2019-Ohio-5283.
Richland County, Case No. 2021 CA 0068 6
{¶29} On October 4, 2021, Appellant filed the instant appeal, raising the following
errors for review:
ASSIGNMENTS OF ERROR
{¶30} “I. THE APPELLANT'S SENTENCE IS CONTRARY TO LAW, AND "RES
JUDICATA" SHOULD NOT BE USED AS "TACTICAL ADVANTAGE," A STRATEGY OR
TOOL USED TO AVOID A PROPER REVIEW OF THE ISSUES PRESENTED; WHEN
THE APPELLANT'S (SIC) HAS BROUGHT FORTH THAT A MISCARRIAGE OF
JUSTICE OCCURRED, AND THE LOWER TRIAL COURT, HAS IGNORED THE
ISSUES OF DOUBLE-JEOPARDY, VERDICT FORM NOT BEING IN COMPLIANCE
PURSUANT TO R.C. §2945.75(A)(2); NO ELEMENTS WERE PROVIDED TO
DISTINGUISH WHAT THE JURY INTENDED FOR THE TRIAL JUDGE TO SENTENCE
ON; HOW THE SENTENCE WAS ENHANCED FROM THE LOWEST FELONY
CONVICTION TO THE HIGHEST: AND PURSUANT TO R.C. §2941.25, HOW THE
TRIAL COURT SENTENCED THE APPELLANT WHEN USING "AMIMUS," (SIC) WHEN
IF THE CORRECT TERM, "ALLIED OFFENSE" WAS USED, THE SENTENCE WOULD
HAVE BECOME VOID, DUE TO THERE WERE MORE CONVICTIONS THAN
ALLOWED.
{¶31} “II. THE SENTENCE IS A MANIFEST MISCARRIAGE OF JUSTICE WHEN
IT DOES NOT COMPORT WITH THE CONTROLLING STATUTES; R.C.
§2945.75(A)(2), WHEN A PELFREY ISSUE EXIST, BUT HIDDEN DUE TO DOUBLE
JEOPARDY ISSUES; A VIOLATION OF R.C. §2941.25, SPECIFYING THAT THEIR
(SIC) CAN ONLY BE ONE CONVICTION FOR ALLIED OFFENSES OF SIMILAR
IMPORT; THE TRIAL COURT USED THE WORD "ANIMUS" FOR THE PURPOSE OF
Richland County, Case No. 2021 CA 0068 7
SENTENCING, AND AS TO ENABLE THE SENTENCING ENHANCEMENT WITHOUT
ANY LISTED ELEMENT WRITTEN IN THE VERDICT FORM, WHEN THE SENTENCE
WAS ALREADY JURISDICTIONALLY VOID: AND WHILE "RES JUDICATA" DOES NOT
PRECLUDE APPELLATE COURT REVIEW.”
I., II.
{¶32} As both of Appellant’s assignments of error challenge his sentence, we shall
address them together.
{¶33} In his first assignment of error Appellant claims that his sentence is contrary
to law. In his second assignment of error, Appellant argues that his sentence is a
miscarriage of justice. We disagree.
{¶34} Upon review, we find that Appellant’s arguments could have been raised,
or were raised, via the direct appeal of his original conviction and sentence or through the
appeal of the denial of his subsequent motions for postconviction relief.
{¶35} “Under the doctrine of res judicata, a final judgment of conviction bars the
defendant from raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that the defendant raised or
could have raised at the trial which resulted in that judgment of conviction or on appeal
from that judgment.” State v. Snyder, 5th Dist. Tuscarawas No. 2015AP070043, 2016–
Ohio–832, ¶ 26 quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).
Further, “[i]t is well-settled that, ‘pursuant to res judicata, a defendant cannot raise an
issue in a [petition] for postconviction relief if he or she could have raised the issue on
direct appeal.’ ” State v. Elmore, 5th Dist. Licking No. 2005–CA–32, 2005–Ohio–5940, ¶
21 quoting State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997).
Richland County, Case No. 2021 CA 0068 8
{¶36} Res judicata also implicitly prohibits a defendant from “re-packaging”
evidence or issues that either were, or could have been, raised in the context of the
petitioner's trial or direct appeal. State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d
362 (12th Dist.1995); See also State v. Wolfe, 5th Dist. Delaware No. 16CAA020008,
2016-Ohio-4616, ¶ 19
{¶37} Appellant’s first and second assignments of error are overruled.
{¶38} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By: Wise, John, J.
Hoffman, P. J., and
Wise, Earle, J., concur.
JWW/kw 1220