State v. Lindsay ( 2019 )

[Cite as State v. Lindsay, 2019-Ohio-157.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 18CA87
:
WENDELL LINDSAY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No. 10-CR-
419D
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 18, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
GARY D. BISHOP WENDELL R. LINDSAY, pro se
RICHLAND COUNTY PROSECUTOR Inmate No. A591-512
Richland Correctional Institution
JOSEPH C. SNYDER 1001 S. Olivesburg Rd.
38 South Park Street Mansfield, OH 44905
Mansfield, OH 44902
Richland County, Case No.18CA87 2
Delaney, J.
{¶1} Plaintiff-Appellant Wendell Lindsay appeals the September 4, 2018
judgment entry of the Richland County Court of Common Pleas. Defendant-Appellee is
the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} 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 that her mother's
boyfriend, Wendell Lindsay, had come into the room that she shared with her younger
sister on the morning of March 4th, 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 that Lindsay 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).
{¶3} 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 Lindsay's DNA.
{¶4} Lindsay was indicted by the Richland County Grand Jury with five separate
counts of rape, five separate counts of sexual battery, and five separate counts of gross
sexual imposition.
Richland County, Case No.18CA87 3
{¶5} Following the jury trial, Lindsay 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 to the remaining charges.
{¶6} A sentencing hearing was held on October 27, 2010. The trial court found
the three charges were allied offenses. The State elected to go forward on the charge of
rape and requested that Lindsay be sentenced to ten years to life. The trial court merged
the offenses for sentencing purposes and sentenced Lindsay to a term of ten years to life.
{¶7} Lindsay filed a direct appeal of his sentence and conviction for rape, sexual
battery, and gross sexual imposition. The trial transcript was filed on March 7, 2011.
{¶8} We confirmed Lindsay's conviction and sentence in State of Ohio v. Wendell
Lindsay, 5th Dist. Richland No. 2010–CA–0134, 2011–Ohio–4747. The Ohio Supreme
Court did not accept Lindsay'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, Lindsay filed an application to reopen his appeal.
We denied the application on January 26, 2012. Lindsay filed a motion to reconsider,
which we also denied. Lindsay appealed our denial to the Ohio Supreme Court, which the
Court dismissed on June 7, 2012.
{¶10} On September 26, 2012, Lindsay filed an amended motion for acquittal
pursuant to Crim.R. 29 with the trial court. Lindsay filed a motion for new trial on February
26, 2013.
{¶11} In February 2013, Lindsay filed a petition for writ of habeas corpus. 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.
Richland County, Case No.18CA87 4
{¶12} The trial court considered Lindsay's motion for acquittal as a petition for
postconviction relief. On March 18, 2013, the trial court found the motion untimely and his
arguments were barred by the doctrine of res judicata. Lindsay appealed the trial court's
judgment entry to this court and we affirmed in State v. Lindsay, 5th Dist. Richland No.
13CA28, 2013–Ohio–3332.
{¶13} On January 17, 2014, the trial court denied Lindsay's motion for new trial.
Lindsay appealed the judgment to this court, but the appeal was dismissed for failure to
prosecute.
{¶14} On April 5, 2016, Lindsay filed an Application for DNA Testing. The State
filed a response, arguing that 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 Lindsay's application. Lindsay also filed a Motion for
Resentencing/Sentence Reduction. The State responded that Lindsay's motion should
be denied as an untimely and successive petition for postconviction relief.
{¶15} On March 24, 2016, the trial court denied both motions and Lindsay
appealed. In Case No. 16CA38, Lindsay appealed the trial court's judgment denying his
Application for DNA Testing. In Case No. 16CA39, Lindsay appealed the trial court's
judgment denying his Motion for Resentencing/Sentence Reduction. We 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.
{¶16} On June 18, 2018, Lindsay filed a motion entitled, “ ‘Subjectmatter-
Jurisdiction’ violations of defendant’s constitutional rights under the United States, and
Ohio Constitution: Plain Error.” The trial court considered the motion to be Lindsay’s third
Richland County, Case No.18CA87 5
petition for postconviction relief. Upon review, it held via judgment entry filed August 2,
2018, that Lindsay’s petition for postconviction relief was successive, untimely, and
barred by res judicata.
{¶17} It is from this judgment entry that Lindsay now appeals.
ASSIGNMENTS OF ERROR
{¶18} Lindsay raises three Assignments of Error:
{¶19} “I. THE TRIAL COURT LOST SUBJECT MATTER JURISDICTION WHEN
IT ALLOWED THE AMENDING OF THE APPELLANT’S INDICTMENT AS THE
IDENTITY OF THE CHARGES WERE CHANGED; PROCEEDING FORWARD WITH
THE TRIAL RESULTING IN A ILLEGAL MALICIOUS PROSECUTION, DUE THE
COURT WAS WITHOUT LEGAL STANDING OR AUTHORITY OVER THE CASE, AT
WHICH THE APPELLANT CAN BRING TO THE ATTENTION OF THE TRIAL COURT,
THE FACT THAT IT LOST SUBJECT MATTER JURISDICTION AT ANY TIME.
{¶20} “II. THE TRIAL COURT WAS CONFRONTED WITH THE ISSUES THAT
THE DEFENDANT-APPELLANT’S SENTENCE WAS CONTRARY TO LAW; A VOID
SENTENCE AB INITIO, DUE TO THE TRIAL COURT’S LACK OF SUBJECT MATTER
JURISDICTION OR ITS STANDING IN THIS CASE DUE TO THE AMENDING OF
INFORMATION ON THE ORIGINAL INDICTMENT WITHOUT RECONVENING OF THE
GRAND JURY, THEN RENAMING THE APPELLANTS MOTION AS IF IT WERE A
PETITION FOR POSTCONVICTION RELIEF, THEN USING THE RULES OF A (PCR)
TO DENY THE MOTION AS BEING FILED PAST THE 365 DAY TIME LIMITATION
WITHOUT THE USE OF CASE LAWS AND CONCLUSIONS TO SUPPORT ITS RULING
Richland County, Case No.18CA87 6
THAT RESULTED IN A MALICIOUS PROSECUTION DUE TO PROSECUTORIAL
MISCONDUCT.
{¶21} “III. THE TRIAL COURT ABUSED ITS DISCRETION, VIOLATED CRIM.R.
7(D) CLEARLY STATING THAT INDICTMENT AMENDMENTS THAT CHANGES THE
PENALTY FOR AN OFFENSE OR THE DEGREE OF FELONY OF AN OFFENSE IS
NOT PERMITTED, THEREFORE, THE TRIAL COURT IN THIS CASE, ABUSED ITS
DISCRETION IN SENTENCING APPELLANT-DEFENDANT AFTER THE INDICTMENT
WAS AMENDED DUE TO THE TRIAL COURT WAS WITHOUT SUBJECT MATTER
JURISDICTION; DOUBLE JEOPARDY RESULTED FROM THE VERDICT RETURNED
BY THE JURY AFTER THE COURT LOST SUBJECT MATTER JURISDICTION IN THIS
CASE, DUE TO THE APPELLANT WAS FOUND GUILTY OF; (COUNTS-VI AND V);
VIOLATING THE DOUBLE JEOPARDY CLAUSE, AND THE DEFENDANT-APPELLANT
SHOULD BE RELEASED.”
ANALYSIS
{¶22} We consider Lindsay’s three Assignments of Error together because they
raise issues as to the subject matter jurisdiction of the trial court. Lindsay argues the trial
court erred when it overruled his petition for postconviction relief. We disagree.
{¶23} The trial court considered Lindsay’s June 18, 2018 motion as a petition for
postconviction relief and determined it was without jurisdiction to consider the petition.
First, pursuant to R.C. 2953.23(A)(2), the trial court found the petition was untimely filed.
The transcript in the original appeal was filed on March 7, 2011. Lindsay filed his motion
regarding subject matter jurisdiction on June 18, 2018, six years after the petition was
due under the guidelines of the statute. Second, the trial court found the motion regarding
Richland County, Case No.18CA87 7
subject matter jurisdiction was Lindsay’s third petition for postconviction relief. A trial court
may entertain a late or successive petition for postconviction relief only if the petitioner
satisfies the statutory requirements set forth in R.C. 2953.23(A). In the instant case,
Lindsay did not demonstrate he was unavoidably prevented from discovering facts to
present his claim or that a new federal or state right accrued retroactively to his claim.
R.C. 2953.23(A)(1). Nor did Lindsay demonstrate by clear and convincing evidence that,
but for a constitutional error, no reasonable factfinder would have found him guilty of the
offense. R.C. 2953.23(A)(2). Without that showing, the trial court was without authority to
entertain the petition. State v. Johnson, 5th Dist. No. 16CAA030011, 2016-Ohio-4617, ¶
27.
{¶24} In Lindsay’s motion regarding subject matter jurisdiction, Lindsay argued
the trial court lacked subject matter jurisdiction because the State amended the indictment
during the jury trial and the trial court granted the motion to amend after the jury verdict.
He states the State’s amendment of the indictment changed the identity of the charges,
demonstrating the trial court lacked subject matter jurisdiction and therefore his resulting
sentence was void.
{¶25} On October 25, 2010, the State filed a motion pursuant to Crim.R. 7(D) to
amend Count IV of the indictment to conform to the evidence as to the date of the alleged
offense of Rape. The indictment stated as to Count IV, “between on or about October 18,
2009 and March 3, 2010 * * *.” The State requested that Count IV read in pertinent part,
“between on or about the 1st day of October, 2009 and on or about the 4th day of March,
2010 * * *.” Count V of the indictment charged a count of Rape, which occurred on March
4, 2010. The State’s evidence showed only one rape occurred on March 4, 2010, and
Richland County, Case No.18CA87 8
multiple rapes occurred in the period prior to March 4, 2010. Lindsay had been previously
made aware of the allegations regarding multiple offenses occurring between October 1,
2009 and March 4, 2010 through the Bill of Particulars and discovery.
{¶26} The jury instructions and jury verdict forms reflected the correct dates. The
jury found Lindsay not guilty on Count IV and the verdict was journalized on October 27,
2010. The trial court granted the motion to amend the indictment on October 28, 2010. It
found the date a crime allegedly occurred was not an element of the offense the State
was required to prove.
{¶27} The trial court examined Lindsay’s argument in his third petition for
postconviction relief and found he was attempting to circumvent the doctrine of res
judicata by arguing the trial court lacked subject matter jurisdiction based on the State’s
amendment of the indictment. “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.18CA87 9
{¶28} Crim.R. 7(D) states, in pertinent part, that:
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. If any amendment is made to the substance of the
indictment, information, or complaint, or to cure a variance between the
indictment, information, or complaint and the proof, the defendant is entitled
to * * * a reasonable continuance, unless it clearly appears from the whole
proceedings that the defendant has not been misled or prejudiced by the
defect or variance in respect to which the amendment is made, or that the
defendant's rights will be fully protected by proceeding with the trial * * *.
{¶29} It has been held that amendments that change “ ‘only the date on which the
offense occurred * * * [do] not charge a new or different offense, nor * * * change the
substance of the offense.’ ” State v. Pyles, 4th Dist. Scioto No. 17CA3790, 2018-Ohio-
4034, 2018 WL 4846710, ¶ 27 quoting State v. Evans, 4th Dist. Scioto No. 08CA3268,
2010-Ohio-2554, ¶ 35, quoting State v. Quivey, 4th Dist. Meigs No. 04CA8, 2005-Ohio-
5540, ¶ 28. In this case, only the date on which the offense occurred was amended. The
State’s amendment did not charge a new or different offense, nor change the substance
of the offense.
{¶30} “ ‘Jurisdiction’ means the courts' statutory or constitutional power to
adjudicate the case.” (Internal quotations and citations omitted.) Pratts v. Hurley, 102
Ohio St. 3d 81, 2004–Ohio–1980, ¶ 11. Lindsay’s argument is that if the trial court lacks
Richland County, Case No.18CA87 10
subject-matter jurisdiction, its judgment is void. Id. at ¶ 12. “ * * * [S]ubject-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.” Id. at ¶ 11.
{¶31} Pursuant to R.C. 2931.03, the court of common pleas has subject matter
jurisdiction of criminal cases. State v. Mitchell, 5th Dist. Guernsey No. 07–CA–17, 2008–
Ohio–101, ¶ 32. A common pleas court has original jurisdiction in felony cases and its
jurisdiction is invoked by the return of an indictment. Click v. Eckle, 174 Ohio St. 88, 89,
186 N.E.2d 731 (1962). The indictment in the instant case charged Lindsay with several
felonies alleged to have occurred in Richland County, Ohio. The amendment of the
indictment only changed the date of the offense alleged in Count IV. The Richland County
Court of Common Pleas therefore had subject matter jurisdiction over Lindsay’s case.
See, State v. Poissant, 5th Dist. Fairfield No. 08 CA 7, 2009–Ohio–4235, ¶ 20, appeal not
allowed, 123 Ohio St. 3d 1510, 917 N.E.2d 812, 2009–Ohio–6210, and State v. Wilson,
5th Dist. Richland No. 14CA16, 2014–Ohio–3286.
{¶32} We agree that Lindsay's arguments are barred by the doctrine of res
judicata. Lindsay’s contention that the trial court lacked subject matter jurisdiction is
without merit and could have been raised or was capable of being 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.
{¶33} Lindsay’s first, second, and third Assignments of Error are overruled.
Richland County, Case No.18CA87 11
CONCLUSION
{¶34} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Baldwin, J., concur.