State v. Lindsay

2013 Ohio 2972

• Court: Ohio Court of Appeals
• Decided: July 9, 2013
• Docket: 13-CA-8
• Status: Published

Opinion

[Cite as State v. Lindsay, 2013-Ohio-2972.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Respondent : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : WENDELL R. LINDSAY : Case No. 13-CA-8 : Petitioner : OPINION

CHARACTER OF PROCEEDING: Writ of Procedendo

JUDGMENT: Dismissed

DATE OF JUDGMENT: July 9, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellee

JAMES J. MAYER WENDELL R. LINDSAY, Pro Se Richland County Prosecutor A59-512 Mansfield Correctional Institution By: JILL M. COCHRAN 1150 North Main Street Assistant Prosecuting Attorney Mansfield, OH 44901 38 South Park Street, 2nd Floor Mansfield, OH 44902 Richland County, Case No. 13CA8 2

Farmer, J.

{¶1} Petitioner, Wendell R. Lindsay, has filed a pleading titled, “Procedendo to

the Entered Motion, Acquittal Amendment Filed; Criminal Rule 29, Motion for Acquittal,

Citing Plain Errors, and also Violating Due Process, Equal Protection, also Objections to

the Trial Proceedings, and in the Sentencing in the above Captioned Case, as well as

Other Mitigating Factors Occurring.” The Richland County Prosecutor has filed a

motion to dismiss.

{¶2} Following the jury trial, Petitioner 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.1

{¶3} A sentencing hearing was held on October 27, 2010. The trial court

merged the offenses for sentencing purposes and sentenced appellant to a term of ten

years to life.

{¶4} According to his Petition, Lindsay made an oral motion for acquittal prior to

sentencing. The State contends the written version of Lindsay’s motion was read by the

trial court prior to sentencing and orally denied. Petitioner avers a written “motion of

acquittal” was filed on October 28, 2010 and remains pending in the trial court. He

further argues the trial court did not orally address each issue raised in the motion.

{¶5} Prior to reaching the merits of the motion for writ and motion to dismiss,

we find Petitioner has not properly brought this action.

1 The facts cited herein were obtained from our opinion in State v. Lindsay 2011 WL 4361632, 1 (Ohio App. 5 Dist.). Richland County, Case No. 13CA8 3

{¶6} Petitioner has failed to name a proper respondent in his petition. He has

named the State of Ohio which has no duty or even authority to rule on Petitioner’s

motion.

{¶7} Petitioner has further failed to comply with R.C. 2969.25 by failing to file

an affidavit detailing his prior civil filings. The Supreme Court has held, “The

requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects

an inmate's action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-

Ohio-2262, 788 N.E.2d 634, ¶ 5. Noncompliance with R.C. 2969.25 warrants dismissal.

State ex rel. Graham v. Niemeyer (2005), 106 Ohio St.3d 466, 106-467, 835 N.E.2d

1250, 1251.

{¶8} For these reasons, the petition for writ of procedendo is dismissed.

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.

_______________________________

JUDGES

SGF/as 601 [Cite as State v. Lindsay, 2013-Ohio-2972.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Respondent : : -vs- : JUDGMENT ENTRY : WENDELL R. LINDSAY : : Petitioner : CASE NO. 13-CA-8

For the reasons stated in our accompanying Memorandum-Opinion, the petition

for writ of procedendo is dismissed. Costs to Petitioner.