[Cite as State v. Lindsay, 2013-Ohio-3332.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :
                                              :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                  :      Hon. John W. Wise, J.
                                              :      Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
WENDELL R. LINDSAY                            :      Case No. 13CA28
                                              :
                                              :
        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:                                    July 24, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JILL M. COCHRAN                                      WENDELL R. LINDSAY, A591-512
Assistant Richland County Prosecutor                 Mansfield Correctional Institution
38 South Park Street, 2nd Fl.                        1150 North Main Street
Mansfield, OH 44902                                  Mansfield, OH 44901
Richland County, Case No. 13CA28                                                          2

Baldwin, J.

     {¶1}     Appellant Wendell R. Lindsay appeals a judgment of the Richland County

Common Pleas Court converting his Crim. R. 29 motion to a petition for postconviction

relief and dismissing the petition. Appellee is the State of Ohio.

                            STATEMENT OF FACTS AND CASE

     {¶2}     On October 26, 2010, appellant was convicted of rape, sexual battery and

gross sexual imposition following a jury trial in the Richland County Common Pleas

Court. He was sentenced to a prison term of ten years to life. This Court affirmed the

judgment of conviction and sentence. State v. Lindsay, 5th Dist. Richland No. 2010-

CA-0134, 2011-Ohio-4747.

     {¶3}     Appellant filed an amended motion for acquittal pursuant to Crim. R. 29 on

September 26, 2012. The trial court found the motion was untimely filed as a motion

for acquittal, converted the motion to a petition for postconviction relief pursuant to R.C.

2953.21, and dismissed the petition because it was untimely and barred by res

judicata.

     {¶4}     Appellant’s brief does not set forth an assignment of error. However, from

his argument, we extrapolate the following assignment of error:

     {¶5}     THE TRIAL COURT ERRED IN FINDING APPELLANT’S MOTION FOR

ACQUITTAL TO BE UNTIMELY, CONVERTING THE MOTION TO A PETITION FOR

POSTCONVICTION RELIEF, AND OVERRULING THE MOTION.

     {¶6}     Appellant argues that his motion for acquittal was not untimely. Crim. R.

29(C) provides that after a jury returns a verdict of guilty, a motion for judgment of

acquittal may be made or renewed within fourteen days after the jury is discharged or
Richland County, Case No. 13CA28                                                           3


within such time as the court may fix during the fourteen day period. The motion was

filed 23 months after the jury was discharged, and was clearly untimely. Nothing in the

record before this Court reflects that during the fourteen days following discharge of the

jury, the court gave appellant leave to file an amendment to his original Crim. R. 29

motion almost two years after trial. While appellant argues the court could extend the

time for filing pursuant to Crim. R. 45(B), that Rule specifically states that the court

may not extend the time for taking any action under Crim. R. 29 except to the extent

and under the conditions stated in the rule.

     {¶7}    Because the motion was not properly before the court as a Crim. R. 29

motion for acquittal, the trial court did not err in considering the motion as a petition for

postconviction relief. As noted by the court, the petition was untimely pursuant to R.C.

2953.21(A)(1) because it was not filed within 180 days after the trial transcript was filed

in this Court on direct appeal on March 19, 2011, and appellant did not establish either

condition set forth in the statute to allow untimely filing. Further, under the doctrine of

res judicata, a final judgment of conviction bars a defendant from raising and litigating

in any proceeding, except an appeal from that judgment, any defense or any claimed

lack of due process that was raised or could have been raised by the defendant at the

trial which resulted in that judgment of conviction or on an appeal from that judgment.

State v. Perry, 10 Ohio St.2d 175, 180, 226 N .E.2d 104 (1967). Appellant could have

raised the issues raised in his motion for acquittal on direct appeal from his original

judgment of conviction and sentence.
Richland County, Case No. 13CA28                                               4


      {¶8}   The assignment of error is overruled.   The judgment of the Richland

County Common Pleas Court is affirmed. Costs assessed to appellant.



By: Baldwin, J.

Gwin, P. J. and

Wise, J. concur.




                                     HON. CRAIG R. BALDWIN



                                     HON. W. SCOTT GWIN



                                     HON. JOHN W. WISE




CRB/rad
[Cite as State v. Lindsay, 2013-Ohio-3332.]


                  IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
        Plaintiff - Appellee                     :
                                                 :
-vs-                                             :      JUDGMENT ENTRY
                                                 :
WENDELL R. LINDSAY                               :
                                                 :
        Defendant – Appellant                    :      CASE NO. 13CA28


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

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs

assessed to appellant.




                                              HON. CRAIG R. BALDWIN



                                              HON. W. SCOTT GWIN



                                              HON. JOHN W. WISE
