[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.
