[Cite as State v. Lindsay, 2022-Ohio-4498.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
WENDELL R. LINDSAY, II : Case No. 22-CA-61
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2010CR0419D
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 14, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP WENDELL R. LINDSAY, II, PRO SE
38 PARK STREET A591-512
MANSFIELD, OH 44902 P.O. Box 1812 (N.C.C.C.)
Marion, OH 43301
Richland County, Case No. 22-CA-61 2
Wise, Earle, P.J.
{¶ 1} Appellant Wendell R. Lindsay appeals the August 9, 2022 denial of his
motion to void all judgment in this matter due to the alleged bias of the judge who presided
over his 2010 trial. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant has appealed various issues in this matter many times before.
Most recently, in State v, Lindsay, 5th Dist. Richland No. 2021 CA 0068, 2021-Ohio-4526
we set forth the facts and procedural history as follows.
{¶ 3} On March 4, 2010, the ten-year-old victim approached her school guidance
counselor 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).
{¶ 4} 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. 22-CA-61 3
{¶ 5} 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.
{¶ 6} On October 27, 2010, the trial court conducted a sentencing hearing during
which it 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.
{¶ 7} Appellant filed a direct appeal. This Court affirmed Appellant's convictions
and sentence in State v. 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.
{¶ 8} 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.
{¶ 9} 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.
{¶ 10} On February 26, 2013, Appellant filed a motion for new trial.
{¶ 11} 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
Richland County, Case No. 22-CA-61 4
judge recommended the petition be dismissed with prejudice. Lindsay v. Tibbals, N.D.
Ohio No. 1:13-CV-00309, 2014 WL 11128199.
{¶ 12} 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.
{¶ 13} 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.
{¶ 14} By judgment entry filed January 17, 2014, the trial court denied Appellant's
February 26, 2013, motion for new trial.
{¶ 15} Appellant appealed the judgment to this Court, but the appeal was
dismissed for failure to prosecute.
{¶ 16} 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.
{¶ 17} 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.
{¶ 18} On March 24, 2016, the trial court denied both motions and Lindsay
appealed.
{¶ 19} In case number 16CA38, Appellant appealed the trial court's judgment
denying his Application for DNA Testing.
{¶ 20} In case number 16CA39, Appellant appealed the trial court's judgment
denying his Motion for Resentencing/Sentence Reduction.
Richland County, Case No. 22-CA-61 5
{¶ 21} 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.
{¶ 22} 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.
{¶ 23} 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.
{¶ 24} Appellant appealed to this Court, which affirmed the trial court's decision.
State v. Lindsay, 5th Dist. Richland No. 18CA87, 2019-Ohio-157.
{¶ 25} Appellant filed a Motion for New Trial on May 3, 2019, and an Amendment
to the motion on May 24, 2019. Via Judgment Entry filed June 10, 2019, the trial court
overruled the motion, finding the motion was untimely and Appellant failed to offer new
evidence which could not have discovered prior to trial or within 120 days after trial.
{¶ 26} 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.
{¶ 27} On December 29, 2020, Appellant filed a motion titled "Motion For Sentence
Modification Pursuant to R.C. 2945.75; Jury Verdict Form Not In Compliance With The
Law." The trial court overruled the motion on January 22, 2021 finding the motion was
time-barred as well as res judicata. Appellant filed an appeal which was later dismissed
as it was filed out of time.
Richland County, Case No. 22-CA-61 6
{¶ 28} On July 26, 2021, Appellant filed a motion titled "Motion:
Resentencing/Sentencing Modification Verdict Form Not in Compliance Pursuant to R.C.
2925.75 The Sentence if Void, Plain Error Occurred, And this Argument Can be Brought
Up At Any Time." On August 10, 2021, the trial court denied Appellant's motion and noted
this court had previously addressed the arguments raised by Appellant in his motion.
Appellant filed an appeal and this court affirmed. State v. Lindsay, 5th Dist. Richland No.
2021 CA 0068, 2021-Ohio-4526, appeal not allowed, 166 Ohio St.3d 1468, 2022-Ohio-
1163, 185 N.E.3d 111.
{¶ 29} On August 1, 2022, Appellant filed a 20-page document titled "Motion:
Voiding "All" Judgments Pertaining to Defendant's Case, And Adjudication Process, Due
To A "Manifest Miscarriage Of Justice" Inwhere The Presiding Judge Harbored A
"Fudiciary Bias," Which Should Have Disqualified Him Because of Clear "Appearance of
Impropriety" Requiring a "New Trial," Where The Judge Allowed An Associate's/Or
Colleague's Influence His Decision-Making Throughout The Trial, And Allowing The Trial
To Continue Knowing Several "Conflict Of Interests" Were Obvious Between The
Prosecutor, A Juror, And The Defense Attorney For the Defendant, Violating 28 U.S.C.S.
455(a); All Judgments Are Contrary to Law. (Sic)
{¶ 30} In his motion Appellant argued that the Judge DeWeese, who presided over
Appellant's October 2010 trial, had a conflict of interest because the victim's grandmother
was a former employee of the Richland County Court of Common Pleas. Appellant argued
that the prosecutor, a juror, and Mr. Lindsay's trial attorney also had conflicts of interest
and that therefore, all judgments made by Judge DeWeese should be vacated and his
case transferred to another venue.
Richland County, Case No. 22-CA-61 7
{¶ 31} On August 9, 2022, the trial court overruled Appellant's motion finding he
had previously raised the same and similar arguments in the past, that the arguments
had also been addressed and overruled by this court and were therefore res judicata.
{¶ 32} Around the same time, Appellant filed an affidavit in the Supreme Court of
Ohio pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution
seeking to disqualify former Judge James DeWeese and Judge Phillip Naumoff from this
matter. The Court denied Appellant's affidavit of disqualification finding it grossly untimely.
The Court further found Judge DeWeese is no longer a practicing judge in Richland
County and is no longer assigned to Appellant's case. Finally, the Court found Appellant
had failed to demonstrate why Judge Naumoff should be disqualified over Judge
DeWeese's alleged conflict of interest at Appellant's 2010 trial. In re Disqualification of
DeWeese and Naumoff, --- N.E.3d ----, 2022-Ohio-3882. *cite* September 1, 2022
{¶ 33} Appellant filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error as follows:
I
{¶ 34} "THE TRIAL JUDGE DURING THE ADJUDICATION OF THE
DEFENDANT'S CASE, WAS OBLIGATED TO CARRY OUT A MANDATORY
DISMISSAL OR RECUSAL UPON HIMSELF, IN WHERE HE HARBORED AN
"APPEARANCE OF IMPROPRIETY," AND A "FIDUCIARY BIAS," WHEN THE RECORD
SHOWED THAT THE JUDGE ACKNOWLEDGED THAT THE ALLEGED VICTIM IN
THIS CASE, WAS THE PATERNAL GRANDDAUGHTER OF HIS RETIRED BAILIFF:
THEREFORE, ALL JUDGMENTS MADE AFTER THE INFORMATION WAS
ACKNOWLEDGED CREATED A "PRIMA FACIE CASE, "OHIO CONSTITUTION
ARTICLE XV, § 7, SPECIFIED IN OHIO REVISED CODE ANN. § 3.23; CANNON
Richland County, Case No. 22-CA-61 8
3(C)(1)(D); 28 U.S.C.S. § 455, & R.C. §2701.031; DISQUALIFYING OF JUDGE, ALSO,
VOIDING ALL JUDGMENTS MADE BY TRIAL JUDGE ARE THEREFORE SHOULD BE
VOID."
{¶ 35} In his sole assignment of error, Appellant argues Judge DeWeese, who
presided over his 2010 trial was biased and should have recused himself due to a conflict
of interest and because he did not, he is entitled to an order voiding all judgments made
by Judge DeWeese and a new trial. We disagree
{¶ 36} Upon review of Appellant's arguments, we find the arguments could have
been raised, or were raised, via the direct appeal of Appellant's original conviction and
sentence or through the appeal of the denial of his subsequent motions for postconviction
relief. Appellant raised the same arguments he raises here in the second assignment of
error of his original direct appeal and in various motions filed after that decision was
issued. State v. Lindsay, 5th Dist. Richland No. 2010-CA-0134, 2011-Ohio-4747 ¶¶ 32-
49
{¶ 37} "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).
{¶ 38} 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
Richland County, Case No. 22-CA-61 9
362 (12th Dist.1995); See also State v. Wolfe, 5th Dist. Delaware No. 16CAA020008,
2016-Ohio-4616, ¶ 19
{¶ 39} Appellant's sole assignment of error is overruled.
{¶ 40} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By Wise, Earle, P.J.
Delaney, J. and
Baldwin, J. concur.
EEW/rw
[Cite as State v. Lindsay, 2022-Ohio-4498.]