State v. Lindsay

Jul 9, 2013
13-CA-8
Versions:

APPEARANCES:

For Plaintiff-Appellee

JAMES J. MAYER Richland County Prosecutor

By: JILL M. COCHRAN Assistant Prosecuting Attorney 38 South Park Street, 2nd Floor Mansfield, OH 44902

For Defendant-Appellee

WENDELL R. LINDSAY, Pro Se A59-512 Mansfield Correctional Institution 1150 North Main Street Mansfield, OH 44901

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.

{¶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.

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JUDGES

SGF/as 601

JUDGMENT ENTRY

For the reasons stated in our accompanying Memorandum-Opinion, the petition for writ of procedendo is dismissed. Costs to Petitioner.

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JUDGES

Notes

1
The facts cited herein were obtained from our opinion in State v. Lindsay 2011 WL 4361632, 1 (Ohio App. 5 Dist.).