STATE OF OHIO, Appellee, - vs - CARL G. LINDSEY, Appellant.
CASE NO. CA2024-01-001
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BROWN COUNTY
11/4/2024
[Cite as State v. Lindsey, 2024-Ohio-5244.]
Zachary A. Corbin, Brown County Prosecuting Attorney, and Mary McMullen, Assistant Prosecuting Attorney, for appellee.
Carol A. Wright and Herman Carson, for appellant.
PIPER, J.
{¶ 1} Appellant, Carl G. Lindsey, appeals the decision of the Brown County Court of Common Pleas dismissing his most recent petition for postconviction relief (“PCR“). For the reasons outlined below, we affirm the trial court‘s decision.
Facts and Procedural History
{¶ 2} During the early morning hours of February 10, 1997, Lindsey shot and killed Donald Ray “Whitey” Hoop outside of Slammers Bar located near Mt. Orab in Brown
the evidence shows that [Lindsey] stated he would kill Whitey, that he was seen standing near [Whitey‘s] dead body, that police found [Lindsey] shortly after the shooting soaking [Lindsey‘s] bloodstained clothing in a bathroom that also contained Whitey‘s wallet and the same type of gun that killed Whitey, and that [Lindsey‘s] truck was heavily stained with blood consistent with Whitey‘s.
{¶ 3} Given this evidence, the Ohio Supreme Court determined that “the jury neither lost its way nor created a manifest miscarriage of justice in convicting [Lindsey] of aggravated murder.” Id. The Ohio Supreme Court also determined that, when reviewing the mitigating evidence related to Lindsey‘s death sentence, “there can be nothing mitigating about volunteering to murder someone‘s husband, shooting the victim twice in the head at close range, and taking his wallet.” Id. at 492.
{¶ 4} On September 21, 1998, Lindsey filed with the trial court his first petition for PCR. The trial court denied Lindsey‘s petition and this court affirmed. State v. Lindsey, 2003-Ohio-811 (12th Dist.). In so holding, this court noted that, after reviewing each of the exhibits that Lindsey had filed in support of his petition, which included, among other things, supporting affidavits, documentary evidence, the indictment, journal entries, and various transcripts of the proceedings, that Lindsey had:
failed to meet his burden to show that the evidence is more than marginally significant or that it advances his claim beyond a mere hypothesis that the result would be different if this evidence had been submitted at trial.
{¶ 5} On April 3, 1999, Lindsey filed with the trial court a motion seeking leave to file a motion for a new trial. Just as with his initial petition for PCR, the trial court denied Lindsey‘s motion and this court affirmed. State v. Lindsey, 2004-Ohio-4407 (12th Dist.). Several years later, on October 10, 2003, Lindsey filed a petition for a writ of habeas corpus in the federal district court. Following years of amendments to his petition, as well as the withdrawal of certain other claims, the federal district court denied Lindsey‘s habeas corpus petition. Lindsey v. Warden, Chillicothe Corr. Inst., S.D. Ohio No. 1:03-cv-702, 2020 U.S. Dist. LEXIS 244944 (Dec. 30, 2020).
{¶ 6} Lindsey sought reconsideration of the denial of his petition for habeas corpus and leave to further amend his habeas corpus petition. In so doing, Lindsey included an argument regarding alleged “newly discovered evidence” of his Fetal Alcohol Syndrome Disorder (“FASD“) diagnosis.1 Lindsey also included an argument alleging that he was denied effective assistance of counsel based on his trial counsel‘s failure to investigate whether he was suffering from FASD “despite the presence of red flags.” Lindsey further moved the federal district court to include other grounds for relief based on alleged “newly discovered evidence that Mr. Lindsey‘s trial, appellate, and post-conviction counsel all rendered ineffective assistance by failing to timely communicate multiple plea offers from the Brown County Prosecutor‘s Office, and that Mr. Lindsey‘s death sentence is unconstitutional as a result.”
{¶ 7} Lindsey‘s various motions for reconsideration and for leave to amend were
{¶ 8} On July 14, 2020, Lindsey filed an untimely, second or successive petition for PCR. Lindsey filed this petition pursuant to
{¶ 9} On July 18, 2022, the trial court summarily dismissed Lindsey‘s petition for PCR without holding a hearing on the matter. In so doing, the trial court determined that:
- Lindsey‘s claims were barred by the doctrine of res judicata;
- Lindsey had failed to show that he was unavoidably prevented from discovering the facts upon which his claims were based;
- Lindsey had failed to show, by clear and convincing evidence, that constitutional error existed at trial or at sentencing; and
- Lindsey had failed to show, by clear and convincing evidence, that even if constitutional error existed at trial or
sentencing, no reasonable fact finder would have found him guilty of murder or imposed the death penalty.
{¶ 10} Lindsey appealed the trial court‘s decision to this court, raising 11 assignments of error for review. However, rather than addressing the merits of Lindsey‘s 11 assignments of error, this court instead reversed and remanded the matter to the trial court. On remand, we instructed the trial court to address the “threshold question” of whether Lindsey had ever satisfied the jurisdictional requirements to bring an untimely, second or successive petition for PCR under
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section
2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation, and the petition asserts a claim based on that right.(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{¶ 11} Upon remand, the trial court determined that Lindsey had not satisfied either of those two jurisdictional requirements, thus necessitating Lindsey‘s untimely, second or successive petition for PCR be dismissed for lack of jurisdiction. The trial court did this in a decision issued on December 27, 2023. In so doing, the trial court determined that
The [Ohio] Supreme Court‘s description of the circumstances of the offense sets forth overwhelming evidence of guilt and aggravating factors. [Lindsey] was at the scene of the murder. He told Joy Hoop[, the victim‘s wife, that] he would kill her husband for her. He accepted the gun from Hoop and left the bar. Kathy Kerr saw the victim laying on the ground covered in blood. [Lindsey] was standing outside the bar by the door.
[Lindsey] followed Kerr home and took a shower there. Deputy Moor[e, a deputy with the Brown County Sheriff‘s Office,] entered the Kerr residence and saw [Lindsey] in Kerr‘s bathroom soaking his clothes in a tub of red tinted water. The deputy also found a box of .22 caliber ammunition on the sink. Upon search of Kerr‘s residence, police found [Lindsey‘s] wallet, the ammunition, his clothing, the gun, and the victim‘s wallet. The victim‘s wallet was empty but officers found $1,257 in [Lindsey‘s] wallet.
Blood stains found on [Lindsey‘s] jacket, jeans, boot, truck console, steering wheel cover, driver‘s seat, driver‘s door, and handle all were consistent with the victim‘s blood.
Therefore, given the overwhelming evidence of Lindsey‘s guilt, the trial court concluded that it did not, and could not, have “firm belief or conviction” that any of the alleged errors raised by Lindsey within his PCR petition “would change the mind of any reasonable fact finder” as to his guilt or his qualification for the death penalty under
{¶ 12} The trial court also determined that Lindsey had failed to satisfy the requirements of
Lindsey‘s Appeal and Seven Assignments of Error
{¶ 13} On January 26, 2024, Lindsey filed an appeal from the trial court‘s decision. Following briefing, oral argument was held before this court on October 7, 2024. Lindsey‘s appeal now properly before this court for decision, Lindsey has raised seven assignments of error for review.
Rule of Law for an Untimely or Second or Successive Petition for PCR
{¶ 14} There is no dispute that Lindsey‘s petition for PCR at issue in this case was an untimely, second or successive PCR petition. “A trial court does not have subject-matter jurisdiction to adjudicate a postconviction petition that is untimely—i.e., filed outside the statutory deadline under
(a) Either the petitioner shows that the petitioner was
unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation, and the petition asserts a claim based on that right.(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
{¶ 15} Therefore, given the plain language of the statute, for the trial court to have subject-matter jurisdiction to consider Lindsey‘s petition for PCR at issue in this case, Lindsey was required to show (1) that he was “unavoidably prevented” from discovering the facts upon which his claims rely and (2) that, by clear and convincing evidence, but for constitutional error at his trial or at his sentencing hearing, no reasonable factfinder would have found him guilty or eligible for the death penalty. See State v. Apanovitch, 2018-Ohio-4744, ¶ 25. A petitioner like Lindsey must satisfy both of those requirements before the trial court may entertain the petitioner‘s petition. Johnson, 2024-Ohio-134, ¶ 12.
{¶ 16} ”
{¶ 17}
De Novo Standard of Review
{¶ 18} “[W]hether a trial court has subject-matter jurisdiction to entertain an untimely, second, or successive petition for postconviction relief is a question of law, which we review de novo.” State v. Hattan, 2022-Ohio-3991, ¶ 38. “De novo means this court will afford no deference to the trial court‘s decision.” State v. Dean, 2022-Ohio-3105, ¶ 27 (12th Dist.), citing State v. Burnside, 2003-Ohio-5372, ¶ 8.
Assignment of Error No. 1:
{¶ 19} THE TRIAL COURT ERRED AND VIOLATED LINDSEY‘S FEDERAL AND STATE CONSTITUTIONAL RIGHTS BY FINDING HE DID NOT MEET THE JURISDICTIONAL REQUIREMENTS OF OHIO REVISED CODE SECTION 2953.23(A)(1)(a) AFTER CONCLUDING THAT LINDSEY‘S FASD DIAGNOSIS IS NOT NEW EVIDENCE AND THAT IT WAS PREVIOUSLY DISCOVERED.
{¶ 20} In his first assignment of error, Lindsey argues the trial court erred by finding
{¶ 21} Lindsey bore the burden of showing that he was “unavoidably prevented” from discovering the evidence used to establish his FASD diagnosis. Therefore, because
{¶ 22} Lindsey could have done this either by establishing a Brady violation, “or by demonstrating that he was previously unaware of the evidence on which the petition relies and could not have discovered it by exercising reasonable diligence.”3 Id. at ¶ 18. Lindsey did not make either showing in this case. Accordingly, given the record properly before this court, the trial court did not err by finding the evidence that Lindsey presented
Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT ERRED AND VIOLATED LINDSEY‘S FEDERAL AND STATE CONSTITUTIONAL RIGHTS BY FAILING TO ANALYZE WHETHER LINDSEY MET THE JURISDICTIONAL REQUIREMENTS OF OHIO REVISED CODE SECTION 2953.23(A)(1)(b) BASED ON A CONSTITUTIONAL ERROR AT HIS SENTENCING HEARING.
{¶ 24} In his second assignment of error, Lindsey argues the trial court erred by allegedly failing to analyze under
{¶ 25} The trial court reached this decision based upon the overwhelming evidence presented to support Lindsey‘s guilt at trial. Summarizing this evidence, the trial court stated:
[Lindsey] told witnesses that he would kill the victim. He was standing outside the bar [where] the victim‘s body was found in the parking lot. He was found in Kerr‘s bathroom soaking bloody clothes. The victim‘s wallet and the gun were found in the same bathroom. His clothing and truck were copiously
stained with the victim‘s blood. The gun was stained with the victim‘s blood and was the same type of gun that killed him.
Therefore, despite Lindsey‘s assertions otherwise, the trial court did not err by finding “any alleged error” that Lindsey may have asserted would not have changed “the mind of any reasonable fact finder as to [his] guilt or his qualification for the death penalty” under
Assignment of Error No. 3:
{¶ 26} THE TRIAL COURT ERRED AND VIOLATED MR. LINDSEY‘S FEDERAL AND STATE CONSTITUTIONAL RIGHTS WHEN FINDING HE DID NOT MEET THE JURISDICTIONAL REQUIREMENTS OF OHIO REVISED CODE SECTION 2953.23 FOR HIS BLOODSTAIN PATTERN EVIDENCE.
{¶ 27} In his third assignment of error, Lindsey argues the trial court erred by finding the so-called “bloodstain pattern evidence” that he presented to the trial court when arguing, as part of his petition for PCR, that the state‘s expert witness, Dr. McKinley, the Brown County Corner, was not qualified to testify at trial as an expert on blood spatter and/or the place when Whitey‘s body was positioned at the time he suffered a second gunshot wound to the head, was not “newly discovered evidence” under
[Lindsey‘s trial counsel] strenuously argued that the state‘s expert at trial was not qualified as a general practitioner to testify about blood spatter or the position of the victim‘s body. The qualification of the state‘s expert was raised at the trial and in the first petition for postconviction relief. [Lindsey‘s] post-conviction counsel even admits that she was aware of this issue and requested funding for an expert.
{¶ 28} The trial court therefore concluded that “[t]his is not a new issue and [Lindsey] was not unavoidably prevented from discovery of these facts.” We find no error
Assignment of Error No. 4:
{¶ 29} THE TRIAL COURT ERRED BY HOLDING THAT R.C. 2953.23 LIMITS REVIEW TO CONSTITUTIONAL ERRORS AT TRIAL AND SENTENCING.
{¶ 30} In his fourth assignment of error, Lindsey argues the trial court erred by finding the PCR statute,
{¶ 31} Again, as that subsection clearly states, the trial court may not entertain an untimely filed petition or a second or successive petition unless, in addition to the requirements set forth in
The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
(Emphasis added.)
{¶ 32} “Postconviction relief is not a constitutional right; instead, it is a narrow remedy that gives the petitioner no more rights than those granted by statute.” State v. Simon, 2024-Ohio-95, ¶ 9 (4th Dist.). “This means that ‘any right to postconviction relief
Assignment of Error No. 5:
{¶ 33} THE TRIAL COURT ERRED IN FAILING TO CONSIDER WHETHER TRIAL COUNSEL WERE INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR‘S WITHDRAWAL OF THE INITIAL PLEA OFFER.
{¶ 34} In his fifth assignment of error, Lindsey argues the trial court erred by failing to consider whether his trial counsel were ineffective for not objecting to the state‘s “arbitrary” withdraw of its initial plea offer.4 However, when Lindsey did not immediately accept the state‘s plea offer, whether the state would hold that offer open to a later date was left up to the state and rested within the state‘s sole discretion. See, e.g., Ohio v. Lane, 2022-Ohio-3775, ¶ 71-73 (3d Dist.) (finding the state did not breach an enforceable plea agreement where, although rescinding the offer may have been done in “poor form” given the defendant had verbally accepted the offer, the offer was nevertheless withdrawn by the state before the agreement had an opportunity to be accepted by the trial court).
Assignment of Error No. 6:
{¶ 35} THE TRIAL COURT FAILED TO ADDRESS WHETHER THE PROSECUTOR‘S OFFER OF A SENTENCE LESS THAN DEATH IS NOT AN ADMISSION THAT A SENTENCE LESS THAN DEATH IS APPROPRIATE.
{¶ 36} In his sixth assignment of error, Lindsey argues the trial court erred by failing to take into consideration the state‘s initial plea offer did not include the death penalty. This, according to Lindsey, serves as an “admission” by the state that sentencing Lindsey to death was not appropriate. Preliminarily, we note that Lindsey cites no legal authority that the trial court had an obligation to address a plea offer never accepted. Moreover, it was not up to the state to sentence Lindsey; what sentence Lindsey would receive was instead left to the trial court. Given the jury‘s recommendation of death, this included the trial court sentencing Lindsey to the death penalty. Nothing about Lindsey being sentenced to death, despite the state having previously offered Lindsey a lesser sentence, renders either the jury‘s guilty verdict or the trial court‘s death sentence unconstitutional. To the extent Lindsey claims otherwise, such argument lacks merit. Therefore, for these reasons, Lindsey‘s sixth assignment of error is overruled.
{¶ 37} THE TRIAL COURT ERRED BY DISMISSING LINDSEY‘S POST-CONVICTION PETITION WHERE HE PRESENTED SUFFICIENT OPERATIVE FACTS AND SUPPORTING EXHIBITS TO MERIT DISCOVERY AND AN EVIDENTIARY HEARING.
{¶ 38} In his seventh assignment of error, Lindsey argues the trial court erred by dismissing his petition without first holding an evidentiary hearing on the matter. We disagree.
{¶ 39} “An evidentiary hearing is not automatically guaranteed each time a defendant files a petition for postconviction relief.” State v. Harding, 2020-Ohio-1067, ¶ 5 (12th Dist.). “A trial court properly denies a postconviction relief petition without a hearing if the supporting affidavits, the documentary evidence, the files, and the records of the case do not demonstrate that the petitioner set forth sufficient operative facts to establish substantive grounds for relief.” State v. Harris, 2020-Ohio-4101, ¶ 15 (12th Dist.). “A petition presents substantive grounds for relief when it contains allegations that are sufficient to state a constitutional claim and the files and records of the case do not affirmatively disprove the claim.” State v. Blanton, 2022-Ohio-3985, ¶ 24. “A trial court‘s decision to summarily deny a postconviction petition without holding an evidentiary hearing will not be reversed absent an abuse of discretion.” Harding, 2020-Ohio-1067 at ¶ 6. “The standard is deferential, requiring the trial court to engage in more than mere error in law or judgment.” State v. Jones, 2022-Ohio-3864, ¶ 9 (12th Dist.). We must instead “find that the trial court‘s ruling was unreasonable, arbitrary, or unconscionable.” State v. Payton, 2022-Ohio-2829, ¶ 7 (12th Dist.).
{¶ 40} Here, the supporting affidavits, documentary evidence, files, and the records of the case affirmatively disprove each of Lindsey‘s claims. This includes
Conclusion
{¶ 41} For the reasons outlined above, and finding no merit to any of the arguments presented within the seven assignments of error raised by Lindsey herein, including those not directly addressed within this opinion, Lindsey‘s appeal from the trial court‘s decision dismissing his untimely, second or successive petition for PCR is denied.
{¶ 42} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.