State v. Lusane

2017 Ohio 8628

Opinion

[Cite as State v. Lusane, 2017-Ohio-8628.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2017-P-0066 - vs - :

MATTHEW M. LUSANE, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. 2005 TRC 11364 R.

Judgment: Appeal dismissed.

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Matthew M. Lusane, pro se, PID: 660-925, TCC Camp, P.O. Box 640, 5701 Burnett Road, Leavittsburg, OH 44430 (Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} On September 11, 2017, appellant, Matthew M. Lusane, filed a pro se

motion for leave to file a delayed appeal and a notice of appeal. Appellant appeals his

December 27, 2005 conviction for OVI. The appeal is untimely by almost 12 years.

{¶2} No brief or response opposing the motion for leave has been filed. {¶3} “* * * [A] party who wishes to appeal from an order that is final upon its

entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry.”

App.R. 4(A)(1).

{¶4} “(1) After the expiration of the thirty day period provided by App.R. 4(A)

for the filing of a notice of appeal as of right, an appeal may be taken by a defendant

with leave of the court to which the appeal is taken in the following classes of cases:

{¶5} “(a) Criminal proceedings;

{¶6} “(b) Delinquency proceedings; and

{¶7} “(c) Serious youthful offender proceedings.

{¶8} “(2) A motion for leave to appeal shall be filed with the court of appeals

and shall set forth the reasons for the failure of the appellant to perfect an appeal as of

right. Concurrently with the filing of the motion, the movant shall file with the clerk of the

trial court a notice of appeal in the form prescribed by App.R. 3 and shall file a copy of

the notice of the appeal in the court of appeals.” App.R. 5(A).

{¶9} Appellant contends that he was unaware that his conviction ever existed.

He describes it as a “Ghost Conviction.” He claims that “no record exists that shows

[that he] voluntarily, knowingly and intelligently entered a plea of guilty to the

misdemeanor OVI under Traf.R. 10 waiving constitutional rights as result of the plea.”

He further states that his guilty plea was made without his consent. Appellant indicates

that he discovered the “Ghost Conviction” in early 2011.

{¶10} Accepting appellant’s statements are true, he admits that “in the early part

of 2011” he discovered his conviction. Appellant did not file a notice of appeal, but

rather he filed a motion to vacate his plea with the trial court.

2 {¶11} By waiting nearly 12 years since his conviction, and over 6 years since

discovering the conviction to file an appeal, clearly appellant was not diligent in

protecting his appellate rights. Additionally, appellant’s reasons as cause for the delay

do not justify waiting that length of time to initiate a direct appeal.

{¶12} Accordingly, appellant’s motion for leave to file a delayed appeal is hereby

overruled.

{¶13} Appeal dismissed.

CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.