State v. Lusane

2021 Ohio 4262

• Court: Ohio Court of Appeals
• Decided: December 6, 2021
• Docket: 2021-P-0011
• Status: Published

Opinion

[Cite as State v. Lusane, 2021-Ohio-4262.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2021-P-0011

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

MATTHEW M. LUSANE, Trial Court No. 2013 CR 00443 Defendant-Appellant.

OPINION

Decided: December 6, 2021 Judgment: Affirmed

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

Matthew M. Lusane, pro se, P.O. Box 465, Ravenna, OH 44266 (Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Matthew M. Lusane, appeals the trial court’s judgment entry

denying his “motion to vacate the void judgment for lack of subject-matter jurisdiction.”

We affirm.

{¶2} In 2014, Lusane was convicted of operating a motor vehicle while under the

influence of alcohol (“OVI”). The OVI charge was enhanced to a fourth-degree felony by

the fact that Lusane had “been convicted of or pleaded guilty to” five prior OVI offenses

within the last twenty years. See R.C. 4511.19(G)(1)(d). We affirmed the conviction in

State v. Lusane, 2016-Ohio-267, 58 N.E.3d 416 (11th Dist.). {¶3} Subsequently, Lusane unsuccessfully moved the municipal court to revise

two of the prior judgment entries upon which the fourth-degree felony OVI had been

predicated. In those cases, the municipal court had not issued a single judgment setting

forth both the fact of conviction and the sentence, in contravention of Crim.R. 32(C) (“[a]

judgment of conviction shall set forth the fact of conviction and the sentence”). On appeal,

we concluded that the municipal court’s failure to grant Lusane’s motions was reversible

error and ordered the municipal court to issue a single entry in each case that set forth

both the fact of conviction and the sentence. State v. Lusane, 11th Dist. Portage No.

2019-P-0027, 2019-Ohio-3549; State v. Lusane, 11th Dist. Portage No. 2019-P-0065,

2020-Ohio-737. On remand, the municipal court issued Crim.R. 32(C) compliant

judgment entries, stating Lusane had pleaded guilty to OVI and imposing the same

sentence. State v. Lusane, 11th Dist. Portage No. 2019-P-0115, 2020-Ohio-4106, ¶ 8;

State v. Lusane, 11th Dist. Portage No. 2020-P-0056, unreleased.

{¶4} The matter now before us is the common pleas court’s denial of Lusane’s

motion to vacate the 2014 felony OVI conviction, from which he advances one assignment

of error:

Trial court erred to the prejudice of Defendant-Appellant by denying his motion to vacate the void judgment, where it lacked subject matter jurisdiction to enter judgment of conviction after admitting facially void journal entries to prove the fact of five prior convictions in violation of State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046; Crim.R. 32(C).

{¶5} In his motion, Lusane argued that the common pleas court lacked subject

matter jurisdiction to enter the fourth-degree felony OVI conviction because two of the

prior OVI convictions upon which the enhancement was predicated did not include a final

appealable order. Lusane alleged the prior entries were void and, therefore, the state 2

Case No. 2021-P-0011 presented insufficient evidence that he had been convicted of or pleaded guilty to five

prior OVI offenses within the last twenty years, which is an element of fourth-degree felony

OVI. He cited as authority State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, 928

N.E.2d 626. In Gwen, the Supreme Court of Ohio held that when the state chooses to

prove a prior conviction by using a judgment entry, that entry must comply with Crim.R.

32(C). Gwen at paragraph two of the syllabus.

{¶6} On appeal, Lusane argues that a manifest miscarriage of justice has

occurred and that the common pleas court committed plain error by failing to vacate his

felony OVI conviction under its authority to correct void judgments. The state of Ohio

responds that the error of which Lusane complains is voidable, not void, and that his

collateral attack on the judgment of conviction is barred by the doctrine of res judicata.

{¶7} Whether a sentencing entry is void or voidable raises a question of law that

we review de novo. State v. Mitchell, 11th Dist. Portage No. 2019-P-0105, 2020-Ohio-

3417, ¶ 43, citing State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5, and

State v. Brown, 11th Dist. Lake No. 2017-L-038, 2017-Ohio-7963, ¶ 8 (“an appellate

court’s standard of review on the denial of a motion to vacate void judgment is de novo”).

{¶8} “A defendant’s ability to challenge an entry at any time is the very essence

of an entry being void, not voidable.” (Citation omitted.) State v. Harper, 160 Ohio St.3d

480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 18. Void judgments may be reviewed at any

time, on direct appeal or by collateral attack. State v. Walker, 11th Dist. Trumbull No.

2018-T-0024, 2018-Ohio-3964, ¶ 12. A voidable judgment, on the other hand, is subject

to res judicata and may be set aside only if successfully challenged on direct appeal.

Case No. 2021-P-0011 Harper at ¶ 18; Walker at ¶ 12, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-

4642, 873 N.E.2d 306, ¶ 28.

Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.

(Emphasis added.) State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph

nine of the syllabus.

{¶9} After years of expanding on the void sentence doctrine, in the cases of

Harper and Henderson, the Supreme Court of Ohio returned to the “traditional

understanding” of void and voidable judgments. Harper at ¶ 4; State v. Henderson, 161

Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 34. Pursuant to the traditional view,

“[a] judgment or sentence is void only if it is rendered by a court that lacks subject-matter

jurisdiction over the case or personal jurisdiction over the defendant. If the court has

jurisdiction over the case and the person, any error in the court’s exercise of that

jurisdiction is voidable.” Henderson at ¶ 43. “[U]nless it is vacated on appeal, a voidable

judgment has the force of a valid legal judgment, regardless of whether it is right or

wrong.” Id. at ¶ 17, citing Tari v. State, 117 Ohio St. 481, 494, 159 N.E. 594 (1927). “The

failure to timely—at the earliest available opportunity—assert an error in a voidable

judgment, even if that error is constitutional in nature, amounts to the forfeiture of any

objection.” Henderson at ¶ 17, citing Tari at 495.

{¶10} Lusane does not challenge the trial court’s personal jurisdiction over him,

and there is no question that a felony OVI offense is within the common pleas court’s

Case No. 2021-P-0011 subject matter jurisdiction. See R.C. 2931.03. Lusane argues, however, that the instant

offense was a misdemeanor and not a felony, thereby divesting the common pleas court

of its subject matter jurisdiction.

{¶11} The premise of Lusane’s argument—that the journal entries used to prove

two of the prior offenses were “facially void”—is flawed. Although we held that the

sentencing entries in those prior cases did not comply with the single judgment entry

requirement of Crim.R. 32(C), we did not hold that those entries were void. Nor would

we so hold, as the municipal court had subject matter jurisdiction over those misdemeanor

offenses. See R.C. 1901.20(A)(1) (“[t]he municipal court has jurisdiction to hear

misdemeanor cases committed within its territory”). Therefore, contrary to Lusane’s

argument, that the entries did not comply with Crim.R. 32(C) did not divest the common

pleas court of jurisdiction.

{¶12} Additionally, the Supreme Court’s holding in Gwen has been the law on this

issue since 2012, well before and after Lusane’s direct appeal was decided. Gwen, 2012-

Ohio-5046, at paragraph two of the syllabus (“When, pursuant to R.C. 2945.75(B)(1), the

state offers a judgment entry to prove the element of a prior * * * conviction in order to

increase the offense level of a later * * * charge, the judgment entry must comply with

Crim.R. 32(C).”); see also R.C. 2945.75(B)(1) (“Whenever in any case it is necessary to

prove a prior conviction, a certified copy of judgment in such prior conviction together with

evidence sufficient to identify the defendant named in the entry as the offender in the case

at bar, is sufficient to prove such prior conviction.”). Because the municipal court’s failure

to comply with Crim.R. 32(C) was apparent on the face of the record in the felony case,

Case No. 2021-P-0011 our rulings in the misdemeanor cases were not necessary for Lusane to have raised his

insufficient evidence argument on direct appeal from his 2014 conviction.

{¶13} Further, assuming arguendo that the state presented insufficient evidence

on the predicate offense element of fourth-degree felony OVI, this also would not have

divested the common pleas court of subject matter jurisdiction over the offense. Common

pleas courts have “such original jurisdiction over all justiciable matters * * * as may be

provided by law.” Ohio Constitution, Article IV, Section 4. The criminal law jurisdiction of

common pleas courts is provided in R.C. 2931.03: “The court of common pleas has

original jurisdiction of all crimes and offenses, except in cases of minor offenses the

exclusive jurisdiction of which is vested in courts inferior to the court of common pleas.”

Although at first glance this provision could be construed to mean that exclusive

jurisdiction of all minor offenses is vested in courts inferior to the common pleas court, the

Supreme Court of Ohio has expressly decided to the contrary:

The * * * contention that the Court of Common Pleas does not have jurisdiction in a misdemeanor case is a misinterpretation of Section 2931.03, Revised Code, and is without merit. Jurisdiction over all crimes and offenses is vested in the Court of Common Pleas, unless such jurisdiction is vested specifically and exclusively in the lower courts. In the absence of an express provision to the contrary, the Court of Common Pleas has jurisdiction over misdemeanors.

(Emphasis added.) State ex rel. Coss v. Hoddinott, 16 Ohio St.2d 163, 164, 243 N.E.2d

59 (1968), citing Small v. State, 128 Ohio St. 548, 192 N.E. 790 (1934). There is no

express provision vesting jurisdiction of misdemeanor OVI offenses specifically and

exclusively in a court inferior to the common pleas court. Ergo, common pleas courts

have jurisdiction to preside over misdemeanor OVI offenses. See State v. Zimmerman,

11th Dist. Geauga No. 2013-G-3146, 2014-Ohio-1152, ¶ 15-16 (common pleas courts 6

Case No. 2021-P-0011 and municipal courts have concurrent jurisdiction to hear misdemeanor OVI offenses),

citing Coss at 164. Accordingly, any error in the exercise of the trial court’s jurisdiction

would have rendered the judgment voidable, not void.

{¶14} We conclude, therefore, that Lusane’s failure to timely assert the alleged

error on direct appeal amounts to the forfeiture of his objection via a collateral attack, and

his argument is barred by the doctrine of res judicata. The common pleas court did not

err in denying his motion.

{¶15} Lusane’s sole assigned error is overruled. The judgment of the Portage

County Court of Common Pleas is affirmed.

MATT LYNCH, J.,

JOHN J. EKLUND, J.,

concur.

Case No. 2021-P-0011