[Cite as State v. Lusher, 2016-Ohio-3047.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : MARK R. LUSHER : Case No. 15CA59 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2008-CR-0498 H
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE MARK R. LUSHER. pro se Prosecuting Attorney VOA-Residential Reentry Facility 921 N. Main Street By: DANIEL M. ROGERS Mansfield, Ohio 44903 Assistant Prosecuting Attorney Richland County Prosecutor’s Office 38 S. Park Street Mansfield, Ohio 44902 Richland County, Case No. 15CA59 2
Baldwin, J.
{¶1} Defendant-appellant Mark Lusher appeals from the June 25, 2015 Order of
the Richland County Court of Common Pleas overruling his Motion to Withdraw Guilty
Plea. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} The Richland County Grand Jury indicted appellant in 2008 on one count of
aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a felony of the
second degree, one count of aggravated vehicular assault in violation of R.C.
2903.08(A)(1)(a), a felony of the third degree, and three counts of operating a motor
vehicle under the influence of drugs and/or alcohol (“OVI”) in violation of R.C. 4511.19(A),
misdemeanors of the first degree.
{¶3} On September 17, 2008, appellant entered a plea to aggravated vehicular
homicide, aggravated vehicular assault and OVI. The two remaining OVI counts were
dismissed. On December 10, 2008, the trial court sentenced appellant to eight years in
prison on the charge of aggravated vehicular homicide, five years in prison on the charge
of aggravated vehicular assault, and six months on the charge of OVI. The charges were
ordered to be served concurrently, for a total sentence of eight years in prison. The trial
court further ordered appellant to pay a fine of $15,000.00, restitution and court costs. In
addition, appellant was sentenced to five years of post-release control and appellant's
driver's license was suspended for life.
{¶4} Appellant filed a Notice of Appeal on January 22, 2009 with this Court in
Case No. 09–CA–10. That appeal was dismissed on March 5, 2009 for failure to
prosecute. Richland County, Case No. 15CA59 3
{¶5} On February 24, 2010, appellant filed a Motion to Vacate all fines and court
costs with the trial court. On March 2, 2010, appellant filed a motion for transcripts in this
case under the guise of a public records request. The motions were overruled pursuant
to Judgment Entries filed on March 17, 2010 and March 26, 2010.
{¶6} Appellant, on April 22, 2010, filed a Motion to Correct an Improper
Sentence. Appellee agreed that the trial court had improperly imposed post-relief control
in this case, imposing five years, rather than the mandatory three years of post-relief
control as required under statute. Appellee requested that appellant be brought back for
re-sentencing.
{¶7} On May 17, 2010, appellant filed a Motion to Withdraw Guilty Plea pursuant
to Crim.R. 32.1. Appellant specifically argued in his motion that he was not properly
informed by the trial court, prior to his plea, that the maximum sentence he faced included
a lifetime driver's license suspension. Appellant also argued that the plea agreement had
been violated.
{¶8} On August 6, 2010, appellant appeared before the trial court for
resentencing and was sentenced to the same prison sentence as before with the
exception that he was sentenced to three (3) years of mandatory post-release control
rather than a discretionary five years. The court's August 9, 2010 Entry states that
appellant was advised of his right to appeal.
{¶9} Thereafter, on September 7, 2010, appellant filed a Notice of Appeal of his
re-sentencing in 5th Dist. Richland No. 10–CA–107. Via a Judgment Entry filed March 11,
2011, this Court dismissed appellant's appeal for failure to prosecute after he had been
granted five extensions and failed to file a brief. Richland County, Case No. 15CA59 4
{¶10} The trial court, on November 1, 2010, overruled appellant's May 17, 2010
Motion to Withdraw Guilty Plea. Appellant did not appeal such ruling.
{¶11} On July 3, 2013, appellant, who was represented by counsel, filed his
second Motion to Withdraw his guilty plea. Appellant again argued that the trial court's
failure to inform him of the lifetime license suspension was a failure to inform him of the
maximum penalty, thus making his plea unknowing and involuntary. Defense counsel
cited to sections of the sentencing transcript in the motion. The trial court overruled
appellant's motion pursuant to a Judgment Entry filed August 13, 2013. The trial court
cited the reasons stated in appellee's motion in opposition, which included that appellant's
argument was barred by res judicata, as the grounds for overruling the motion.
{¶12} Appellant then appealed. Pursuant to an Opinion filed on May 5, 2014 in
State v. Lusher, 5th Dist. Richland No. 13–CA–83, 2014–Ohio–1930, this Court affirmed
the judgment of the trial court. A Nunc Pro Tunc Opinion was filed on July 18, 2014.
{¶13} Subsequently, on August 13, 2014, appellant filed a Motion for
Resentencing. Appellant, in his motion, argued that his plea was not knowing, intelligent
and voluntary. Appellant argued that the trial court had failed to comply with Crim.R. 11,
had failed to inform him that he had a right to appeal, had failed to allow him to read the
presentence investigation report and to comment on the same, and had failed to inform
him that he was obligated to pay for any of the costs of his own prosecution. Appellant
further argued that appellee had breached the plea agreement with respect to the length
of appellant's license suspension. Appellee filed a response to appellant's motion on
August 19, 2014.
{¶14} Pursuant to a Judgment Entry filed on August 28, 2014, the trial court
overruled appellant's motion. The trial court found that the five grounds for resentencing Richland County, Case No. 15CA59 5
raised in appellant's motion were barred by the doctrine of res judicata. The trial court
further found that appellant had failed to timely file a post-conviction petition or meet the
standards for an untimely filing under R.C. 2953.23(A).
{¶15} Appellant then appealed raising, in part, the following assignments of error
on appeal:
I. THE STATE [FAILED] TO ADVISE DEFENDANT THAT BY
ENTERING INTO A PLEA AGREEMENT, HE WOULD: [ALSO
BE WAIVING] HIS CONSTITUTIONAL RIGHTS, AS SET
FORTH IN CRIMINAL RULE 11(C)(2)(a)(b)(c), (E), and (F).
II. THE STATE, AFTER SENTENCING, [FAILED] TO INFORM
DEFENDANT “ON THE RECORD AND IN OPEN COURT” OF
HIS CRIMINAL RULE 32 RIGHTS. THAT IS, HIS CRIMINAL
RULE 32(B)—NOTIFICATION ON RIGHT TO APPEAL.
{¶16} Pursuant to an Opinion filed on May 18, 2015 in State v. Lusher, 5th Dist.
Richland No. 14CA72, 2015-Ohio-1924, this Court affirmed the judgment of the trial court,
finding that appellant’s claims were barred by the doctrine of res judicata and that his
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[Cite as State v. Lusher, 2016-Ohio-3047.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : MARK R. LUSHER : Case No. 15CA59 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2008-CR-0498 H
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE MARK R. LUSHER. pro se Prosecuting Attorney VOA-Residential Reentry Facility 921 N. Main Street By: DANIEL M. ROGERS Mansfield, Ohio 44903 Assistant Prosecuting Attorney Richland County Prosecutor’s Office 38 S. Park Street Mansfield, Ohio 44902 Richland County, Case No. 15CA59 2
Baldwin, J.
{¶1} Defendant-appellant Mark Lusher appeals from the June 25, 2015 Order of
the Richland County Court of Common Pleas overruling his Motion to Withdraw Guilty
Plea. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} The Richland County Grand Jury indicted appellant in 2008 on one count of
aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a felony of the
second degree, one count of aggravated vehicular assault in violation of R.C.
2903.08(A)(1)(a), a felony of the third degree, and three counts of operating a motor
vehicle under the influence of drugs and/or alcohol (“OVI”) in violation of R.C. 4511.19(A),
misdemeanors of the first degree.
{¶3} On September 17, 2008, appellant entered a plea to aggravated vehicular
homicide, aggravated vehicular assault and OVI. The two remaining OVI counts were
dismissed. On December 10, 2008, the trial court sentenced appellant to eight years in
prison on the charge of aggravated vehicular homicide, five years in prison on the charge
of aggravated vehicular assault, and six months on the charge of OVI. The charges were
ordered to be served concurrently, for a total sentence of eight years in prison. The trial
court further ordered appellant to pay a fine of $15,000.00, restitution and court costs. In
addition, appellant was sentenced to five years of post-release control and appellant's
driver's license was suspended for life.
{¶4} Appellant filed a Notice of Appeal on January 22, 2009 with this Court in
Case No. 09–CA–10. That appeal was dismissed on March 5, 2009 for failure to
prosecute. Richland County, Case No. 15CA59 3
{¶5} On February 24, 2010, appellant filed a Motion to Vacate all fines and court
costs with the trial court. On March 2, 2010, appellant filed a motion for transcripts in this
case under the guise of a public records request. The motions were overruled pursuant
to Judgment Entries filed on March 17, 2010 and March 26, 2010.
{¶6} Appellant, on April 22, 2010, filed a Motion to Correct an Improper
Sentence. Appellee agreed that the trial court had improperly imposed post-relief control
in this case, imposing five years, rather than the mandatory three years of post-relief
control as required under statute. Appellee requested that appellant be brought back for
re-sentencing.
{¶7} On May 17, 2010, appellant filed a Motion to Withdraw Guilty Plea pursuant
to Crim.R. 32.1. Appellant specifically argued in his motion that he was not properly
informed by the trial court, prior to his plea, that the maximum sentence he faced included
a lifetime driver's license suspension. Appellant also argued that the plea agreement had
been violated.
{¶8} On August 6, 2010, appellant appeared before the trial court for
resentencing and was sentenced to the same prison sentence as before with the
exception that he was sentenced to three (3) years of mandatory post-release control
rather than a discretionary five years. The court's August 9, 2010 Entry states that
appellant was advised of his right to appeal.
{¶9} Thereafter, on September 7, 2010, appellant filed a Notice of Appeal of his
re-sentencing in 5th Dist. Richland No. 10–CA–107. Via a Judgment Entry filed March 11,
2011, this Court dismissed appellant's appeal for failure to prosecute after he had been
granted five extensions and failed to file a brief. Richland County, Case No. 15CA59 4
{¶10} The trial court, on November 1, 2010, overruled appellant's May 17, 2010
Motion to Withdraw Guilty Plea. Appellant did not appeal such ruling.
{¶11} On July 3, 2013, appellant, who was represented by counsel, filed his
second Motion to Withdraw his guilty plea. Appellant again argued that the trial court's
failure to inform him of the lifetime license suspension was a failure to inform him of the
maximum penalty, thus making his plea unknowing and involuntary. Defense counsel
cited to sections of the sentencing transcript in the motion. The trial court overruled
appellant's motion pursuant to a Judgment Entry filed August 13, 2013. The trial court
cited the reasons stated in appellee's motion in opposition, which included that appellant's
argument was barred by res judicata, as the grounds for overruling the motion.
{¶12} Appellant then appealed. Pursuant to an Opinion filed on May 5, 2014 in
State v. Lusher, 5th Dist. Richland No. 13–CA–83, 2014–Ohio–1930, this Court affirmed
the judgment of the trial court. A Nunc Pro Tunc Opinion was filed on July 18, 2014.
{¶13} Subsequently, on August 13, 2014, appellant filed a Motion for
Resentencing. Appellant, in his motion, argued that his plea was not knowing, intelligent
and voluntary. Appellant argued that the trial court had failed to comply with Crim.R. 11,
had failed to inform him that he had a right to appeal, had failed to allow him to read the
presentence investigation report and to comment on the same, and had failed to inform
him that he was obligated to pay for any of the costs of his own prosecution. Appellant
further argued that appellee had breached the plea agreement with respect to the length
of appellant's license suspension. Appellee filed a response to appellant's motion on
August 19, 2014.
{¶14} Pursuant to a Judgment Entry filed on August 28, 2014, the trial court
overruled appellant's motion. The trial court found that the five grounds for resentencing Richland County, Case No. 15CA59 5
raised in appellant's motion were barred by the doctrine of res judicata. The trial court
further found that appellant had failed to timely file a post-conviction petition or meet the
standards for an untimely filing under R.C. 2953.23(A).
{¶15} Appellant then appealed raising, in part, the following assignments of error
on appeal:
I. THE STATE [FAILED] TO ADVISE DEFENDANT THAT BY
ENTERING INTO A PLEA AGREEMENT, HE WOULD: [ALSO
BE WAIVING] HIS CONSTITUTIONAL RIGHTS, AS SET
FORTH IN CRIMINAL RULE 11(C)(2)(a)(b)(c), (E), and (F).
II. THE STATE, AFTER SENTENCING, [FAILED] TO INFORM
DEFENDANT “ON THE RECORD AND IN OPEN COURT” OF
HIS CRIMINAL RULE 32 RIGHTS. THAT IS, HIS CRIMINAL
RULE 32(B)—NOTIFICATION ON RIGHT TO APPEAL.
{¶16} Pursuant to an Opinion filed on May 18, 2015 in State v. Lusher, 5th Dist.
Richland No. 14CA72, 2015-Ohio-1924, this Court affirmed the judgment of the trial court,
finding that appellant’s claims were barred by the doctrine of res judicata and that his
Motion for Resentencing was an untimely post-conviction relief motion.
{¶17} Thereafter, appellant, on June 15, 2015, filed a Criminal Rule 32.1
Withdrawal of Guilty Plea. Appellant, in his motion, argued that his guilty plea was invalid
due to the State’s failure to comply with Crim.R. 32.1(C)(2)(c). Appellant argued that he
was never advised on the record that, by entering into a plea agreement, he would be
waiving his constitutional rights.
{¶18} The trial court, pursuant to an Order filed on June 25, 2015, overruled
appellant’s June 15, 2015 motion on the basis that the issues raised were barred by the Richland County, Case No. 15CA59 6
doctrine of res judicata. The trial court, in its Order, noted that appellant’s motion was his
third motion to withdraw his guilty plea and that “the defendant has raised this exact same
issue previously and the Fifth District Court of Appeals ruled that this specific argument
was barred by res judicata.”
{¶19} Appellant now appeals from the trial court’s June 25, 2015 Order, raising
the following assignment of error of error on appeal:
{¶20} THE TRIAL COURT FAILED TO STRICRTLY (SIC) COMPLY WITH
CRIMINAL RULES 11(C)(2)(a)(b)(c) AND (F). THAT IS, THE TRIAL COURT FAILED TO
ORALLY ADVISE DEFENDANT DURING THE PLEA AGREEMENT THAT HE WOULD
BE WAIVING HIS CONSTITUTIONAL RIGHTS WHEN HE ENTERED INTO A PLEA
AGREEMENT WITH THE STATE. THAT OMISSION RESULTED IN CRITICAL AND
DEFINING LANGUAGE BEING OMITTED DURING THE CHANGE OF PLEA HEARING.
MEANING: THE STATE’S FAILURE TO INCORPORATE THE LANGUAGE THAT
DEFENDANT WAS WAIVING HIS CONSTITUTIONAL RIGHTS CHANGED THE
INTENDED MESSAGE THAT WAS REQUIRED TO BE TRANSMITTED/UNDERSTOOD
BY THE DEFENDANT.
I
{¶21} Appellant, in his sole assignment of error, argues that the trial court erred in
overruling his June 15, 2015 Motion to Withdraw Guilty Plea.
{¶22} We find that the issue raised by appellant is barred by the doctrine of res
judicata. Appellant raised the same issue that he now sets forth in the instant appeal in a
previous appeal. As noted by the trial court, appellant raised the same claim in State v.
Lusher, 5th Dist. Richland No. 14CA72, 2015-Ohio-1924. This Court, in our Opinion in
such case, affirmed the judgment of the trial court, finding that appellant’s arguments that Richland County, Case No. 15CA59 7
the trial court failed to comply with Crim.R. 32 and Crim.R. 11 were barred by the doctrine
of res judicata. Appellant’s claim in this case is, therefore, also barred under the doctrine
of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The Perry
court explained the doctrine as follows: “Under the doctrine of res judicata, a final
judgment of conviction bars the convicted defendant 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.” Id. at
paragraph 8 of the syllabus.
{¶23} Appellant’s sole assignment of error is, therefore, overruled.
{¶24} Accordingly, the judgment of the Richland County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.