State v. Lusher

2024 Ohio 5455

• Court: Ohio Court of Appeals
• Decided: November 18, 2024
• Docket: 2024 AP 05 0017
• Status: Published

Opinion

[Cite as State v. Lusher, 2024-Ohio-5455.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Andrew J. King, J. -vs- : : JEFFREY LUSHER : Case No. 2024 AP 05 0017 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2023 CR 08 0239

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 18, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RYAN D. STYER GEORGE URBAN 125 E. High Avenue 116 Cleveland Avenue NW New Philadelphia, OH 44663 Suite 808 Canton, OH 44702 Tuscarawas County, Case No. 2024 AP 05 0017 2

King, J.

{¶ 1} Defendant-Appellant Jeffery Lusher appeals the April 4, 2024 judgment of

conviction and sentence of the Tuscarawas County Court of Common Pleas. Plaintiff-

Appellee is the State of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On September 15, 2023, the Tuscarawas County Grand Jury returned a

five-count indictment charging Lusher with one count each of breaking and entering,

vandalism, and possessing criminal tools, felonies of the fifth degree, one count of

receiving stolen property, a misdemeanor of the first degree, and one count of attempted

theft, a misdemeanor of the second degree.

{¶ 3} On February 5, 2024, Lusher entered pleas of guilty to each count of the

indictment. The trial court ordered a presentence investigation and the matter was set

over for sentencing.

{¶ 4} A sentencing hearing was held on April 3, 2024. The state recommended a

period of community control and an order of restitution. The trial court declined to follow

the state's recommendation. It noted that Lusher was on post-release control in five cases

when he committed the instant offenses, had several previous felony convictions and had

pending cases in two other counties. Transcript of Sentencing at 3-5. The trial court

therefore imposed an aggregate prison term of 24 months.

{¶ 5} Lusher filed an appeal and was appointed counsel. Thereafter, Lusher's

attorney filed an Anders brief pursuant to Anders v. California, 386 U.S. 738 (1967). In

Anders, the United States Supreme Court held that if, after a conscientious examination

of the record, the defendant's counsel concludes that the case is wholly frivolous, then Tuscarawas County, Case No. 2024 AP 05 0017 3

counsel should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany the request with a brief identifying anything in the record that

could arguably support the defendant's appeal. Id. Counsel also must: (1) furnish the

defendant with a copy of the brief and request to withdraw; and (2) allow the defendant

sufficient time to raise any matters that the defendant chooses. Id. Once the defendant's

counsel satisfies these requirements, the appellate court must fully examine the

proceedings below to determine if any arguably meritorious issues exist. If the appellate

court also determines that the appeal is frivolous, it may grant counsel's request to

withdraw and dismiss the appeal without violating constitutional requirements, or may

proceed to a decision on the merits if state law so requires. Id.

{¶ 6} On July 30, 2024, Lusher's counsel filed a motion to withdraw. By judgment

entry filed August 9, 2024, this court noted counsel had filed an Anders brief and notified

Lusher via certified U.S. Mail that he "may file a pro se brief in support of the appeal within

60 days from the date of this entry." Lusher did not do so.

{¶ 7} The matter is now before this court for consideration of counsel's Anders

brief. Counsel urges this court to review the following:

I

{¶ 8} "THE TRIAL COURT ERRED BY FAILING TO MAKE THE REQUIRED

FINDINGS FOR CONSECUTIVE SENTENCING."

II

{¶ 9} "OTHER ERRORS WERE COMMITTED NOT RAISED HEREIN BUT

APPARENT ON THE RECORD." Tuscarawas County, Case No. 2024 AP 05 0017 4

I, II

{¶ 10} Counsel asks this court to determine if there is any merit to an argument

that the trial court failed to make the requisite findings before imposing consecutive

sentences. We find no error.

{¶ 11} We court reviews felony sentences using the standard of review set forth in

R.C. 2953.08. State v. Marcum, 2016-Ohio-1002 ¶ 22; State v. Howell, 2015-Ohio-4049,

¶ 31 (5th Dist.). Subsection (G)(2) sets forth this court's standard of review as follows:

(2) The court hearing an appeal under division (A), (B), or (C) of this

section shall review the record, including the findings underlying the

sentence or modification given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for

resentencing. The appellate court's standard for review is not

whether the sentencing court abused its discretion. The appellate

court may take any action authorized by this division if it clearly and

convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or Tuscarawas County, Case No. 2024 AP 05 0017 5

(C)(4) of section 2929.14, or division (I) of section 2929.20 of the

Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶ 12} R.C. 2929.14(C)(4) governs consecutive sentences. That section states:

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the

prison terms consecutively if the court finds that the consecutive

service is necessary to protect the public from future crime or to

punish the offender and that consecutive sentences are not

disproportionate to the seriousness of the offender's conduct and to

the danger the offender poses to the public, and if the court also finds

any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a

sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18

of the Revised Code, or was under post-release control for a prior

offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or

more of the multiple offenses so committed was so great or unusual

that no single prison term for any of the offenses committed as part Tuscarawas County, Case No. 2024 AP 05 0017 6

of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶ 13} "R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court's

consecutive-sentence findings, and the trial court's findings must be upheld unless those

findings are clearly and convincingly not supported by the record." State v. Gwynne, 2023-

Ohio-3851, ¶ 5. "Clear and convincing evidence is that measure or degree of proof which

is more than a mere 'preponderance of the evidence,' but not to the extent of such

certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established." Cross v. Ledford, 161 Ohio St. 469, (1954), paragraph three of the

syllabus.

{¶ 14} When imposing consecutive sentences, a trial court must state the required

findings at the sentencing hearing. State v. Bonnell, 2014-Ohio-3177, ¶ 29. Because a

court speaks through its journal, the court should also incorporate its statutory findings

into the sentencing entry. Id. However, a word-for-word recitation of the language of the

statute is not required. Id. As long as the reviewing court can discern the trial court

engaged in the correct analysis and can determine the record contains evidence to

support the findings, consecutive sentences should be upheld. Id. Tuscarawas County, Case No. 2024 AP 05 0017 7

{¶ 15} We first note Lusher did not object during the sentencing hearing to the

imposition of a prison sentence or to consecutive sentences, thereby forfeiting all but plain

error. State v. Wilson, 2013-Ohio-1520 (10th Dist.) ¶ 8. An error not raised in the trial

court must be plain error for an appellate court to reverse. State v. Long, 53 Ohio St.2d

91 (1978) at paragraph one of the syllabus; Crim.R. 52(B). In order to prevail under a

plain error analysis, appellant bears the burden of demonstrating that the outcome of the

proceeding clearly would have been different but for the error. Id. at paragraph two of the

syllabus. Notice of plain error "is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice." Id. at paragraph

three of the syllabus.

{¶ 16} Upon review of the record, we find the trial court engaged in the correct

analysis. It found consecutive sentences were necessary to protect the public and punish

Lusher, that he was on post-release control when he committed the instant offenses, that

consecutive sentences were not disproportionate to the seriousness of his conduct and

the danger he poses to the public, and that his long history of criminal conduct including

several prior felony convictions demonstrated consecutive sentences were necessary to

protect the public from future crime. T. 4-5. These same findings also negate any

argument that the trial court erred in imposing prison sentences for felonies of the fifth

degree. See R.C. 2929.13(B)(1)(a)-(b).

{¶ 17} "Anders equated a frivolous appeal with one that presents issues lacking in

arguable merit .... An issue lacks arguable merit if, on the facts and law involved, no

responsible contention can be made that it offers a basis for reversal." State v. Pullen,

2002-Ohio-6788, ¶ 4 (2d Dist.). Tuscarawas County, Case No. 2024 AP 05 0017 8

{¶ 18} After independently reviewing the record, we agree with appellate counsel's

conclusion that no arguably meritorious claims exist upon which to base an appeal.

{¶ 19} We find the appeal to be wholly frivolous under Anders, grant counsel's

request to withdraw, and affirm the judgment of the trial court.

{¶ 20} The judgment of the Court of Common Pleas of Muskingum County, Ohio,

is hereby affirmed.

By King, J,

Delaney, P.J. and

Gwin, J. concur.