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State v. Lusane

Court of Appeals of Ohio, Eleventh District, Portage

May 7, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
MATTHEW M. LUSANE, Defendant-Appellant.

          Civil Appeal from the Portage County Court of Common Pleas, Case No. 2013 CR 0443.

          Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant (For Plaintiff-Appellee).

          Matthew M. Lusane, pro se, PID: A660-925, Trumbull Correctional Institution, TCC (Defendant- Appellant).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellant, Matthew M. Lusane, appeals the denial of his motion to vacate the portion of his sentence imposed under a repeat offender specification. He contends that portion is void because all of his prior OVI convictions were misdemeanors.

         {¶2} The underlying conviction at issue was appealed and affirmed. State v. Lusane, 11th Dist. Portage No. 2014-P-0057, 2016-Ohio-267, 58 N.E.3d 416. In relevant part, our opinion states:

         {¶3} "In July 2013, appellant was indicted on OVI offenses and one count of driving with a suspended license, a first-degree misdemeanor under R.C. 4510.11(A). The OVI charges were brought pursuant to R.C. 4511.19(A)(1)(h) and 4511.19(A)(1)(a), and allege that appellant had pleaded guilty to, or had been convicted of, five prior OVI offenses within the last twenty years[, ] making them fourth-degree felonies pursuant to R.C. 4511.19(G)(1)(d). The OVI counts also contain a repeat offender specification under R.C. 2941.1413, predicated upon the allegation that appellant had either been convicted of, or pleaded guilty to, five other OVI offenses in the past twenty years.

         {¶4} "* * *

         {¶5} "A two-day jury trial ensued and appellant was found guilty of both OVI charges, the two accompanying repeat offender specifications, and the separate charge of driving while under suspension. The two OVI charges and accompanying specifications were merged at sentencing. Upon receiving a presentence report and holding a separate sentencing hearing, the trial court imposed consecutive terms of two years on the remaining OVI charge and four years on the remaining specification. The court imposed a concurrent term of 180 days for driving under suspension." Id. at ¶2, 6.

         {¶6} After serving thirty months of the six-year term, appellant moved the trial court to vacate his sentence on the repeat offender specification, asserting that the specification does not apply because none of his prior five OVI convictions is a felony. He further asserted that his conviction on the specification is void because the indictment does not reference the alleged felony requirement and each of his prior OVI convictions was a misdemeanor.

         {¶7} The trial court denied the motion to vacate without hearing. In appealing, appellant asserts three assignments for review:

         {¶8} "[1.] The prosecuting attorney failed in violation of Ethical Rules of Professional Conduct 3.8, 8.4, and Crim.R. 16, to disclose exculpatory evidence to the jury that appellant did not have a prior felony OVI conviction which is required in charging the repeat OVI offender specification under R.C. 2941.1413.

         {¶9} "[2.] The trial court erred by not dismissing the indictment pursuant to Crim.R. 48(B) where appellant did not have a prior felony OVI conviction to apply the repeat felony specification making the judgment void.

         {¶10} "[3.] The trial court erred by giving no reason for denying appellant's motion to vacate the conviction and dismiss the indictment; therefore, the ...


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