Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas, Case
No. 2013 CR 0443.
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).
R. WRIGHT, P.J.
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
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
"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.
"* * *
"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
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.
The trial court denied the motion to vacate without hearing.
In appealing, appellant asserts three assignments for review:
"[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.
"[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.
"[3.] The trial court erred by giving no reason for
denying appellant's motion to vacate the conviction and
dismiss the indictment; therefore, the ...