[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
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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.
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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
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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,
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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
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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.
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