[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.
