State v. Lusane , 2019 Ohio 5058 ( 2019 )

[Cite as State v. Lusane, 2019-Ohio-5058.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-P-0056
- vs - :
MATTHEW M. LUSANE, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No. 2005
TRC 4525 K.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).
Matthew Lusane, pro se, A660-925, Trumbull Correctional Camp, 5701 Leavittsburg,
Ohio 44430 (Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Matthew M. Lusane, appeals the denial of his post-sentencing
motion to vacate his no contest plea to operating a motor vehicle while intoxicated (“OVI”).
He argues the motion should have been granted because the trial court committed
multiple plain errors in accepting his plea and finding him guilty. We affirm.
{¶2} Appellant raises one assignment of error:
{¶3} “The lower court abused its discretion by denying appellant’s motion to
vacate the OVI pursuant to Crim.R. 52(B) where, in 2005, it failed to comply with Ohio
Revised Code Section 2937.07 and Criminal Rules of Procedure 11, 22, 44.”
{¶4} The issues raised in Lusane’s assignment could have been raised on direct
appeal, and therefore, are barred by res judicata, regardless of whether they might be
characterized as plain error. State v. Haynes, 2d Dist. Clark No. 2013 CA 90, 2014-Ohio-
2675, ¶ 14. See, also, State v. Strickland, 10th Dist. Franklin No. 14AP-307, 2014-Ohio-
5105, ¶ 15, quoting State v. Ayala, 10th Dist. Franklin No. 12AP-1071, 2013-Ohio-1875,
¶ 13 (“the plain-error standard in Crim.R. 52(B) is available only on direct appeal and
‘does not create a free-standing procedure to obtain review otherwise.’”); State v. Abdul,
8th Dist. Cuyahoga No. 103510, 2016-Ohio-3063 ¶ 10. The plain error doctrine does not
suspend the application of res judicata. State v. Amos, 7th Dist. Belmont No. 19 BE 0003,
2019-Ohio-3651, ¶ 18; State v. Dominguez, 2d Dist. Montgomery No. 26853, 2016-Ohio-
5051, ¶ 10 (res judicata precludes consideration of an allied-offense argument, even in
the context of plain error, because it could have been raised on direct appeal).
{¶5} Appellant next argues that since a transcript of his plea is unavailable, we
must presume that proper procedures were not followed. However, the cases cited in
support, State v. Boerst, 45 Ohio App. 2d 240, 343 N.E.141 (9th Dist.1973) and City of
Garfield Heights v. Brewer, 17 Ohio App. 3d 216, 479 N.E.2d 309 (8th Dist.1984), are
readily distinguishable in that they involve direct appeals from convictions. This is not a
direct appeal. It is an appeal from a motion to vacate. Therefore, Boerst and Brewer do
not apply. As stated, res judicata bars appellant’s arguments with or without a transcript.
{¶6} Last, appellant’s requests that this court certify a conflict with Brewer and
provide en banc consideration are premature:
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{¶7} “A motion to certify conflict under Article IV, Section 3(B)(4) of the Ohio
Constitution shall be made in writing no later than ten days after the clerk has both mailed
to the parties the judgment or order of the court that creates a conflict with a judgment or
order of another court of appeals and made note on the docket of the mailing, as required
by App.R. 30(A).” App.R. 25(A). (Emphasis added.)
{¶8} Similarly, an application for en banc consideration must explain how this
decision conflicts with a prior panel’s decision on a dispositive issue and why
consideration en banc is necessary to maintain uniformity. See App.R. 26(A)(2)(a)-(c).
This rule necessarily requires that a decision be issued before application.
{¶9} Appellant’s sole assignment lacks merit, and the judgment of the Portage
County Municipal Court, Kent Division, is affirmed.
TIMOTHY P. CANNON, J.,
MATT LYNCH, J.,
concur.
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