State v. Lusane ( 2022 )

[Cite as State v. Lusane, 2022-Ohio-2198.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0110
Plaintiff-Appellee,
Criminal Appeal from the
-v- Municipal Court, Ravenna Division
MATTHEW M. LUSANE,
Trial Court No. 2005 TRC 11364 R
Defendant-Appellant.
OPINION
Decided: June 27, 2022
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, P.J.
{¶1} Appellant, Matthew M. Lusane, appeals the denial of his Civ.R. 60(B)
motion for relief from judgment without a hearing. We affirm.
{¶2} On August 28, 2005, appellant was stopped for driving 80 m.p.h. in a 65-
m.p.h. zone. He was ultimately cited for speeding, operating a vehicle while intoxicated
(“OVI”), and two other traffic offenses.
{¶3} A pretrial conference was held on November 1, 2005, and a report was filed
stating that appellee, the state of Ohio, offered to dismiss the remaining three charges in
return for a guilty plea to the OVI. On December 27, 2005, following pretrial, the municipal
court issued two judgments. One states that appellant entered a guilty plea to the OVI
charge and dismisses the remaining counts. The second imposes a 30-day jail term, a
two-year driver’s license suspension, and a $550 fine plus court costs.
{¶4} Thereafter, appellant executed multiple documents acknowledging he had
been ordered to pay a fine and court costs as a result of the guilty plea. For example, on
December 27, 2005, the date he was sentenced, appellant signed a computer printout
stating that he owed a total of $616. Nine months later, in September 2006, he filed a
signed motion requesting a payment plan for the remaining balance from this case and
four others. In November 2008, he signed a judgment in which the trial court allowed him
to perform community work service in lieu of paying the balance.
{¶5} Beginning in April 2011, appellant filed multiple motions seeking to have his
plea vacated on the grounds that the municipal court failed to conduct a plea hearing prior
to accepting it. All such motions were denied. Then, in February 2019, appellant moved
the municipal court to issue a revised sentencing entry because the sentencing entry
failed to set forth both the fact of conviction and the sentence. The municipal court
overruled this motion.
{¶6} This court reversed the municipal court’s ruling on the motion to revise,
holding that the December 27, 2005 sentencing judgment did not satisfy Crim.R. 32(C)
because it failed to set forth both the fact of conviction and the sentence. State v. Lusane,
11th Dist. Portage No. 2019-P-0027, 2019-Ohio-3549, ¶ 5. Accordingly, we remanded
the matter for the trial court to issue a single entry satisfying both requirements. Id. at ¶
6.
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{¶7} Upon remand, on November 22, 2019, the municipal court granted
appellant’s motion to revise, stated he pled guilty to OVI, found him guilty of OVI, and
imposed the same sentence. On appeal from this entry, appellant contended that his OVI
conviction must be reversed because: (1) although a judgment entry states he pled guilty,
no plea hearing was held; (2) there was no valid waiver of his constitutional right to
counsel; and (3) the municipal court violated Crim.R. 43 by imposing his sentence without
conducting an oral hearing at which he was present. We affirmed the judgment in State
v. Lusane, 11th Dist. Portage No. 2019-P-0115, 2020-Ohio-4106.
{¶8} Subsequently, appellant filed a Civ.R. 60(B) motion seeking relief from
judgment. He challenged the municipal court’s November 22, 2019 entry for stating that
he pled guilty when no hearing was held. In his attached affidavit, appellant contests that
he entered a guilty plea, that he was present with counsel, that he gave counsel
permission to act as his agent, or that he signed any papers in connection with the case
on December 27, 2005. The municipal court denied the motion, and this appeal followed.
{¶9} Appellant asserts two assignments of error, which we consolidate for
review:
[1.] The lower court abused its discretion by denying
appellant’s Ohio Civil Rule 60 (B) motion.
[2.] The lower court abused its discretion by denying
appellant’s Ohio Civil Rule 60(B) motion where three judges
made three substantive rulings in the 2005 matter without
issuing a final appealable order & finding him guilty until 2019.
{¶10} Civ.R. 60(B) may afford a criminal defendant relief from a judgment of
conviction via application of Crim.R. 57(B), which provides that “[i]f no procedure is
specifically prescribed by rule, the court may proceed in any lawful manner not
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inconsistent with these rules of criminal procedure, and shall look to the rules of civil
procedure and to the applicable law if no rule of criminal procedure exists.” See State v.
Denihan, 11th Dist. Ashtabula No. 2016-A-0003, 2016-Ohio-7443, ¶ 19; see also Traf.R.
20 (directing to the Rules of Criminal Procedure, which in turn directs to the Rules of Civil
Procedure).
{¶11} “A motion for relief from judgment under Civ.R. 60(B) is addressed to the
sound discretion of the trial court, and that court’s ruling will not be disturbed on appeal
absent a showing of abuse of discretion.” (Citations omitted.) Griffey v. Rajan, 33 Ohio
St.3d 75, 77, 514 N.E.2d 1122 (1987). “‘[T]he term “abuse of discretion” is one of art,
connoting judgment exercised by a court, which does not comport with reason or the
record.’” Ivancic v. Enos, 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70 (11th Dist.), quoting
State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶ 30, citing State
v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925).
{¶12} “To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate that:
(1) the party has a meritorious defense or claim to present if
relief is granted; (2) the party is entitled to relief under one of
the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the
motion is made within a reasonable time, and, where the
grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than
one year after the judgment, order or proceeding was entered
or taken.
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113(1976), paragraph two of the syllabus.
{¶13} In his motion, appellant did not identify under which of the enumerated
grounds he was seeking relief. Civ.R. 60(B)(5) provides that a court may relieve a party
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from a final judgment for “any other reason justifying relief.” Nevertheless, appellant also
failed to provide an explanation for filing the motion nearly sixteen years after the initial
sentencing entry and nearly two years after the municipal court issued its November 22,
2019 judgment entry, well beyond the “reasonable time” requirement. For these reasons,
we conclude that the municipal court did not abuse its discretion in denying the motion
without a hearing.
{¶14} Appellant’s assignments of error are not well taken.
{¶15} The judgment of the Portage County Municipal Court, Ravenna Division, is
affirmed.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.
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