[Cite as State v. Lusher, 2014-Ohio-1930.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 13-CA-83
MARK R. LUSHER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 08-CR-
498H
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 5, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. JOHN C. FILKINS
Prosecuting Attorney 101 W. Sandusky Street
JILL M. COCHRAN Suite 204
Assistant County Prosecutor Findlay, OH 45840
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Lusher, 2014-Ohio-1930.]
Gwin, P.J.
{¶1} Defendant-appellant Mark Lusher appeals the Richland County Court of
Common Pleas’ August 13, 2013 denial of his motion to withdraw his previously entered
guilty plea to one count of aggravated vehicular homicide, one count of aggravated
vehicular assault and one count of OVI. Plaintiff-appellee is the State of Ohio.
Facts and Procedural History
{¶2} The Richland County Grand Jury indicted Lusher on December 5, 2007
with one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(1)(a), a
felony of the second degree, one count of aggravated vehicular assault, in violation of
R.C. 2903.08(A)(1)(a), a felony of the third degree and one count of operating a motor
vehicle under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(b), a
misdemeanor of the first degree.
{¶3} Retained counsel filed a motion to suppress. The hearing on the motion to
suppress was held over the course several days, commencing on May 8, 2008. The trial
court ultimately denied Lusher’s suppression motion on by Judgment Entry filed July 18,
2008.
{¶4} On September 17, 2008, Lusher entered a plea to aggravated vehicular
homicide, aggravated vehicular assault and OVI. The State dismissed the two
remaining OVI counts, three and four.
{¶5} Lusher, through counsel, filed a Presentence Report on December 10,
2008. On the same day, Lusher appeared before the trial court for sentencing. The trial
court sentenced Lusher to eight years in prison on the charge of aggravated vehicular
homicide, five years in prison on the charge of aggravated vehicular assault, and six
Richland County, Case No. 13-CA-83 3
months on the charge of OVI. The charges were ordered to be served concurrently, with
a total sentence of eight years in prison. The trial court further ordered Lusher to pay a
fine of $15,000 and restitution. In addition, Lusher was sentenced to five years of post
release control and a lifetime driver's license suspension.
{¶6} Lusher filed a notice of appeal on January 22, 2009 with this Court in case
number 09-CA-10. That appeal was dismissed on March 5, 2009 for failure to
prosecute.
{¶7} On February 24, 2010, Lusher filed a motion to vacate all fines and court
costs with the trial court. On March 2, 2010, Lusher filed a motion for transcripts in this
case under the guise of a public records request. Those motions were overruled on
March 17 and 26, 2010.
{¶8} On April 22, 2010, Lusher filed a motion to correct an improper sentence.
The state agreed that the trial court had improperly imposed post-relief control in this
case, imposing five years, rather than the mandatory three years of post-relief control as
required under statute. The state requested that Lusher be brought back for re-
sentencing.
{¶9} On May 17, 2010, Lusher filed a motion for the assignment of counsel and
a motion to withdraw his guilty plea. Relevant to the case at bar, Lusher specifically
argued in his motion that he was not properly informed by the trial court, prior to his
plea, that the maximum sentence he faced included a lifetime driver's license
suspension.
{¶10} On August 9, 2010, Lusher appeared before the trial court for
resentencing. Lusher was sentenced to the same prison sentence as before with the
Richland County, Case No. 13-CA-83 4
exception that he was sentenced to three (3) years of mandatory post-release control
rather than a discretionary five years.
{¶11} On September 7, 2010, Lusher filed a notice of appeal of his re-
sentencing in 5th Dist. Richland No. 10-CA-107. By Judgment Entry filed March 11,
2011, this Court dismissed Lusher’s appeal for failure to prosecute after Lusher had
been granted five extensions and failed to file a brief.
{¶12} On November 1, 2010, the trial court overruled Lusher’s May 17, 2010
motion to withdraw his guilty plea. Lusher did not appeal this ruling.
{¶13} A motion for judicial release was filed on Lusher’s behalf by retained
counsel on December 5, 2012. The motion was withdrawn on January 24, 2013 after it
was pointed out by the state that the motion was filed too early.
{¶14} On July 3, 2013, Lusher filed his second motion to withdraw his guilty
plea. Lusher again argued that the trial court’s failure to inform him that the lifetime
license suspension was a failure to inform of the maximum penalty, thus making his
plea unknowing and involuntary.
{¶15} The trial court overruled Lusher’s motion by Judgment Entry filed August
13, 2013. The trial court cited the reasons stated in the State's motion in opposition,
which included that Lusher’s argument was barred by res judicata as the grounds for
overruling the motion.
Assignment of Error
{¶16} Lusher raises one assignment of error,
Richland County, Case No. 13-CA-83 5
{¶17} “I. APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE
TRIAL COURT OVERRULED APPELLANTS MOTION TO WITHDRAW HIS PLEAS OF
GUILTY.”
Analysis
{¶18} Lusher contends that he did not knowingly, intelligently or voluntarily enter
his guilty plea because the trial court gave him either no information or misleading
information about his the length of the driver license suspension he was facing as a
result of his plea. Accordingly, Lusher argues that the trial court erred by accepting the
plea. We disagree.
{¶19} The entry of a plea of guilty is a grave decision by an accused to dispense
with a trial and allow the state to obtain a conviction without following the otherwise
difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v.
United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty
constitutes a complete admission of guilt. Crim. R. 11(B)(1). “By entering a plea of
guilty, the accused is not simply stating that he did the discreet acts described in the
indictment; he is admitting guilt of a substantive crime.” United v. Broce, 488 U.S. 563,
570, 109 S.Ct. 757, 762, 102 L.Ed.2d 927(1989).
{¶20} Crim.R. 32.1 provides that a trial court may grant a defendant’s post-
sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore,
“[a] defendant who seeks to withdraw a plea of guilty after the imposition of sentence
has the burden of establishing the existence of manifest injustice.” State v. Smith, 49
Ohio St.2d 261,361 N.E.2d 1324(1977), paragraph one of the syllabus. Although no
precise definition of “manifest injustice” exists, in general, “‘manifest injustice relates to
Richland County, Case No. 13-CA-83 6
some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or
is inconsistent with the demands of due process.’” State v. Wooden, 10th Dist. Franklin
No. 03AP–368, 2004–Ohio–588, ¶10, quoting State v. Hall, 10th Dist. Franklin No.
03AP–433, 2003–Ohio–6939; see, also, State v. Odoms, 10th Dist. Franklin No. 04AP–
708, 2005–Ohio–4926, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203,
208, 699 N.E.2d 83(1998) (“[a] manifest injustice has been defined as a ‘clear or openly
unjust act’”). Under this standard, a post-sentence withdrawal motion is allowable only
in extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324.
{¶21} “A motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court, and the good faith, credibility and weight of the movant’s
assertions in support of the motion are matters to be resolved by that court.” Id. at
paragraph two of the syllabus. Thus, we review a trial court’s denial of a motion to
withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that
denial only if it is unreasonable, arbitrary, or unconscionable. Odoms, 2005–Ohio–4926.
{¶22} In State v. Gallegos–Martinez, 5th Dist. Delaware No. 10–CAA–06–0043,
2010–Ohio–6463, after his first motion to withdraw his plea was denied by the trial
court, the defendant filed a second motion which raised some of the same arguements
that he made in his first motion. This Court observed,
We find that at least some of the issues in his present appeal of the
denial of his second motion to withdraw his guilty plea are prohibited by
the doctrine of res judicata. As stated in State v. Sneed, Eighth District No.
84964, 2005-Ohio-1865, “Where a defendant files a post conviction
motion to withdraw and fails to raise an issue that could have been raised,
Richland County, Case No. 13-CA-83 7
the defendant is precluded from raising the issue in a subsequent motion
to withdraw. See State v. Jackson (Mar. 31, 2000), Trumbull App. No. 98-
T-0182. Indeed, numerous courts have applied the doctrine of res judicata
to successive motions to withdraw a guilty plea. See State v. Brown,
Cuyahoga App. No. 84322, 2004-Ohio-6421 (determining that a Crim.R.
32.1 motion will be denied when it asserts grounds for relief that were or
should have been asserted in a previous Crim.R. 32.1 motion); State v.
McLeod, Tuscarawas App. No. 2004 AP 03 0017, 2004-Ohio-6199
(holding res judicata barred current challenge to a denial of a motion to
withdraw because the issues could have been raised in a defendant’s
initial motion to withdraw); State v. Vincent, Ross App. No. 03CA2713,
2003-Ohio-3998 (finding res judicata barred defendant from raising issues
that could have been raised in a prior motion for new trial or Crim.R. 32.1
motion); State v. Reynolds, Putnam App. No. 12-01-11, 2002-Ohio-2823
(finding that the doctrine of res judicata applies to successive motions filed
under Crim.R. 32 .1); State v. Unger, Adams App. No. 00CA705, 2001-
Ohio-2397 (concluding that the defendant’s Crim.R. 32.1 motion was
barred by res judicata because she had previously filed a motion to
withdraw her guilty plea that she did not appeal prior to filing the second
motion to withdraw guilty plea); State v. Jackson (Mar. 31, 2000), Trumbull
App. No. 98-T-0182 (res judicata applies to successive motions to
withdraw a guilty plea filed pursuant to Crim.R. 32.1). As succinctly stated
in State v. Kent, Jackson App. No. 02CA21, 2003-Ohio-6156: ‘Res
Richland County, Case No. 13-CA-83 8
judicata applies to bar raising piecemeal claims in successive post-
conviction relief petitions or motions to withdraw a guilty plea that could
have been raised, but were not, in the first post conviction relief petition or
motion to withdraw a guilty plea.’” Sneed at ¶ 17.
State v. Gallegos–Martinez, ¶12. Accord, State v. Corradetti, 5th Dist. Stark No. 2008
CA 00194, 2009-Ohio-1347; State v. Lankford, 7th Dist. No. 07 BE 3, 2007-Ohio-3330;
State v. Zhao, 9th Dist. Lorain No. 03CA008386, 2004-Ohio-3245.
{¶23} In the case at bar, Lusher filed his first motion to withdraw his guilty plea
on May 17, 2010. In that motion, Lusher argued that he was not advised of the
maximum sentence before his plea because he was not told that his driver’s license
would be suspended for life. See, Motion to Withdraw Guility Plea Crim.R.32.1, filed
May 17, 2010 at 8. The trial court overruled Lusher’s first motion to withdraw his guilty
plea by Judgment Entry filed November 1, 2010. Lusher could have, but did not, appeal
the trial court’s denial of his first motion to withdraw his guilty plea.
{¶24} In his second motion to withdraw his guilty plea, which is the subject of
this appeal, Lusher has argued that he was not informed of the maximum penalties
before his plea because he was not told that his driver’s license would be suspended for
life. See, Motion to Withdraw Plea of Guility filed July 3, 2013 at 4.
{¶25} Because Lusher had already filed a motion to withdraw his guilty plea
raising the same argument, and because he could have appealed the trial court’s denial
of that motion, the trial court did not err by denying Lusher's second motion to withdraw
his guilty plea on the basis that it was barred by res judicata.
{¶26} Accordingly, Lusher’s sole assignment of error is overruled.
Richland County, Case No. 13-CA-83 9
{¶27} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Farmer, J., and
Baldwin, J., concur