[Cite as State v. Lusher, 2016-Ohio-3047.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
MARK R. LUSHER                               :       Case No. 15CA59
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2008-CR-0498 H



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    May 16, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

BAMBI COUCH PAGE                                     MARK R. LUSHER. pro se
Prosecuting Attorney                                 VOA-Residential Reentry Facility
                                                     921 N. Main Street
By: DANIEL M. ROGERS                                 Mansfield, Ohio 44903
Assistant Prosecuting Attorney
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 15CA59                                                          2

Baldwin, J.

       {¶1}   Defendant-appellant Mark Lusher appeals from the June 25, 2015 Order of

the Richland County Court of Common Pleas overruling his Motion to Withdraw Guilty

Plea. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   The Richland County Grand Jury indicted appellant in 2008 on 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 three counts of operating a motor

vehicle under the influence of drugs and/or alcohol (“OVI”) in violation of R.C. 4511.19(A),

misdemeanors of the first degree.

       {¶3}   On September 17, 2008, appellant entered a plea to aggravated vehicular

homicide, aggravated vehicular assault and OVI. The two remaining OVI counts were

dismissed. On December 10, 2008, the trial court sentenced appellant 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 months on the charge of OVI. The charges were

ordered to be served concurrently, for a total sentence of eight years in prison. The trial

court further ordered appellant to pay a fine of $15,000.00, restitution and court costs. In

addition, appellant was sentenced to five years of post-release control and appellant's

driver's license was suspended for life.

       {¶4}   Appellant filed a Notice of Appeal on January 22, 2009 with this Court in

Case No. 09–CA–10. That appeal was dismissed on March 5, 2009 for failure to

prosecute.
Richland County, Case No. 15CA59                                                            3


       {¶5}   On February 24, 2010, appellant filed a Motion to Vacate all fines and court

costs with the trial court. On March 2, 2010, appellant filed a motion for transcripts in this

case under the guise of a public records request. The motions were overruled pursuant

to Judgment Entries filed on March 17, 2010 and March 26, 2010.

       {¶6}   Appellant, on April 22, 2010, filed a Motion to Correct an Improper

Sentence. Appellee 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. Appellee requested that appellant be brought back for

re-sentencing.

       {¶7}   On May 17, 2010, appellant filed a Motion to Withdraw Guilty Plea pursuant

to Crim.R. 32.1. Appellant 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. Appellant also argued that the plea agreement had

been violated.

       {¶8}   On August 6, 2010, appellant appeared before the trial court for

resentencing and was sentenced to the same prison sentence as before with the

exception that he was sentenced to three (3) years of mandatory post-release control

rather than a discretionary five years. The court's August 9, 2010 Entry states that

appellant was advised of his right to appeal.

       {¶9}   Thereafter, on September 7, 2010, appellant filed a Notice of Appeal of his

re-sentencing in 5th Dist. Richland No. 10–CA–107. Via a Judgment Entry filed March 11,

2011, this Court dismissed appellant's appeal for failure to prosecute after he had been

granted five extensions and failed to file a brief.
Richland County, Case No. 15CA59                                                          4


       {¶10} The trial court, on November 1, 2010, overruled appellant's May 17, 2010

Motion to Withdraw Guilty Plea. Appellant did not appeal such ruling.

       {¶11} On July 3, 2013, appellant, who was represented by counsel, filed his

second Motion to Withdraw his guilty plea. Appellant again argued that the trial court's

failure to inform him of the lifetime license suspension was a failure to inform him of the

maximum penalty, thus making his plea unknowing and involuntary. Defense counsel

cited to sections of the sentencing transcript in the motion. The trial court overruled

appellant's motion pursuant to a Judgment Entry filed August 13, 2013. The trial court

cited the reasons stated in appellee's motion in opposition, which included that appellant's

argument was barred by res judicata, as the grounds for overruling the motion.

       {¶12} Appellant then appealed. Pursuant to an Opinion filed on May 5, 2014 in

State v. Lusher, 5th Dist. Richland No. 13–CA–83, 2014–Ohio–1930, this Court affirmed

the judgment of the trial court. A Nunc Pro Tunc Opinion was filed on July 18, 2014.

       {¶13} Subsequently, on August 13, 2014, appellant filed a Motion for

Resentencing. Appellant, in his motion, argued that his plea was not knowing, intelligent

and voluntary. Appellant argued that the trial court had failed to comply with Crim.R. 11,

had failed to inform him that he had a right to appeal, had failed to allow him to read the

presentence investigation report and to comment on the same, and had failed to inform

him that he was obligated to pay for any of the costs of his own prosecution. Appellant

further argued that appellee had breached the plea agreement with respect to the length

of appellant's license suspension. Appellee filed a response to appellant's motion on

August 19, 2014.

       {¶14} Pursuant to a Judgment Entry filed on August 28, 2014, the trial court

overruled appellant's motion. The trial court found that the five grounds for resentencing
Richland County, Case No. 15CA59                                                           5


raised in appellant's motion were barred by the doctrine of res judicata. The trial court

further found that appellant had failed to timely file a post-conviction petition or meet the

standards for an untimely filing under R.C. 2953.23(A).

       {¶15} Appellant then appealed raising, in part, the following assignments of error

on appeal:

          I.      THE STATE [FAILED] TO ADVISE DEFENDANT THAT BY

                  ENTERING INTO A PLEA AGREEMENT, HE WOULD: [ALSO

                  BE WAIVING] HIS CONSTITUTIONAL RIGHTS, AS SET

                  FORTH IN CRIMINAL RULE 11(C)(2)(a)(b)(c), (E), and (F).

          II.     THE STATE, AFTER SENTENCING, [FAILED] TO INFORM

                  DEFENDANT “ON THE RECORD AND IN OPEN COURT” OF

                  HIS CRIMINAL RULE 32 RIGHTS. THAT IS, HIS CRIMINAL

                  RULE 32(B)—NOTIFICATION ON RIGHT TO APPEAL.

       {¶16} Pursuant to an Opinion filed on May 18, 2015 in State v. Lusher, 5th Dist.

Richland No. 14CA72, 2015-Ohio-1924, this Court affirmed the judgment of the trial court,

finding that appellant’s claims were barred by the doctrine of res judicata and that his

Motion for Resentencing was an untimely post-conviction relief motion.

       {¶17} Thereafter, appellant, on June 15, 2015, filed a Criminal Rule 32.1

Withdrawal of Guilty Plea. Appellant, in his motion, argued that his guilty plea was invalid

due to the State’s failure to comply with Crim.R. 32.1(C)(2)(c). Appellant argued that he

was never advised on the record that, by entering into a plea agreement, he would be

waiving his constitutional rights.

       {¶18} The trial court, pursuant to an Order filed on June 25, 2015, overruled

appellant’s June 15, 2015 motion on the basis that the issues raised were barred by the
Richland County, Case No. 15CA59                                                            6


doctrine of res judicata. The trial court, in its Order, noted that appellant’s motion was his

third motion to withdraw his guilty plea and that “the defendant has raised this exact same

issue previously and the Fifth District Court of Appeals ruled that this specific argument

was barred by res judicata.”

       {¶19} Appellant now appeals from the trial court’s June 25, 2015 Order, raising

the following assignment of error of error on appeal:

       {¶20} THE TRIAL COURT FAILED TO STRICRTLY (SIC) COMPLY WITH

CRIMINAL RULES 11(C)(2)(a)(b)(c) AND (F). THAT IS, THE TRIAL COURT FAILED TO

ORALLY ADVISE DEFENDANT DURING THE PLEA AGREEMENT THAT HE WOULD

BE WAIVING HIS CONSTITUTIONAL RIGHTS WHEN HE ENTERED INTO A PLEA

AGREEMENT WITH THE STATE. THAT OMISSION RESULTED IN CRITICAL AND

DEFINING LANGUAGE BEING OMITTED DURING THE CHANGE OF PLEA HEARING.

MEANING: THE STATE’S FAILURE TO INCORPORATE THE LANGUAGE THAT

DEFENDANT WAS WAIVING HIS CONSTITUTIONAL RIGHTS CHANGED THE

INTENDED MESSAGE THAT WAS REQUIRED TO BE TRANSMITTED/UNDERSTOOD

BY THE DEFENDANT.

                                                  I

       {¶21} Appellant, in his sole assignment of error, argues that the trial court erred in

overruling his June 15, 2015 Motion to Withdraw Guilty Plea.

       {¶22} We find that the issue raised by appellant is barred by the doctrine of res

judicata. Appellant raised the same issue that he now sets forth in the instant appeal in a

previous appeal. As noted by the trial court, appellant raised the same claim in State v.

Lusher, 5th Dist. Richland No. 14CA72, 2015-Ohio-1924. This Court, in our Opinion in

such case, affirmed the judgment of the trial court, finding that appellant’s arguments that
Richland County, Case No. 15CA59                                                           7


the trial court failed to comply with Crim.R. 32 and Crim.R. 11 were barred by the doctrine

of res judicata. Appellant’s claim in this case is, therefore, also barred under the doctrine

of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The Perry

court explained the doctrine as follows: “Under the doctrine of res judicata, a final

judgment of conviction bars the convicted defendant 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.” Id. at

paragraph 8 of the syllabus.

       {¶23} Appellant’s sole assignment of error is, therefore, overruled.

       {¶24} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
