[Cite as State v. Lusane, 2016-Ohio-5886.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2016-P-0009
        - vs -                                  :

MATTHEW M. LUSANE,                              :

                 Defendant-Appellant.           :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2013 CR
04443

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, PID: A660-925, Trumbull Correctional Institution, TCC
Camp, P.O. Box 640, 5701 Burnett Road, Leavittsburg, OH 44430 (For Defendant-
Appellant).



THOMAS R. WRIGHT, J.


        {¶1}     Appellant, Matthew M. Lusane, appeals the trial court’s decision overruling

his petition for postconviction relief. As his primary challenge, he asserts the trial court

erred in concluding that res judicata bars consideration of the merits. For the following

reasons, we affirm.

        {¶2}     This is the second appeal appellant has brought from his conviction on

two OVI charges and one count of driving while under suspension. In State v. Lusane,
11th Dist. Portage No. 2014-P-0057, 2016-Ohio-267, we upheld his conviction in all

respects. In discussing the underlying charges against him, our opinion states, at ¶2:

       {¶3}   “In July 2013, appellant was indicted on [two] OVI offenses and one count

of driving with a suspended license, a first-degree misdemeanor under R.C. 4510.11(A).

The OVI charges were brought pursuant to R.C. 4511.19(A)(1)(h) and 4511.19(A)(1)(a),

and allege that appellant had pleaded guilty to, or had been convicted of, five prior OVI

offenses within the last twenty years making them fourth-degree felonies pursuant to

R.C. 4511.19(G)(1)(d). The OVI counts also contain a repeat offender specification

under R.C. 2941.1413, predicated upon the allegation that appellant had either been

convicted of, or pleaded guilty to, five other OVI offenses in the past twenty years.”

       {¶4}   Appellant filed multiple motions during the trial proceedings, two of which

are pertinent to this appeal. First, his first trial counsel moved to suppress all evidence

obtained during the traffic stop of his motor vehicle. During the evidentiary hearing on

this motion, it was shown that the arresting officer’s initial decision to follow appellant

was based upon a 9-1-1 call from a private citizen who reported erratic driving. As a

result, defense counsel requested that the state be required to provide an audiotape

copy of the 9-1-1 call. Although the trial court denied appellant’s separate motion to

continue the suppression hearing, the court ordered the state to comply with the

discovery request.

       {¶5}   Subsequently, the state provided a tape which had appellant’s name on its

cover. However, when appellant played the tape, he quickly realized it did not pertain to

his case. When appellant again sought the correct tape, the state informed that a copy

of the 9-1-1 call could no longer be given because the audiotape had been erased and

used again pursuant to department policy. In light of this, appellant moved to dismiss all


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pending charges on the grounds that the state failed to preserve relevant evidence.

Upon hearing the state’s explanation of the department policy, the trial court overruled

the motion to dismiss.

       {¶6}   Under a separate motion, appellant sought dismissal of both OVI counts

on the basis that one of his five previous OVI convictions was invalid. Specifically, he

asserted his conviction in Portage County Municipal Court Case No. 2005 TCR 11364

was not enforceable because, even though a judgment was issued stating that he had

pleaded guilty to the OVI offense, the municipal court did not hold a plea hearing prior to

accepting the plea and imposing sentence. After conducting an evidentiary hearing, the

trial court denied the motion to dismiss, finding that appellant had at least five prior valid

OVI convictions and that he was represented by counsel in all of the prior proceedings.

       {¶7}   Once the trial court disposed of all pretrial motions, a jury trial was held.

After the jury returned a guilty verdict on all three charges, the trial court merged the two

OVI counts and the accompanying specifications for sentencing purposes and ultimately

ordered appellant to serve an aggregate term of six years.

       {¶8}   Approximately eight months after appealing the final sentencing judgment,

appellant filed a petition for postconviction relief, raising two claims. Over the ensuing

months, he submitted two supplements to the petition, asserting two additional claims.

First, he asserted that a second prior OVI conviction was invalid because it was based

upon a no contest plea, instead of a guilty plea. Second, he maintained that the state

committed fraud in attempting to give him a tape of a 9-1-1 call that did not pertain to his

case. Third, he alleged that he was denied effective assistance of trial counsel during

the evidentiary hearing that addressed his motion to dismiss based upon the lack of a

plea hearing in the prior OVI action. Fourth, he argued that the markings the trial judge


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made on the signature line of the sentencing judgment did not form a valid signature.

         {¶9}   After the state submitted a response to appellant’s petition and moved for

summary judgment, the trial court issued its final judgment dismissing the petition in its

entirety. As to each of appellant’s four claims, the court held that they were barred from

consideration under the doctrine of res judicata.

         {¶10} In appealing this determination, appellant raises three assignments of

error:

         {¶11} “[1.] The trial court erred by improperly using res judicata as the basis for

dismissing appellant’s petition before the decision of his first appeal of right in the OVI

case.

         {¶12} “[2.] The trial court erred by issuing insufficient findings and conclusions of

law that make no reference to the specific portions of the file or record supporting the

court’s findings and that contradict the allegations in the petition, affidavits and evidence

dehors the record.

         {¶13} “[3.] The trial court erred by not holding an evidentiary hearing pursuant to

R.C. 2953.21(E) where the evidence dehors the record established substantial grounds

supporting appellant’s claim that he was denied effective assistance of counsel in the

OVI case.”

         {¶14} Under his first assignment, appellant maintains that none of his

postconviction petition claims are subject to res judicata because they are based upon

evidence not included in the record. In regard to three of his four claims, he cites the

specific evidence upon which his arguments were predicated.

         {¶15} “‘[P] rinciples of res judicata prevent relief on successive, similar motions

raising issues which were or could have been raised originally.’ Brick Processors, Inc.


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v. Culbertson (1981), 2 Ohio App. 3d 478, 2 Ohio B. 604, 442 N.E.2d 1313, paragraph

one on the syllabus. Stated differently, any issues that were raised or could have been

raised by a defendant at the trial court level or on direct appeal are res judicata and not

subject to review in subsequent proceedings. State v. Perry (1967), 10 Ohio St. 2d 175,

226 N.E.2d 104, paragraph nine of the syllabus; State v. Davis, 119 Ohio St. 3d 422,

2008 Ohio 4608, at ¶6, 894 N.E.2d 1221.

      {¶16} “Additionally, res judicata applies to proceedings involving postconviction

relief. State v. Szefcyk (1996), 77 Ohio St. 3d 93, 95, 1996 Ohio 337, 671 N.E.2d 233.

However, the application of res judicata in postconviction proceedings is not absolute.

State v. Smith, 4th Dist. No. 09CA3128, 2011 Ohio 664, at ¶10.” State v. Lintz, 11th

Dist. Lake No. 2010-L-067, 2011-Ohio-6511, ¶36-37.

      {¶17} As appellant correctly notes, res judicata does not defeat a postconviction

claim if the claim is supported by evidence outside the record. State v. Sopjack, 11th

Dist. Geauga No. 96-G-2004, 1997 Ohio App. LEXIS 3789, *9-10 (Aug. 22, 1997). “‘To

avoid the application of res judicata, the evidence supporting appellant’s claim must

assert competent, relevant and material evidence outside the trial court’s record, and it

must not be evidence that existed or was available for use at the time of trial.’” State v.

Poling, 11th Dist. Ashtabula No. 2012-A-0002, 2012-Ohio-3039, ¶19, quoting State v.

Schrock, 11th Dist. Lake No. 2007-L-191, 2008-Ohio-3745, ¶21.

      {¶18} The dispute regarding the 9-1-1 tape was raised before the trial court

during an evidentiary hearing, at which time the state gave a full explanation as to why

the wrong tape was given to appellant’s counsel and why the tape pertaining to his case

no longer existed.     The precise issue before the trial court concerned whether

appellant’s due process rights were violated as a result of the state’s failure to ensure


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the preservation of the audiotape. Even though the materials attached to appellant’s

postconviction petition had information concerning the retention schedule of the state

highway patrol, this information was identical to the prosecutor’s statement during the

evidentiary hearing: i.e., tapes of telephone calls were retained for only thirty days.

Thus, appellant’s “new” evidence is redundant, and the issue could have been fully

considered in the direct appeal from the sentencing judgment.

       {¶19} Under his third postconviction claim, appellant stated that he was denied

effective assistance when his trial counsel failed to present evidence regarding whether

a plea hearing took place during the 2005 OVI proceeding before the Portage County

Municipal Court. Specifically, he alleged that counsel could have presented a transcript

of a hearing in the prior case. However, as part of our holding in appellant’s first appeal,

this court concluded that a prior OVI conviction cannot be collaterally attacked on the

basis that the failure to comply with Crim.R. 11(C) renders a guilty plea invalid. Lusane,

2016-Ohio-267, at ¶18. Accordingly, the transcript is irrelevant to disposition and was, if

not in existence, previously available. Accordingly, res judicata applies.

       {¶20} Under his fourth claim, appellant contends that the trial judge’s markings

on the final sentencing judgment do not constitute a valid signature. In trying to submit

“evidence” supporting this claim, he attached to his petition a copy of a separate

judgment the trial judge issued in another case. However the manner in which the trial

judge may have signed other judgments has no bearing upon the validity of the

signature on the sentencing judgment.         To this extent, appellant did not present

competent material or relevant evidence outside the record regarding his fourth claim.

Moreover, signature comparisons existed and were previously available.

       {¶21} As a separate argument on the res judicata issue, appellant maintains that


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the trial court could not rely upon the doctrine because his direct appeal from the final

sentencing judgment was still pending when the trial court ruled upon his postconviction

petition. Citing State v. Keeley, 4th Dist. Washington No. 12CA15, 2013-Ohio-474, he

argues that the final opinion on the direct appeal must be issued before res judicata can

be invoked.

       {¶22} As noted above, res judicata applies to any issue which was or could have

been previously raised.      Lintz, 2011-Ohio-6511, at ¶16.        Therefore, the doctrine is

applicable when an appeal is pending.          As in this case, regardless of the pending

appeal, the trial court was able to determine that all arguments presented were either

previously decided on the merits or were capable of being previously advanced.

Therefore, Keeley is unpersuasive.

       {¶23} As the trial court did not err in dismissing appellant’s petition on the basis

of res judicata, his first assignment lacks merit.

       {¶24} Under his second assignment, appellant asserts that the trial court’s final

judgment on his postconviction petition did not set forth sufficient findings of fact and

conclusions of law to satisfy its statutory obligation under R.C. 2953.21(C). According

to him, the trial court failed to fully discuss all issues and evidence cited in his petition.

       {¶25} R.C, 2953.21(C) mandates that a trial court provides findings of fact and

conclusions of law if it dismisses a petition for postconviction relief. The purpose for this

requirement is to apprise both the petitioner and the appellate court of the basis for the

decision so that it can be properly reviewed on appeal. State v. Waskells, 11th Dist.

Portage Nos. 2012-P-0152 and 2013-P-0010, 2013-Oio-4121, ¶37, quoting State v.

Mapson, 1 Ohio St. 3d 217, 219, 1 Ohio B. 240, 438 N.E.2d 910 (1982). To satisfy the

requirement, a trial court is not obligated to give a lengthy discussion or discuss every


                                               7
issue raised by the petitioner. State v. Grega, 11th Dist. Ashtabula No. 2014-A-0052,

2015-Ohio-946, ¶11, quoting State v. Calhoun, 86 Ohio St. 3d 279, 291, 1999-Ohio-102,

714 N.E.2d 905 (1999).

       {¶26} In this case, the trial court stated the grounds for its decision as to each of

the four claims raised by appellant. The court also provided an explanation regarding

why res judicata bars each claim. To this extent, the court’s judgment sufficiently states

the basis for the decision and proper review. Thus appellant’s second assignment is

without merit.

       {¶27} Under his final assignment, appellant maintains that the trial court erred in

not holding an evidentiary hearing on his petition prior to issuing its ruling. In raising this

point, he focuses solely upon his claim that he was denied effective assistance of trial

counsel.

       {¶28} Appellant’s ineffective assistance claim was based upon two contentions.

First, he contended that his counsel failed to present all existing evidence concerning

whether a plea hearing was actually held in the prior Portage Municipal Court OVI case.

But, as noted above, the lack of a plea hearing is not a viable basis for nullifying a prior

OVI conviction for purposes of a felony OVI charge. As a result, a hearing was not

required.

       {¶29} The second basis for the ineffective assistance claim was that his counsel

did not present all relevant evidence regarding the tape of the wrong 9-1-1 call.

However, during the March 28, 2014 hearing, the trial court was informed of the state’s

mistake and that the tape of the relevant 9-1-1 call was erased. Therefore, the trial

court had sufficient evidence before it to decide if any due process violation had

occurred. Moreover, given that the state admitted that it provided the wrong tape, no


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further evidence on the point was necessary.

       {¶30} Appellant’s petition did not state sufficient operative facts to demonstrate

he was denied effective assistance of counsel during the trial proceedings. The trial

court was, therefore, not obligated to hold an evidentiary hearing prior to dismissing his

petition. Waskells, 2013-Ohio-4121, at ¶31. Accordingly, appellant’s third assignment

also lacks merit.

       {¶31} The judgment of the Portage County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.



                                ____________________



COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

       {¶32} Although I dissented from the majority opinion in appellant’s prior appeal

before this court, I concur in the present matter. I base my concurrence on the fact that

appellant has already had a full appeal before this court. Disagreement with this court’s

prior decision, absent additional argument or evidence, is insufficient.




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