[Cite as State v. Lusane, 2021-Ohio-4262.]

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY

STATE OF OHIO, 

 Plaintiff-Appellee, 

 - v - 

MATTHEW M. LUSANE, 

 Defendant-Appellant. 

CASE NO. 2021-P-0011

Criminal Appeal from the 

Court of Common Pleas 

Trial Court No. 2013 CR 00443 

O P I N I O N 

Decided: December 6, 2021 

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, J. 

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

denying his “motion to vacate the void judgment for lack of subject-matter jurisdiction.” 

We affirm. 

{¶2} In 2014, Lusane was convicted of operating a motor vehicle while under the 

influence of alcohol (“OVI”). The OVI charge was enhanced to a fourth-degree felony by 

the fact that Lusane had “been convicted of or pleaded guilty to” five prior OVI offenses 

within the last twenty years. See R.C. 4511.19(G)(1)(d). We affirmed the conviction in 

State v. Lusane, 2016-Ohio-267, 58 N.E.3d 416 (11th Dist.). 
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{¶3} Subsequently, Lusane unsuccessfully moved the municipal court to revise 

two of the prior judgment entries upon which the fourth-degree felony OVI had been 

predicated. In those cases, the municipal court had not issued a single judgment setting 

forth both the fact of conviction and the sentence, in contravention of Crim.R. 32(C) (“[a] 

judgment of conviction shall set forth the fact of conviction and the sentence”). On appeal, 

we concluded that the municipal court’s failure to grant Lusane’s motions was reversible 

error and ordered the municipal court to issue a single entry in each case that set forth 

both the fact of conviction and the sentence. State v. Lusane, 11th Dist. Portage No. 

2019-P-0027, 2019-Ohio-3549; State v. Lusane, 11th Dist. Portage No. 2019-P-0065, 

2020-Ohio-737. On remand, the municipal court issued Crim.R. 32(C) compliant 

judgment entries, stating Lusane had pleaded guilty to OVI and imposing the same 

sentence. State v. Lusane, 11th Dist. Portage No. 2019-P-0115, 2020-Ohio-4106, ¶ 8; 

State v. Lusane, 11th Dist. Portage No. 2020-P-0056, unreleased. 

{¶4} The matter now before us is the common pleas court’s denial of Lusane’s 

motion to vacate the 2014 felony OVI conviction, from which he advances one assignment 

of error: 

Trial court erred to the prejudice of Defendant-Appellant by 

denying his motion to vacate the void judgment, where it 

lacked subject matter jurisdiction to enter judgment of 

conviction after admitting facially void journal entries to prove 

the fact of five prior convictions in violation of State v. Gwen, 

134 Ohio St.3d 284, 2012-Ohio-5046; Crim.R. 32(C). 

{¶5} In his motion, Lusane argued that the common pleas court lacked subject 

matter jurisdiction to enter the fourth-degree felony OVI conviction because two of the 

prior OVI convictions upon which the enhancement was predicated did not include a final 

appealable order. Lusane alleged the prior entries were void and, therefore, the state 
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presented insufficient evidence that he had been convicted of or pleaded guilty to five 

prior OVI offenses within the last twenty years, which is an element of fourth-degree felony 

OVI. He cited as authority State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, 928 

N.E.2d 626. In Gwen, the Supreme Court of Ohio held that when the state chooses to

prove a prior conviction by using a judgment entry, that entry must comply with Crim.R. 

32(C). Gwen at paragraph two of the syllabus. 

{¶6} On appeal, Lusane argues that a manifest miscarriage of justice has 

occurred and that the common pleas court committed plain error by failing to vacate his 

felony OVI conviction under its authority to correct void judgments. The state of Ohio 

responds that the error of which Lusane complains is voidable, not void, and that his 

collateral attack on the judgment of conviction is barred by the doctrine of res judicata. 

{¶7} Whether a sentencing entry is void or voidable raises a question of law that 

we review de novo. State v. Mitchell, 11th Dist. Portage No. 2019-P-0105, 2020-Ohio3417, ¶ 43, citing State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5, and 

State v. Brown, 11th Dist. Lake No. 2017-L-038, 2017-Ohio-7963, ¶ 8 (“an appellate 

court’s standard of review on the denial of a motion to vacate void judgment is de novo”). 

{¶8} “A defendant’s ability to challenge an entry at any time is the very essence 

of an entry being void, not voidable.” (Citation omitted.) State v. Harper, 160 Ohio St.3d 

480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 18. Void judgments may be reviewed at any 

time, on direct appeal or by collateral attack. State v. Walker, 11th Dist. Trumbull No. 

2018-T-0024, 2018-Ohio-3964, ¶ 12. A voidable judgment, on the other hand, is subject 

to res judicata and may be set aside only if successfully challenged on direct appeal. 
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Harper at ¶ 18; Walker at ¶ 12, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio4642, 873 N.E.2d 306, ¶ 28. 

Under the doctrine of res judicata, a final judgment of 

conviction bars a convicted defendant who was represented 

by counsel 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. 

 

(Emphasis added.) State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph 

nine of the syllabus. 

{¶9} After years of expanding on the void sentence doctrine, in the cases of

Harper and Henderson, the Supreme Court of Ohio returned to the “traditional 

understanding” of void and voidable judgments. Harper at ¶ 4; State v. Henderson, 161 

Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 34. Pursuant to the traditional view, 

“[a] judgment or sentence is void only if it is rendered by a court that lacks subject-matter 

jurisdiction over the case or personal jurisdiction over the defendant. If the court has 

jurisdiction over the case and the person, any error in the court’s exercise of that 

jurisdiction is voidable.” Henderson at ¶ 43. “[U]nless it is vacated on appeal, a voidable 

judgment has the force of a valid legal judgment, regardless of whether it is right or 

wrong.” Id. at ¶ 17, citing Tari v. State, 117 Ohio St. 481, 494, 159 N.E. 594 (1927). “The 

failure to timely—at the earliest available opportunity—assert an error in a voidable 

judgment, even if that error is constitutional in nature, amounts to the forfeiture of any 

objection.” Henderson at ¶ 17, citing Tari at 495. 

{¶10} Lusane does not challenge the trial court’s personal jurisdiction over him, 

and there is no question that a felony OVI offense is within the common pleas court’s 
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subject matter jurisdiction. See R.C. 2931.03. Lusane argues, however, that the instant 

offense was a misdemeanor and not a felony, thereby divesting the common pleas court 

of its subject matter jurisdiction. 

{¶11} The premise of Lusane’s argument—that the journal entries used to prove 

two of the prior offenses were “facially void”—is flawed. Although we held that the 

sentencing entries in those prior cases did not comply with the single judgment entry 

requirement of Crim.R. 32(C), we did not hold that those entries were void. Nor would 

we so hold, as the municipal court had subject matter jurisdiction over those misdemeanor 

offenses. See R.C. 1901.20(A)(1) (“[t]he municipal court has jurisdiction to hear 

misdemeanor cases committed within its territory”). Therefore, contrary to Lusane’s 

argument, that the entries did not comply with Crim.R. 32(C) did not divest the common 

pleas court of jurisdiction. 

{¶12} Additionally, the Supreme Court’s holding in Gwen has been the law on this 

issue since 2012, well before and after Lusane’s direct appeal was decided. Gwen, 2012-

Ohio-5046, at paragraph two of the syllabus (“When, pursuant to R.C. 2945.75(B)(1), the 

state offers a judgment entry to prove the element of a prior * * * conviction in order to 

increase the offense level of a later * * * charge, the judgment entry must comply with 

Crim.R. 32(C).”); see also R.C. 2945.75(B)(1) (“Whenever in any case it is necessary to 

prove a prior conviction, a certified copy of judgment in such prior conviction together with 

evidence sufficient to identify the defendant named in the entry as the offender in the case 

at bar, is sufficient to prove such prior conviction.”). Because the municipal court’s failure 

to comply with Crim.R. 32(C) was apparent on the face of the record in the felony case, 
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our rulings in the misdemeanor cases were not necessary for Lusane to have raised his 

insufficient evidence argument on direct appeal from his 2014 conviction. 

{¶13} Further, assuming arguendo that the state presented insufficient evidence 

on the predicate offense element of fourth-degree felony OVI, this also would not have 

divested the common pleas court of subject matter jurisdiction over the offense. Common 

pleas courts have “such original jurisdiction over all justiciable matters * * * as may be 

provided by law.” Ohio Constitution, Article IV, Section 4. The criminal law jurisdiction of 

common pleas courts is provided in R.C. 2931.03: “The court of common pleas has 

original jurisdiction of all crimes and offenses, except in cases of minor offenses the 

exclusive jurisdiction of which is vested in courts inferior to the court of common pleas.” 

Although at first glance this provision could be construed to mean that exclusive 

jurisdiction of all minor offenses is vested in courts inferior to the common pleas court, the 

Supreme Court of Ohio has expressly decided to the contrary: 

The * * * contention that the Court of Common Pleas does not 

have jurisdiction in a misdemeanor case is a misinterpretation 

of Section 2931.03, Revised Code, and is without merit. 

Jurisdiction over all crimes and offenses is vested in the Court 

of Common Pleas, unless such jurisdiction is vested 

specifically and exclusively in the lower courts. In the absence 

of an express provision to the contrary, the Court of Common 

Pleas has jurisdiction over misdemeanors. 

(Emphasis added.) State ex rel. Coss v. Hoddinott, 16 Ohio St.2d 163, 164, 243 N.E.2d 

59 (1968), citing Small v. State, 128 Ohio St. 548, 192 N.E. 790 (1934). There is no 

express provision vesting jurisdiction of misdemeanor OVI offenses specifically and 

exclusively in a court inferior to the common pleas court. Ergo, common pleas courts 

have jurisdiction to preside over misdemeanor OVI offenses. See State v. Zimmerman, 

11th Dist. Geauga No. 2013-G-3146, 2014-Ohio-1152, ¶ 15-16 (common pleas courts 
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and municipal courts have concurrent jurisdiction to hear misdemeanor OVI offenses), 

citing Coss at 164. Accordingly, any error in the exercise of the trial court’s jurisdiction 

would have rendered the judgment voidable, not void. 

{¶14} We conclude, therefore, that Lusane’s failure to timely assert the alleged 

error on direct appeal amounts to the forfeiture of his objection via a collateral attack, and 

his argument is barred by the doctrine of res judicata. The common pleas court did not 

err in denying his motion. 

{¶15} Lusane’s sole assigned error is overruled. The judgment of the Portage 

County Court of Common Pleas is affirmed.

MATT LYNCH, J., 

JOHN J. EKLUND, J., 

concur.