State v. Jones , 2022 Ohio 561 ( 2022 )

[Cite as State v. Jones, 2022-Ohio-561.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 20CA9
v. :
CLARENCE JONES, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Roger Soroka and Joshua Bedtelyon, Columbus, Ohio, for
appellant.
Justin Lovett, Jackson County Prosecuting Attorney, and Rachel
E. Daehler, Jackson County Assistant Prosecuting Attorney,
Jackson, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:2-18-22
ABELE, J.
{¶1} This is an appeal from a Jackson County Common Pleas
Court judgment of conviction and sentence. The trial court
found Clarence Jones, defendant below and appellant herein,
guilty of cocaine possession and sentenced him to serve eight
years in prison.
{¶2} Appellant assigns the following error for review:
“THE TRIAL COURT ERRED IN DISMISSING
APPELLANT’S MOTION TO SUPPRESS EVIDENCE
OBTAINED DURING AN UNLAWFUL SEARCH AND
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SEIZURE WHICH VIOLATED APPELLANT’S FOURTH
AMENDMENT RIGHTS.”
{¶3} During an April 2018 traffic stop, Ohio State Highway
Patrol Trooper Matthew Atwood discovered approximately 130 grams
of cocaine in a metal box attached to the undercarriage of
appellant’s vehicle. A Jackson County Grand Jury later returned
an indictment that charged appellant with (1) possession of
cocaine, in violation of R.C. 2925.11(A); (2) trafficking in
cocaine, in violation of R.C. 2925.03(A)(2); and (3) operating a
vehicle with a hidden compartment, in violation of R.C.
2923.241(C). Each drug offense also included a major drug
offender specification. Appellant entered not guilty pleas.
{¶4} On October 17, 2019, appellant filed a motion to
suppress the evidence discovered during the traffic stop. In
particular, appellant asserted that the trooper (1) did not have
reasonable suspicion or probable cause to stop the vehicle, and
(2) did not have probable cause to search the vehicle.
{¶5} On June 17, 2020, the trial court held a hearing to
consider appellant’s motion to suppress. Trooper Atwood
testified that on April 18, 2018, he noticed a vehicle with a
“dark window tint.” Also, the vehicle’s occupants appeared to
lean back so far that he “couldn’t see them” and that “it looked
like * * * a driverless car.” Atwood also noted that the
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vehicle slowed as it passed the trooper’s parked cruiser. At
that point, Atwood decided to investigate and followed the car.
{¶6} Trooper Atwood followed the vehicle, he noticed the
vehicle again slow down and depress the brakes. At that point,
Atwood observed that one brake light did not work and, based
upon the missing brake light and dark window tint, he decided to
stop the vehicle.
{¶7} When Trooper Atwood reached the vehicle, he asked the
driver (appellant) for his license, registration, and insurance.
Atwood noticed that appellant and the passenger both were
“breathing unusually heavily” and “were shaking.” Atwood
explained that when appellant handed over his driver’s license,
his “hand was trembling” and the passenger “was starting to
sweat.” Atwood also stated that the passenger did not make eye
contact even though the trooper stood next to him.
{¶8} Trooper Atwood asked appellant to exit the vehicle and
to walk toward the cruiser. Atwood then performed a pat-down
search and placed appellant in the back of the cruiser. After
Atwood returned to the vehicle and asked the passenger for
identification, that at this point the passenger’s “sweat was
now running down his face.” The passenger indicated that he had
no identification and he also “was shifting around in his seat.”
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During the passenger’s shifting, Atwood detected the odor of raw
marijuana emanating from the vehicle.
{¶9} Trooper Atwood returned to his cruiser, read appellant
his Miranda rights, and informed appellant that the trooper had
detected the odor of marijuana and that he intended to search
the vehicle. During the search, Atwood found a black magnetic
box attached to the bottom of the vehicle that contained a sock.
Inside the sock, a vacuum-sealed bag contained approximately 130
grams of crack cocaine.
{¶10} Trooper Atwood testified that he later measured the
window tint and found that the tint provided 44% light
transmission.
{¶11} After Trooper Atwood’s testimony, the state rested.
The court asked appellant’s counsel whether they had “any issue
with the probable cause for the stop” and appellant’s counsel
responded “No, Your Honor.” Counsel instead agreed that the
issue “is whether or not the officer had reasonable suspicion
that additional criminal activity was afoot.”
{¶12} The trial court subsequently overruled appellant’s
motion to suppress evidence. The court found that Trooper
Atwood detected the odor of marijuana, and that the smell of
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marijuana gave Atwood probable cause to search appellant’s
vehicle.
{¶13} On November 19, 2020, appellant entered a no-contest
plea to cocaine possession. The trial court found appellant
guilty of cocaine possession, dismissed the remaining counts and
specifications, and sentenced appellant to serve eight years in
prison. This appeal followed.
I
{¶14} In his sole assignment of error, appellant asserts
that the trial court erred by overruling his motion to suppress
the evidence discovered during the traffic stop. Appellant
contends that (1) the trooper did not have reasonable suspicion
to stop the vehicle for a window-tint violation, and (2) even if
the trooper had reasonable suspicion to stop the vehicle for a
window-tint violation, the trooper impermissibly expanded the
scope of the stop. Appellant argues that the trooper did not
have reasonable suspicion that criminal activity was afoot so as
to justify the expanded scope of the stop.
{¶15} Appellate review of a trial court’s ruling on a motion
to suppress evidence involves a mixed question of law and fact.
E.g., State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46
N.E.3d 638, ¶ 32; State v. Burnside, 100 Ohio St.3d 152, 2003-
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Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Moore, 2013-Ohio-5506, 5
N.E.3d 41 (4th Dist.), ¶ 7. Appellate courts thus “‘must accept
the trial court’s findings of fact if they are supported by
competent, credible evidence.’” State v. Leak, 145 Ohio St.3d
165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoting Burnside at ¶
8. Accepting those facts as true, reviewing courts
“‘independently determine as a matter of law, without deference
to the conclusion of the trial court, whether the facts satisfy
the applicable legal standard.’” Id., quoting Burnside at ¶ 8.
{¶16} The Fourth and Fourteenth Amendments to the United
States Constitution, as well as Section 14, Article I of the
Ohio Constitution, protect individuals against unreasonable
governmental searches and seizures. Delaware v. Prouse, 440
U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); State
v. Gullett, 78 Ohio App.3d 138, 143, 604 N.E.2d 176 (1992).
“[S]earches [and seizures] conducted outside the judicial
process, without prior approval by judge or magistrate, are per
se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” Katz
v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19
L.Ed.2d 576 (1967); State v. Roberts, 110 Ohio St.3d 71, 2006-
Ohio-3665, 850 N.E.2d 1168, ¶ 98. “Once a warrantless search is
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established, the burden of persuasion is on the state to show
the validity of the search.” Xenia v. Wallace, 37 Ohio St.3d
216, 218, 524 N.E.2d 889 (1988) (citation omitted).
{¶17} A traffic stop initiated by a law enforcement officer
constitutes a seizure within the meaning of the Fourth
Amendment. Whren v. United States, 517 U.S. 806, 809–810, 116
S.Ct. 1769, 135 L.Ed.2d 89 (1996). Thus, a traffic stop must
comply with the Fourth Amendment’s general reasonableness
requirement. Id. An officer’s decision to stop a vehicle is
reasonable when the officer has probable cause or reasonable
suspicion to believe that a traffic violation has occurred. Id.
at 810 (citations omitted); accord State v. Mays, 119 Ohio St.3d
406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23; Dayton v. Erickson,
76 Ohio St.3d 3, 11–12, 665 N.E.2d 1091 (1996). Law enforcement
officers also may stop a vehicle if they have reasonable
suspicion “that criminal activity ‘“may be afoot.”’” United
States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d
740 (2002), quoting United States v. Sokolow, 490 U.S. 1, 7, 109
S.Ct. 1581, 104 L.Ed.2d 1 (1989), quoting Terry v. Ohio, 392
U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); accord State
v. Tidwell, 165 Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶
19 (officer may “make an investigatory stop, including a traffic
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stop, of a person if the officer has reasonable suspicion to
believe that the person is or is about to be engaged in criminal
activity”).
{¶18} In the case sub judice, although appellant contends on
appeal that the trooper lacked reasonable suspicion or probable
cause to stop the vehicle, appellant chose not to contest the
validity of the traffic stop during the suppression hearing.
The trial court asked appellant’s counsel about any issue with
the vehicle stop, and counsel responded “No.” In his post-
hearing brief, however, appellant challenged the lawfulness of
the initial stop of his vehicle. We therefore question whether
appellant properly preserved the issue for purposes of appellate
review. State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-
5156, 145 N.E.3d 278, ¶ 19, citing Wallace, 37 Ohio St.3d at 218
(defendant may stipulate to, or narrow, the issues that trial
court reviewing suppression motion must resolve and that
“[a]rguments not made by the defendant at the suppression
hearing are, therefore, deemed to have been waived”).
{¶19} Nevertheless, we believe that Trooper Atwood
articulated sufficient facts that gave him reasonable suspicion
or probable cause to stop appellant’s vehicle. Atwood stated
that the window tint appeared darker than the legal limit and
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that he noticed a defective brake light. Either of these
factors gave Atwood reasonable suspicion or probable cause to
believe that appellant violated Ohio law.1 The trooper’s stop,
therefore, did not constitute an unconstitutional traffic stop.
E.g., State v. Hubbard, 2d Dist. Montgomery No. 28941, 2021-
Ohio-1740, ¶ 21 (holding “that a traffic stop for a suspected
window-tint violation is lawful”).
{¶20} Appellant next asserts that, even if the initial stop
complied with the Fourth Amendment, Trooper Atwood violated the
Fourth Amendment by expanding the scope of the stop. Appellant
argues that Atwood had no reason to remove appellant from the
vehicle, to conduct a pat-down search for weapons, to place
appellant in the back of the cruiser, and then to search
appellant’s vehicle.
{¶21} It is well-established that the scope and duration of
a routine traffic stop “must be carefully tailored to its
underlying justification * * * and last no longer than is
necessary to effectuate the purpose of the stop.” Florida v.
Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983);
See Ohio Adm.Code 4501-41-03(A)(2) and (3) (permitting
tinted windows so long as 70% of light passes through a
windshield and 50% of light passes through the front side
windows); R.C. 4513.071 (requiring passenger vehicles to have
two red brake lights).
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see also State v. Gonyou, 108 Ohio App.3d 369, 372, 670 N.E.2d
1040 (6th Dist.1995). This rule is designed to prevent law
enforcement officers from conducting “fishing expeditions” for
evidence of a crime. Sagamore Hills v. Eller, 9th Dist. Summit
No. 18495, 1997 WL 760693, *2 (Nov. 5, 1997); see also Fairborn
v. Orrick, 49 Ohio App.3d 94, 95, 550 N.E.2d 488 (2d Dist.1988)
(the “mere fact that a police officer has an articulable and
reasonable suspicion sufficient to stop a motor vehicle does not
give that police officer ‘open season’ to investigate matters
not reasonably within the scope of his suspicion”).
{¶22} Thus, generally, “[w]hen a law enforcement officer
stops a vehicle for a traffic violation, the officer may detain
the motorist for a period of time sufficient to issue the
motorist a citation and to perform routine procedures such as a
computer check on the motorist’s driver’s license, registration
and vehicle plates.” State v. Aguirre, 4th Dist. Gallia No.
03CA5, 2003-Ohio-4909, ¶ 36, citing State v. Carlson, 102 Ohio
App.3d 585, 598, 657 N.E.2d 591 (9th Dist.1995); see also
Rodriguez v. United States, 575 U.S. 348, 355, 135 S.Ct. 1609,
1614, 191 L.Ed.2d 492 (2015) (part of officer’s “mission” when
conducting traffic stop is to check driver’s license, determine
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whether outstanding warrants exist, and examine vehicle
registration and automobile insurance documents). A traffic
stop becomes “‘unlawful if it is prolonged beyond the time
reasonably required to complete th[e] mission’ of issuing a
ticket for the violation.” Rodriguez, 575 U.S. at 350, quoting
Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160
L.Ed.2d 842 (2005). After “the reasonable * * * time for
issuing [a] citation has [elapsed], an officer must have a
reasonable articulable suspicion of illegal activity to continue
the detention.” State v. Ramos, 155 Ohio App.3d 396, 2003-Ohio-
6535, 801 N.E.2d 523, ¶ 13 (2d Dist.).
{¶23} Thus, “[a]n officer may expand the scope of the stop
and may continue to detain the vehicle without running afoul of
the Fourth Amendment if the officer discovers further facts
which give rise to a reasonable suspicion that additional
criminal activity is afoot.” State v. Rose, 4th Dist. Highland
No. 06CA5, 2006-Ohio-5292, ¶ 17, citing State v. Robinette, 80
Ohio St.3d 234, 240, 685 N.E.2d 762 (1997). As the Robinette
court explained,
[w]hen a police officer’s objective justification to
continue detention of a person * * * is not related to
the purpose of the original stop, and when that
continued detention is not based on any articulable
facts giving rise to a suspicion of some illegal
activity justifying an extension of the detention, the
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continued detention to conduct a search constitutes an
illegal seizure.
Id. at paragraph one of the syllabus.
{¶24} Conversely, “if a law enforcement officer, during a
valid investigative stop, ascertains ‘reasonably articulable
facts giving rise to a suspicion of criminal activity, the
officer may then further detain and implement a more in-depth
investigation of the individual.’” Rose at ¶ 17, quoting
Robinette at 241.
{¶25} We additionally observe that traffic stops in general
are “especially fraught with danger to police officers.”
Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 77
L.Ed.2d 1201 (1983). For this reason, a law enforcement officer
who lawfully detains a motor vehicle for a traffic violation
“may order the driver to get out of the vehicle without
violating the Fourth Amendment’s proscription of unreasonable
searches and seizures.” Pennsylvania v. Mimms, 434 U.S. 106,
111, fn.6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); accord State v.
Brown, 4th Dist. Ross No. 18CA3644, 2019-Ohio-1112, ¶ 15.
Furthermore, an officer need not have any suspicion that
criminal activity might be afoot before the officer may order a
driver to exit the vehicle. State v. Evans, 67 Ohio St.3d 405,
408, 618 N.E.2d 162 (1993) (holding that “a Mimms order does not
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have to be justified by any constitutional quantum of
suspicion”). Instead, “[t]he government’s ‘legitimate and
weighty’ interest in officer safety * * * outweighs the ‘de
minimis’ additional intrusion of requiring a driver, already
lawfully stopped, to exit the vehicle.” Arizona v. Johnson, 555
U.S. 323, 330–31, 129 S.Ct. 781, 786, 172 L.Ed.2d 694 (2009),
quoting Mimms, 434 U.S. at 110–111. Additionally, once the
driver of a lawfully detained vehicle steps outside, the officer
may conduct a limited pat-down search for weapons “if the
officer reasonably concludes that the driver ‘might be armed and
presently dangerous.’” Johnson, 555 U.S. at 330–31, quoting
Mimms, 434 U.S. at 112.
{¶26} In the case sub judice, we believe that the trial
court correctly determined that the trooper’s conduct did not
violate the Fourth Amendment. First, under Mimms the trooper
lawfully ordered appellant to exit the vehicle. At that time,
the traffic stop had just begun and the trooper had yet to check
appellant’s driver’s license or to check for outstanding
warrants.
{¶27} After he asked appellant to exit the vehicle, Trooper
Atwood performed a pat-down search and placed appellant in the
cruiser. Even if Atwood lacked any valid reason for doing so,
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no evidence was discovered during the pat-down search or in the
cruiser after appellant exited.
{¶28} Immediately after he placed appellant in the cruiser,
Trooper Atwood returned to appellant’s vehicle to talk to the
passenger and to obtain the passenger’s identification. At that
point, Atwood detected an odor of raw marijuana. When he
detected the odor of raw marijuana, he had not yet completed the
mission of the traffic stop or the routine procedures that
accompany a traffic stop.
{¶29} Once Trooper Atwood detected the odor of raw
marijuana, the trooper acquired probable cause to search
appellant’s vehicle. E.g., State v. Moore, 90 Ohio St.3d 47,
734 N.E.2d 804 (2000), syllabus (“[t]he smell of marijuana,
alone, by a person qualified to recognize this odor, is
sufficient to establish probable cause to conduct a search”);
State v. Brown, 2d Dist. Montgomery No. 27377, 2017-Ohio-2880, ¶
9 (“[a]ny odor of marijuana emanating from a legally stopped
vehicle creates probable cause to believe that a violation of
the law has occurred”). The trooper, therefore, did not
unlawfully expand the scope of the stop by searching appellant’s
vehicle.
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{¶30} We note appellant’s concern that Trooper Atwood should
have used the on-site drug-detection dog rather than conduct a
manual search of the vehicle. Appellant has not, however, cited
any authority to support his assertion that law enforcement
officers must use a drug-detection dog if the dog already is on
site before the officers may manually search a vehicle. We
further note that Trooper Atwood stated that he “never” uses the
drug-detection dog once he detects the odor of marijuana.
Additionally, a few other courts have rejected similar
challenges. See State v. Ivery, 11th Dist. Lake No. 2011-L-081,
2012-Ohio-1270, ¶ 29 (disagreeing with defendant’s assertion
that officer should have used on-site drug-detection dog to
check the vehicle for narcotics when officer’s detection of odor
of marijuana already established probable cause for search);
United States v. Moxley, 229 F.3d 1154, 2000 WL 1234320, *3 (6th
Cir.2000) (when officer already had probable cause to search
vehicle “[t]he result of the dog-sniff merely added icing to the
proverbial cake”); see also United States v. Davis, 430 F.3d
345, 365-67 (6th Cir. 2005) (Sutton, J., concurring in part and
dissenting in part) (citing litany of cases that support “a near
universal recognition that a drug-sniffing dog’s failure to
alert does not necessarily destroy probable cause”); United
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States v. Frost, 999 F.2d 737, 744 (3d Cir.1993) (“When one
includes both the fact that the drug sniffing dog did not alert
to the suitcase and the fact that drug couriers often mask the
scent of drugs in suitcases so that a drug sniffing dog will not
alert, the failure to alert to the suitcase is not inconsistent
with the substantial probative thrust of information which [the
officer] did include [in the warrant].”).
{¶31} Appellant also contends that Trooper Atwood’s
testimony that he smelled the odor of raw marijuana is not
credible. We again note, however, that the trial court, sitting
as the trier of fact, is in the best position to evaluate
witnesses credibility during a suppression hearing. We
therefore must accept the trial court’s factual finding that the
trooper detected the odor of marijuana so long as competent,
credible evidence supports it.
{¶32} In the case sub judice, we believe that competent,
credible evidence supports the trial court’s finding that the
trooper detected the odor of marijuana. The trooper explained
that he received training in detecting the odor of raw marijuana
and that he has “been involved in hundreds of cases where
marijuana was present and confirmed to be marijuana.” The
trooper stated that he noticed the odor of raw marijuana while
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he spoke with the passenger after he placed appellant in the
patrol cruiser. The trooper stated that he noticed the odor
once the passenger started “to shift[] around in his seat” and
that he again detected the odor when the passenger exited the
vehicle.
{¶33} After appellant’s counsel finished cross-examining
Trooper Atwood about his testimony that he smelled the odor of
raw marijuana, the trial court asked additional questions. The
court asked whether the odor of raw marijuana could “linger.”
Atwood explained that it would depend upon “the amount and the *
* * * quality of the marijuana.”
{¶34} After our review, we believe that the foregoing
testimony constitutes competent, credible evidence that the
trooper detected the odor of raw marijuana. We do not find
anything in the record to allow us to second-guess the trial
court’s credibility determination. Ivery at ¶ 28 (rejecting
defendant’s argument that officer’s testimony that he recognized
the odor of marijuana was not credible when trial court credited
officer’s testimony that he could identify the smell of
marijuana “based on his training and experience”); State v.
Gonzales, 6th Dist. No. WD–07–060, 2009–Ohio–168, ¶ 25
(reviewing court would not disturb trial court’s finding that
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officer was qualified and experienced in identifying the odor of
marijuana).
{¶35} Furthermore, the fact that Trooper Atwood did not
discover marijuana during the search of appellant’s vehicle does
not require the conclusion that the trooper lacked probable
cause to search the vehicle based upon the odor of marijuana or
that his testimony lacked credibility. See generally United
States v. Brown, 250 F.3d 739, 2001 WL 274314, *1 (5th
Cir.2001), quoting United States v. Reed, 882 F.2d 147, 149 (5th
Cir.1989) (finding it irrelevant “‘that the substance eventually
discovered in the vehicle was cocaine, and that no marihuana was
ever found’”). Rather, courts that are determining whether
probable cause exists must evaluate “the objective facts known
to the officers at the time of the search,” and may not consider
“events that occurred after the search.” State v. Maddox, 10th
Dist. Franklin No. 19AP-72, 2021-Ohio-586, 168 N.E.3d 613, ¶ 16,
citing Smith v. Thornburg, 136 F.3d 1070, 1075 (6th Cir. 1998);
accord Brown, 250 F.3d 739, *1, quoting Reed, 882 F.2d at 149
(“‘the presence or absence of probable cause to search is not
determined by what the search does or does not ultimately
reveal’”); In re O.N., 8th Dist. Cuyahoga No. 107850, 2019-Ohio-
4159, ¶ 15 (rejecting argument that smell of marijuana cannot
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give rise to probable cause to search vehicle when officers do
not find marijuana during subsequent search); State v. Richmond,
8th Dist. Cuyahoga No. 105036, 2017-Ohio-2860, ¶ 18, quoting
Moore, 90 Ohio St.3d at 50 (observing that Moore does not
require “‘additional factors to corroborate the suspicion of the
presence of marijuana’”); see also State v. Arnold, 2d Dist.
Clark No. 2001 CA 55, 2002-Ohio-1779, *3 (Apr. 12, 2002) (“[t]he
fact that no evidence of burnt marijuana was found in the
vehicle is not determinative as Moore states that no additional
factors other than the smell of the marijuana are needed for
probable cause to conduct the search of a vehicle”).
{¶36} Consequently, we do not agree with appellant that the
trial court erred by overruling his motion to suppress the
evidence discovered during the search of his vehicle.
{¶37} Accordingly, based upon the foregoing reasons, we
overrule appellant’s sole assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Jackson County Common Pleas Court to carry
this judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.