State v. Smith , 2021 Ohio 4028 ( 2021 )

[Cite as State v. Smith, 2021-Ohio-4028.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 21CA3739
v. :
CIERA M. SMITH : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Scott P. Wood, Lancaster, Ohio for appellant.1
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C.
Wells, Assistant Prosecuting Attorney, Chillicothe, Ohio, for
appellee.
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:11-8-21
ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas Court
judgment of conviction and sentence. The trial court found Ciera
M. Smith, defendant below and appellant herein (1) guilty of
second-degree aggravated possession of methamphetamine and imposed
a prison sentence, and (2) denied her request to withdraw her
guilty plea.
{¶2} Appellant assigns the following errors for review:
1
Different counsel represented appellant during a portion of
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FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
ALLOWING APPELLANT TO WITHDRAW HER GUILTY PLEA
PRIOR TO SENTENCING.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN SENTENCING
APPELLANT.”
{¶3} On December 6, 2019, a Ross County Grand Jury returned an
indictment that charged appellant with one count of aggravated
possession of drugs in violation of R.C. 2925.11.
{¶4} On April 20, 2020, appellant agreed to plead guilty to
aggravated drug possession as charged in the indictment. At the
change of plea hearing, the trial court noted that the state,
defense counsel and appellant negotiated the plea, including a two-
year minimum sentence, and agreed that the trial court accurately
recited the terms of the plea agreement. After the court asked
appellant if she understood she would be making a complete
admission to the allegations contained in the indictment, she
responded affirmatively. The court further asked appellant if she
understood that a guilty plea waives her right to a jury trial, her
right not to testify against herself, her right to confront
witnesses, her right to compulsory process, and her right to
require the state to prove her guilt beyond a reasonable doubt.
the trial court proceedings.
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Appellant responded that she did so understand.
{¶5} The trial court thereupon reviewed the maximum penalty
and informed appellant that this offense has (1) a mandatory
sentence between two and eight years, and (2) a fine up to $15,000,
one-half of which is mandatory. The court also addressed court
costs, post-release control and advised appellant that she would
not be eligible for judicial release.
{¶6} Defense counsel pointed out that, because of appellant’s
pregnancy and upcoming due date, appellant may need ongoing medical
care arising from pregnancy complications. A discussion then
ensued concerning whether appellant should deliver her child before
or after entering prison, and whether appellant could be eligible
for the prison nursery program. The trial court stated that it
would be willing to wait until after the birth to impose sentence
because, once it sentenced appellant, “I don’t have the ability to
even judicial her. I can’t do anything * * * I can’t modify it.”
After counsel indicated that he had explained this situation to
appellant, the court accepted appellant’s guilty plea, but did not
immediately schedule a sentencing hearing.
{¶7} On August 20, 2020, appellant, through new counsel, filed
a motion to withdraw her guilty plea. In particular, appellant
claimed that, because she did not have the ability to review
discovery materials until after her plea, her recent review of
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discovery materials revealed her co-defendant’s admission of
ownership of the methamphetamine. Thus, appellant reasoned, this
information provided her with a good faith defense. Appellant
further argued that, at the time she entered her plea, she believed
she would enter prison nursery program so that she could be with
her child during her incarceration.
{¶8} On October 13, 2020, the trial court held a hearing to
address appellant’s motion to withdraw her guilty plea and
appellant’s sentence. At the hearing, appellant testified that,
when she entered her guilty plea, she had not reviewed her
discovery packet because her high-risk pregnancy precluded her from
visiting her counsel’s office. Appellant further explained that,
after her child’s birth, she visited counsel’s office, reviewed
discovery, and learned that her co-defendant admitted that he owned
the drugs. Consequently, appellant now believed she had a good
faith defense and she wished to change her plea. Appellant also
testified that, when she entered her guilty plea, she thought she
was “gonna be able to go into the prison nursery program with my
child. I would not have to leave her and then she was born two
months early and since I’m now that’s not possible.” Appellant
claimed that when she entered her plea, she also understood that
she would receive two years, but “I could go into a prison nursery
program * * * before I had my child and even with the medical stuff
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going on * * * that it was fine.” Appellant stated that “the only
reason I even took the deal [was] because I just didn’t want to be
separated from my child that is my biggest concern.” Appellant did
acknowledge, however, that the trial court informed her that
acceptance into the prison nursery program was not a certainty, but
appellant said, “I thought it was.” Appellant also stated that she
had been drug-free for two years, sees a psychologist and is
married to her baby’s father.
{¶9} Appellant also admitted that during her and her co-
defendant’s 2018 traffic stop, she possessed methamphetamine in her
pants. Nevertheless, appellant maintained that the discovery
materials proved that she did not own the drugs and that fact would
have impacted her decision to plead guilty. Appellant conceded,
however, that she could have entered prison, and possibly the
prison nursery program, when she pleaded guilty, but she chose not
to be sentenced that day. Instead, at her request the trial court
twice continued her sentencing hearing.
{¶10} At the motion hearing the state called Attorney Matthew
O’Leary to testify. O’Leary represented appellant at her December
23, 2019 arraignment. He also stated that he received all of the
discovery materials. Although O’Leary recalled that appellant had
several medical appointments related to her high-risk pregnancy and
that this fact made meetings at his office difficult, he stated,
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we had discussed extensively the nature of the discovery
both prior to that plea. I think one of the initial
appointments in the office * * * where I did have the
discovery and then throughout that case over the phone,
over email um, again a large portion being, I could not
physically provide her copies because I am unable to do
that and I know that was communicated in writing via
email.
O’Leary further testified that appellant visited his office in mid-
July and reviewed documents and portions of a video. O’Leary also
recalled the April 20, 2020 change of plea hearing and appellant’s
guilty plea.
{¶11} Additionally, at the motion hearing the trial court asked
whether appellant’s substitute counsel had received discovery.
When the court learned that he had not, the court continued the
hearing so that new counsel could have an opportunity to review the
discovery materials. The court stated:
My notes from all of the pre-trials in this. The first
one was the defendant said, ‘not her dope.’ She would be
willing to plea to an F3. She indicated, or no, in
chambers she argued it was her boyfriend’s dope. She was
given a week then to file motions and then we started
discussing moving the case in to April and that sort of
thing. So, I was at least a prior to then that was what
she was saying and I tend to, I get your argument if
there is something in the discovery that indicates that
her boyfriend had said ‘it was mine.’ If you believe she
didn’t know that, then yes that would be a significant
factor. So, that’s what I kind of would like to know is
whether discovery actually said, makes those statements.
The trial court then continued the hearing to allow appellant’s
counsel time to review the discovery materials and determine
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whether the co-defendant’s statement concerning the ownership of
the methamphetamine appeared in those materials.
{¶12} Subsequently, counsel reviewed the discovery materials,
including a video, and the co-defendant stated that he owned the
drugs. Concerning appellant’s contention that she pleaded guilty
based on her belief that she could be with her child during her
incarceration, the trial court observed that the court informed
appellant at her plea hearing that, although that could be the
ideal situation, the court could not promise that would actually
occur.
{¶13} Consequently, concerning appellant’s contention that when
she entered her guilty plea she did not have the opportunity to
review discovery materials and that she did not know about her co-
defendant’s admission, the trial court concluded:
Quite frankly, I believe she was aware that he made those
statements and that in fact that was her defense the
entire of that, it wasn’t hers or difficulty, it clearly
was, it was on her person. And two people can obviously
possess one item. As such it sounds more like buyer’s
remorse than it does anything else. So, I’m going to
deny the motion to withdraw plea.
{¶14} Therefore, the trial court (1) overruled appellant’s
motion to withdraw her guilty plea, (2) sentenced her to serve an
indefinite prison term of two to three years of mandatory time, (3)
imposed a mandatory $7,500 fine, and (4) imposed a three-year
mandatory post-release control term, and (5) denied appellant’s
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motion to stay execution of sentence pending appeal. This appeal
followed.
I.
{¶15} In her first assignment of error, appellant asserts that
the trial court’s denial of her motion to withdraw her guilty plea
constitutes an abuse of discretion. In particular, appellant
contends that when she entered her guilty plea, she did not know
that her co-defendant had admitted that he owned the
methamphetamine found on her person.
{¶16} Crim.R. 32.1 provides: “A motion to withdraw a plea of
guilty or no contest may be made only before sentence is imposed;
but to correct manifest injustice the court after sentence may set
aside the judgment of conviction and permit the defendant to
withdraw his or her plea.” “While trial courts should ‘freely and
liberally’ grant a presentence motion to withdraw a guilty plea, a
defendant does not ‘have an absolute right to withdraw a guilty
plea prior to sentencing.’” State v. Howard, 2017-Ohio-9392, 103
N.E.3d 108, ¶ 21 (4th Dist.), quoting State v. Xie, 62 Ohio St.3d
521, 527, 584 N.E.2d 715 (1992). Instead, “[a] trial court must
conduct a hearing to determine whether there is a reasonable and
legitimate basis for the withdrawal of the plea.” Xie at paragraph
one of the syllabus; Howard, supra.
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{¶17} While a trial court may possess discretion to determine
whether to grant or to deny a presentence motion to withdraw a
guilty plea, the court does not have the discretion to determine if
a hearing is required. Howard at ¶ 22, citing State v. Wolfson,
4th Dist. Lawrence No. 02CA28, 2003-Ohio-4440, ¶ 15. Furthermore,
because a trial court has broad discretion to grant or to deny a
presentence motion to withdraw a plea, an appellate court will not
reverse a court’s decision absent an abuse of discretion. State v.
Delaney, 4th Dist. Jackson No. 19CA9, 2020-Ohio-7036, ¶ 19, citing
State v. Brown, 4th Dist. Ross No. 16CA3544, 2017-Ohio-2647 at ¶
11, citing Xie at ¶ 2 of the syllabus. “The term ‘abuse of
discretion’ implies that the court’s attitude is unreasonable,
unconscionable, or arbitrary.” Brown at ¶ 12, citing State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶18} Courts have identified nine factors that appellate courts
should consider when reviewing a trial court’s decision regarding a
pre-sentence motion to withdraw a guilty plea:
(1) whether “highly competent counsel” represented the
defendant; (2) whether the trial court afforded the
defendant “a full Crim.R. 11 hearing before entering
the plea”; (3) whether the trial court held “a full
hearing” regarding the defendant’s motion to withdraw;
(4) “whether the trial court gave full and fair
consideration to the motion”; (5) whether the defendant
filed the motion within a reasonable time; (6) whether
the defendant’s motion gave specific reasons for the
withdrawal; (7) whether the defendant understood the
nature of the charges, the possible penalties, and the
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consequences of his [or her] plea; (8) whether the
defendant is “perhaps not guilty or ha[s] a complete
defense to the charges”; and (9) whether permitting the
defendant to withdraw his [or her] plea will prejudice
the state.
Howard at ¶ 24, citing State v. McNeil, 146 Ohio App.3d 173, 176,
765 N.E.2d 884 (1st Dist.2001), citing State v. Peterseim, 68 Ohio
App.2d 211, 214, 428 N.E.2d 863 (8th Dist. 1980). This list is
“non-exhaustive” and “‘[c]onsideration of the factors is a
balancing test, and no one factor is conclusive.’” State v.
Ganguly, 2015-Ohio-845, 29 N.E.3d 375, ¶ 14 (10th Dist.), citing
State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio-
4087, ¶ 13. Thus, the ultimate question is whether a “reasonable
and legitimate basis for the withdrawal of the plea.” Xie, 62 Ohio
St.3d at 527, 584 N.E.2d 715. “A mere change of heart is not a
legitimate and reasonable basis for the withdrawal of a plea.”
Howard at ¶ 24, citing State v. Campbell, 4th Dist. Athens No.
8CA31, 2009-Ohio-4992, ¶ 7, State v. Harmon, 4th Dist. Pickaway No.
4CA22, 2005-Ohio-1974, ¶ 22; Delaney at ¶ 21.
{¶19} Although appellant points to the nine-factor test
highlighted above, she does not appear to apply all of the test
factors to her particular case. Instead, appellant submits that
she believes that she had a reasonable and legitimate basis to
withdraw her plea, namely, that before her plea she did not have
the opportunity to review discovery materials, but after her
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review, she learned that her co-defendant had admitted ownership of
the drugs. This, appellant argues, supports her defense that the
drugs were “thrown at her” during the traffic stop. We begin our
analysis with a review of the nine court-recognized factors.
1
Highly Competent Counsel
{¶20} Courts begin with the presumption that a defendant had
competent counsel. Delaney at ¶ 25, citing State v. Shifflet,
2015-Ohio-4250, 44 N.E.3d 966, ¶ 37 (4th Dist.). Further, as we
also noted in Delaney, appellant in the case sub judice did not
raise an ineffective assistance of counsel claim. The state,
however, called appellant’s plea counsel as a witness and he
testified that he met with appellant several times before her
guilty plea.
{¶21} Our review of the record reveals that appellant’s plea
counsel requested, and received, the discovery materials. Finally,
at the plea hearing the trial court asked appellant if she was
satisfied with the “advice [and] counsel of your attorney” to which
appellant replied, “yes.”
{¶22} Thus, we believe the first factor weighs in appellee’s
favor.
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2
Crim.R. 11 Hearing
{¶23} Appellant takes no issue with the requirement that she
receive a full Crim.R. 11 hearing. The April 20, 2020 hearing
transcript reveals that the trial court afforded appellant a full
Crim.R. 11 hearing before it accepted her guilty plea.
Additionally, the court engaged in the appropriate colloquy with
appellant to ensure that she understood the constitutional and non-
constitutional implications of her guilty plea.
{¶24} Thus, we believe the second factor weighs in appellee’s
favor.
3
Full Hearing
{¶25} The third factor asks whether appellant received a full
and meaningful hearing on her motion to withdraw her plea. As
indicated above, although a trial court may possess discretion to
determine whether to grant or to deny a presentence motion to
withdraw a guilty plea, the court does not have discretion to
determine if a hearing is required. Howard at ¶ 22; see also
Wolfson at ¶ 15, Harmon at ¶ 17. Instead, a court has a mandatory
duty to hold a hearing to consider a presentence motion to withdraw
a guilty plea. Xie at paragraph one of the syllabus; State v.
Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, ¶ 50;
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State v. Burchett, 4th Dist. Scioto No. 11CA3445, 2013-Ohio-1815, ¶
13; Wolfson at ¶ 15. In Wolfson, we explained that, although a
trial court “must afford the defendant meaningful notice and a
meaningful opportunity to be heard,” the court nonetheless retains
discretion to define the scope of the hearing to “reflect the
substantive merits of the motion.” Wolfson at ¶ 16.
{¶26} In the case sub judice, the trial court held a hearing on
appellant’s motion. The court heard testimony from appellant, as
well as her plea counsel. In fact, the court reconvened on a
second date to allow appellant’s counsel, after having an
opportunity to review discovery, to present any additional
testimony or argument.
{¶27} Thus, we believe that this factor weighs in appellee’s
favor.
4
Full and Fair Consideration
{¶28} The fourth factor examines whether a trial court fully
and fairly considered the motion to withdraw a guilty plea. As
noted above, the record in this case reveals that the trial court
gave full and fair consideration to appellant’s motion. For
example, on October 13, 2020 the trial court held a hearing and
heard testimony from appellant and her plea counsel. In addition,
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the court continued the hearing to allow new counsel to adequately
review discovery.
{¶29} Thus, we believe the fourth factor weighs in appellee’s
favor.
5
Reasonable Time
{¶30} The fifth factor asks whether the appellant requested to
withdraw the plea within a reasonable time. In the case sub
judice, appellant filed her motion four months after her plea and
eight months after prior counsel received discovery. Also,
appellee points out that appellant received two continuances of her
sentencing date before she filed her motion to withdraw her plea.
This is not unreasonable, in view of the fact that appellant’s new
counsel needed time to review and prepare the case. Thus, four
months elapsed between appellant’s guilty plea and her request to
withdraw her plea.
{¶31} Based on the foregoing, we believe that appellant filed
her motion within a reasonable time and the fifth factor weighs in
appellant’s favor.
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6
Specific Reasons for Withdrawal
{¶32} The sixth factor asks whether the appellant sufficiently
outlined specific reasons for her plea withdrawal request. Here,
appellant’s motion asserted that she would not have pleaded guilty
if (1) she could have reviewed discovery materials, and (2) she
would have known that she would not be admitted into the prison
nursery program. However, with respect to the alleged merits of
the prison nursery program, we conclude that, although appellant
cites a specific reason for her motion, this reason lacks merit.
As the trial court aptly pointed out, the court could not guarantee
appellant’s acceptance into that program. We will address the
discovery issue under our discussion of the eighth factor.
{¶33} Consequently, this factor weighs in appellee’s favor.
7
Nature of the Charges and the Possible Penalties
{¶34} The seventh factor asks whether the appellant understood
the nature of the charges and possible penalties. In the case at
bar, the trial court conducted a thorough Crim.R. 11 plea hearing.
The court asked appellant if she understood her plea and its
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consequences, to which appellant replied that she did. Further, as
appellee points out, appellant did not indicate at either hearing
on her motion that she did not understand the consequences of her
plea or the possible penalties.
{¶35} Thus, we believe this factor weighs in appellee’s favor.
8
Possible Defenses or Innocence
{¶36} The eighth factor asks us to examine whether appellant
had possible defenses to the charge. “In weighing [this] factor,
‘the trial judge must determine whether the claim of innocence is
anything more than the defendant’s change of heart about the plea
agreement.’” State v. Davis, 5th Dist. Richland No. 15CA6, 2015-
Ohio-5196, ¶ 19, quoting State v. Davison, 5th Dist. Stark No.
2008-CA-00082, 2008-Ohio-7037, ¶ 45. As noted in Harmon, a mere
change of heart is not a reasonable basis for a defendant to
withdraw a guilty plea. Harmon at ¶ 33; see also Sarver at ¶ 44;
State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th
Dist.1988). However, in this inquiry “the balancing test only asks
whether the defendant has possible defenses. Whether the appellant
will be successful in those defenses is for a jury to decide.”
State v. Jones, 10th Dist. Franklin No. 15AP-530, 2016-Ohio-951, ¶
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10; Harmon at ¶ 33.
{¶37} This factor encapsulates the crux of appellant’s argument
in the case sub judice. Appellant argues that, at the time of her
plea, she did not know about her co-defendant’s statement
concerning his ownership of the methamphetamine.
{¶38} Appellee, however, points out that appellant actually
made this argument at the time of her guilty plea - that she was
only “holding” the methamphetamine. Appellee further points out
that the testimony adduced at the motion hearing showed that,
although appellant may not have personally read the discovery
materials before she entered her plea, her attorney fully informed
her about the nature of the discovery. In addition, appellee notes
that appellant admitted to officers that she knew the identity of
the substance that she had concealed in her pants. Thus, appellee
argues that appellant has, and had, no defense to the charge.
{¶39} As the trial court indicated, two or more persons may
have joint constructive possession of the same object. State v.
Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19, citing
State v. Riggs (Sept. 13, 1999), Washington No. 98CA39, 1999 WL
727952, at *4; State v. Cole, 2d Dist. Montgomery No. 26576, 2015-
Ohio-5295, ¶ 34. Further, appellant admitted that she possessed
the methamphetamine. Additionally, as the trial court points out,
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the evidence reveals that appellant knew about the ownership issue
at the time she entered her guilty plea,
{¶40} Thus, we believe this factor weighs in appellee’s favor.
9
Prejudice to the State
{¶41} The final factor asks us to examine whether the
withdrawal of appellant’s plea would prejudice appellee. The state
opposed the motion and argues, in addition to the general
contention that over time memories fade and witnesses relocate,
this case is over three years old and the chemist has retired from
the lab, which would require the state to make special
arrangements. Thus, appellee argues that the state will suffer
prejudice if appellant is permitted to withdraw her plea.
{¶42} While the record does not indicate why it took eight
months for the state to obtain lab results, and why it took nine
more months for the grand jury to consider appellant’s case, we
acknowledge that the state would suffer some degree of prejudice if
appellant withdraws her plea three years after the offense
occurred.
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{¶43} Thus, we believe this factor weighs in appellee’s favor.
Conclusion
{¶44} After our review in the case sub judice, we agree with
the trial court’s conclusion that under these circumstances
appellant’s attempt to withdraw her guilty plea amounts to “buyer’s
remorse,” or a change of heart, neither of which constitutes a
legitimate basis to grant a pre-sentence motion to withdraw a plea.
State v. Palmer, 4th Dist. Highland No. 02CA9, 2002-Ohio-6345, ¶ 6;
Sarver at ¶ 44; Harmon at ¶ 36. After our review of the various
factors that courts use to evaluate whether a motion to withdraw a
plea should be granted, we believe that the factors weigh heavily
in appellee’s favor. Thus, we believe that the trial court acted
properly and reasonably and its denial of appellant’s motion to
withdraw her guilty plea does not constitute an abuse of
discretion.
{¶45} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶46} In her second assignment of error, appellant asserts that
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the trial court erred when it imposed an indefinite sentence
pursuant to R.C. 2929.14(A)(2)(a) when, instead, it should have
imposed a definite sentence under R.C. 2929.14(A)(2)(b).
{¶47} R.C. 2953.08 provides for appeals based on felony
sentencing guidelines. Pursuant to R.C. 2953.08(G)(2), an
appellate court may increase, reduce, modify, or vacate and remand
a challenged felony sentence if the court clearly and convincingly
finds either “that the record does not support the sentencing
court’s findings” under the specified statutory provisions, or “the
sentence is otherwise contrary to law.” State v. Watson, 4th Dist.
Meigs No. 18CA20 & 18CA21, 2019-Ohio-4385, ¶ 11, quoting State v.
Mitchell, 4th Dist. Meigs No. 13CA13, 2015-Ohio-1132, ¶ 11; State
v. Brewer, 4th Dist. Meigs No. 14CA1, 2014-Ohio-1903, at ¶ 37.
{¶48} Appellant committed her offense on July 28, 2018 and the
grand jury returned an indictment on December 6, 2019. The trial
court sentenced appellant under the Reagan Tokes Act, which became
effective March 22, 2019. Here, appellant argues, and appellee
concedes, that appellant should have been sentenced under the
former sentencing guidelines. Thus, appellant should be sentenced
under the proper statute.
{¶49} Accordingly, based upon the foregoing reasons, we sustain
appellant’s second assignment of error.
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III.
{¶50} Therefore, based upon the foregoing reasons (1) we affirm
the trial court’s judgment concerning the denial of appellant’s
motion to withdraw her plea, and (2) reverse the sentence that the
trial court imposed and remand this matter for re-sentencing.
JUDGMENT AFFIRMED, IN PART,
REVERSED, IN PART,
CONSISTENT WITH THIS
OPINION, AND MATTER
REMANDED FOR RESENTENCING.
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed, in part, and
reversed, in part, consistent with this opinion. We remand this
matter for re-sentencing. Appellant shall recover of appellee 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 Ross 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 by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 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.
Smith, P.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.