State v. Ruthers , 2023 Ohio 774 ( 2023 )

[Cite as State v. Ruthers, 2023-Ohio-774.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
ADAM T. RUTHERS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 BE 0023
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 21 CR 297
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950, for
Plaintiff-Appellee and
Atty. Christopher P. Lacich, Roth, Blair, 100 East Federal Street, Suite 600,
Youngstown, Ohio 44503, for Defendant-Appellant.
Dated: March 10, 2023
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D’Apolito, P.J.
{¶1} Appellant, Adam T. Ruthers, appeals from the May 27, 2022 judgment of
the Belmont County Court of Common Pleas sentencing him to 30 months in prison for
illegal conveyance of drugs of abuse onto the grounds of a specified governmental facility
following a guilty plea. On appeal, Appellant asserts the trial court erred in failing to
impose a minimum sentence. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 4, 2021, Appellant was indicted by the Belmont County
Grand Jury on three counts: count one, illegal conveyance of drugs of abuse onto the
grounds of a specified governmental facility, a felony of the third degree in violation of
R.C. 2921.36(A)(2) and (G)(2); and counts two and three, trafficking in drugs, felonies of
the fifth degree in violation of R.C. 2925.03(A)(1), (2), and (C)(2)(A), with specifications
for forfeiture of money in a drug case pursuant to R.C. 2941.1417(A). 1 Appellant was
appointed counsel and pled not guilty at his arraignment.
{¶3} Appellant subsequently entered into plea negotiations with Appellee, the
State of Ohio. A change of plea hearing was held on May 10, 2022. Appellant withdrew
his former not guilty plea and entered a guilty plea to count one, illegal conveyance of
drugs of abuse onto the grounds of a specified governmental facility, a felony of the third
degree, in violation of R.C. 2921.36(A)(2) and (G)(2). The trial court accepted Appellant’s
guilty plea after finding it was made in a knowing, intelligent, and voluntary manner
pursuant to Crim.R. 11. The court merged and dismissed the remaining two counts
contained in the indictment with the exception, by agreement, that the seized currency
($1,051.95) would be forfeited. The court ordered a Presentence Investigation (PSI) and
deferred sentencing.
{¶4} A sentencing hearing was held on May 24, 2022. The trial court considered
the record, the oral statements, the PSI with attached Risk Assessment Summary of
“High,” the report from the Eastern Ohio Correction Center finding Appellant not
appropriate for placement, Appellant’s prison program completion certificates, the
1 The charges stem from events while Appellant was serving a jail sentence.
Case No. 22 BE 0023
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purposes and principles of sentencing under R.C. 2929.11, the seriousness and
recidivism factors under R.C. 2929.12, the prison factors under R.C. 2929.13, and found
that a consecutive sentence pursuant to R.C. 2929.14 is necessary to protect the public
from future crimes and to punish Appellant. The court sentenced Appellant to 30 months
in prison for illegal conveyance of drugs of abuse onto the grounds of a specified
governmental facility consecutive to a sentence that he was already serving. The seized
currency ($1,051.95) was ordered forfeited and the court notified Appellant that he may
be subject to two years of post-release control.2
{¶5} Appellant filed a timely appeal and raises one assignment of error.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY
AND CONVINCINGLY CONTRARY TO LAW, BY FAILING TO IMPOSE A
MINIMUM SENTENCE OF NINE MONTHS OF INCARCERATION.
{¶6} This court utilizes R.C. 2953.08(G) as the standard of review in all felony
sentencing appeals. State v. Michaels, 7th Dist. Mahoning No. 17 MA 0122, 2019-Ohio-
497, ¶ 2, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 1.
{¶7} R.C. 2953.08(G) states in pertinent part:
(2) The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
2Appellant filed various pro se post-sentencing motions with the trial court which were overruled and/or
overruled as moot and are not at issue in this appeal.
Case No. 22 BE 0023
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division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2)(a)-(b).
{¶8} Although trial courts have full discretion to impose any term of imprisonment
within the statutory range, they must consider the sentencing purposes
in R.C. 2929.11 and the guidelines contained in R.C. 2929.12.
{¶9} R.C. 2929.11(A) provides that the overriding purposes of felony
sentencing are (1) “to protect the public from future crime by the offender and others”;
and (2) “to punish the offender * * * using the minimum sanctions that the court determines
accomplish those purposes without imposing an unnecessary burden on state or local
government resources.” Further, the sentence imposed shall be “commensurate with and
not demeaning to the seriousness of the offender’s conduct and its impact upon the victim,
and consistent with sentences imposed for similar crimes committed by similar offenders.”
R.C. 2929.11(B).
{¶10} R.C. 2929.12 provides a nonexhaustive list of sentencing factors the trial
court must consider when determining the seriousness of the offense and the likelihood
that the offender will commit future offenses. The court that imposes a felony sentence
“has discretion to determine the most effective way to comply with the purposes and
principles of sentencing.” R.C. 2929.12(A). The factors a trial court may consider include
the “more serious” factors, such as “[t]he physical or mental injury suffered by the victim
of the offense due to the conduct of the offender was exacerbated because of the physical
or mental condition or age of the victim” and “[t]he victim of the offense suffered serious
physical, psychological, or economic harm as a result of the offense.” R.C. 2929.12(B)(1)
and (2). The court may also consider the “less serious” factors, any recidivism factors,
and any mitigating factors listed in R.C. 2929.12(C)-(F).
Case No. 22 BE 0023
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R.C. 2929.11 does not require the trial court to make any specific findings
as to the purposes and principles of sentencing. State v. Wilson, 129 Ohio
St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31. Similarly, R.C. 2929.12
does not require the trial court to “use specific language or make specific
findings on the record in order to evince the requisite consideration of the
applicable seriousness and recidivism factors.” State v. Arnett, 88 Ohio
St.3d 208, 215, 724 N.E.2d 793 (2000).
State v. Shaw, 7th Dist. Belmont No. 15 BE 0065, 2017-Ohio-1259, ¶ 36.
{¶11} “‘The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.’ State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).” State v. Burkhart, 7th Dist. Belmont No. 18
BE 0020, 2019-Ohio-2711, ¶ 16.
{¶12} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, the Supreme Court
of Ohio has indicated that the language in Marcum is dicta. Id. at ¶ 27 (“The statements
in Marcum at ¶ 23 suggesting that it would be ‘fully consistent’ with R.C. 2953.08(G) for
an appellate court to modify or vacate a sentence when the record does not support the
sentence under R.C. 2929.11 or 2929.12 were made only in passing and were not
essential to this court’s legal holding.”) In Jones, the Court held that “R.C.
2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to modify or vacate
a sentence based on its view that the sentence is not supported by the record under R.C.
2929.11 and 2929.12.” Id. at ¶ 39. The Court explained that “an appellate court’s
determination that the record does not support a sentence does not equate to a
determination that the sentence is ‘otherwise contrary to law’ as that term is used in R.C.
2953.08(G)(2)(b).” Id. at ¶ 32. Thus, under Jones, an appellate court errs if it relies on
the dicta in Marcum and modifies or vacates a sentence “based on the lack of support in
the record for the trial court’s findings under R.C. 2929.11 and 2929.12.” Id. at ¶ 29; see
also State v. Dorsey, 2nd Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 17.
{¶13} Pursuant to Jones, when reviewing felony sentences that are imposed
solely after considering the factors in R.C. 2929.11 and R.C. 2929.12, appellate courts
Case No. 22 BE 0023
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shall no longer analyze whether those sentences are unsupported by the record. Rather,
we simply must determine whether those sentences are contrary to law. See Dorsey,
supra, at ¶ 18.
A sentence is considered to be contrary to law if it falls outside of the
statutory range for the particular degree of offense; if the trial court failed to
properly consider the purposes and principles of felony sentencing as
enumerated in R.C. 2929.11 and the seriousness and recidivism factors set
forth in R.C. 2929.12; or if the trial court orders consecutive sentences and
does not make the necessary consecutive sentence finding.
Burkhart, supra, at ¶ 12.
{¶14} Regarding consecutive sentences, R.C. 2929.14(C)(4) states:
(4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
Case No. 22 BE 0023
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(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
R.C. 2929.14(C)(4)(a)-(c).
It has been held that although the trial court is not required to recite the
statute verbatim or utter “magic” or “talismanic” words, there must be an
indication that the court found (1) that consecutive sentences are necessary
to protect the public from future crime or to punish the offender, (2) that
consecutive sentences are not disproportionate to the seriousness of the
offender’s conduct and to the danger posed to the public, and (3) one of the
findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State v. Bellard, 7th
Dist. Mahoning No. 12-MA-97, 2013-Ohio-2956, ¶ 17. The court need not
give its reasons for making those findings however. State v. Power, 7th Dist.
Columbiana No. 12 CO 14, 2013-Ohio-4254, ¶ 38. A trial court must make
the consecutive sentence findings at the sentencing hearing and must
additionally incorporate the findings into the sentencing entry. State v.
Williams, 7th Dist. Mahoning No. 13-MA-125, 2015-Ohio-4100, ¶ 33-34,
citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 37.
State v. Thomas, 7th Dist. Mahoning No. 18 MA 0025, 2020-Ohio-633, ¶ 41.
{¶15} In this case, Appellant alleges the trial court should have imposed a more
lenient sentence of nine months rather than 30 months. Appellant maintains “the trial
court seemed to be limiting [his] avenues of appeal by charitably not giving him the
maximum sentence of 36 months, all while claiming he truly deserved the same.”
(8/25/2022 Appellant’s Brief, p. 7). Appellant stresses “[t]his seems to indicate that the
trial court had lost its way in not being focused on the imposition of the appropriate
minimum sentence, but rather was biased towards imposing the maximum sentence from
the jump-start.” (Id.) The record before us, however, reveals no trial court bias and no
sentencing error.
Case No. 22 BE 0023
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{¶16} At the sentencing hearing, the judge heard from the prosecutor on behalf of
the State (who recommended a 30-month sentence based on Appellant’s criminal history,
which included pending charges), from defense counsel on behalf of Appellant (who read
a letter from Appellant and recommended a nine-month sentence), and from Appellant
(who offered an apology for his actions). The judge concluded by stating, in part, the
following:
THE COURT: All right, thank you.
Again, the Court has to consider the purposes and principles of sentencing
and balance the seriousness and recidivism factors, those same factors
relied upon or mentioned by [defense counsel].
What the Court is primarily impressed with here, as far as the factors that
indicate more serious conduct, more likelihood of recidivism is that for the
last 17 years, Mr. Ruthers, every place you have ever been, you have
committed crimes.
I’ll just briefly summarize: Ohio County, West Virginia; Marshall County,
West Virginia; back in Ohio County, West Virginia; Belmont County, Ohio;
back to Ohio County, West Virginia; Nueces County, Texas; Dunbar, West
Virginia; Winfield, West Virginia; Delaware County, Ohio; back to Marshall
County; Washington County, Pennsylvania; Richland County, Ohio; and
then back here to Belmont County.
That records (sic) includes a history of lawlessness that corresponds to that
summary, as follows: Possession of drugs - - these are just the felonies.
Grand larceny; fraud, there’s two of those as part of one incident; three
burglaries, although those were separate incidents; illegal conveyance of a
weapon; trafficking in drugs. Altogether - - now some of the prison
sentences were concurrent; some were consecutive - - so all tolled, there
were eight prison terms.
Also very disturbing to the Court is, you were placed on parole, and you
Case No. 22 BE 0023
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were violated each time that you were, except one time, I think your term
expired. So again, just shows a continuing course of unlawfulness on your
part, your inability to conform to the rules and regulations that govern a
peaceful society.
On the misdemeanor side, again, there’s a whole host of charges here.
Underage consumption; battery; reckless operation; two drugs [sic]
possessions; disorderly conduct; OVI; driving under suspension;
obstructing justice, there’s two of those; attempted vandalism; again, the list
goes on and on.
By getting and/or attempting to get drugs into the facility, you created the
risk of harm, not only to the corrections staff or the corrections officers, but
also to the other inmates.
Again, this was part of an organized criminal plan. You yourself have a drug
history that includes alcohol and marijuana starting at age 10; opiates at 16.
I won’t go down the list of which ones, but there’s numerous. Suboxone at
28, and then moving up to stimulants, including methamphetamine at 30.
Again, that’s the history. You’ve indicated that you’ve never gotten help,
because when you want the help, it’s not available. But the problem is when
you want the help, it’s because you’re already in prison. And granted, there
is no counseling there. But when you were out and you had the possibility
or chance of getting or seeking counseling, you had no indication or use of
that option at that time.
Again, there’s been no showing of genuine remorse.
The factors that indicate less serious conduct, less likelihood of recidivism,
the Court finds are absent from the record.
Again, the Court has considered the purposes and principles.
The Court has also considered that consecutive sentences are necessary
Case No. 22 BE 0023
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to protect the public from you and to punish you. Consecutive sentences
are not disproportionate to the seriousness of your conduct and the danger
that you pose to society.
Now, let me make that perfectly clear, Mr. Ruthers: You’re a danger to
society. Law abiding people do not need you out on the streets any more.
These crimes were committed while you were serving a sentence, and your
history of conduct shows that consecutive sentences are necessary to
protect the public from you and your future crimes which will surely be
committed.
The Court is going to find that more than a minimum sentence is necessary,
appropriate and reasonable. A very short sentence or non-consecutive
sentences or a community control sentence will not adequately punish you
and protect the public from you and would make a mockery of this entire
process, should that occur.
The Court is also going to find, Mr. Ruthers, that what you truly deserve
here is the maximum sentence, which is 36 months; however, if I did that,
we will be wasting more resources, because then that will open the door to
you for an appeal. And so the sentence in this case is going to be the
forfeiture, as mentioned previously, but for this charge, you will serve 36
months in the - - I’m sorry 30 months in the penitentiary, and that sentence
will be served consecutive to and begin immediately after your current
sentence. You have no time-served credit for this offense.
Now, since you are being sent to the penitentiary, when you get out, the
Parole Authority has the option - - I have nothing to do with it - - to place
you on supervision; they call theirs post release control; could be for as long
as two years.
(5/24/2022 Sentencing Hearing Tr., p. 10-15).
Case No. 22 BE 0023
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{¶17} Also, in its May 27, 2022 judgment, the trial court stated:
* * * Defendant appeared in custody, electronically from Ross Correctional
Institution, and was afforded all rights pursuant to Criminal Rule 32. The
Court has considered the record, oral statements, the Presentence
Investigation Report with attached Risk Assessment Summary of High, the
report from the Eastern Ohio Correction Center (EOCC) finding Defendant
not appropriate for placement, and Defendant’s prison program completion
certificates, as well as the principles and purposes of sentencing in Revised
Code 2929.11 and has balanced the seriousness and recidivism factors
under Revised Code 2929.12.
Defendant agreed and is Ordered that the seized currency ($1,051.95) is
Ordered forfeited. The State will submit a distribution Entry.
The Court finds that on May 10, 2022, Defendant was found guilty by plea
of Illegal Conveyance, in violation of O.R.C. 2921.36(A)(2)(G)(2), a felony
of the third degree.
The Court, in sentencing, may, in its discretion to determine the most
effective way to comply with the principles and purposes of sentencing set
forth in Revised Code 2929.11, consider the factors contained in Ohio
Revised Code 2929.12(B), (C), (D), and (E), and any other factors relevant
to achieving those purposes and principles.
In light of that guidance, the Court finds that the factors contained in Ohio
Revised Code 2929.12(B) and (D) which indicate more serious conduct and
more likelihood of recidivism include the following:
1. As an adult, Defendant has felony convictions for Drug Possession,
Grand Larceny, Fraud (2), Burglary (3), Illegal Conveyance of Weapons,
and Drug Trafficking. He has served eight (8) separate prison terms.
Defendant also has another pending charge similar to the charge in this
case. Finally, he has three (3) times had his parole revoked;
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2. As an adult, Defendant has misdemeanor convictions for OVI, Drug
Possession (2), Battery, Obstruction (2), DUS, and five (5) lesser offenses;
3. Defendant’s conduct was part of an organized criminal plan;
4. Defendant’s conduct created the risk of harm to the correction officers
and other inmates;
5. Defendant’s crime occurred while he was serving a jail sentence;
6. Defendant has not been rehabilitated as shown by his long history of
criminal conduct in numerous jurisdictions;
7. Defendant’s crime is related to his substance abuse history that includes
Alcohol and Marihuana [sic] (10), Opiates (16), Suboxone (28) and
Methamphetamine (30). His drugs of choice are Opiates. Although he now
pleads for counseling, he’s never availed himself of available treatment; and
8. Defendant has not shown genuine remorse.
In accordance with Ohio Revised Code 2929.12(C) and (E), which suggest
that his conduct is less serious and that recidivism is less likely, the Court
can find no factors in Defendant’s favor.
The Court further finds in accordance with Ohio Revised Code 2929.11(A),
that the overriding purposes of felony sentencing are to protect the public
from future crime by the offender and others and to punish the offender,
using the minimum sanctions that the Court determines accomplishes these
purposes, without imposing an unnecessary burden on State or local
government resources.
The Court further finds that a consecutive prison term is necessary in this
action so as to protect the public from future crime and to punish Defendant.
A consecutive term is not disproportionate with Defendant’s conduct as
cited above and to the danger Defendant poses to the public as shown by
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his criminal career. This offense was committed as part of a course of
criminal conduct and the potential harm was so great and unusual that no
single prison term adequately reflects the seriousness of Defendant’s
conduct. Finally, Defendant’s history of behavior shows that consecutive
terms are needed to protect the public from Defendant, especially as he
committed this crime while serving a jail sentence.
In light of that guidance, the Court finds that more than the minimum
sentence is deemed necessary and is otherwise appropriate and
reasonable as is a consecutive sentence. Therefore, in accordance with
Ohio Revised Code 2929.13(B) and (D) the Court finds that the shortest
sentence and/or a nonconsecutive sentence, and/or a community control
sentence or a combination of sanctions, will not adequately punish
Defendant and protect the public from future crimes and will demean the
seriousness of the offense and that factors decreasing seriousness are
greatly outweighed by those increasing seriousness and that there is more
likelihood of recidivism if Defendant is placed upon community control
supervision or given a shorter or nonconsecutive sentence.
The Court makes all findings based upon the sentencing factors contained
in Ohio Revised Code 2929.11, 2929.12, 2929.13 and 2929.14, as such
have been amended and/or modified by State v. Foster, 109 Ohio St.3d 1,
and in accordance with House Bill 86, effective September 30, 2011, and
Senate Bill 160, effective March 22, 2013.
Therefore, the Court sentences Defendant to serve thirty (30) months in the
Penitentiary with credit for zero (0) days served through and including May
24, 2022. This sentence will be served consecutive to and begin
immediately after Defendant completes his current prison sentence. The
seized currency ($1,051.95) is Ordered forfeited with the State to submit a
distribution Entry.
As part of the sentence herein, and since Defendant is being sent to the
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Penitentiary, and pursuant to Ohio Revised Code 2967.28, upon completion
of the prison term, Defendant may be subject to a further period of
supervision under Post-Release Control as the Parole Board may
determine for up to two (2) years. * * *
***
The Court advised Defendant of his right to appeal in accordance with Ohio
Revised Code 2953.08(C) and of his right to counsel to assist in prosecuting
that appeal.
(5/27/2022 Judgment Entry, p. 1-6).
{¶18} The record in this case reflects no sentencing error. The trial court gave
due deliberation to the relevant statutory considerations and properly advised Appellant
regarding post-release control. The court considered the purposes and principles of
felony sentencing under R.C. 2929.11, balanced the seriousness and recidivism factors
under R.C. 2929.12, and considered the prison factors under R.C. 2929.13.
{¶19} The trial court found that “the consecutive service is necessary to protect
the public from future crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public[.]” R.C. 2929.14(C)(4). The court also found the offenses
were committed during a course of conduct and that the harm was so great or unusual
that a single term does not “adequately reflect the seriousness of the offender’s conduct.”
R.C. 2929.14(C)(4)(b). Thus, the court complied with R.C. 2929.14(C)(4). See Thomas,
supra, at ¶ 41.
{¶20} The trial court did not impose the 36-month maximum. Rather, the court
imposed a 30-month sentence on count one, illegal conveyance of drugs of abuse onto
the grounds of a specified governmental facility, a felony of the third degree in violation
of R.C. 2921.36(A)(2) and (G)(2). Appellant’s sentence is within the statutory range for
the third-degree felony offense. R.C. 2929.14(A)(3)(b) (“For a felony of the third degree
that is not an offense for which division (A)(3)(a) of this section applies, the prison term
shall be a definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”)
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{¶21} Accordingly, we do not find by clear and convincing evidence that the record
does not support Appellant’s 30-month sentence or that the sentence is contrary to law.
See R.C. 2953.08(G).
CONCLUSION
{¶22} For the foregoing reasons, Appellant’s sole assignment of error is not well-
taken. The May 27, 2022 judgment of the Belmont County Court of Common Pleas
sentencing Appellant to 30 months in prison for illegal conveyance of drugs of abuse onto
the grounds of a specified governmental facility following a guilty plea is affirmed.
Waite, J., concurs.
Hanni, J.,concurs.
Case No. 22 BE 0023
[Cite as State v. Ruthers, 2023-Ohio-774.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.