State v. Chancey ( 2017 )


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  • [Cite as State v. Chancey, 
    2017-Ohio-2828
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    WASHINGTON COUNTY
    STATE OF OHIO,                 :
    :    Case No. 16CA18
    Plaintiff-Appellee,       :
    :
    vs.                       :    DECISION AND JUDGMENT
    :    ENTRY
    EDWARD CHANCEY                 :
    :
    Defendant-Appellant.       :    Released: 05/10/17
    _____________________________________________________________
    APPEARANCES:
    Angela Wilson Miller, Jupiter, Florida, for Appellant.
    Kevin A. Rings, Washington County Prosecuting Attorney, Nicole Tipton
    Coil, Washington County Assistant Prosecuting Attorney, Marietta, Ohio,
    for Appellee.
    _____________________________________________________________
    McFarland, J.
    {¶1} Edward R. Chancey (Appellant) appeals from the “Journal Entry:
    Defendant Taken Into Custody to Serve Sentence” entered on May 4, 2016
    in the Washington County Court of Common Pleas. Appellant raises three
    assignments of error with regard to the length of his sentence for a third-
    degree felony. Upon review, we find merit to Appellant’s first assignment
    of error. Accordingly, we vacate the judgment of the trial court and remand
    the matter for resentencing consistent with this opinion.
    Washington App. No. 16CA18                                                      2
    FACTUAL AND PROCEDURAL BACKGROUND
    {¶2} Appellant was indicted for a violation of R.C. 4511.19(A)(1)(h)
    and (G)(1)(e), operating a motor vehicle under the influence after having
    been previously convicted of a felony OVI. The indictment contained a
    specification, R.C. 2941.1413, that he had previously been convicted of or
    pleaded guilty to five or more equivalent offenses. On February 5, 2015,
    Appellant proceeded to a jury trial, in which he was convicted of a violation
    of R.C. 4511.19(A)(1)(h) and (G)(1)(e). The details surrounding
    Appellant’s traffic stop are set forth more fully in our decision rendered in
    his direct appeal, State v. Chancey, 4th Dist. Washington No. 15CA17,
    
    2015-Ohio-5585
    , ¶ 2.
    {¶3} The trial court sentenced Appellant to 120 days at the Orient
    Reception Center to be followed by a mandatory three-year prison term.
    Appellant filed a timely notice of appeal. In his direct appeal, Appellant
    argued his conviction was not supported by the sufficiency of the evidence
    or the manifest weight of the evidence. He further asserted his counsel was
    ineffective for failing to retain an expert. He did not raise any assignments
    of error with regard to his sentence, nor did he supplement his appeal with
    any additional authority regarding his sentence. We considered his
    arguments under the applicable standards of review and released our
    Washington App. No. 16CA18                                                     3
    decision in the direct appeal, State v. Chancey, supra, on December 24,
    2015.
    {¶4} The currently appealed from entry notes that on March 14, 2016,
    Appellant, his counsel, and the assistant prosecuting attorney for
    Washington County appeared in court and addressed the issue of the
    imposition of Appellant’s sentence in light of our decision in his direct
    appeal and other “recent opinions concerning the imposition of sentence.”
    The hearing transcript of the March 14th hearing states that the sentence is
    “hereby modified, consistent with State versus South to 36 months with a
    credit for 39 days previously served.” However, the appealed from entry
    makes no mention of this order and indicates Appellant was to be “taken into
    custody to serve the sentence imposed on April 6, 2015.”
    {¶5} The appealed from entry further notes the matter came on for
    Appellant’s remand into custody on April 18, 2016, where the parties again
    spoke to the issue of sentence. The defense argued that the sentence
    originally imposed on April 6, 2015 was improper under Ohio law. The
    State maintained that Appellant’s conviction had been directly appealed and
    affirmed and that the trial court was without authority to modify the sentence
    originally imposed on April 6, 2015. The Court found that it did not have
    authority to amend the sentence originally imposed and ordered Appellant to
    Washington App. No. 16CA18                                                 4
    serve the sentence imposed on April 6, 2015, 120-days mandatory, plus an
    additional three years mandatory sentence, for an aggregate sentence of three
    years and four months. Appellant was given credit for time served.
    {¶6} This timely appeal followed.
    ASSIGNMENTS OF ERROR
    “I. APPELLANT CHANCEY’S SENTENCE IS VOID DUE
    TO THE TRIAL COURT’S IMPOSITION OF A PRISON
    SENTENCE BEYOND THE STATUTORY MAXIMUM IN
    VIOLATION OF THE FIFTH AND FOURTEENTH
    AMENDMENTS TO THE UNITED STATES
    CONSTITUTION, OHIO CONSTITUTION, ARTICLE 1,
    SECTION 10, AND R.C. 2929.14.
    II. APPELLANT CHANCEY WAS DENIED THE
    EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS
    ATTORNEY FAILED TO FILE A MOTION FOR
    RESENTENCING AND SPECIFICALLY ARGUE THAT
    CHANCEY’S SENTENCE WAS VOID AND A VIOLATION
    OF HIS RIGHTS UNDER THE FIFTH, SIXTH, AND
    FOURTEENTH AMENDMENTS TO THE UNITED STATES
    CONSTITUTION AND ARTICLE 1, SECTIONS 5, 10, AND
    16 OF THE OHIO CONSTITUTION.
    III. THE TRIAL COURT ERRED IN SENTENCING
    CHANCEY TO THREE YEARS AND FOUR MONTHS IN
    PRISON. THE SENTENCE IS NOT AUTHORIZED BY
    STATUTE AND IS CONTRARY TO LAW. FIFTH AND
    FOURTEENTH AMENDMENTS TO THE UNITED STATES
    CONSTITUTION; ARTICLE 1, SEC. 10 OF THE OHIO
    CONSTITUTION.
    A. STANDARD OF REVIEW
    Washington App. No. 16CA18                                                     5
    {¶7} R.C. 2953.08(G)(2) specifies that 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. Romine,
    quoting State v. Pippen, 4th Dist. Scioto No. 14CA3595, 
    2014-Ohio-4454
    ,
    ¶ 13. See State v. Brewer, 
    2014-Ohio-1903
    , 
    11 N.E.3d 317
    , ¶ 33 (4th Dist.).
    Furthermore, a sentence that is void * * * may be reviewed at any time,
    either on direct appeal or by collateral attack. State v. Billiter, 
    134 Ohio St.3d 103
    , 
    2012-Ohio-5144
    , 
    980 N.E.2d 960
    , ¶ 10.
    B. LEGAL ANALYSIS
    {¶8} Appellant was sentenced to a mandatory term of 120 days
    imprisonment to be served first and consecutively to a three-year mandatory
    prison sentence. Appellant argues that the Supreme Court of Ohio’s
    decision in State v. South,
    144 Ohio St.3d 295
    , 
    2015-Ohio-3930
    , 
    42 N.E.3d 734
    , is directly applicable to his case and that the maximum sentence he can
    be given for a felony of the third degree is 36 months. We initially note that
    appellant did not raise any argument with regard to his sentence during his
    Washington App. No. 16CA18                                                                                 6
    direct appeal.1 The first time appellant mentioned the sentencing error is in
    the current appeal of the “Journal Entry: Defendant Taken Into Custody to
    Serve Sentence,” filed May 4, 2016. Appellant also did not provide
    supplemental authority, the South decision, while the direct appeal was
    pending. Given the fact that Appellant failed to raise the sentencing issue in
    his direct appeal, the usual application of the doctrine of res judicata would
    bar consideration of his issue. However, Appellant now argues his sentence
    is void, so we begin with a discussion of void jurisprudence.
    {¶9} In Colegrove v. Burns, 
    175 Ohio St. 437
    , 438, 
    195 N.E.2d 811
    (1964), the court described the trial judge's role at sentencing: “Crimes are
    statutory, as are the penalties therefor, and the only sentence which a trial
    court may impose is that provided for by statute. A court has no power to
    substitute a different sentence for that provided for by statute or one that is
    either greater or lesser than that provided for by law.” See State v. Williams,
    ¶ 20. And applying this principle in State v. Beasley, 
    14 Ohio St.3d 74
    , 75,
    
    471 N.E.2d 774
     (1984), we stated that “[a]ny attempt by a court to disregard
    1
    App.R. 12(A)(b) provides that the court of appeals shall determine the appeal on its merits on the
    assignments of error set forth in the briefs under App.R. 16. App.R. 16(A)(3) further provides that the brief
    of appellant shall include a “statement of the assignments of error presented for review,” and subpart (A)(7)
    specifies that there must be an “argument, containing the contentions of the appellant with respect to each
    assignment of error presented for review and the reasons in support of the contentions,* * * and parts of the
    record on which appellant relies.”
    Washington App. No. 16CA18                                                      7
    statutory requirements when imposing a sentence renders the attempted
    sentence a nullity or void.”
    {¶10} Our jurisprudence on void sentences “reflects a fundamental
    understanding of constitutional democracy” that the power to define criminal
    offenses and prescribe punishment is vested in the legislative branch of
    government, and courts may impose sentences only as provided by statute.
    Williams, ¶ 22, quoting State v. Fischer, 
    128 Ohio St.3d 92
    , 2010-Ohio-
    6238, 
    942 N.E.2d 332
    , ¶ 21-22. Because “[n]o court has the authority to
    impose a sentence that is contrary to law,” Id. at ¶ 23, when the trial court
    disregards statutory mandates, “[p]rinciples of res judicata, including the
    doctrine of the law of the case, do not preclude appellate review. The
    sentence may be reviewed at any time, on direct appeal or by collateral
    attack.” Id. at ¶ 30.
    {¶11} The currently appealed from entry emerged subsequent to the
    March 14th and April 18th remand hearings when defense counsel argued
    that, pursuant to the South decision, Appellant’s sentence was more than the
    statutory maximum. Under the particular facts of this case, we construe
    counsel’s arguments at the April 18th hearing as an oral motion to correct
    Washington App. No. 16CA18                                                                               8
    sentence.2 Generally, courts may recast irregular motions into whatever
    category necessary to identify and to establish the criteria by which a motion
    should be evaluated.3 As such, we proceed to consider Appellant’s
    argument that his sentence is void.
    {¶12} In South, supra, the Supreme Court of Ohio held that a trial
    court must sentence a defendant convicted of a third-degree-felony
    operating-a-vehicle-while-under-the-influence (OVI) and a repeat-offender
    specification, pursuant to R.C. 2941.1413, to a mandatory prison term of
    one- to five-year sentence for the repeat-offender specification, which must
    be served prior to and consecutive to any additional prison term, and a
    discretionary term of 9 to 36 months for the underlying OVI conviction. In
    South, the trial court's imposition of a three-year mandatory prison term for
    repeat-offender specification was not contrary to law, but a five-year
    mandatory prison term imposed for defendant's underlying third-degree
    felony OVI was contrary to law, requiring remand. Appellant points out
    that, unlike South, he was not convicted of the specification, R.C.
    2941.1314, and argues that under South, the maximum prison term that can
    be imposed for a third-degree felony OVI, the underlying offense, is 36
    2
    Other courts have, in turn, construed irregular motions as petitions for post-conviction relief. State v.
    Sanders, 4th Dist. Pickaway No. 13CA29, 
    2014-Ohio-2521
    , ¶ 6.
    3
    State v. Lett, 7th Dist. Mahoning No. 09MA131, 
    2010-Ohio-3167
    , at ¶ 15, citing State v. Schlee, 
    117 Ohio St.3d 153
    , 
    2008-Ohio-545
    , 
    882 N.E.2d 431
    , at ¶ 12.
    Washington App. No. 16CA18                                                                               9
    months. The State’s brief essentially argues that Appellant’s sentence was
    affirmed in his direct appeal and there was nothing the trial court could have
    done at the March 16th remand hearing other than remand Appellant into
    custody to begin serving his sentence.4
    {¶13} In the case sub judice, Appellant was convicted of R.C.
    4511.19(A)(1)(h) and (G)(1)(e). R.C. 4511.19(A)(1)(h) provides:
    (A)(1) No person shall operate any vehicle, streetcar, or
    trackless trolley within this state, if, at the time of the operation,
    any of the following apply:
    ***
    (h) The person has a concentration of seventeen-hundredths of
    one gram or more by weight of alcohol per two hundred ten
    liters of the person's breath.
    {¶14} R.C. 4511.19(G)(1)(e) further provides:
    (G)(1) Whoever violates any provision of divisions (A)(1)(a) to
    (i) or (A)(2) of this section is guilty of operating a vehicle under
    the influence of alcohol, a drug of abuse, or a combination of
    them. Whoever violates division (A)(1)(j) of this section is
    guilty of operating a vehicle while under the influence of a
    listed controlled substance or a listed metabolite of a controlled
    substance. The court shall sentence the offender for either
    4
    Appellant’s conviction was affirmed based on resolution of the assignments of error raised. This court
    does have the authority to sua sponte consider plain error. See State v. Wharton, 4th Dist. Hocking No.
    15CA9, 2-15-Ohio-5026. In Wharton, the defendant argued that the trial court erred by failing to merge the
    offense of telecommunications fraud with the identity fraud offense. We found that the two offenses were
    not allied and overruled the sole assignment of error. However, in conducting a de novo review of the trial
    court’s merger determination, we discovered the trial court imposed a sentence that was contrary to law
    and, sua sponte, vacated Wharton’s sentence, reversed, and remanded for proceedings consistent with the
    opinion. In Wharton, we considered the record, from the outset, under the de novo standard of review, a
    different circumstance than presented herein. Raising alleged errors to the attention of the court remains
    the duty of the Appellant.
    Washington App. No. 16CA18                                                10
    offense under Chapter 2929 of the Revised Code, except as
    otherwise authorized or required by divisions (G)(1)(a) to (e) of
    this section:
    ***
    (e) An offender who previously has been convicted of or
    pleaded guilty to a violation of division (A) of this section that
    was a felony, regardless of when the violation and the
    conviction or guilty plea occurred, is guilty of a felony of the
    third degree. The court shall sentence the offender to all of the
    following:
    ***
    ii) If the sentence is being imposed for a violation of division
    (A)(1)(f), (g), (h), or (i) or division (A)(2) of this section, a
    mandatory prison term of one, two, three, four, or five years as
    required by and in accordance with division (G)(2) of section
    2929.13 of the Revised Code if the offender also is convicted of
    or also pleads guilty to a specification of the type described in
    section 2941.1413 of the Revised Code or a mandatory prison
    term of one hundred twenty consecutive days in accordance
    with division (G)(2) of section 2929.13 of the Revised Code if
    the offender is not convicted of and does not plead guilty to a
    specification of that type. The court may impose a prison term
    in addition to the mandatory prison term. The cumulative total
    of a one hundred twenty-day mandatory prison term and the
    additional prison term for the offense shall not exceed five
    years. In addition to the mandatory prison term or mandatory
    prison term and additional prison term the court imposes, the
    court also may sentence the offender to a community control
    sanction for the offense, but the offender shall serve all of the
    prison terms so imposed prior to serving the community control
    sanction.
    {¶15} Further, R.C. 2929.13(G)(2) provides:
    (G) Notwithstanding divisions (A) to (E) of this section, if an
    offender is being sentenced for a fourth degree felony OVI
    Washington App. No. 16CA18                                                  11
    offense or for a third degree felony OVI offense, the court shall
    impose upon the offender a mandatory term of local
    incarceration or a mandatory prison term in accordance with the
    following:
    ***
    (2) If the offender is being sentenced for a third degree felony
    OVI offense, or if the offender is being sentenced for a fourth
    degree felony OVI offense and the court does not impose a
    mandatory term of local incarceration under division (G)(1) of
    this section, the court shall impose upon the offender a
    mandatory prison term of one, two, three, four, or five years if
    the offender also is convicted of or also pleads guilty to a
    specification of the type described in section 2941.1413 of the
    Revised Code or shall impose upon the offender a mandatory
    prison term of sixty days or one hundred twenty days as
    specified in division (G)(1)(d) or (e) of section 4511.19 of the
    Revised Code if the offender has not been convicted of and has
    not pleaded guilty to a specification of that type. Subject to
    divisions (C) to (I) of section 2967.19 of the Revised Code, the
    court shall not reduce the term pursuant to section 2929.20,
    2967.19, 2967.193, or any other provision of the Revised Code.
    The offender shall serve the one-, two-, three-, four-, or five-
    year mandatory prison term consecutively to and prior to the
    prison term imposed for the underlying offense and
    consecutively to any other mandatory prison term imposed in
    relation to the offense.
    {¶16} In South, the Supreme Court of Ohio recognized that the
    applicable statutes, R.C. 4511.19(A), R.C. 4511.19(G)(1)(e), R.C.
    2941.1413, R.C. 2929.13(G)(2) and R.C. 2929.14(A)(3)(b) were thought to
    be irreconcilable. However, the justices in South concluded that they could
    harmonize the statutes and no one provision need prevail over the others.
    The Eighth District Court of Appeals considered a similar sentencing issue
    Washington App. No. 16CA18                                                  12
    in State v. Semenchuk, 8th Dist. Cuyahoga No. 102636, 
    2015-Ohio-5408
    ,
    decided December 24, 2015.
    {¶17} In Semenchuk, the defendant pleaded guilty to a violation of
    R.C. 4511.19(A)(1)(a), a third-degree felony pursuant to R.C.
    4511.19(G)(1)(e). The trial court sentenced him to a five-year term of
    imprisonment and various other sanctions. Semenchuk appealed, arguing
    several assignments of error, including that the maximum sentence for a
    felony three OVI without the R.C. 2941.1413 specification was three years.
    The appellate court agreed with his argument, holding:
    “The Ohio Supreme Court recently settled the issue and held
    that an offender convicted of a third-degree felony OVI and the
    repeat-offender specification is subject to (1) a one- to five-year
    mandatory, consecutive prison sentence under the specification,
    and (2) an additional discretionary term of 9 to 36 months for
    the underlying OVI conviction pursuant to R.C. 2929.14(A)(3).
    State v. South, Slip Opinion No. 
    2015-Ohio-3930
    . We need not
    dwell on this issue. Semenchuk was not found guilty of the
    R.C. 2941.1413 specification, and therefore, the maximum
    sentence for his offense was three years irrespective of the
    South decision.”
    {¶18} Semenchuk was convicted of R.C. 4511.19(A)(1)(a). R.C.
    4511.19(G)(1)(e)(i), provides:
    “[i]f the offender is being sentenced for a violation of division
    (A)(1)(a) * * * of this section, [the court shall impose] a
    mandatory prison term of one, two, three, four, or five years as
    required by and in accordance with division (G)(2) of section
    2929.13 of the Revised Code if the offender also is convicted of
    or also pleads guilty to a specification of the type described in
    Washington App. No. 16CA18                                                   13
    section 2941.1413 of the Revised Code or a mandatory prison
    term of sixty consecutive days in accordance with division
    (G)(2) of section 2929.13 of the Revised Code if the offender is
    not convicted of and does not plead guilty to a specification of
    that type. (Emphasis added.) The court may impose a prison
    term in addition to the mandatory prison term. The cumulative
    total of a sixty-day mandatory prison term and the additional
    prison term for the offense shall not exceed five years.
    {¶19} The Semenchuk court emphasized that if the offender was not
    also convicted of that specification, the trial court must sentence the offender
    to a mandatory 60-day prison term in accordance with subsection (G)(2) of
    R.C. 2929.13. The appellate court further cited that subsection in paragraph
    7:
    “If the offender is being sentenced for a third degree felony
    OVI offense, * * * the court shall impose upon the offender a
    mandatory prison term of one, two, three, four, or five years if
    the offender also is convicted of or also pleads guilty to a
    specification of the type described in section 2941.1413 of the
    Revised Code or shall impose upon the offender a mandatory
    prison term of sixty days or one hundred twenty days as
    specified in division (G)(1)(d)(or (e) of section 4511.19 of the
    Revised Code if the offender has not been convicted or and has
    not pleaded guilty to a specification of that type R.C.
    2929.14(G)(2).”
    {¶20} The Semenchuk opinion clarified that if not convicted of the
    specification, the offender was subject to a three-year maximum sentence
    pursuant to a third-degree felony sentencing, 60 or 120 days of which
    include the maximum mandatory portion of the sentence pursuant to the OVI
    specific statutes provided by R.C. 4511.19(G)(1)(d) or (e).
    Washington App. No. 16CA18                                                      14
    {¶21} The Semenchuk opinion went on to explain that in addition to
    the OVI specific statues, if the trial court imposes an additional basic term
    for a third-degree felony pursuant to R.C. 2929.14(B)(4), the additional 60
    or 120-day prison terms imposed under the felony OVI specific statues
    reduce the total prison term imposed under R.C. 2929.14(A)(3)(b) so as to
    limit the maximum aggregate term. ¶ 8. R.C. 2929.14(B) provides in
    pertinent part:
    “(4) If the offender is being sentenced for a third or fourth
    degree felony OVI offense under division (G)(2) of section
    2929.13 of the Revised Code, the sentencing court shall impose
    upon the offender a mandatory prison term in accordance with
    that division. In addition to the mandatory prison term, if the
    offender is being sentenced for a fourth degree felony OVI
    offense, the court, notwithstanding division (A)(4) of this
    section, may sentence the offender to a definite prison term of
    not less than six months and not more than thirty months, and if
    the offender is being sentenced for a third degree felony OVI
    offense, the sentencing court may sentence the offender to an
    additional prison term of any duration specified in division
    (A)(3) of this section. In either case, the additional prison term
    imposed shall be reduced by the sixty or one hundred twenty
    days imposed upon the offender as the mandatory prison term.
    (Emphasis added.) The total of the additional prison term
    imposed under division (B)(4) of this section plus the sixty or
    one hundred twenty days imposed as the mandatory prison term
    shall equal a definite term in the range of six months to thirty
    months for a fourth degree felony OVI offense and shall equal
    one of the authorized prison terms specified in division (A)(3)
    of this section for a third degree felony OVI offense. If the
    court imposes an additional prison term under division (B)(4) of
    this section, the offender shall serve the additional prison term
    Washington App. No. 16CA18                                                                             15
    after the offender has served the mandatory prison term
    required for the offense.”5
    {¶22} R.C. 2929.14(A)(3)(b) provides:
    “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 nine, twelve, eighteen, twenty-four, thirty, or thirty-six
    months.”
    In Semenchuk’s case, the Eighth District Appellate Court held at ¶ 9:
    “As a result, we conclude that for a third degree felony offense
    under R.C. 4511.19(G)(1)(e) without the accompanying
    specification, the maximum aggregate term is limited to the
    term authorized by subsection (A)(3)(b) - three years, 60 days
    of which are mandatory. R.C. 2929.14(B)(4); see also South.”
    {¶23} Applying the reasoning set forth by the Eighth District, we find
    Appellant’s argument that his sentence is void for failure to comply with
    statutorily mandated terms has merit. His sentence is contrary to law.
    Appellant, convicted of R.C. 4511.19(A)(1)(h), to which the mandatory 120
    days pursuant to subsection (G)(1)(e)(ii) applies, without the accompanying
    specification, should have been sentenced to a maximum aggregate sentence
    of three years, reduced by the mandatory 120 days. We hereby sustain his
    first assignment of error. And, as such, the second and third assignments of
    error have become moot. Accordingly, we remand the matter for
    resentencing consistent with this opinion.
    5
    The current version of the statute, cited above, became effective September 14, 2016. However, the
    language of the statute was the same at the time Appellant was sentenced.
    Washington App. No. 16CA18                     16
    JUDGMENT REVERSED
    AND CAUSE REMANDED.
    Washington App. No. 16CA18                                                     17
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT BE REVERSED AND CAUSE
    REMANDED. Appellant shall recover any costs herein from Appellee.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing
    the Washington 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 sixty 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 proceedings in that court. If
    a stay is continued by this entry, it will terminate at the earlier of the
    expiration of the sixty day period, or the failure of the Appellant to file a
    notice of appeal with the Supreme Court of Ohio in the forty-five 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 sixty days, the stay will terminate as of the date
    of such dismissal.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    Harsha, J. & Hoover, J.: Concur in Judgment Only.
    For the Court,
    BY: ______________________________
    Matthew W. McFarland, 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.
    

Document Info

Docket Number: 16CA18

Judges: McFarland

Filed Date: 5/10/2017

Precedential Status: Precedential

Modified Date: 5/19/2017