State v. Walker , 2021 Ohio 235 ( 2021 )

[Cite as State v. Walker, 2021-Ohio-235.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 19CA1102
:
v. :
: DECISION AND JUDGMENT
ERNEST A. WALKER, : ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Timothy P. Young, Ohio State Public Defender, Katheryn R. Ross-Kinzie,
Assistant Public Defender, Columbus, Ohio, for Appellant.
David Kelley, Adams County Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Ernest A. Walker appeals the judgment entry of the Adams
County Court, entered September 19, 2019. Subsequent to a bench trial,
Walker was convicted of misdemeanor traffic charges. On appeal, Walker
asserts three assignment of errors: (1) that the trial court unconstitutionally
shifted the State’s burden of proof; (2) that Walker’s convictions are against
the manifest weight of the evidence; and (3) that the trial court abused its
discretion when it denied Walker’s request for a jury trial. Upon review of
the record, we find merit to Appellant’s third assignment of error. Thus, we
Adams App. No. 19CA1102 2
reverse the judgment of the trial court and remand for further proceedings
consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} After law enforcement officers confronted Ernest A. Walker,
“Appellant,” outside the United Dairy Farmers in West Union on June 28,
2019, Appellant was cited for operating a vehicle under the influence of
alcohol or a drug of abuse, R.C. 4511.19(A)(1)(A); OVI refusal, R.C.
4511.19(A)(2); failure to control a motor vehicle, R.C. 4511.202; and failure
to stop after an accident, R.C. 4549.03. Appellant was arraigned at the
Adams County Court on July 1, 2019. He was brought with other inmates
from the Adams County Jail.1
{¶3} Appellant did not have the benefit of legal counsel with him at
the arraignment. The arraignment transcript reflects that the trial court
inquired as to whether Appellant was able to hear the “general statement” as
to the “arraignment consequences,” and Appellant replied, “Yes.” Appellant
pled not guilty to all four offenses. After entering his plea, the trial court
informed, “We will set the matter for a pretrial and a trial.”
{¶4} Appellant informed the court he could not afford an attorney so
the court advised that it would appoint legal counsel. The matter was also
1
Appellant was held in the jail pending arraignment due to a prior outstanding warrant for failing to appear
in that court.
Adams App. No. 19CA1102 3
scheduled for a trial on July 22, 2019. A “Notice of Trial Pretrial, Etc.”
dated July 2, 2019 contains Appellant’s signature. This notice indicates
“court trial.”
{¶5} On July 8, 2019, Appellant’s counsel filed a notice of
representation, request for discovery, and bill of particulars. A transcript of
that same date, entitled “Transcript of Final Pretrial,” indicates that
Appellant’s counsel appeared in court on that date but Appellant did not.
However, Appellant was still lodged in the jail. The only significance of this
brief transcript is that it indicates that Appellant would be brought over from
the jail. The transcript does not contain any discussion with Appellant or
any indication that Appellant was in fact brought into the courtroom.
{¶6} The record also contains a transcript of “court trial” held July 22,
2019. The transcript reflects that another attorney was substituting for
Appellant’s appointed counsel, who was not feeling well that day. The
transcript is actually unclear as to whether the trial court or the assistant
prosecutor stated as follows:
At the. [sic] Discovery was complete and we were actually
going to do a Court Trial today before Ms. Drinnon came up ill.
So, this would be whether we want to continue the Court trial
for another time.
{¶7} At this point, Appellant’s substitute attorney indicated that
Adams App. No. 19CA1102 4
Appellant had some concerns about his charges, i.e. whether he was
being charged with a second or third offense OVI. Everyone agreed
that Appellant needed to talk to his own attorney, the one familiar
with his case. The trial court stated a six-week continuance would be
appropriate. On July 22, 2019, a journal entry indicates Appellant’s
case was reassigned for court trial on September 6, 2019.
{¶8} On September 6, 2019, the proceedings began with
another discussion about the level of Appellant’s OVI offense.
However, Appellant’s court-appointed counsel advised the court
Appellant had another concern. The trial transcript contains the
following discussion of Appellant’s request for a jury trial.
Appellant: We will leave it to a jury trial.
Atty. Drinnon: Is the fact that my client has stated he believes he’s
not going to receive a fair trial.
Appellant: Yeah.
Court: I think he’s under a little bit of a misconception
because he keeps saying move it to a jury trial, so
it goes upstairs. I keep telling him that that [sic.]
doesn’t mean it goes upstairs. I would still be
down here, but at this point and time I don’t know
Adams App. No. 19CA1102 5
what the court would want or wish. I do have to
do I think, um, you know, ethically.
***
Prosecutor: I would oppose that just to because it’s within the
seven days.
Court: Um it’s absolutely in the seven days. And if there
were, if you had wanted a jury trial that was part of
the arraignment when I went through the
arraignment actually with you probably twice I
talked to you about that.
Appellant: Yeah, you see my lawyer the 28th of last month so,
how am I going to get anything done within seven
days?
Court: So, we, uh, you were here for an arraignment and
at the arraignment I always discuss very clearly
about how the demand for jury trial is done. That
time has come and gone if we’re otherwise ready
for trial. We’ve got our witnesses here were going
to go [inaudible].
Appellant: Well let’s do it then.
Adams App. No. 19CA1102 6
***
Court: On behalf of your client who brought those things
up both in regard to the question about the second
OVI charge and also in regard to a jury trial which
would be overruled. We are going to go forward
with trial today.
{¶9} Appellant was found guilty of all charges. The trial court
ordered a pre-sentence investigation and report. The matter was
deferred for sentencing on September 19, 2019.
{¶10} At sentencing, the trial court merged the two OVI convictions.
The trial court sentenced Appellant on the second offense OVI charge to 180
days in the Adams County Jail, 150 days suspended, a $525 fine and court
costs. The court further ordered two years probation and one-year license
suspension. As part of probation, Appellant was to obtain a drug and
alcohol assessment. Appellant was also ordered to pay fines and costs on
the failure to control and failure to stop after an accident charges.
{¶11} This timely appeal followed. Appellant’s sentence was stayed
pending appeal. Where pertinent, additional facts are set forth below.
Adams App. No. 19CA1102 7
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT UNCONSTITUTIONALLY
SHIFTED THE STATE’S BURDEN TO PROVE ALL
ELEMENTS OF THE OFFENSE BEYOND A
REASONABLE DOUBT TO THE DEFENDANT,
ERNEST WALKER, IN VIOLATION OF HIS RIGHT
TO DUE PROCESS UNDER THE UNITED STATES
AND THE OHIO CONSTITUTIONS.
II. THE TRIAL COURT VIOLATED ERNEST
WALKER’S RIGHTS TO DUE PROCESS AND A
FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF
CONVICTION FOR OPERATING A VEHICLE
UNDER THE INFLUENCE OF ALCOHOL AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT DENIED ERNEST WALKER’S REQUEST
FOR A JURY TRIAL.”
{¶12} For ease of analysis, we begin with Appellant’s third
assignment of error.
STANDARD OF REVIEW
{¶13} As a general rule, the United States Supreme Court has
always set high standards of proof for the waiver of constitutional
rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.1461
(1938), (“Trial courts must indulge every reasonable presumption
against waiver.”); State v. Tackett, 4th Dist. Jackson No. 04CA12,
2005-Ohio-1437, at ¶ 19. Because of the fundamental importance of
the right to a jury trial, the trial court must not lightly infer a waiver of
Adams App. No. 19CA1102 8
the right to a jury trial. Id. See State v. Scott, 123 Ohio App.3d 331,
704 N.E.2d 265, (2d. Dist. 1997), citing Tallmadge v. DeGraft-Biney,
39 Ohio St.3d 300, 301-302, 530 N.E.2d 1310 (1988).
LEGAL ANALYSIS
{¶14} An accused charged with a first-degree misdemeanor is entitled
to a trial by jury. See R.C. 2945.17; Section 10, Article I, Ohio Constitution.
See also State v. Wilson, 4th Dist. Adams No. 19CA1084, 2019-Ohio-2965,
at ¶ 10. However, in misdemeanor cases, the state does not violate a
defendant's constitutional rights when it conditions the right upon the filing
of a written demand for a jury trial. See Tackett, supra, at ¶ 19, citing,
Mentor v. Giordano, 9 Ohio St.2d 140, 224 N.E.2d 343 (1967), at paragraph
one of the syllabus. Crim.R. 23 governs the procedure for obtaining or
waiving a trial by jury. See Tackett, supra, at ¶ 20. Crim.R. 23 provides, in
relevant part:
In petty offense cases, where there is a right of jury trial, the
defendant shall be tried by the court unless he demands a jury
trial. Such demand must be in writing and filed with the clerk
of court not less than ten days prior to the date set for trial, or
on or before the third day following receipt of notice of the date
set for trial, whichever is later. Failure to demand a jury trial as
provided in this subdivision is a complete waiver of the right
thereto.
{¶15} “The purpose behind Crim.R. 23(A) is to ensure that criminal
defendants do not wait until they have reached the courthouse steps on the
Adams App. No. 19CA1102 9
day of trial to demand a jury. This would result in undue delay and expense
and possibly prejudice the state.” Tackett, supra, at ¶ 21, quoting State v.
Burton, 39 Ohio App.3d 151, 151, 530 N.E.2d 955 (6th Dist. 1988).
However, “[w]here a request for jury trial is made sufficiently in advance of
the actual trial as not to interfere with the orderly administration of the
business of the court and will not result in any unnecessary delay or
inconvenience to witnesses or prejudice to the state, it may well be an abuse
of discretion for the trial court to deny a jury trial.” Tackett, supra, quoting
State v. Edwards, 4 Ohio App.2d 261, 266, 208 N.E.2d 758 (4th Dist. 1965),
(internal citations omitted.).
{¶16} We begin our analysis by reiterating that Appellant was
unrepresented at arraignment. He was brought from the jail with other
inmates. It appears that the July 8th pretrial was conducted without
his presence, but the record also indicates he was allowed to sign a
recognizance bond on that date. Appellant presented to the court on
July 22nd, but another attorney substituted for his counsel.
Appellant’s chief concern appeared to be his confusion regarding the
level of his OVI offense. The matter was rescheduled for court trial
on September 6th.
Adams App. No. 19CA1102 10
{¶17} In his brief, Appellant summarizes these facts, arguing that they
culminated in his failure to timely make a written demand for jury trial due
to a lack of access to his appointed counsel. The State of Ohio’s brief does
not address these pretrial facts but focuses solely on Appellant’s untimely
verbal request for a jury trial on the morning of his September 6th trial.
Appellant emphasizes that September 6th was the first time that he and his
court-appointed counsel ever appeared in court together.
{¶18} The record reveals that the second pleading in the court’s
record appears to be a court entry describing the arraignment process,
Appellant’s not guilty plea, his updated address, the terms of bond, the name
of his appointed counsel, and upcoming dates. This entry also contains this
language: “Defendant having been fully informed of his rights pursuant to
Criminal Rule 5….” Pursuant to Crim.R. 5(A)(5), a court must inform an
accused of his right to a jury trial during the accused’s initial court
appearance. It is mandatory that the court comply with this rule. See
Wilson, supra, at ¶ 10; (internal citations omitted.) Crim.R. 5(A) applies to
criminal charges. For traffic offenses, the corresponding Traffic Rules
apply. Traf.R. 8, “Arraignment,” contains elements from Crim.R. 5 as well.
See State v. Donkers, 170 Ohio App.3d 509, 2007-Ohio-1557, 867 N.E.2d
903, at ¶ 30 (11th Dist.). See also 1975 Staff Note 1 and 5 to Traf.R. 8.
Adams App. No. 19CA1102 11
Similar to the Criminal Rules, the Traffic Rules also require an explanation
of rights at the arraignment stage. Traf. R 8(D). “Specifically, before
calling the defendant to plea, the judge shall cause him to be informed and
shall determine that defendant knows and understands…that he has, where
such right exists, a right to jury trial which must be demanded in petty
offenses.” Id. Donkers, supra, at ¶ 31.
{¶19} This court most recently considered a defendant’s claim that he
was unfairly denied a jury trial in a criminal case in State v. Wilson, supra.
After a bench trial, Wilson was convicted of violation of a protection order,
a violation of R.C. 2919.27 and a misdemeanor of the first degree. On
appeal, Wilson argued that the trial court erred when it did not inform him
that he had a right to a jury trial and was required to make an affirmative
demand for a jury if he wanted to exercise that right.
{¶20} In our decision, we recognized that the right to a trial by jury is
one of the most important rights guaranteed in the United States
Constitution. Our review of the transcript of Wilson’s arraignment
demonstrated that the trial court did not comply with the Crim.5(A)
requirements. Our research led us to an 11th District case, State v. Bates,
11th Dist. Ashtabula No. 2005-A-0078, 2006-Ohio-3777, which held under
somewhat similar circumstances:
Adams App. No. 19CA1102 12
Pursuant to Crim.R. 5(A)(5) the trial court must inform a
defendant of his or her right to a jury trial during the initial
appearance. State v. Stewart 5th Dist. Coshocton No.
01CA002, 2001 WL 1744692, (Nov. 28, 2001), at *2. This
court stated that a trial court's failure to inform an accused of
his or her rights as required by Crim.R. 5 constitutes prejudicial
error. State v. Fonseca, 124 Ohio App.3d 231, 234, 705 N.E.2d
1278, (11th Dist. 1997), citing State v. Orr, 26 Ohio App.3d 24,
25, 498 N.E.2d 181 (11th Dist. 1985). A trial court's failure to
comply with the provisions of Crim.R. 5 invalidates the entire
proceeding. Mentor v. Carter, 11th Dist. Lake No. 93-L-104,
1994 WL 102394, at 2, citing Cleveland v. Whipkey, 29 Ohio
App.2d 79, 278 N.E.2d 374 (8th Dist. 1972); State v. Boerst, 45
Ohio App.2d 240, 241, 343 N.E.2d 141 (9th Dist. 1973).
Bates, supra, at ¶ 22. In Bates, a review of the arraignment transcript
revealed that the trial court failed to inform Bates, unrepresented at the time,
of her right to be tried by a jury, thus failing to comply with Crim.R. 5(A).
In Wilson, the State conceded that Wilson was not properly advised at the
initial appearance regarding his right to a jury trial but argued that because
Wilson was later represented, he should be deemed to have waived the issue.
We disagreed with the State, concluding:
We readily acknowledge the arguable merit in the appellee's
argument that appellant did, in fact, have the benefit of legal
representation during the trial court proceedings after his initial
appearance and that one could assume that his counsel must
have advised appellant of his constitutional right to a trial by
jury. However, while this could arguably be a valid assumption
in most instances, the right to a trial by jury is one of the most
important rights guaranteed in the United States Constitution.
Thus, absent actual compliance with Crim.R. 5, or absent some
later curative action undertaken by the trial court to
affirmatively advise the appellant of his right to a trial by jury,
Adams App. No. 19CA1102 13
we are reluctant to simply assume that, sometime during the
course of the trial court proceeding, appellant must have been
made aware of this important constitutional right. Thus, based
upon the facts present in the case sub judice, we are reluctant to
conclude that appellant waived this particular constitutional
guarantee.
Id. at ¶ 14.
{¶21} In another case from this district, State v. Tackett, supra,
Tackett was convicted of “domestic violence by menacing,” a violation of
R.C. 2919.25(C). Tackett appealed, asserting as one of his assignments of
error, that he did not waive his right to a jury trial. The record revealed at
Tackett’s arraignment, the court played a videotape that briefly outlined a
criminal defendant’s legal rights. The videotape explained the right to have
a matter tried by a jury and the time requirements for a written demand. The
tape concluded by suggesting if a defendant had questions concerning the
nature of the charges or the rights at the hearing, the defendant should ask
questions when he or she is seated at the counsel table.
{¶22} When Tackett was called, the court inquired as to whether
Tackett understood his rights as outlined in the video. Tackett indicated he
did. The court then informed Tackett of the range of punishment. Tackett
pled not guilty and requested a court-appointed attorney. After some
discussion, the court informed Tackett he did not qualify for a court-
appointed defender.
Adams App. No. 19CA1102 14
{¶23} The court next explained that Tackett’s trial would occur within
45 days if he did not waive speedy trial. Tackett asked, “Can it be a jury
trial?” The court responded that there was a procedure to be followed, that
the procedure was explained on the video, and that Tackett had already
affirmed he understood his rights. Tackett replied: “But it didn’t say how
you go about getting a Jury,” to which the court replied, “Oh, yes, it did Sir.”
Tackett subsequently proceeded to a bench trial and was convicted.
{¶24} Upon review, this Court found that it was not disputed that
Tackett did not file a written request for jury trial. However, the record also
indicated Tackett did not fully understand this right and the action required
to preserve it. The videotape specifically invited defendants to ask
questions, and Tackett’s later question about a jury trial revealed that he was
uncertain about how to obtain one. We observed that the trial court chose to
sidestep Tackett’s questions rather than directly answer them. We
commented that the court appeared to take Tackett’s understanding of the
videotape to mean that he memorized it.
{¶25} We found that the court’s actions did not further the purpose of
Crim.R. 23(A). We further found:
Because the right to a jury trial is a constitutional right and
Civ.R. 23(A) is a procedural rule, because the trial court
ignored the indicators that Tackett did not fully understand his
rights and the steps needed to preserve them, and because the
Adams App. No. 19CA1102 15
trial court did not afford Tackett any latitude with respect to the
formal requirements for preserving his rights, we find that the
trial court abused its discretion in denying Tackett's request for
a jury trial.
Id. at ¶ 26.
{¶26} In Donkers, supra, the defendant was convicted of various
criminal and traffic charges. Initially, she was arraigned in two municipal
courts. On appeal, Donkers asserted that the trial courts erred by failing to
follow the required procedure upon her initial appearances by not fully
advising her of the charges against her and of her rights. At Donkers’
arraignments, the state played videos which contained recitations of her
constitutional rights.
{¶27} At the outset, the 11th district court acknowledged problems
because they did not have a video or a transcript of its contents within the
record on appeal. The state countered that providing a record of the
arraignment was Donkers’ burden on appeal. The appellate court, quoting
State v. Boerst, 45 Ohio App.2d 240, 241-242, 343 N.E.2d 141 (9th Dist.
1973), noted:
“ ‘* * * Here, the defendant requested and filed the transcripts,
and the reviewing court can determine from such transcripts
whether or not an error was committed. We must assume that
those transcripts, as certified by the clerk and the trial judge,
respectively, are complete and accurate.’ ”
Id. at ¶ 39. The Donkers court further observed:
Adams App. No. 19CA1102 16
In the case before us, appellant ordered the entire transcript of
the proceedings in her case from the dates of the initial
appearances. The court reporter certified the submitted
transcripts as true and correct. The transcripts of the initial
appearances make no reference to a video and do not allude to
any previous explanation of rights. If the state insists that there
is more content that the court reporter failed to include and that
is crucial to their position, the state could have used App.R.
9(E) to correct the record and to submit the video along with a
certification that it was played at appellant's initial appearance
so that we could judge its contents.
Id. at ¶ 40.
{¶28} The Donkers court found:
[E]ven if a complying video was played on both dates and if
appellant can be confirmed as being present and if the
importance of watching it was explained in her presence, a
video or other en masse description of rights is merely that―a
description of the rights. It does not satisfy the requirement that
directs the court to determine that the defendant “understands”
the rights listed in Crim.R. 10(C) or “understands and knows”
the rights listed in Traf.R. 8(D). These provisions require an
individualized inquiry. (Emphasis sic.)
Id. at ¶ 42.
{¶29} In Appellant’s case, the arraignment hearing transcript
reveals that when Mr. Walker’s case was called, the trial court inquired
about his name and address and inquired as to whether he received a copy of
the traffic ticket. The only possible reference to an explanation of
Appellant’s constitutional rights pursuant to Traf. R. 8(D) is as follows:
Adams App. No. 19CA1102 17
Court: And were you able to hear my general statement that I
made to everybody in regard to. [sic]
Appellant: Yeah, I heard you.
Court: The arraignment consequences?
Appellant: Yes.
{¶30} The trial court did not ask Appellant if he had any
questions about the “general statement.” It is at this point that the trial court
began to read through the nature of the four charges; explained the potential
penalties; took Walker’s not guilty plea; discussed Walker’s request for a
court-appointed attorney; and discussed the terms of his bond. At the end of
all of this discussion, the trial court asked, “Mr. Walker do you have any
questions about what has happened here”?
{¶31} While the record does not indicate Appellant herein was a first-
time visitor to the Adams County Court, we cannot conclude, based on these
facts, that Appellant was properly advised as to his right to a jury trial and
how to make a timely demand pursuant to Crim.R. 23. We assume that the
“general statement of arraignment consequences” was the trial court’s
explanation of Appellant’s constitutional rights but we cannot confirm that.
The arraignment transcript simply does not provide this information. “While
the defendant does have the burden of seeing that the record is complete,
Adams App. No. 19CA1102 18
under the appellate rules, he can do no more than request the clerk to prepare
and forward the transcript of docket and journal entries, and the transcript of
proceedings.” Boerst, supra, at 242. While a full explanation of the
constitutional rights pursuant to Crim.R. 5(A) may well have occurred, the
arraignment transcript does not contain this discussion.
{¶32} Based on our review of the record, we find Appellant was not
fully apprised of his right to a jury trial and of the requirements, pursuant to
Crim.R. 23(A), to timely demand one in writing. We acknowledge the
record does contain a “Notice of Trial, Pretrial, Etc.,” dated July 2nd, with
Appellant’s signature, and several documents indicate Appellant’s being
scheduled for a “court trial.” However, we cannot simply assume Appellant
understood “court trial” to mean “trial to the bench” or “trial to the judge.”
{¶33} Further, as in Wilson, we cannot simply assume because
Appellant was later appointed a lawyer that he must have been fully
informed of this important constitutional right, particularly in light of the
lack of access to his lawyer which he claims and the record supports.
Assuming Appellant was properly apprised pursuant to Crim.R. 5(A), it does
not appear the trial court inquired as to whether Appellant had any questions
about his constitutional right to trial. Under the circumstances of
Adams App. No. 19CA1102 19
Appellant’s case, we find the trial court abused its discretion in denying
Appellant’s request. We sustain the third assignment of error. 2
{¶34} In light of our disposition of Appellant’s third
assignment of error, Appellant’s first and second assignments of error are
rendered moot. Accordingly, the judgment of the Adams County Court is
reversed and the matter is remanded for further proceedings consistent with
this opinion.
JUDGMENT REVERSED.
2
We recognize that many courts in the 4th District utilize general statements and/or videos to inform
multiple defendants of their constitutional rights at arraignment. Our decision here does not find that
practice to be improper. In fact, this decision could very possibly have been resolved in favor of Appellee
had we been supplied with a record of the trial court’s “general statement” of Defendant/Appellant’s rights
at arraignment.
Adams App. No. 19CA1102 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and that the
CAUSE IS REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Adams County 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.
Abele, J. and Hess, J. concur in Judgment and Opinion.
For the Court,
_______________________________
Jason P. Smith
Presiding 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.