State v. Brown , 2017 Ohio 2647 ( 2017 )

[Cite as State v. Brown, 2017-Ohio-2647.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
: Case No. 16CA3544
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
DAVID E. BROWN, II, :
:
Defendant-Appellant. : Released: 04/28/17
_____________________________________________________________
APPEARANCES:
Chase B. Bunstine, Chillicothe, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C.
Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} David E. Brown, II, appeals the judgment entry of sentence
dated April 6, 2016 in the Ross County Court of Common Pleas, in which he
entered guilty pleas to kidnapping, R.C. 2905.01, a felony of the first degree,
and felonious assault, R.C. 2903.12, a felony of the second degree. Here,
Appellant asserts that the trial court erred and abused its discretion when it
denied his timely motion to withdraw guilty plea. Upon review, we find no
merit to Appellant’s argument. The trial court did not abuse its discretion in
overruling Appellant’s pre-sentence motion to withdraw plea. Accordingly,
Ross App. No. 16CA3544 2
we overrule Appellant’s sole assignment of error and affirm the judgment of
the trial court.
FACTS
{¶2} On August 28, 2015, Appellant was indicted on two counts:
Count One, kidnapping, a violation of R.C. 2905.01, a first degree felony,
and Count Two, felonious assault, R.C. 2903.12, a second degree felony.
Count One contained a specification that, pursuant to R.C. 2929.01,
Appellant was a repeat violent offender. The indictment arose from
activities which occurred on July 22 and 23, 2015 in Ross County when
Appellant and other individuals allegedly kidnapped and inflicted serious
physical harm on Arthur Hamlin, Jr.
{¶3} Appellant was arraigned on September 2, 2015 and pleaded not
guilty. A status conference was held on October 7, 2015, at which time the
parties advised the trial court that the State was planning to again present the
matter to the grand jury for the purpose of adding another repeat violent
offender specification. On October 23, 2015, a second indictment was filed
which set forth the same allegations as in the original indictment and
contained the additional repeat violent offender specification as to Count
Two.
Ross App. No. 16CA3544 3
{¶4} Appellant was arraigned a second time on October 28, 2015.
On November 16, 2015, Appellant changed his plea pursuant to a plea
agreement and negotiated recommended sentence. Appellant pleaded guilty
to both counts and the State agreed to dismiss both specifications on the
condition that Appellant would testify against his co-defendants in the case.1
The State further agreed to recommend an eight-year sentence on each
count, to be served concurrently.
{¶5} At the change of plea hearing, Appellant’s counsel stated:
“There is some concern here, obviously about Mr. Brown testifying against
Codefendants, for his safety and for his family’s safety.” However, after
further discussion of the parties, the trial court engaged in the required
Crim.R. 11(C) colloquy with Appellant. The trial court found Appellant’s
decision to enter a plea of guilty on the two counts as knowing, intelligent,
and voluntary. The matter was set for disposition.
{¶6} However, on December 2, 2015, Appellant pro se forwarded a
handwritten “Motion to Withdraw Plea of Guilty.” On December 9, 2015,
the trial court held a status conference. Appellant’s counsel advised he
1
Appellant also agreed to provide a statement with respect to an October 2015 offense of rape and felonious
assault that occurred in the Ross County jail, and to testify against any codefendants in that particular
matter. The plea agreement further provided that should Appellant face charges out of the jail incident, the
State would agree to recommend that any sentence for those charges be served concurrently to the eight-
year prison sentence.
Ross App. No. 16CA3544 4
would file a motion on his client’s behalf and the trial court set the matter for
hearing on the motion to withdraw.2
{¶7} On March 23, 2016, the trial court held a hearing on Appellant’s
motion to withdraw his guilty plea. When given the opportunity to address
the court, Appellant began:
Appellant: Just that, you know, I mean, I was planning
on going through with the deal but there’s been threats made
against my family and stuff and I just don’t feel comfortable
putting my children at risk, you know over, over something that
involves me and has nothing to do with them. I would rather,
you now, just take what I have to do and not have them under
any kind of threat.
The Court: Okay, I mean, who is making the threats?
Appellant: Um, I mean, I really don’t know. There’s
just been threats, there’s been knocks at my house, there’s been
things done to vehicles, so-
The Court: Well what are the things that have been
done? How are you relating those to your case?
Appellant: I mean because nothing was going on before
I took the plea deal and my family is, you know, have had
windows knocked out, have had car tires slashed. There’s been
things, um, you know, just threats made, people knocking on
the door all hours of the night.
The Court: Alright, is there anything else that you wish
for me to consider?
Appellant: No, that’d be it, Your Honor.
2
The trial court advised Appellant that Ohio did not allow dual representation.
Ross App. No. 16CA3544 5
{¶8} Appellant’s counsel also spoke on his behalf. At this point, the
State offered the testimony of Detective Shawn Rourke, an officer for the
City of Chillicothe Police Department, who testified in regards to
Appellant’s previous claim of fear for his girlfriend and himself. The State
also offered as an exhibit a message from jail, from Appellant addressed to
Detective Rourke, that he was “ready to take a plea deal.” At the close of
the hearing, defense counsel argued that Appellant’s desire to withdraw his
plea was based on a credible belief of legitimate threat to his immediate
family. In overruling Appellant’s motion, the trial court noted that there was
no specific proof that the threats attached to the case at bar.
{¶9} Appellant’s sentencing occurred on March 31, 2016. When
given the opportunity to speak, Appellant stated:
“* * * Just that you should know I’m sorry about what
happened. I done the best I could for that man, you know,
without putting myself in the same position he was in and um,
you know, I just feel that this guilty plea is not something that I
should be held to because I believe that pressure was put on me
by those other charges by the police department to get me to
take a deal and I was talked to somebody and they told me that
because I was under the influence of depression drugs and I was
under the influence of street drugs when I took that deal that I
should not be held to it and I just want that to go on record that
I’m not comfortable with this guilty plea that I had to take. I
feel I was forced to take it by the prosecutor and the detectives
from the Chillicothe police department and the sheriff’s
department putting that pressure on me, trying to trump up
charges on me and they just tried to do it again, the same kind
of charges.
Ross App. No. 16CA3544 6
***
I don’t believe I did anything; I did not felonious assault that
guy or did I kidnap him. I was there, and you know if I would
of done anything like I did when the people was around I would
have been down there with him.”
{¶10} The trial court imposed the previously negotiated and
recommended sentence. This timely appeal followed. Where relevant,
additional facts will be set forth below.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT DENIED APPELLANT’S MOTION TO WITHDRAW HIS
GUILTY PLEA.”
A. STANDARD OF REVIEW
{¶11} Crim.R. 32.1 states: “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.” “ ‘[A]
presentence motion to withdraw a guilty plea should be freely and liberally
granted.’ ” State v. Hoke, 4th Dist. Lawrence No. 10CA32, 2011-Ohio-1221,
¶ 12, quoting State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935
N.E.2d 9, at ¶ 57, quoting State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d
715(1992). However, a defendant does not have an absolute right to
withdraw a guilty or no contest plea prior to sentencing. Xie at paragraph
Ross App. No. 16CA3544 7
one of the syllabus; State v. Spivey, 81 Ohio St.3d 405, 415, 1998-Ohio-437,
692 N.E.2d 151. Thus, the trial court possesses broad discretion to grant or
deny a presentence motion to withdraw a plea, and we will not reverse the
court's decision absent an abuse of that discretion. Xie at paragraph two of
the syllabus; Spivey, 81 Ohio St.3d at 415, 692 N.E.2d 151. The term
“abuse of discretion” implies that the court's attitude is unreasonable,
unconscionable, or arbitrary. See, e.g., State v. Adams, 62 Ohio St.2d 151,
157, 404 N.E.2d 144 (1980). Furthermore, “[w]hen applying the abuse of
discretion standard, a reviewing court is not free to merely substitute its
judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135,
137-138, 566 N.E.2d 1181 (1991).
B. LEGAL ANALYSIS
{¶12} In our prior decisions, we have set forth a list of factors that we
consider when determining whether a trial court abused its discretion by
denying a presentence motion to withdraw a plea: “ ‘(1) whether the accused
was represented by highly competent counsel; (2) whether the accused was
given a full Crim.R. 11 hearing before entering the plea; (3) whether a full
hearing was held on the withdrawal motion; and (4) whether the trial court
gave full and fair consideration to the motion.’ ” Hoke, supra, at 13, quoting
State v. Campbell, 4th Dist. Athens No. 08CA31, 2009-Ohio-4992, at ¶ 7,
Ross App. No. 16CA3544 8
quoting State v. McNeil, 146 Ohio App.3d 173, 176, 765 N.E.2d 884 (1st
Dist.2001); see also State v. Gibbs, 4th Dist. Ross Nos. 10CA3137 and
10CA3138, 2010-Ohio-2246, at ¶ 9. Other considerations include: “ ‘(1)
whether the motion was made within a reasonable time; (2) whether the
motion set out specific reasons for the withdrawal; (3) whether the accused
understood the nature of the charges and the possible penalties; and (4)
whether the accused was perhaps not guilty or had a complete defense to the
charges.’ ” Campbell at ¶ 7, quoting McNeil, 146 Ohio App.3d at 176, 765
N.E.2d 884. A change of heart or mistaken belief about the plea is not a
reasonable basis requiring a trial court to permit the defendant to withdraw
the plea. Campbell at ¶ 7, citing State v. Lambros, 44 Ohio App.3d 102, 103,
541 N.E.2d 632 (8th Dist.1988).
{¶13} On appeal, Appellant argues his motion pursuant to Crim.R.
32.1 was filed within a reasonable time, set forth specific reasons for his
request, including the grounds of innocence, fear for his family, and pressure
by counsel and law enforcement, and that withdrawal of his plea would have
resulted in no prejudice to the State. Appellant cites the correct legal
standard for consideration of his pre-sentence motion, set forth in State v.
Jones, 4th Dist. Scioto No. 13CA3548, 2013-Ohio-5416. However,
Appellant urges his case is more factually similar to one in the Seventh
Ross App. No. 16CA3544 9
Appellate District, State v. Cuthbertson, 139 Ohio App.3d. 895, 746 N.E.2d
197 (7th Dist.2000). In response, the State maintains the trial court did not
abuse its discretion when it overruled Appellant’s motion. The State points
out Appellant was represented by highly competent counsel, that he was
given a full Crim.R. 11 hearing before entering his plea, that he was given a
full hearing on his motion to withdraw, and that the record reflects the trial
court gave full and fair consideration of the motion. The State characterizes
the reason for Appellant’s motion as simply a change of heart.
{¶14} In Cuthbertson, the defendant mailed the court a pre-sentence
request to withdraw his plea to murder with a firearm specification. At the
hearing conducted on the motion, Cuthbertson elaborated:
“Basically, I changed my mind because, first of all, I'm
innocent. Second, I thought about the entire situation with my
attorney, with my mom and everybody that is involved in this
case, and I felt that it was my life that was at stake and wanted
to determine what would happen for the rest of my life. My
mom encouraged me a lot to take this plea bargain. She really
knows nothing about the law, and I guess I considered her life a
lot and that made me decide and think about my son, and I
guess I felt that also I wouldn't even get a fair trial. I discussed
it with my attorney for 14 months. I never wanted to take a plea
bargain, and I had no plans to take a plea bargain and come
time for trial that's all I ever heard was plea bargain, plea
bargain, and it was like the only thing for me to do. That's not
what I wanted to do.
***
Ross App. No. 16CA3544 10
Basically because, I guess, first of all, I'm human. I'm entitled
to make a mistake on my decisions. I think the prosecution
should, or whoever is going to determine what is going to
happen with this situation, needs to prove me guilty on the
charges they charged me with. I don't want to spend the rest of
my life in prison because of what somebody else did or I was
with somebody that did something.”
{¶15} On cross-examination, Cuthbertson repeated that he was
pressured to plead guilty. The appellate court noted the appropriate standard
of review for pre-sentence motions and addressed the additional factors to be
used in consideration of such motions, noting that no one factor was
conclusive.3 However, the Seventh District Appellate Court disagreed with
the trial court’s conclusion that Cuthbertson’s motion was based on a
“change of mind.” The appellate court observed:
“First, there is no allegation that the state's case would be
prejudiced upon withdrawal of the plea.
***
Admittedly, the required hearing on the motion to withdraw
occurred, and appellant was able to attempt to explain his
position. Nonetheless, the transcript leaves one with the
impression that appellant's attorney was preoccupied with
making a record to establish that he did not coerce the plea
rather than attempt to assist appellant in a successful plea
withdrawal. It is also worth noting that appellant took it upon
himself to seek plea withdrawal by means of a letter to the
court. The letter stated specific reasons for his desire to
withdraw his plea, and these reasons were repeated at the
hearing.
3
State v. Fish, 104 Ohio App.3d at 240, 661 N.E.2d at 790 (1st Dist.1995).
Ross App. No. 16CA3544 11
***
[T]he timing of the motion was surely reasonable. Lastly,
appellant has set forth the possibility of a defense to the charge
by maintaining his claims that he was not the perpetrator of the
murder yet implying that he was present. In conclusion, when a
defendant claims he is innocent and wishes to withdraw his plea
of guilt prior to sentencing, a comparison of the interests and
potential prejudice to the respective parties weigh heavily in the
interests of the accused.
***
Absent any showing of some other real prejudice to the state
which occurred solely as a result of entering into a plea bargain,
as here, the potential harm to the state in vacating the plea is
slight, whereas the potential harm to the defendant in refusing
to vacate the plea is great. Accordingly, we hold that the failure
of the lower court to allow appellant to withdraw his plea was
unreasonable.”
{¶16} Here, we are not persuaded Cuthbertson is completely on
point. Upon review of the relevant facts, we find the trial court did not
abuse its discretion in denying Appellant’s pre-sentence motion to withdraw
his plea. We have considered the applicable factors and we agree that
Appellant’s motion was made within a reasonable time. Appellant changed
his plea on November 16, 2015 and his sentencing was expected to be in late
January 2016. He requested to withdraw his plea, approximately 2 weeks
after changing his plea, on December 2, 2015.
{¶17} We next observe that the record reflects Appellant was given a
full Crim.R. 11 hearing before entering his plea. Appellant verified that he
Ross App. No. 16CA3544 12
was not under the influence of any drugs, medication, or alcohol. Appellant
further advised that he had not been threatened or been promised anything in
order to change his plea. He acknowledged reading, executing, and
understanding the written plea agreement. He further stated, when
questioned about whether or not he was satisfied with his trial counsel, that
he was “very satisfied.” Along these lines, we also find Appellant expressed
full understanding of the nature of the charges and the possible penalties he
was facing. We find the record clearly reflects Appellant had a full Crim.R.
11 hearing.
{¶18} We further find no indications in the record that Appellant was
not represented by highly competent counsel. It is reasonable to assume that
Appellant’s counsel negotiated the very favorable plea agreement and
recommended sentence on Appellant’s behalf. During the change of plea
hearing, Appellant acknowledged he was “very satisfied” with his counsel.4
{¶19} However, we cannot find that either Appellant’s pro se request
or the motion filed on his behalf set out specific reasons for the withdrawal.
His stated reason at the motion hearing was the threats and fear for his
family. At the motion hearing, Appellant did not voice any allegations that
the police department, the prosecutor, and the detectives were pressuring
4
And, after forwarding his pro se request to withdraw his plea, at the status conference, he again relied on
his trial counsel to pursue the matter. The trial court also commented on the record that Appellant was
represented by highly competent counsel.
Ross App. No. 16CA3544 13
him to enter the plea agreement. These allegations first surfaced at
Appellant’s sentencing, a week after the hearing on his motion had taken
place. Nor did Appellant advise he was under the influence of drugs when
he “took the deal.”
{¶20} We further find Appellant’s request was given full and fair
consideration. Although his handwritten request and the written motion did
not set out specific reasons, both Appellant and his counsel were given time
to explain his stated reason. Yet, at the hearing, the State presented evidence
that Appellant had voiced concerns for his and his girlfriend’s safety when
initially interviewed, and long before his request to change his plea.
Detective Rourke testified he interviewed Appellant twice, on the date when
he was arrested, and that he had “voiced concerns for his safety and the
safety of a girlfriend.” On cross-examination, Detective Rourke reiterated
that Appellant did not identify a specific source who had threatened him and
did not identify specific acts, as mentioned at the hearing. Further,
Appellant did not mention his children or other immediate family had been
threatened. The State urged that Appellant was well aware of possible
ramifications of testifying against his codefendants. In overruling
Appellant’s motion, the trial court noted that Appellant was not able to
identify specific persons making the threats or that the threats were, in fact,
Ross App. No. 16CA3544 14
relating to his particular case. We cannot conclude Appellant’s request was
not given full and fair consideration.
{¶21} The Cuthbertson court relied heavily on the fact that there was
no allegation that the State’s case would be prejudiced upon withdrawal of
the plea and further cited lack of prejudice to the State as one of the most
important factors. However, the appellate court also questioned the
effectiveness of Cuthbertson’s counsel in arguing for grant of the motion,
commenting that counsel seemed more preoccupied with “making a record”
than attempting to assist Cuthbertson in a successful plea withdrawal.
{¶22} Importantly, we observe that Cuthbertson proclaimed first and
foremost that he was innocent. And the appellate court commented that
Cuthbertson had set forth the “possibility of a defense to the charge by
maintaining his claims that he was not the perpetrator yet implying that he
was present.” The Cuthbertson court noted the potential harm to
Cuthbertson in refusing to vacate his plea was great. Id. at 900.
{¶23} By contrast, in the case at bar, at the motion hearing Appellant
did not stoutly proclaim innocence. It was only after his motion was denied
that Appellant acknowledged a lesser measure of involvement and
culpability, stating: “I don’t believe I did anything; I did not felonious
assault that guy or did I kidnap him. I was there * * *.” In State v. Powers,
Ross App. No. 16CA3544 15
4th Dist. Pickaway No. 03CA21, 2004-Ohio-2720, this court pointed out a
defendant's claims of innocence are not sufficient to warrant withdrawal of a
plea knowingly entered. Id. at ¶ 18; State v. Kandiko (Feb. 9, 1995),
Cuyahoga App. No. 66888, State v. Frank (April 29, 1993), Cuyahoga App.
No. 62201. We observed that all defendants who request a withdrawal of
their plea base their request upon some claim of innocence. State v.
McGowan (Oct. 3, 1996) Cuyahoga App. No. 68971. We further observed
Powers made only an unsubstantiated claim of innocence, and that the trial
court could reasonably have concluded that Powers’ profession of innocence
was nothing more than a change of heart, which is an insufficient basis for
withdrawing a guilty plea. Lambros, supra, 44 Ohio App.3d 102 at 103. It
would appear that when Appellant realized his safety concerns were not
persuasive to the trial court at the motion hearing, that he subsequently
proffered a “laundry list” of reasons for his motion at sentencing, i.e., the
alleged and unsubstantiated influence of drugs and alleged coercion by law
enforcement and the prosecutor’s office, along with a weak profession of
innocence.
{¶24} For the foregoing reasons, we find no merit to Appellant’s
argument and further find the trial court did not abuse its discretion in
overruling Appellant’s pre-sentence motion to withdraw his plea. As such,
Ross App. No. 16CA3544 16
we overrule the sole assignment of error and affirm the judgment of the trial
court.
JUDGMENT AFFIRMED.
Ross App. No. 16CA3544 17
Hoover, J., concurring in judgment only:
{¶ 25} I respectfully concur in judgment only with the majority
opinion.
{¶ 26} I start with the premise that “ ‘a presentence motion to
withdraw a guilty plea should be freely and liberally granted.’ ” State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 57 quoting
State v. Xie at 527. Brown’s motion to withdraw his guilty plea was made
prior to his sentencing. Brown filed the motion at issue in December 2015.
At the motion hearing, Brown stated, “I was planning on going through with
the deal but there’s been threats made against my family and stuff and I just
don’t feel comfortable putting my children at risk, you know over, over
something that involves me and has nothing to do with them.” March 23,
2016 Hrg., p. 3-4. He went on to explain that his family’s home and personal
property had been vandalized. He added that he did not know who was
making the threats but “nothing was going on before [he] took the plea
deal.” Id. at p. 4. After considering the factors in State v. Xie, the trial court
denied Brown’s motion.
{¶ 27} A few days later, at Brown’s sentencing hearing, but prior to
the actual sentencing of Brown, the trial court gave Brown the opportunity to
address the court. Brown again indicated that he wanted to withdraw his
Ross App. No. 16CA3544 18
plea. This time, however, he gave completely different reasons for
withdrawing his plea. Brown stated that he should not be “held to” his guilty
plea because (1) he felt pressured into taking a plea deal; and (2) he talked to
someone and they told him that because he was under the influence of drugs
when he took the deal he should not be held to it. March 31, 2016 Hrg., p. 4.
He also proclaimed his innocence. The trial court did not address Brown’s
claims and proceeded immediately to sentencing.
{¶ 28} I believe that the statements Brown made could be construed as
a second motion to withdraw his plea. Brown once again indicated to the
trial court that he wanted to withdraw his plea. Brown did not base his
second request on the same reasons that he stated in his first motion to
withdraw his plea; and there is no requirement in Crim.R. 32.1 that a motion
to withdraw guilty plea be in writing. See State v. Elkins, 4th Dist. Lawrence
No. 16CA15, 2016-Ohio-8579 (trial court erred in failing to conduct any
inquiry into defendant’s oral, presentence request to withdraw guilty plea
that defendant made at the beginning of his sentencing hearing).
{¶ 29} Therefore, pursuant to State v. Xie, I believe that the trial court
should have conducted a hearing “to determine whether there [was] a
reasonable and legitimate basis for the withdrawal of the plea” rather than
proceeding immediately to sentencing. 62 Ohio St. 3d 521, 527, 584 N.E.2d
Ross App. No. 16CA3544 19
715 (1992). Of particular concern to me is the fact that Brown states that he
was under the influence of drugs at the time that the guilty plea was entered.
I am mindful, however, of the fact that Brown had originally stated that he
was not under the influence of any drugs.
{¶ 30} That being said, Brown does not argue on appeal that the trial
court erred in failing to hold a hearing on his second motion to withdraw his
guilty plea. I refuse to make Brown’s argument for him. His appeal presents
the issue whether the trial court erred in denying his first motion to withdraw
his guilty plea; and I do not believe that the trial court erred with respect to
that decision. Therefore, I concur in judgment only with the majority
opinion.
Ross App. No. 16CA3544 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
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 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.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only with Concurring Opinion.
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.