State v. McBride , 2024 Ohio 4870 ( 2024 )

[Cite as State v. McBride, 2024-Ohio-4870.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MATTHEW R. MCBRIDE,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 CO 0005Criminal Appeal from the
Municipal Court of Columbiana County, Ohio
Case No. 2024 CRB 97
BEFORE:
Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Vito J. Abruzzino, Columbiana County Prosecutor and Atty. Shelley M. Pratt,
Assistant Prosecutor, for Plaintiff-Appellee
Atty. David J. Betras and Atty. James N. Melfi, Betras Kopp, LLC, for Defendant-Appellant
Dated: September 19, 2024
–2–
WAITE, J.
{¶1} Appellant Matthew R. McBride, acting pro se, pleaded no contest in
Columbiana County Municipal Court to misdemeanor assault. After being sentenced, he
retained counsel and filed a motion to stay the sentence. At the stay of execution hearing,
counsel raised an oral motion to withdraw this plea. The court denied the motion, and
Appellant has appealed denial of his oral motion to withdraw. Appellant argues that the
arraignment procedure was improper in this case and denial of his motion to withdraw his
plea constituted a manifest injustice. Although Appellant was not represented by counsel
at his arraignment, the trial judge advised him of his right to counsel, and Appellant waived
that right orally and in writing. Appellant now contends he was suffering memory loss
from epileptic seizures when he entered his plea, but the record does not support this
claim. Appellant gave detailed and intelligent responses during his no contest plea. The
record reveals Appellant's plea was made voluntarily, knowingly, and intelligently, and
there was no manifest injustice in overruling his motion to withdraw the plea. The
judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On January 12, 2024, a complaint was filed in Columbiana County
Municipal Court charging Appellant with assault in violation of R.C. 2903.13(A), a first
degree misdemeanor. The charge arose out of an incident that occurred on January 11,
2024 at the JDE Food and Fuel Station in New Waterford, Ohio. Appellant approached
Alex Conkle as he was pumping gas, and punched Conkle in the face. The assault
continued as the two of them fell to the ground. Appellant admitted to the arresting officer
Case No. 24 CO 0005–3–
that he assaulted Conkle. Appellant later explained that Conkle had borrowed $200 from
him years earlier and never paid him back, and that was why he assaulted Conkle.
{¶3} Appellant was arraigned on January 12, 2024. He signed a written waiver
of the right to counsel form, which was filed the same day. He also signed a "waiver of
rights upon plea" form that included his waiver of the right to be represented by counsel.
The court informed Appellant at arraignment that he had the right to an appointed attorney
if he financially qualified for one. The court also explained the rights Appellant would be
waiving if he pleaded guilty or no contest to the charges, and several other constitutional
and non-constitutional rights. The court fully explained to him the meaning and effect of
pleading guilty or no contest. (1/12/24 Tr., p. 6-7). The court asked Appellant how he
wished to plead. Appellant: "What is going to be the way to get it done as [ ] soon as
possible to get rid of this?" (1/12/24 Tr., p. 12.) The court explained to Appellant the
procedure that would occur if he pleaded guilty. Appellant then stated he was entering a
no contest plea. The court again explained that Appellant would be giving up his right to
consult with an attorney, the right of presumed innocence, the right to a jury trial, the right
to present a defense, to right to confront witnesses, and the right to remain silent. When
the court asked Appellant if he intended to give up all these rights. Appellant answered:
"Okay. Yes." (1/12/24 Supplemental Tr., p. 14.)
{¶4} The court made a finding of guilt following Appellant's no contest plea and
set the sentencing hearing for January 18, 2024. Sentencing was continued to February
1, 2024. The court sentenced Appellant to 180 days in jail, with 30 days suspended, and
a $250 fine.
Case No. 24 CO 0005–4–
{¶5} On February 2, 2024, Appellant retained counsel and filed a motion for stay
of sentence. A hearing was held on February 12, 2024. At the hearing, Appellant for the
first time made an oral motion to withdraw his plea. The court decided to hear the motion
immediately. The prosecutor objected because no written motion had been filed and no
time was being offered to the state to brief the arguments that might be raised. The court
nevertheless proceeded to hear the motion. Appellant offered no evidence other than his
own testimony. He testified that he suffered from epileptic seizures. The seizures began
when he was 21 or 22 years old, and he was presently 42 years old. He claimed that
when he has a seizure he becomes confused, very tired, sweaty, lethargic, and unable to
understand what is going on around him. His counsel asked him if he had a seizure on
the day of the plea hearing or the day before. Appellant stated he could not recall whether
he had a seizure at that time, because he has memory lapses when he has seizures. He
was asked again whether he had a seizure before he saw the judge at arraignment, and
he could not recall.
{¶6} Appellant testified that he has a device implanted in his chest that stimulates
the nerves in his brain every three minutes. He takes four drugs to regulate seizures. He
testified that he gets angry, confused, and tired when he has seizures.
{¶7} Appellant testified that he thought he was going to have a public defender
appointed because, in the past, "I have always gotten one." (2/12/24 Tr., p. 9.)
Appellant's counsel also noted that Appellant has a prior criminal record. The docket of
the Columbiana County Municipal Court reflects that Appellant does have an extensive
criminal record.
Case No. 24 CO 0005–5–
{¶8} He testified that he did not understand the rights he waived when he entered
his plea because "I have had comprehension problems since school." (2/12/24 Tr., p. 9.)
{¶9} The court took the motion under advisement and allowed the parties to
submit briefs. The state filed its brief on February 14, 2024. Appellant did not respond in
any way or submit further evidence in support of the oral motion to withdraw his plea.
{¶10} The court overruled the motion to withdraw the plea by judgment entry filed
on February 14, 2024. Appellant appealed the February 14, 2024 judgment entry on
February 28, 2024. We note that Appellant has not appealed the February 1, 2024
judgment of conviction and sentence.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
WITHDRAW HIS NO CONTEST PLEA.
{¶11} Appellant contends that his plea was not made voluntarily, knowingly, or
intelligently. Appellant is aware that the oral motion to withdraw his plea was made after
sentencing, and that Crim.R. 32.1 only allows a postsentence plea to be withdrawn to
correct manifest injustice. Appellant argues that he suffers from epileptic seizures, that
he may have been impaired by those seizures at the time he entered his no contest plea,
and that his seizure disorder interfered with his ability to waive his right to counsel. For
these reasons, Appellant believes that the court should have allowed him to withdraw his
post-sentencing no contest plea.
{¶12} Appellee responds that the trial judge fully informed Appellant of the effect
of a no contest plea and the meaning of all the rights he was waiving by pleading no
Case No. 24 CO 0005–6–
contest. The court informed Appellant of the nature of the charge against him and the
potential penalties. Appellant specifically told the court that he desired to waive his right
to counsel and he signed two written waivers that included the waiver of his right to the
assistance of counsel. Appellee argues that at no time did Appellant indicate he wanted
to be represented by counsel, and that he expressed only a desire to complete the
proceedings as quickly as possible. Appellee points out the record does not support that
Appellant was impaired in any way when he entered his no contest plea or when he
waived the right to counsel. For these reasons, Appellee concludes there was no
manifest injustice in the court's denial of the postsentence motion to withdraw the plea.
Standard of Review
{¶13} "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."
Crim.R. 32.1. The defendant must show withdrawal is necessary to correct manifest
injustice. State v. Stumpf, 32 Ohio St.3d 95, 104 (1987). "[A] defendant seeking to
withdraw a plea of guilty after sentence has the burden of establishing the existence of
manifest injustice." State v. Smith, 49 Ohio St.2d 261, 264 (1977). A post-sentence plea
withdrawal motion is warranted "only in extraordinary cases." Id.{¶14} An appellate court reviews the disposition of a motion to withdraw a guilty
plea for an abuse of discretion. State v. Carabello, 17 Ohio St.3d 66, 67 (1985). "Abuse
of discretion means an error in judgment involving a decision that is unreasonable based
upon the record; that the appellate court merely may have reached a different result is
not enough." State v. Dixon, 2013-Ohio-2951, ¶ 21 (7th Dist.).
Case No. 24 CO 0005–7–
{¶15} Appellant sets forth two main reasons why he thinks his motion to withdraw
his plea should have been granted. The first is that he did not validly waive his right to
counsel. However, this record shows that he waived his right to counsel in writing twice,
and again, orally, at arraignment. Nevertheless, Appellant contends that the waivers in
the record were an insufficient basis on which to find valid waiver because he suffers from
epileptic seizures and because the court did not tell him of the dangers of proceeding pro
se.
{¶16} Pursuant to Crim.R. 11(E), which deals with pleas in petty offense cases,
the court may accept a no contest plea only after explaining to the defendant the effect of
a no contest plea. Crim.R. 11(E) also states that the waiver of counsel rules in Crim.R.
44(B) and (C) apply to petty offense cases. The rule on which Appellant relies is Crim.R.
44(B), which provides:
Where a defendant charged with a petty offense is unable to obtain
counsel, the court may assign counsel to represent the defendant. When a
defendant charged with a petty offense is unable to obtain counsel, no
sentence of confinement may be imposed upon the defendant, unless after
being fully advised by the court, the defendant knowingly, intelligently, and
voluntarily waives assignment of counsel.
{¶17} Both parties agree that a timely request to waive counsel and self-represent
must be granted "when [a defendant] voluntarily, and knowingly and intelligently elects to
do so." State v. Gibson, 45 Ohio St.2d 366 (1976), paragraph one of the syllabus. "[T]rial
courts may constitutionally deny a defendant his right to self-representation when there
Case No. 24 CO 0005–8–
are lingering doubts concerning the defendant's competency to represent himself." State
v. Godley, 2018-Ohio-4253, ¶ 15 (3rd Dist.). There are no such doubts to be gleaned
from the record in this case. Although Appellant mentioned at arraignment that he had
problems with anxiety and stress that leads to seizures, there was absolutely no indication
that he was suffering from any such issue when he waived his right to counsel and entered
his no contest plea. He was so lucid that he made a special point to correct the record
regarding the address where the crime occurred: "I personally lived on both streets . . .
I'm very aware of the names of the streets of my town." (1/12/24 Tr., p. 12.) When the
judge asked him why the crime occurred, he told the judge that he has problems with his
temper and is involved in counseling. Appellant engaged in intelligent conversation with
the judge throughout the hearing. There is nothing in the record of the arraignment that
reveals any impairment, or that undermines the validity of the no contest plea or his waiver
of counsel.
{¶18} Appellant relies primarily on his testimony from the hearing on his motion to
withdraw to support that he was suffering from the effect of either epilepsy or epilepsy
medication when he entered his plea. His argument at the motion hearing was that the
judge could have asked about, and discovered at arraignment, the fact that Appellant had
been suffering from seizures for 20 years, that he often lost his memory and became
confused, was prescribed medication, and that he had a nerve stimulator implanted in his
chest because of his condition that shocked his brain every three minutes. Appellant
believes the court had a duty to inquire into all of these matters at arraignment simply
because Appellant mentioned the words stress, anxiety, and seizures.
Case No. 24 CO 0005–9–
{¶19} A trial court must be convinced that a no contest plea is made voluntarily,
knowingly, and intelligently. There is no magic formula that can be used to make this
determination. Appellant gave no indication at arraignment that he was suffering from
any medical conditions or drugs that would prevent him from entering a valid, knowing no
contest plea. At the hearing on his motion to withdraw, Appellant could not recall whether
he was having a seizure the day he entered his plea. He testified that he gets confused,
angry, and tired when he has a seizure. The record of plea does not support that he
seemed confused, angry, or tired when he entered his plea. He testified that he becomes
sweaty, lethargic, and unable to understand what is going on around him when he has a
seizure. Again, there is no indication any of this was present at the change of plea
hearing. He claimed to have memory lapses when he has seizures, and yet, his memory
seemed to be crystal clear at the change of plea hearing and he asked and answered
questions cogently. Because the record does not support there was any indication that
Appellant was suffering from any condition that prevented him from properly entering his
no contest plea, there cannot be manifest injustice in refusing to allow him to withdraw
the plea.
{¶20} Appellant contends that there were enough indications regarding the
possibility that he was impaired or suffering from a disability at the January 12, 2024
arraignment that the court should have further inquired into the matter, or at least
continued the proceeding. Appellant cites to a moment in the hearing when he claims the
court cut him off just as he was about to explain the nature of his seizures. Appellant
said: "How long would it take for sentencing? I'm having problems with anxiety and stress
due to this leads to seizures. I --". (1/12/24 Tr., p. 13.) The court then answered
Case No. 24 CO 0005– 10 –
Appellant's question and said: "Your case is going to be set -- if you want to plead guilty,
your case is going to be set sentencing hearing." (1/12/24 Supplemental Tr., p. 13.) The
court did not stop Appellant from finishing his thought, but simply answered the question
Appellant asked. Based on Appellant's statement, taken at face value, he indicated that
the matter was creating anxiety and stress that could lead to seizures, and he was looking
for the quickest way possible to resolve the case. There was no mention of epilepsy or
any other medical condition that would require further inquiry at that time. Appellant did
not mention having had a seizure recently, or that he was taking medication for seizures,
or that he has a medical device implanted in his chest that was regulating seizures. The
fact that he was suffering from anxiety and stress would be expected from every
defendant charged with a crime and brought before the court, and would not, alone,
trigger a further investigation.
{¶21} Appellant also notes that he told the court he was disabled and that the
court made no further inquiry about the nature of the disability. The mention of the word
"disabled" occurred at the very end of the arraignment hearing, after Appellant had
already pleaded no contest and after the court's instructions as to sentencing. The court
told Appellant he would be sentenced on January 18, 2024, that a $2,500 bond would be
set, that he could post the bond and if so, that he must voluntarily appear in court.
(1/12/24 Tr., p. 15.) Appellant said: "it's going to be impossible to post bond being I'm
disabled." (1/12/24 Tr., p. 15.) The judge told him that he would remain in custody until
the bond was posted, and ended the hearing.
{¶22} Appellant's epilepsy and disability were raised at sentencing, however,
Appellant did not mention these issues in an attempt to challenge his no contest plea.
Case No. 24 CO 0005– 11 –
Instead, they were discussed to explain why he committed the assault, as he sought to
mitigate his sentence. He explained that the victim borrowed money from him many years
ago, and Appellant happened to encounter him on January 11, 2024. Appellant claimed
that his epilepsy makes him lose control of his emotions and he cannot control himself.
He felt that the county was not doing enough to help him with his problems, and he
believed this was a factor in committing the crime. Apparently, the court believed this
was nothing more than an excuse, intended to shift the blame, rather than Appellant
showing remorse for the crime.
{¶23} It is clear from the record that Appellant did not offer any evidence that he
was impaired by any condition, medical or otherwise, on the day he entered his plea. At
the hearing on the motion to withdraw, Appellant testified that his seizures or epilepsy
(which was not established by any medical evidence) caused him to be emotional or out
of control, and yet this is not how Appellant presented at arraignment. He appeared
completely in control of his emotions and thought processes, and he made a special point
of correcting the judge regarding the exact location of the crime. Appellant was asked
more than once at the motion to withdraw hearing if he was under the influence of a
seizure at arraignment, or had suffered one the day before, and he could not recall. At
oral argument, Appellant's counsel urged several times, that there were "breadcrumbs"
in the record that should have triggered a further inquiry by the court into Appellant's
condition. And yet, when given a chance to substantiate those "breadcrumbs," Appellant
provided no evidence to corroborate his testimony. He did not file a memorandum in
support of the oral motion to withdraw his plea, even though he was given the opportunity
to do so by the court. He did not file any medical records, reports, tests, conclusions, or
Case No. 24 CO 0005– 12 –
evidence that he was actually taking prescription drugs for any illness or condition. His
testimony about his condition is equivocal at best, and does not provide any reason for
the trial court to have questioned his no contest plea.
{¶24} Appellant also argues that he was not told of the dangers of entering a no
contest plea without the assistance of counsel. Although Crim.R. 44(B) does not
specifically require the court to explain the dangers of acting pro se in a criminal case,
Appellant contends that "[w]hen a trial court fails to advise a defendant on the record of
the inherent dangers of proceeding pro se, waiver of the right to counsel cannot be
inferred." State v. St. Thomas, 2024-Ohio-2568, ¶ 24 (7th Dist.). There is no need to
infer a waiver in this case, though, because the waiver is explicit. Appellant waived the
right to the assistance of counsel twice in writing and also orally at arraignment.
{¶25} Regardless, the court did explain the difficulties of acting pro se. The judge
told Appellant that the court could not give him legal advice, but could only explain the
meaning of a no contest plea and what the next stage of the proceeding would be. The
court explained that there would be no trial if he pleaded no contest and that the next step
would be sentencing. The court explained more than once that if Appellant wanted to
immediately plead no contest, he would do so without being advised by an attorney. The
court explained that if he entered a plea of no contest at arraignment, he would be giving
up the right to trial, to present a defense, to call witnesses, to have an attorney to assist
him, and many other constitutional rights. The court then asked again: "Is that what you
want to do?" (1/12/24 Tr., p. 4.) Appellant answered "Yeah." (1/12/24 Tr., p. 4.)
{¶26} The issue under review is whether a manifest injustice occurred in denying
Appellant's motion to withdraw his no contest plea. Since the record reflects that the plea
Case No. 24 CO 0005– 13 –
was made voluntarily, knowingly, and intelligently, and that there was a valid waiver of
the right to counsel, there was no manifest injustice in denying the motion to withdraw.
As stated by Appellee, the record supports the conclusion that Appellant simply had a
change of heart about pleading no contest and tried to justify it after the fact. A mere
change of heart is an insufficient basis on which to withdraw a no contest plea. State v.
Kinney, 2023-Ohio-2549, ¶ 31 (7th Dist.).
{¶27} Appellant's first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT DID NOT SUBSTANTIALLY COMPLY WITH THE
PROPER ARRAIGNMENT PROCEDURE FOR [MISDEMEANORS].
{¶28} This assignment of error is a continuation of his earlier argument that his
waiver of his right to counsel was invalid. Under this assignment of error, Appellant
argues that a trial court is required to tell a defendant at arraignment that he has a right
to retain counsel, a right to a reasonable continuance to secure counsel, and the right to
have counsel assigned without cost if he cannot afford to retain counsel. These rights in
petty offense cases are contained in Crim.R. 5(A)(2), 10(C), and 44(B). Appellant
acknowledges that the court is not required to recite any specific words from the Rules of
Criminal Procedure, and that waiver of the right to counsel can only be upheld if the court
substantially complied with the directives regarding the notices regarding the right to
counsel. State v. Koons, 2007-Ohio-4985, ¶ 14 (7th Dist.). Appellant is also aware that
the only issue under review is whether there was a manifest injustice in the denial of his
motion to withdraw the no contest plea.
Case No. 24 CO 0005– 14 –
{¶29} Appellant’s specific argument is that the arraignment process insufficiently
apprised him of his rights regarding the assistance of counsel. Crim.R. 10 deals with
arraignments. Crim.R. 10(C) states:
When a defendant not represented by counsel is brought before a
court and called upon to plead, the judge or magistrate shall cause the
defendant to be informed and shall determine that the defendant
understands all of the following:
(1) The defendant has a right to retain counsel even if the defendant
intends to plead guilty, and has a right to a reasonable continuance in the
proceedings to secure counsel.
(2) The defendant has a right to counsel, and the right to a
reasonable continuance in the proceeding to secure counsel, and, pursuant
to Crim. R. 44, the right to have counsel assigned without cost if the
defendant is unable to employ counsel.
{¶30} Appellant argues that the trial judge did not inform him of the right to be
assigned counsel without cost if he could not afford retained counsel, and that he had a
right to a reasonable continuance to obtain counsel.
{¶31} During arraignment the judge stated: "[You] have the right to have an
attorney appointed to represent you if you qualify financially for that appointment."
(1/12/24 Tr., p. 2.) This substantially complies with the notice requirement in Crim.R.
10(C)(2). The court also stated: "If you need time to speak to a lawyer or get some legal
Case No. 24 CO 0005– 15 –
advice before you proceed any further -- in that event you should plead not guilty."
(1/12/24 Tr., p. 5.) The court then explained that if a not guilty plea was entered the case
would be continued for a future hearing called a pretrial. These two statements together
constitute substantial compliance with the notice requirement of Crim.R. 10(C)(1).
{¶32} The written waiver of the right to counsel, filed on January 12, 2024, stated
that Appellant understood he had a right to counsel, and that if he could not afford to pay
the cost of hiring counsel, counsel would be appointed without charge. He knowingly,
intelligently, and voluntarily waived his right to employ an attorney or have one appointed
to represent him. The written waiver of rights upon plea, also signed by Appellant and
filed on January 12, 2024, contained another waiver of his right to have retained or
appointed counsel. These two written waivers fully support the conclusion that the court
complied with Crim.R. 10(C).
{¶33} We also note Appellant was no stranger to the criminal litigation process,
having an extensive prior criminal record in the same court. He, himself, testified that he
was aware an attorney could have been appointed because that is what had happened
in the past. Appellant made it absolutely clear to the court that he did not want an attorney
and that his only concern was to expedite this matter so that the case would be resolved
as quickly as possible.
{¶34} Because the court substantially complied with the notice requirements of
Crim.R. 10(C), there can be no manifest injustice in denying Appellant's post-sentence
motion to withdraw his no contest plea. Therefore, Appellant's second assignment of
error is overruled.
Case No. 24 CO 0005– 16 –
Conclusion
{¶35} Appellant argues the trial court should not have accepted his no contest
plea and should have sustained his motion to withdraw that plea because he may have
been suffering from the effects of a seizure disorder during arraignment, and because he
did not properly waive the right to counsel. He contends that under Crim.R. 32.1, the
denial of his motion to withdraw his no contest plea created a manifest injustice.
Appellant's arguments are not persuasive. The trial judge advised Appellant of his
constitutional rights, including the right to be represented by counsel, and Appellant
waived those rights both orally and in writing. The record does not support any inference
that Appellant was suffering from epilepsy or any other ailment when he pleaded no
contest. Appellant provided intelligent and thoughtful responses during arraignment when
he pleaded no contest, thus contradicting his argument on appeal. Appellant also
contends the court specifically failed to give him two notices regarding the right to counsel
at arraignment required by Crim.R. 10(C), but the record shows that the court did
substantially comply with those notices. As there was no manifest injustice in this case,
the judgment of the trial court is affirmed.
Robb, P.J. concurs.
Hanni, J. dissents; see dissenting opinion.
Case No. 24 CO 0005– 17 –
Hanni, J., dissenting.
{¶36} With regard and respect to my colleagues, I must dissent from the majority
opinion. I would find that once Appellant informed the trial court of his medical issues and
potential disability at his arraignment, the court should have inquired further of Appellant
before accepting his uncounseled no contest plea. At his arraignment, before entering
his plea, Appellant told the court: “I'm having problems with anxiety and stress due to this
which leads to seizures. I - -”. (Arraignment Tr. 3). The court then interrupted Appellant,
telling him that if he pleaded guilty, his case would be set for sentencing. (Arraignment
Tr. 3). The court did not allow Appellant to finish his statement regarding his stress and
anxiety leading to seizures. Appellant then stated “No contest” without any further inquiry
by the court. (Arraignment Tr. 4). Given the facts that Appellant was proceeding without
counsel and was attempting to bring his medical condition/disability to the trial court’s
attention, the court should have inquired further of Appellant before accepting his no
contest plea.
{¶37} In addition, at the hearing to withdraw the plea, the trial court was informed
by defense counsel of Appellant’s condition regarding his disability and inability to clearly,
knowingly, and intelligently make a decision regarding the plea.
{¶38} Thus, I would find the trial court should have granted Appellant’s motion to
withdraw his plea.
Case No. 24 CO 0005[Cite as State v. McBride, 2024-Ohio-4870.]
For the reasons stated in the Opinion rendered herein, Appellant’s assignments of
error are overruled and it is the final judgment and order of this Court that the judgment
of the Municipal Court of Columbiana County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
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.