State v. Berry ( 2023 )


Menu:
  • [Cite as State v. Berry, 
    2023-Ohio-605
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    STATE OF OHIO,                                   :
    Plaintiff-Appellee,             :
    No. 111453
    v.                              :
    LAWRENCE BERRY,                                  :
    Defendant-Appellant.            :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: AFFIRMED
    RELEASED AND JOURNALIZED: March 2, 2023
    Criminal Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CR-19-638262-A
    Appearances:
    Michael C. O’Malley, Cuyahoga County Prosecuting
    Attorney, and Yasmine Hasan, Assistant Prosecuting
    Attorney, for appellee.
    Cullen Sweeney, Cuyahoga County Public Defender, and
    Jonathan Sidney, Assistant Public Defender, for
    appellant.
    MARY J. BOYLE, J.:
    Defendant-appellant, Lawrence Berry (“Berry”), appeals from his
    guilty plea, contending that under the July 1, 1998 amendment of Crim.R. 11, a
    defendant must be advised of the aggregate, maximum penalty they may receive as
    a result of a plea, rather than the maximum penalty the defendant may receive for
    each charge of the plea. For the reasons set forth below, we affirm.
    I. Facts and Procedural History
    In April 2019, Berry was charged in an eight-count indictment.
    Counts 1-2 charged him with aggravated vehicular homicide. Counts 3-6 charged
    him with aggravated vehicular assault.1 Counts 7-8 charged him with operating a
    vehicle under the influence of alcohol.2 The charges arise from a March 2019 car
    accident involving Berry, his girlfriend at the time, Janetta Foster (“Foster”), and
    Foster’s two minor children at the time, G.P. and M.C. Berry was involved in an
    incident with another driver. Berry struck the other driver’s car, causing Berry to
    lose control of his own car. Berry crashed through a fence and wrapped around a
    utility pole. Berry and Foster were ejected from the car and Foster died shortly
    thereafter. G.P. sustained a broken ankle and M.C. sustained a fracture of his femur,
    serious back injuries, and memory problems. Berry was driving while under the
    influence of alcohol and a suspended license. (Oct. 29, 2019, tr. 412-413).
    The matter proceeded to a jury trial on September 18, 2019. On the
    second day of trial, Berry entered into a guilty plea. Berry pled guilty to one count
    of aggravated vehicular homicide (Count 1), one count of aggravated vehicular
    1  Each of Counts 1-6 carried a furthermore clause that the offender was driving
    under a suspension.
    2 Each of Counts 7-8 carried a furthermore clause that Berry has been previously
    convicted or pled guilty to operating a vehicle under the influence of alcohol.
    assault (Count 3), as amended to include both G.P. and M.C., and one count of
    operating a vehicle under the influence of alcohol (Count 7). Counts 2, 4, 5, 6, and
    8 were nolled. The court referred Berry to the county probation department for a
    presentence investigation and report.
    At the sentencing hearing in October 2019, the trial court sentenced
    Berry to ten years in prison on Count 1 (aggravated vehicular homicide), seven years
    in prison on Count 3 (aggravated vehicular assault), and 180 days on Count 7
    (operating a vehicle under the influence of alcohol). The trial court ordered that
    Counts 1 and 3 be served consecutively and ordered that Berry pay court costs and a
    fine in the sum of $875. The court ordered a lifetime suspension on Berry’s driver’s
    license on Count 1, a ten-year suspension on Count 3, and a three-year suspension
    on Count 7. The court also ordered six points to be assessed to Berry’s driver’s
    license.
    In April 2022, Berry filed a pro se motion for leave to file a delayed
    appeal and a pro se motion for appointment of counsel. This court granted Berry’s
    motion for leave and appointed the Cuyahoga County Public Defender to represent
    Berry on appeal.
    Berry now appeals, raising the following assignment of error for
    review:
    Assignment of Error: Whether the trial court failed to comply with
    Crim.R. 11 by failing to determine that [Berry] understood the
    maximum penalty involved in the plea agreement prior to accepting his
    guilty plea.
    II. Law and Analysis
    Berry argues that the trial court failed to comply with Crim.R. 11 when
    it did not advise him of the maximum, aggregate prison sentence that could be
    imposed in the event the court ordered his individual sentences to be served
    consecutively. He contends that since the 1998 amendment, appellate courts across
    the state have been applying an obsolete version of Crim.R. 11 because the courts
    continue to rely on State v. Johnson, 
    40 Ohio St.3d 130
    , 
    532 N.E.2d 1295
     (1988),
    which predates the amendment.
    A. State v. Johnson
    In Johnson, the Ohio Supreme Court analyzed the pre-1998
    amendment version of Crim.R.11, which provided that before accepting a guilty plea
    in a felony case, the trial court must “‘[d]etermin[e] that [the defendant] is making
    the plea voluntarily, with understanding of the nature of the charge and of the
    maximum penalty involved, and, if applicable, that [the defendant] is not eligible for
    probation.’” (Emphasis added.) Id. at 132-133, quoting Crim.R. 11(C)(2)(a). The
    Johnson Court found that the “[f]ailure to inform a defendant who pleads guilty to
    more than one offense that the court may order him to serve any sentences imposed
    consecutively, rather than concurrently, is not a violation of Crim. R. 11(C)(2), and
    does not render the plea involuntary.” Id. at syllabus.
    The Johnson Court reasoned that neither the United States
    Constitution nor the Ohio Constitution requires a trial court to inform a defendant
    during his plea hearing of the maximum total of the sentences he faces or that the
    sentences can be imposed consecutively. Id. at 133. Regarding Crim.R. 11, the Court
    considered the text of the rule itself and stated:
    A review of [Crim. R. 11(C)] indicates that it requires the trial court to
    explain before it accepts “the plea,” “the nature of the charge and of the
    maximum penalty involved.” (Emphasis added.) Crim. R. 11(C)(2)(a).
    Upon its face the rule speaks in the singular. The term “the charge”
    indicates a single and individual criminal charge. So, too, does “the
    plea” refer to “a plea” which the court “shall not accept” until the
    dictates of the rule have been observed. Consequently, the term “the
    maximum penalty” which is required to be explained is also to be
    understood as referring to a single penalty. In the context of “the plea”
    to “the charge,” the reasonable interpretation of the text is that “the
    maximum penalty” is for the single crime for which “the plea” is
    offered. It would seem to be beyond a reasonable interpretation to
    suggest that the rule refers cumulatively to the total of all sentences
    received for all charges which a criminal defendant may answer in a
    single proceeding.
    Id. at 133. The Court concluded that because the trial court in Johnson explained to
    the defendant the individual maximum sentences possible, his guilty plea was
    proper. Id.
    B. The July 1998 Amendment to Crim.R. 11
    The language relied upon by the Johnson Court to justify its holding,
    however, has been slightly amended. As the Ohio Supreme Court stated in State v.
    Bishop, 
    156 Ohio St.3d 156
    , 
    2018-Ohio-5132
    , 
    124 N.E.3d 766
    , ¶ 15, “Crim.R.
    11(C)(2)(a) has been amended since Johnson so that a single plea can now apply to
    multiple charges, see 
    83 Ohio St.3d xciii
    , cix (effective July 1, 1998).” The relevant
    portion of Crim.R. 11 now provides that a trial court shall not accept a guilty plea in
    a felony case without first
    [d]etermining that the defendant is making the plea voluntarily, with
    understanding of the nature of the charges and of the maximum
    penalty involved, and, if applicable, that the defendant is not eligible
    for probation or for the imposition of community control sanctions at
    the sentencing hearing.
    (Emphasis added.) Crim.R. 11(C)(2)(a).
    C. Maximum Penalty and Crim.R. 11 post-Johnson and the July 1998
    Amendment
    Based on the analysis in Johnson, Berry contends that because the
    prior version of Crim.R. 11(C)(2)(a) governed singular pleas to singular charges, its
    reference to “the maximum penalty” necessarily referred to the singular penalty
    associated with a singular plea to a singular charge. Berry’s argument, however, is
    not new.
    In Bishop, the Ohio Supreme Court began its plurality analysis by
    noting that Crim.R. 11(C)(2)(a) was amended since Johnson was decided. Id. at ¶
    15. The Bishop Court, however, did not articulate whether, or to what extent, the
    amendment of the rule (from “charge” to “charges”) impacted its longstanding
    holding in Johnson. Instead, the Court distinguished Johnson based upon the fact
    that the defendant’s felony sentence and the 12-month sentence attributable to his
    postrelease control violation were intertwined and were required to be served
    consecutively under R.C. 2929.141(A)(1). Id. at ¶ 17. Because a prison sentence
    imposed for a postrelease control violation must be served consecutively to prison
    sentences for new felony offenses that gave rise to the violation, the court found that
    the phrase “maximum penalty involved” in Crim.R. 11(C)(2)(a) includes the
    postrelease control violation sentence. Id. Consequently, the Court found that the
    defendant must be notified of the fact that the sentences are required to be imposed
    consecutively at the time of the plea hearing on the new felony offense in order to
    satisfy Crim.R. 11(C)(2)(a). Id. at ¶ 21.
    Justice Kennedy’s dissenting opinion in Bishop discusses the effect of
    the amendment by noting that
    Crim.R. 11(C)(2)(a) has been amended to require the trial court to
    ensure that the accused understands the nature of the “charges” and
    the maximum penalty involved. However, we amended the rule in
    1998 — almost a decade after we decided Johnson — “in light of
    changes in terminology used in the criminal law of Ohio effective July
    1, 1996,” by Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136 (“S.B. 2”),
    and the staff comment to the amendment does not indicate that making
    the word “charge” plural was intended to be a substantive change. 
    83 Ohio St.3d xciii
    , cxi. We do not make significant revisions to our
    procedural rules cryptically, and we have never held that our holding
    in Johnson has been abrogated by the amended rule.
    Id. at ¶ 47.
    Justice Fischer’s dissent also addressed the effect of the amendment
    to Crim.R. 11, stating that
    [w]hile we did interpret a prior version of Crim.R. 11(C)(2)(a) in
    Johnson, the plain language of the rule still demonstrates that “Crim.R.
    11 applies only to the entry and acceptance of the plea,” Johnson at 134,
    and that “the reasonable interpretation of the text is that ‘the maximum
    penalty’ is for the single crime [now “crimes”] for which ‘the plea’ is
    offered” (emphasis added.), Id. at 133. In Johnson, * * * [t]he court
    reviewed the plain language of former Crim.R. 11(C)(2)(a) and
    determined that “the maximum penalty involved” means the penalty
    for the “crime” for which “the plea” was offered, not that “the maximum
    penalty involved” means any and all possible future consequences of
    the plea.
    A plea of guilty is a complete admission of the defendant’s guilt of the
    offense or offenses to which the plea is entered. Crim.R. 11(B)(1). * * *
    Thus, a guilty plea is entered to a charged offense, and “the maximum
    penalty involved” is the maximum penalty for that offense to which the
    defendant pleads guilty and not additional or collateral possible
    punishments that are an indirect consequence of the guilty plea.
    Id. at ¶ 73-74.
    Because the plurality in Bishop did not expressly overrule Johnson
    and for the reasons articulated in the dissents, we find that the change from “charge”
    to “charges” under the 1998 amendment to Crim.R. 11(C)(2)(a) did not disturb
    Johnson’s holding. As we noted in State v. Nave, 8th Dist. Cuyahoga No. 107032,
    
    2019-Ohio-1123
    , while the plurality in Bishop distinguished Johnson, it did not
    overrule Johnson when it had an opportunity to do so. Id. at ¶ 11.
    Our continued application of the Ohio Supreme Court’s holding in
    Johnson is consistent with prior decisions from this court as well as other Ohio
    appellate courts. In Nave, we acknowledged that
    [t]his court has followed Johnson on numerous occasions and
    concluded that Crim.R.11(C)(2)(a) does not require a trial court to
    advise a defendant of the potential for discretionary consecutive
    sentencing. State v. Vinson, 
    2016-Ohio-7604
    , 
    73 N.E.3d 1025
    , ¶ 24
    (8th Dist.), citing, among others, State v. Dansby-East, 2016-Ohio-
    202, 
    57 N.E.3d 450
    , ¶ 16-17 (8th Dist.), and State v. Dotson, 8th Dist.
    Cuyahoga No. 101911, 
    2015-Ohio-2392
    , ¶ 12. In State v. Norman, 8th
    Dist. Cuyahoga No. 91302, 
    2009-Ohio-4044
    , this court found that
    where a trial court is required to impose a sentence consecutively, the
    failure to advise the defendant of that fact constituted a failure to
    substantially explain the maximum penalty. Id. at ¶ 13. See also State
    v. Abernathy, 8th Dist. Cuyahoga No. 107123, 
    2018-Ohio-4414
    , ¶ 4.
    However, where the decision to impose consecutive sentences arises
    purely from the trial court’s discretion under R.C. 2929.14(C)(4), such
    an advisement is not required. See Johnson at the syllabus; Vinson at
    ¶ 24-26.
    Id. at ¶ 10. See also State v. Cobbledick, 8th Dist. Cuyahoga No. 108959, 2020-Ohio-
    4744, ¶ 6, discretionary appeal not allowed, 
    164 Ohio St.3d 1447
    , 
    2021-Ohio-3336
    ,
    
    173 N.E.3d 1238
    , (“Under Ohio law, there is no requirement for the trial court to
    advise of the possibility that each individual sentence may be imposed consecutively,
    such that a plea can be considered as involuntary in the absence of such an
    advisement.”); State v. Poage, 8th Dist. Cuyahoga No. 110577, 
    2022-Ohio-467
    , ¶ 13
    (“[A] trial court is not required ‘“to advise a defendant of the cumulative total of all
    prison terms for all the offenses at the time of the guilty plea.’”” 
    Id.,
     quoting State
    v. Gooden, 8th Dist. Cuyahoga No. 109643, 
    2021-Ohio-1192
    , ¶ 20); State v. Novoa,
    7th Dist. Mahoning No. 19 MA 0073, 
    2021-Ohio-3585
    , ¶ 22 (recognizing that “many
    appellate jurisdictions, including this Court, have continued to follow Johnson”);
    State v. Willard, 
    2021-Ohio-2552
    , 
    175 N.E.3d 989
    , ¶ 69 (11th Dist.) (“This court and
    others have recognized the court’s distinction in Bishop and have continued to apply
    Johnson.”); State v. Gabel, 6th Dist. Sandusky Nos. S-14-038, S-14-042, S-14-043,
    and S-14-045, 
    2015-Ohio-2803
    , ¶ 13-14, citing State v. Millhoan, 6th Dist. Lucas
    Nos. L-10-1328, L-10-1329, 
    2011-Ohio-4741
    ; State v. Mack, 1st Dist. Hamilton No.
    C-140054, 
    2015-Ohio-1430
    , ¶ 25; State v. Roberts, 9th Dist. Medina No. 19CA0004-
    M, 
    2019-Ohio-4393
    , ¶ 6; State v. Ellis, 5th Dist. Coshocton Nos. 2019CA0014,
    2019CA0015, 
    2020-Ohio-1130
    , ¶ 10; State v. Whitman, 
    2021-Ohio-4510
    , 
    182 N.E.3d 506
     (6th Dist.) (Discussing the effects of Johnson, Bishop, and the 1998
    amendment to Crim.R. 11, and finding that “the change from ‘charge’ to ‘charges’
    under the 1998 amendment to Crim.R. 11(C)(2)(a) did not disturb the holding in
    Johnson.” Id. at ¶ 28.). Continuing the application of prior decisions from our court,
    we now address Berry’s plea.
    D. The Colloquy
    In the instant case, Berry entered into a guilty plea following two days
    of trial. With regard to the maximum penalty, the trial court advised Berry:
    [COURT]: Do you understand the offenses to which you are pleading
    guilty?
    Sir, you would be pleading guilty to aggravated vehicular homicide.
    That’s a felony of the first degree. It is possibly punishable from three
    to eleven years in one-year increments. It carries with it a maximum
    discretionary fine of $20,000.          Post-release control would be
    mandatory and it would be for a period of five years. There would be
    no reduction.
    Do you understand that?
    [BERRY]: Yes. Yes.
    [COURT]: There is a presumption for prison. Do you understand?
    [BERRY]: Yes.
    [COURT]: Additionally, you would be pleading guilty to aggravated
    vehicular assault. That’s a felony of the second degree. It is possibly
    punishable from two to eight years in one-year increments. It carries
    with it a maximum discretionary fine of $15,000.
    Do you understand that?
    [BERRY]: Yes.
    [COURT]: And, lastly, sir, you will be pleading guilty to driving while
    under the influence. That’s a misdemeanor of the first degree. It is
    possibly punishable from 20 days in jail or ten days in jail, up to six
    months.
    Do you understand that?
    [BERRY]: Yes.
    [COURT]: There’s a possible discretionary fine of $525 to $1,625.
    Do you understand that?
    [BERRY]: Yes.
    [COURT]: Alcohol, drug assessment, and treatment is mandatory.
    Do you understand?
    [BERRY]: Yes.
    [COURT]: There’s a driver’s license suspension from one to seven
    years.
    Do you understand that?
    [BERRY]: Yes.
    [COURT]: [T]here are some other class suspensions I need to review
    with you which would make this inoperable.
    Do you understand?
    [BERRY]: Yes.
    [COURT]: Because on the aggravated vehicular homicide, you would
    have a Class 1 driver’s license suspension.
    Do you understand?
    [BERRY]: Yes.
    [COURT]: And on the aggravated vehicular assault, you would have a
    Class 3 driver’s license suspension.
    Do you understand that?
    [BERRY]: Yes.
    [COURT]: Okay. A Class 1 driver’s license suspension * * * would be a
    suspension of your driver’s license for the rest of your life; and a Class
    3, which would be applicable to the aggravated vehicular assault, would
    be from two to ten years.
    Do you understand?
    [BERRY]: Yes.
    [COURT]: And then, of course, you would have the other one, the DWI,
    which would have been from one to seven. * * * [A]gain, that doesn’t
    really play in it, but you need to know what your rights are with
    reference to it, okay?
    [BERRY]: Uh-huh.
    [COURT]: Okay. Sir, upon your release from prison, the Ohio Parole
    Board would impose a period of post-release control of five years.
    There would be no reduction. They may impose conditions and
    sanctions. Should you decide to commit an act that causes you to be
    found in violation of your post-release control, you can be remanded to
    an Ohio penal institution for an additional 50 percent of your original
    sentence.
    Do you understand?
    [BERRY]: Yes.
    [COURT]: All of these cases do carry with it a disability, which would
    prohibit you from being able to obtain a valid carry conceal weapon
    certification in the future.
    Do you understand that?
    [BERRY]: Yes.
    ***
    [COURT]: And just quickly, I’m going to go over what’s been said on
    the record, okay? You tell me if there’s anything different.
    The government has agreed that you will plead guilty to aggravated
    vehicular homicide. That’s a felony of the first degree. They’ve agreed
    that you will plead guilty to aggravated vehicular assault. That’s a
    felony of the second degree. They’ve agreed that you will plead guilty
    to driving while under the influence. That’s a misdemeanor of the first
    degree. The aggravated vehicular homicide is subject to a license
    suspension, a Class 1 license suspension, which would be for life. The
    Class 3 aggravated vehicular assault case is a suspension of two to ten,
    and the DWI is one to seven.
    Now, is there anything else?
    [BERRY]: No.
    [COURT]: How do you1 plead, sir, guilty or not guilty?
    [BERRY]: Guilty.
    [COURT]: And are you, in fact, guilty, sir?
    [BERRY]: Yes.
    [COURT]: Let the record reflect the Court finds [Berry] has knowingly
    and voluntarily entered his plea with a full understanding of his
    constitutional and trial rights.
    Counselors, are you satisfied that Rule 11 has been complied with?
    [STATE]: Yes, Your Honor.
    [DEFENSE COUNSEL]: Yes, Your Honor.
    [COURT]: Therefore, sir, the Court will accept your plea of guilt.
    (Sept. 20, 2019, tr. 401-407.)
    “The underlying purpose of Crim.R. 11 is to convey certain
    information to a defendant so that they can make a voluntary and intelligent
    decision regarding whether to plead guilty.” Poage, 8th Dist. Cuyahoga No. 110577,
    
    2022-Ohio-467
     at ¶ 9, citing State v. Ballard, 
    66 Ohio St.2d 473
    , 479-480, 
    423 N.E.2d 115
     (1981). When the trial court fails to explain the constitutional rights
    outlined in Crim.R. 11 that a defendant waives by pleading guilty, “we presume that
    the plea was entered involuntarily and unknowingly, and no showing of prejudice is
    required.” State v. Dangler, 
    162 Ohio St.3d 1
    , 
    2020-Ohio-2765
    , 
    164 N.E.3d 286
    , ¶
    14, citing State v. Clark, 
    119 Ohio St. 3d 239
    , 
    2008-Ohio-3748
    , 
    893 N.E.2d 462
    , ¶
    31, and State v. Veney, 
    120 Ohio St.3d 176
    , 
    2008-Ohio-5200
    , 
    897 N.E.2d 62
    ,
    syllabus. “But when a trial court fails to fully cover other ‘nonconstitutional’ aspects
    of the plea colloquy, [such as the maximum penalty,] a defendant must affirmatively
    show prejudice to invalidate a plea.” 
    Id.,
     citing Veney at ¶ 17.
    The Dangler Court clarified that when a defendant attempts to
    invalidate his plea, reviewing courts should engage in the following inquiry: “(1) has
    the trial court complied with the relevant provision of the rule? (2) if the court has
    not complied fully with the rule, is the purported failure of a type that excuses a
    defendant from the burden of demonstrating prejudice? and (3) if a showing of
    prejudice is required, has the defendant met that burden?” Id. at ¶ 17.
    Based on the plea colloquy above, we find that trial court complied
    with Crim.R. 11(C) and advised Berry of the maximum penalty involved. The trial
    court clearly advised Berry of the maximum potential sentence for each count,
    including the potential fines and license suspensions, as well as the weapons
    forfeiture. The court then repeated the plea agreement and asked both the state and
    defense counsel if they were satisfied with the plea. “While it may be a best practice
    for a court to inform a defendant of the total of all potential sentences [the
    defendant] may receive, it is not a requirement for a court to comply with Crim.R.
    11(C).” Poage at ¶ 13. The trial court is not required “‘to advise a defendant of the
    cumulative total of all prison terms for all the offenses at the time of the guilty plea.’”
    Gooden, 8th Dist. Cuyahoga at ¶ 20, quoting State v. Wojtowicz, 8th Dist. Cuyahoga
    No. 104384, 
    2017-Ohio-1359
    , ¶ 12, citing State v. Vinson, 
    2016-Ohio-7604
    , 
    73 N.E.3d 1025
    , ¶ 25 (8th Dist.). Because the trial court clearly informed Berry of the
    maximum potential penalties he faced for each offense to which he plead guilty, the
    court complied with Crim.R. 11.
    Having answered the first question in the affirmative, we then look to
    the third question, and Berry can prevail only by establishing that he would not have
    pled guilty but for the trial court’s failure to advise him of his aggregate, maximum
    sentence. There is nothing in the record indicating that Berry would not have pled
    guilty had the trial court informed him of the maximum aggregate of the sentences
    he faced. In addition, none of the offenses to which Berry pled guilty carry a
    mandatory, consecutive sentence. Consequently, the trial court was not required to
    inform Berry of the maximum, aggregate sentence. Accordingly, Berry has not
    established prejudice and he is not entitled to have his guilty plea vacated for a
    failure to comply with Crim.R. 11(C). Dangler, 
    162 Ohio St.3d 1
    , 
    2020-Ohio-2765
    ,
    
    164 N.E.3d 286
    , at ¶ 24.
    Therefore, the sole assignment of error is overruled.
    III. Conclusion
    The change from “charge” to “charges” under the 1998 amendment to
    Crim.R. 11(C)(2)(a) did not disturb the Ohio Supreme Court’s holding in Johnson.
    Our continued application of Johnson is consistent with prior decisions from this
    court as well as other Ohio appellate courts. Crim.R. 11(C)(2)(a) does not require a
    trial court to advise a defendant of the maximum, aggregate of all prison terms for
    all the offenses at the time of the guilty plea for discretionary, consecutive sentences.
    Here, because the trial court’s decision to impose consecutive sentences was
    discretionary, the trial court was not required to inform Berry of the aggregate,
    maximum penalty and the trial court’s failure to provide such information was not
    a violation of Crim.R. 11(C)(2)(a).
    Accordingly, judgment is affirmed.
    It is ordered that appellee recover from appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the
    common pleas court to carry this judgment into execution.          The defendant’s
    conviction having been affirmed, any bail pending is terminated. Case remanded to
    the trial court for execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27
    of the Rules of Appellate Procedure.
    _________________________
    MARY J. BOYLE, JUDGE
    LISA B. FORBES, P.J., and
    MICHAEL JOHN RYAN, J., CONCUR