State v. Mack

[Cite as State v. Mack, 2018-Ohio-5021.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
Case Nos. 17CA34
17CA35
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
ANTHONY D. MACK, :
Defendant-Appellant. :
APPEARANCES:
Katherine R. Ross-Kinzie, Assistant State Public Defender, Columbus, Ohio for
appellant.
David K.H. Silwani, Washington County Assistant Prosecuting Attorney, Marietta, Ohio
for appellee.
Harsha, J.
{¶1} After a bench trial the trial court found Anthony D. Mack guilty of trafficking
in drugs, possession of drugs, and having weapons while under disability. In a second
related case Mack pleaded guilty to two counts of failure to appear in exchange for the
state’s dismissal of a third, related failure to appear case. The trial court sentenced him
to an aggregate prison sentence of 3 ½ years.
{¶2} Mack argues that his conviction for drug possession and trafficking is
against the manifest weight of the evidence because the state relied entirely on the
testimony of a witness with a history of drug use and crime. However, the witness
testified that she saw Mack package and sell heroin on multiple occasions. Law
enforcement officials conducting surveillance testified about heavy foot traffic to and
from Mack’s residence. And Mack’s own statement during a police interview was that
Washington App. Nos. 17CA34 & 17CA35 2
he introduced heroin purchasers to heroin dealers, and that he traveled to Detroit and
Columbus to purchase heroin for his personal use -- though he denied selling heroin.
The fact-finder determines the weight and credibility of evidence and is free to choose
which side’s witnesses it believes. We have reviewed the entire record and
determined that the trial court has not clearly lost its way and created such a manifest
miscarriage of justice that we must reverse the conviction. We overrule Mack’s first
assignment of error.
{¶3} Next Mack contends that the trial court failed to merge allied offenses of
similar import and thus imposed more prison terms than authorized by law. The state
concedes this error. We find that the two counts for failure to appear arise out of a
single failure to appear. The trial court should have merged the two counts and
sentenced Mack on one. We sustain Mack’s second assignment of error.
{¶4} Last Mack contends that he received ineffective assistance of counsel
when his trial counsel failed to file a motion to waive court costs at sentencing. Even
assuming trial counsel’s performance was deficient, Mack cannot show that he was
prejudiced because under amended R.C. 2947.23(C) a motion for waiver of court costs
can be filed at any time. Thus, we overrule Mack’s third assignment of error.
{¶5} We remand for the limited purposes of resentencing on the merged counts
of failure to appear.
I. FACTS
{¶6} The Washington County Sheriff’s Office executed a search warrant at a
residence in the early morning hours and found Anthony Mack and Trista Bates
sleeping on a pull-out couch in the living room. Officers searched the home and found
Washington App. Nos. 17CA34 & 17CA35 3
a loaded handgun tucked into the couch next to where Mack had been sleeping. They
also discovered cigarette rolling papers and a plastic lid of which both contained
heroin.
{¶7} The state indicted Mack for having a weapon under disability in violation of
R.C. 2923.13(A)(3) a third degree felony, possession of drugs in violation of R.C.
2925.11(A) and (C)(6) a fifth degree felony, and trafficking in drugs (heroin) in violation
of R.C. 2925.03(A) and (C)(6) a fifth degree felony. When Mack failed to appear for his
arraignment, the state indicted him for failure to appear. Subsequently he appeared
and pleaded not guilty at an arraignment. After the court set a trial date for both cases
(drugs/weapon Case No. 15CR36 and failure to appear Case No. 16CR41) Mack again
failed to appear. The state then indicted Mack on two counts of failure to appear, one
count for each case (Case No. 16CR236).
{¶8} Mack waived his right to a jury trial in all three cases. His drugs and
weapon charges, Case No. 15CR36, proceeded as a bench trial. Mack stipulated that
the weapon found at the scene was operable and the powder found on the cigarette
papers and plastic lid was heroin. Law enforcement officials testified that prior to
executing the search warrant, they had maintained a 24-hour surveillance of the
property and witnessed a high volume of people going into the residence, staying a few
minutes, and then leaving. Officers believed that Mack was armed and requested a “no
knock” warrant.
{¶9} During the search officers found a gun tucked into the couch about four to
six inches from where Mack had been sleeping. They located a number of Mack’s
personal items next to the gun. During a subsequent videotaped police interview, Mack
Washington App. Nos. 17CA34 & 17CA35 4
told the officer that he had been living at the residence for several months prior to the
search. Mack told the officer that he does not sell drugs, rather he introduces people
interested in buying heroin to other people who sell heroin obtained from Columbus
and Detroit. Mack identified a man named “Petry” as someone he introduced to people.
Mack denied being a heroin dealer himself but he named several other individuals he
contended were “bigger than him” selling out of “somebody’s house.” Mack admitted to
travelling to Columbus and Detroit, but only to purchase heroin for his personal use,
not to sell to others. Mack told officers that he makes no money selling heroin. When
asked how he makes a living, Mack stated that, at age 34, “I still get money from my
mom.”
{¶10} Trista Bates testified that she was sleeping on the couch next to Mack the
night of the search. Bates testified that she was a heroin addict and Mack had given
her heroin the day of the search. Bates testified that Mack had sold her heroin in the
past and she saw him sell heroin to others in various places, including Washington
County. Earlier in the day before the search, Bates had seen Mack sell heroin to a man
named “Petry.” Bates testified that Mack used the blue cigarette papers found during
the search to package the heroin he sold. Bates testified that Mack had a small gun in
a brown holster and that a photograph of the gun and holster found during the search
looked like the one she had seen in a holster on Mack. Bates testified that the heroin
she would get from Mack was a better quality than she could purchase elsewhere.
{¶11} The trial court found Mack guilty on all three counts. Mack entered into a
plea agreement on the failure to appear cases: Mack pleaded guilty to two counts of
failure to appear as charged in Case No. 16CR236, and the state dismissed the
Washington App. Nos. 17CA34 & 17CA35 5
remaining failure to appear count, Case No. 16CCR41. The trial court sentenced Mack
to an aggregate prison term of 3 ½ years.
II. ASSIGNMENTS OF ERROR
1. THE TRIAL COURT VIOLATED ANTHONY MACK’S RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF
CONVICTIONS FOR POSSESSION OF DRUGS AND TRAFFICKING
IN DRUGS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION; OHIO CONSTITUTION, ARTICLE I, SECTION 16;
STATE V. THOMPKINS, 78 OHIO ST.3d 380, 387, 678 N.E.2d 541
(1997); DEC. 19, 2017, JOURNAL ENTRY: SENTENCING HEARING,
CASE NOS. 15 CR 36 AND 16 CR 236, P.5.
2. THE TRIAL COURT FAILED TO MERGE ALLIED OFFENSES OF
SIMILAR IMPORT AND THUS IMPOSED MORE PRISON TERMS
THAN AUTHORIZED BY LAW. STATE V. RUFF, 143 OHIO ST.3D 114,
2015-OHIO-995, 34 N.E.3D 892; STATE V. DAMRON, 129 OHIO ST.3D
86, 2011-OHIO-2268, 950 N.E.2D 512; R.C. 2941.25; DEC. 19, 2017,
JOURNAL ENTRY: SENTENCING HEARING, CASE NOS. 15 CR 36
AND 16 CR 236, P.5.
3. MR. MACK RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION WHEN TRIAL COUNSEL FAILED TO FILE A MOTION
TO WAIVE COURT COSTS AT SENTENCING. DEC. 19, 2017,
JOURNAL ENTRY: SENTENCING HEARING, CASE NOS. 15 CR 36
AND 16 CR 236, P.5.
III. MANIFEST WEIGHT OF THE EVIDENCE
A. Standard of Review
{¶12} Mack claims that his conviction for possession of drugs and trafficking in
drugs was against the manifest weight of the evidence because the state’s main
witness was a known drug user with a history of being involved in crime but who was
not charged. In determining whether a criminal conviction is against the manifest
weight of the evidence, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, and
Washington App. Nos. 17CA34 & 17CA35 6
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed. State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997); State
v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6254, 960 N.E.2d 955, ¶ 119.
B. Analysis
{¶13} Mack bases his argument on the fact that one of the state’s witnesses,
Trista Bates, was a “self interested” drug user and her account of the heroin found at
the residence was “simply not credible or plausible” when compared with Mack’s
interview statements. However, Bates testified that she saw Mack prepare the heroin
for distribution by packaging it in the blue cigarette papers and sell it to others on
multiple occasions. Law enforcement officials testified about the heavy amount of foot
traffic coming and going from the residence. Mack’s interview statements were that he
went to Columbus and Detroit to purchase heroin, but that he always used it
immediately in those cities and never transported it back to Washington County to sell.
Mack also stated that any heroin found in the residence was Bates’s, not his.
{¶14} The weight and credibility of evidence are to be determined by the trier of
fact. See State v. Kirkland, 140 Ohio St. 3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.
“ ‘A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of
any witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams No.
15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No.
12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary
weight and credibility issues because it is in the best position to gauge the witnesses'
Washington App. Nos. 17CA34 & 17CA35 7
demeanor, gestures, and voice inflections, and to use these observations to weigh their
credibility. Id; State v. Koon, 4th Dist. Hocking No. 15CA17, 2016-Ohio-416, ¶ 18.
{¶15} The trial court had the opportunity to view the witnesses' testimony and
judge their credibility. Admittedly, Mack denied selling heroin, claimed his role in drug
trafficking was limited to “introducing people to people,” stated that he drove to Detroit
to purchase heroin for his own immediate use – not resale, and insisted he lived
entirely off the charity of his mother. However, the trial court could properly discredit his
testimony, giving greater weight and credibility to Bates and the law enforcement
officers. See, e.g., State v. Haugh, 6th Dist. Lucas No. L-15-115, 2016-Ohio-8008, ¶ 48
(rejecting manifest-weight argument because the jury was free to assess the credibility
of co-defendants and inmates who had a motive to fabricate their testimony); State v.
Bussle, 11th Dist. Portage No. 2009-P-0061, 2010-Ohio-4943, ¶ 69. The fact-finder is
entitled to believe one witness's testimony over that of another. “Ohio courts have held
that the testimony of one witness, if believed by the jury, is enough to support a
conviction.” State v. Strong, 10th Dist. Franklin No. 09AP-874, 2011-Ohio-1024, ¶ 42.
{¶16} We give deference to the trial court's judgment on witness credibility. After
reviewing the entire record, we conclude the trial court has not clearly lost its way and
created such a manifest miscarriage of justice that we must reverse Mack’s conviction.
We overrule Mack’s first assignment of error.
IV. Merger of Allied Offenses of Similar Import
A. General Principles and Standard of Review
{¶17} Mack contends, and the state concedes, that the trial court erred in failing
to merge the two counts of failure to appear because they were allied offenses of
Washington App. Nos. 17CA34 & 17CA35 8
similar import. Mack failed to raise merger at the sentencing hearing and forfeited all
but plain error. State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶
21, 28 (“the failure to raise the allied offense issue at the time of sentencing forfeits all
but plain error”). To establish plain error defendant must show that “but for a plain or
obvious error, the outcome of the proceeding would have been otherwise, and reversal
must be necessary to correct a manifest miscarriage of justice.” State v. Quarterman,
140 Ohio St. 3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16.
{¶18} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution provides that no person shall “be subject for the same offence to be twice
put in jeopardy of life or limb.” This protection applies to Ohio citizens through the
Fourteenth Amendment and is additionally guaranteed by Article I, Section 10 of the
Ohio Constitution. This constitutional protection prohibits multiple punishments for the
same offense in the absence of a clear indication of contrary legislative intent. North
Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969),
overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104
L. Ed. 2d 865 (1989); Whalen v. United States, 445 U.S. 684, 691-692, 100 S. Ct. 1432,
63 L. Ed. 2d 715 (1980).
{¶19} The General Assembly enacted R.C. 2941.25 to identify when a court may
impose multiple punishments:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus
Washington App. Nos. 17CA34 & 17CA35 9
as to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶20} The trial court’s duty to merge allied counts at sentencing is mandatory.
State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26. But
merger is a sentencing question where the defendant bears the burden of establishing
entitlement to the protection of R.C. 2941.25. State v. Washington, 137 Ohio St. 3d
427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18. Because Mack forfeited all but plain error,
he must show that the error is obvious, it affected substantial rights, i.e., must have
affected the outcome of the trial, and that it must be corrected “to prevent a manifest
miscarriage of justice.” State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 23.
{¶21} In State v. Ruff, 143 Ohio St. 3d 114, 2015–Ohio–995, 34 N.E.3d 892,
which focused largely on the issue of dissimilar import, the Supreme Court of Ohio
clarified the appropriate analysis to determine whether two offenses merge under R.C.
2941.25. “In determining whether offenses are allied offenses of similar import within
the meaning of R.C. 2941.25, courts must evaluate three separate factors—the
conduct, the animus, and the import.” Id. at paragraph one of the syllabus. “Under
R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be
convicted of all the offenses if any one of the following is true: (1) the conduct
constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the offenses were committed with
separate animus.” Id. at paragraph three of the syllabus.
B. Analysis
Washington App. Nos. 17CA34 & 17CA35 10
{¶22} Mack failed to appear in court on August 16, 2016 for both his trial on his
drug charges (Case No. 15CR36) and his trial for an earlier failure to appear charge
(Case No. 16CR41). As a result, he was indicted on two counts of failure to appear,
one count for each pending case (Case No. 16CR236). As part of a later plea
agreement, Mack pleaded guilty to the two counts of failure to appear in Case No.
16CR236 and the state dismissed his prior failure to appear charge, Case No.
16CR41. The trial court sentenced Mack to a one-year prison term for each count and
ordered them to run concurrent to each other.
{¶23} We find that the two offenses of failure to appear were allied offenses
because they were based on one single act: Mack failed to appear in court on August
16, 2016 for trial on two cases scheduled on the same day, at the same time, with the
same judge, prosecutor and defense counsel. Thus the two offenses were part of the
same course of conduct.
{¶24} We also find that the allied offenses were of similar import because the
harm was identical: the victim of a crime of failure to appear is the court and the
administration of justice. See State v. Ross, 2017-Ohio-9400, 103 N.E.3d 81, ¶ 73
(Abele, J. concurring). And, the animus was the same because the same motive – the
avoidance of justice – caused him to fail to appear that day and miss both trials.
{¶25} The trial court should have merged the two counts and sentenced Mack
on one count of failure to appear and its failure to do so constituted plain error. State v.
Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31 (“We have
previously held that imposition of multiple sentences for allied offenses of similar import
is plain error.”) The error was prejudicial even though the sentences were imposed
Washington App. Nos. 17CA34 & 17CA35 11
concurrently because Mack received multiple convictions for failure to appear. Id.
(“even when the sentences are to be served concurrently, a defendant is prejudiced by
having more convictions than are authorized by law.”).
{¶26} We sustain Mack’s second assignment of error.
V. Ineffective Assistance of Counsel
A. General Principles and Standard of Review
{¶27} Mack’s third assignment of error argues that trial counsel provided
constitutionally ineffective assistance when he failed to move for a waiver of the
imposition of court costs at the sentencing hearing. To prevail on a claim of ineffective
assistance of counsel an appellant must establish that (1) counsel's performance was
deficient, that is, it fell below an objective standard of reasonable representation, and (2)
counsel's deficient performance resulted in prejudice, meaning that there is a
reasonable probability that but for counsel's errors, the outcome of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); State v. Mundt, 115 Ohio St. 3d 22, 2007–Ohio–4836, 873
N.E.2d 828, ¶ 62; State v. Sowards, 4th Dist. Gallia No. 06CA13, 2013–Ohio–3265, ¶
11. In employing this standard we apply “a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance,” with the “benchmark”
being “whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland at 689, 686; State v. Williams, 99 Ohio St. 3d 493, 2003–Ohio–4396, 794
N.E.2d 27, ¶ 159.
Washington App. Nos. 17CA34 & 17CA35 12
{¶28} In all criminal cases the judge must include in the sentence the costs of
prosecution and render a judgment against the defendant for such costs, even if the
defendant is indigent. R.C. 2947.23(A)(1)(a); State v. White, 103 Ohio St. 3d 580, 2004-
Ohio-5989, 817 N.E.2d 393, ¶ 8. However, the trial court retains jurisdiction to waive,
suspend, or modify the payment of the costs “at the time of sentencing or at any time
thereafter.” R.C. 2947.23(C). The trial court may waive court costs – but is not required
– if the defendant is indigent. State v. Hawkins, 4th Dist. Gallia 13CA3, 2014-Ohio-1224,
¶ 18; State v. Walker, 8th Dist. Cuyahoga App. No. 101213, 2014-Ohio-4841, ¶ 9 (the
discretion to waive court costs includes the discretion not to waive them).
{¶29} Here the court rendered a judgment against Mack for court costs.
However, the court explained that Mack could set up a payment plan or apply to the
court to perform community service. The court explained that Mack could find
community service work and the court could order that payment of his court costs be
made through the value of his work and time performed in community service.
{¶30} Mack contends that trial counsel for the indigent defendant has a
heightened duty of advocacy and a mandatory duty to file a motion to waive court costs
at the sentencing hearing because it may be that defendant’s only opportunity to have
legal representation. This argument assumes a defendant’s indigency status remains
unchanged in perpetuity – a speculation we are not inclined to assume. However, even
if we assume that counsel’s failure fell below an objective level of reasonable
representation we cannot conclude the failure to move for a waiver of court costs
resulted in prejudice. Mack has not shown a reasonable probability that, but for
counsel's error, the outcome of the proceeding would have been different. Mack cites to
Washington App. Nos. 17CA34 & 17CA35 13
nothing in the sentencing transcript that shows that there was a reasonable probability
the trial court would have granted a motion to waive court costs, particularly where the
court expressly stated that ordering community service was an option.
{¶31} Mack contends that because he was indigent there was reasonable
probability that the court would have granted a motion to waive court costs. The record
contains an affidavit of indigency Mack filed in February 2015, but that affidavit
addressed his inability to retain private counsel in early 2015, not his ability to pay court
costs at the time of sentencing in December 2017. Therefore it does not establish
reasonable probability that his motion to waive costs would have been granted. See
State v. Harris, 5th Dist. Muskingum No. CT2018-0005, 2018-Ohio-2257, ¶ 41 (the trial
court did not abuse its discretion in imposing court costs on an indigent defendant
where affidavit of indigency did not address ability to pay court costs: “Upon review of
Appellant's affidavit of indigency, the same does not provide sufficient information to
support a finding of indigency with respect to the mandatory fine or court costs. Rather,
the affidavit refers to indigency with respect to the appointment of counsel. Under these
circumstances, we find the trial court did not abuse its discretion in imposing the
mandatory fine and/or costs in this matter.”).
{¶32} Moreover under R.C. 2947.23(C) a defendant is no longer required to
move for a waiver of court costs at the sentencing hearing or waive it – “strategic timing
may now play a role in trial counsel’s decision – and prejudice resulting from a failure to
move at the sentencing hearing is harder, if not impossible, to discern.” State v.
Farnese, 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, ¶ 15; see also State v.
Washington App. Nos. 17CA34 & 17CA35 14
Williams, 3rd Dist. Auglaize App. No. 2-13-31, 2014-Ohio-4425, ¶ 17; State v. Davis, 5th
Dist. Licking No. 17CA55, 2017-Ohio-9445, ¶ 31.
{¶33} Mack contends that the Supreme Court of Ohio has recently certified a
conflict among the appellate districts on the question: “Is trial counsel's failure to file a
motion to waive court costs at sentencing ineffective assistance of counsel when
defendant has previously been found indigent?” State v. Davis, 152 Ohio St. 3d 1441,
2018-Ohio-1600, 96 N.E.3d 297 (recognizing a split in the Eighth and Fifth Appellate
Districts, State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017–Ohio–8861 and
State v. David, 5th Dist. Licking No. 17CA55, 2017-Ohio-9445). However, the Fourth
District, like the Fifth and Third Districts, does not automatically find a presumption of
prejudice where defendant is indigent. See Farnese, supra, Williams, supra, Davis,
supra, and Harris, supra. Unless and until the Supreme Court of Ohio overturns State
v. Davis, supra we will continue to follow our precedent in Farnese.
{¶34} Because Mack cannot show he was prejudiced by counsel’s failure to
move for a waiver of costs, we overrule his third assignment of error.
VI. CONCLUSION
{¶35} We overrule Mack’s first and third assignments of error. Having sustained
Mack’s second assignment of error, we reverse his sentence and remand with
instructions to resentence on the merged counts of failure to appear.
JUDGMENT AFFIRMED IN PART AND
REVERSED IN PART. CAUSE REMANDED.
Washington App. Nos. 17CA34 & 17CA35 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN
PART 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
Washington County Court of Common Pleas 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.
Hoover, P.J. & McFarland, J.: Concur in Judgment & Opinion.
For the Court
BY: ________________________
William H. Harsha, 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.