State v. Marcum

[Cite as State v. Marcum, 2013-Ohio-2447.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO, :
: Case Nos. 12CA20
Plaintiff-Appellee, : 12CA24
: 12CA25
vs. :
: DECISION AND JUDGMENT
JAMES MARCUM : ENTRY
:
Defendant-Appellant. : Released: 06/04/13
_____________________________________________________________
APPEARANCES:
Timothy P. Gleeson, Logan, Ohio, for Appellant.
Laina Fetherolf, Hocking County Prosecuting Attorney, and Jonah M.
Saving, Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for
Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} In this consolidated appeal, James Marcum, (hereinafter
“Appellant”), appeals his convictions for two charges of domestic violence,
two charges of violating protection orders, one charge of criminal damaging,
and one charge of obstructing official business in the Hocking County
Municipal Court after he pled guilty to the above charges pursuant to a plea
arrangement with the State of Ohio. Appellant’s counsel has advised this
Court that, after reviewing the record, he cannot find a meritorious claim for
appeal. As a result, Appellant’s counsel has moved to withdraw under
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). We find no merit
to Appellant’s three assignments of error and, after independently reviewing
the record, find no additional error prejudicial to the Appellant’s rights in the
trial court proceedings. The motion of counsel for Appellant requesting to
withdraw as counsel is granted, and this consolidated appeal is dismissed for
the reason that it is wholly frivolous.
FACTS
{¶2} On December 21, 2011, Appellant’s wife, Patricia Marcum,
(hereinafter “Patricia”) placed a call to the Hocking County Sheriff’s Office
reporting a domestic dispute. When officers arrived at the scene, Appellant
was gone. Patricia advised officers Appellant had been drinking and they
argued. She further advised Appellant had punched her head and threatened
to kill her. Appellant was subsequently charged with domestic violence,
R.C. 2919.29(A) and assault, R.C. 2903.13(A), both misdemeanors of the
first degree.
{¶3} The cases were filed as Hocking Municipal Court case number
CRB 1101101(A) and (B). A domestic violence criminal temporary
protection order (DVTPO) was served on Appellant on December 30, 2011.
Patricia was named as the protected person. The order advised Appellant
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 3
was not to be present within 500 feet of Patricia, even with her permission.
Appellant was appointed counsel and the trial court proceedings ensued.
{¶4} On March 4, 2012, Appellant allegedly punched Aidan Newton,
Patricia’s son (and Appellant’s step-son), and threw a brick through
Patricia’s window. He also allegedly threatened to kill Patricia. As a result,
Appellant was again charged with domestic violence and assault. In
addition, he was charged with violation of a temporary protection order, a
violation of R.C. 2919.27 and a misdemeanor of the first degree; criminal
damaging, R.C. 2909.06 and a misdemeanor of the second degree; and
menacing, R.C. 2903.22 and a misdemeanor of the fourth degree. These
cases were filed together as Hocking County Municipal Court numbers CRB
1200157 (A) through (E).
{¶5} On May 8, 2012, Appellant was again charged with violation of
a temporary protection order after having been seen at Patricia’s residence.
He was also charged with obstruction of justice, R.C. 2921.31(A), a
misdemeanor of the second degree, after he fled from police. These cases
were grouped as Hocking County Municipal Court numbers
CRB1200393(A) and (B).
{¶6} On June 4, 2012, Appellant’s counsel moved for a psychiatric
evaluation of Appellant. The trial court granted the motion. On July 9,
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 4
2012, based on the forensic examiner’s report, the trial court found by a
preponderance of the evidence that [Appellant’s] mental condition rendered
him unable to understand the nature of the proceeding and assist in his
defense. Appellant was committed to the Ohio Department of Mental
Health for 60 days. On August 13, 2012, another mental health evaluation
indicated Appellant was restored to competency. Appellant was then
scheduled for a hearing on August 17, 2012 to determine whether his
competency had indeed been restored.
{¶7} At the August 17th hearing, the parties entered into plea
negotiations. Appellant entered guilty pleas to the following six charges:
1) Domestic violence, CRB 11011101(A)- appellate case number
12CA20;
2) Domestic violence, CRB 1200157 (A)- appellate case number
12CA24;
3) Violating protection order, CRB1200157(B)- appellate case
number 12CA24;
4) Criminal damaging, CRB1200157, appellate case number
12CA24;
5) Violating protection order,CRB1200393(A)- appellate case number
12CA25; and,
6) Obstructing official business, CRB 1200393(B)- appellate case
number 12CA25.
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 5
{¶8} The State dismissed all five remaining charges. Prior to
accepting Appellant’s guilty pleas, the trial court reviewed the charges and
notified Appellant of the maximum jail terms and maximum fines. The trial
court also reviewed Appellant’s constitutional rights to trial, trial by jury,
confrontation of witnesses, and subpoena power.
{¶9} Appellant was sentenced the same day. The trial court heard
recommendations from the State regarding the jail sentence to be served and
conditions of probation. Patricia and Appellant were given opportunities to
address the court. Both verbalized their opposition to the temporary
protection orders.1 The trial court ultimately imposed a 180-day jail
sentence with credit for time served, various fines and costs, and a
community control sanction of two years. The trial court also ordered “no
contact” between Appellant and Patricia during the period of community
control.
{¶10} Appellant now appeals the convictions and sentencing order.
This appeal is timely filed. We have allowed Appellant sufficient time to
respond to counsel’s brief. To date, no response has been received.
1
The record contains, during the course of the proceedings, several written requests made by Patricia
Marcum and directed to the trial court, that the charges be dismissed and the protection orders be lifted.
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 6
ANDERS BRIEF
{¶11} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396(1967), counsel may ask permission to withdraw from a case when counsel
has conscientiously examined the record, can discern no meritorious claims
for appeal, and has determined the case to be wholly frivolous. Id. at 744;
State v. Adkins, 4th Dist. No. 03CA27, 2004-Ohio-3627, ¶8. Counsel’s
request to withdraw must be accompanied with a brief identifying anything
in the record that could arguably support the client’s appeal. Anders at 744;
Adkins at ¶8. Further, counsel must provide the defendant with a copy of the
brief and allow sufficient time for the defendant to raise any other issues, if
the defendant chooses to. Id.{¶12} Once counsel has satisfied these requirements, the appellate
court must conduct a full examination of the trial court proceedings to
determine if meritorious issues exist. If the appellate court determines that
the appeal is frivolous, it may grant counsel’s request to withdraw and
address the merits of the case without affording the appellant the assistance
of counsel. Id. If, however, the court finds the existence of meritorious
issues, it must afford the appellant assistance of counsel before deciding the
merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919,
2007-Ohio-2743, ¶7.
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 7
{¶13} In the current action, Appellant’s counsel advises that the
appeal is wholly frivolous and has asked permission to withdraw. Pursuant
to Anders, counsel has filed a brief raising three potential assignments of
error for this Court’s review.
POTENTIAL ASSIGNMENT OF ERROR ONE
I. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT-
APPELLANT’S GUILTY PLEAS WERE ENTERED
KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY.
STANDARD OF REVIEW
{¶14} In deciding whether to accept a guilty plea, the trial court must
determine whether the plea was made knowingly, intelligently, and
voluntarily. State v. McDaniel, 4th Dist. No. 09CA677, 2010 Ohio-5215, ¶
8. “‘In considering whether a guilty plea was entered knowingly,
intelligently and voluntarily, an appellate court examines the totality of the
circumstances through a de novo review of the record to ensure that the trial
court complied with constitutional and procedural safeguards.’” (Emphasis
sic.) Id., quoting State v. Eckler, 4th Dist. No. 09CA878, 2009-Ohio-7064, ¶
48. See, also, State v. Barner, 4th Dist. No. 10CA9, 2012-Ohio- 4584.
{¶15} “Before accepting a guilty plea, the trial court should engage in
dialogue with the defendant as described in Crim.R.11(C).” McDaniel at ¶
8, citing State v. Morrison, 4th Dist. No. 07CA854, 2008-Ohio-4913, ¶ 9.
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 8
The trial court must also inform the defendant hat he or she is waiving the
privilege against self-incrimination, the right to a jury trial, the right to
confront accusers, and the right to compulsory process. State v. Jordan, 4th
Dist. No. 00CA16, 2001-Ohio-2608, 2001 WL 1346129, citing Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969); State v. Ballard, 66 Ohio St.
2d 473, 423 N.E.2d 115 (1981). Because these are constitutional rights, the
record must affirmatively demonstrate that the waiver was both intelligent
and voluntary. Boykin, supra. An appellant who challenges his plea on the
basis that it was not knowingly and voluntarily made must show a
prejudicial effect. State v. Nero, 56 Ohio St. 3d 106, 564 N.E.2d 474 (1990),
citing State v. Stewart, 51 Ohio St. 2d 86, 94, 364 N.E.2d 1163 (1977);
Crim.R. 52(A). The test is whether the plea would have otherwise been
made. Stewart, supra at 3.
LEGAL ANALYSIS
{¶16} In Appellant’s first assignment of error, he contends the trial
court erred in finding his guilty pleas were entered knowingly, voluntarily,
and intelligently. However, the record shows prior to accepting Appellant’s
pleas, the trial court reviewed the charges and notified Appellant of the
maximum jail sentences and the maximum fines. Appellant verbalized
understanding of these possible sentences and fines. The trial court also
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 9
engaged in brief dialogue with Appellant concerning his right to trial.
Appellant also verbalized his understanding of this right. The trial court
then asked Appellant if he had reviewed the documents associated with each
case with his attorney. Appellant responded in the affirmative. The court
then inquired:
“And do you understand that by signing these documents you are
giving up that right to have a trial and all rights associated with going
to trial?”
Appellant again responded affirmatively. The trial court further
inquired:
“You understand that you are giving up your right to call witnesses to
testify on your behalf and to confront any witness called to testify
against you by the state?”
Appellant again responded affirmatively. The trial court again
inquired as to whether Appellant fully understood his legal rights. Appellant
again answered “Yes.”
{¶17} Although the trial court did not verbally advise Appellant of his
privilege against compulsory self-incrimination, the record contains
Appellant’s signed waiver of all constitutional rights attendant to trial.
Appellant stated on the record he understood the penalties and charges. At
no time did Appellant indicate he did not understand the charges, the
penalties, or his constitutional rights.
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 10
{¶18} Further, this was a plea arrangement. Appellant pled to six
charges and in return, five charges were dismissed. He signed a written plea
agreement and a waiver of rights form. The plea agreement set forth the
terms of the plea arrangement and listed the sanctions. The no-contact order
was included on the written plea arrangement. Appellant was well-aware of
the terms of the plea arrangement. Further, Appellant’s actions in being
charged multiple times with domestic violence and violation of protection
orders after the first domestic incident in March 2011 demonstrate he
blatantly ignored court orders and conditions of bond.2 Nevertheless, five
charges were dismissed. Appellant received substantial benefit from his
bargain.
{¶19} Finally, Appellant makes no showing of prejudice or that he
would not have accepted the plea. Again, the no-contact order was specified
on the written plea agreement which Appellant reviewed with counsel and
signed. There is nothing in the record to suggest Appellant’s plea was not
knowing, voluntary, and intelligent, under the totality of the circumstances.
We find the trial court did not err or abuse its discretion in accepting
Appellant’s guilty pleas. As such, the first potential assignment of error is
2
Appellee’s brief references the fact that for several weeks prior to May 8, 2012 (the day Appellant’s
actions gave rise to the third set of charges being filed), Appellant was subject to a statewide warrant for
leaving the Salvation Army in Columbus, Ohio after having his bond, relevant to the pending domestic
charges, modified to attend a program at the Salvation Army.
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 11
overruled.
POTENTIAL ASSIGNMENT OF ERROR TWO
II. TRIAL COUNSEL FOR DEFENDANT-APPELLANT PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE
FORCED DEFENDANT-APPELLANT INTO ENTERING THE
GUILTY PLEAS.
STANDARD OF REVIEW
{¶20} Criminal defendants have the right to effective assistance of
counsel. State v. Adkins, 161 Ohio App. 3d 114, 2005-Ohio-2577, 829
N.E.2d 729 (4th Dist.); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct.
1441 (1970); State v. Lytle, 4th Dist. No. 96CA182, 1997 WL 118069 (Mar.
10, 1997); State v. Doles, 4th Dist. No 1660, 1991 WL 179582 (Sept. 18,
1991). “In Ohio, a properly licensed attorney is presumed competent and
the appellant bears the burden to establish counsel’s ineffectiveness.” State
v. Knowlton, 971 N.E.2d 395, 2012-Ohio-2350, (4th Dist.) ¶ 35. To obtain
reversal of a conviction on grounds of ineffective assistance of counsel, a
defendant must show that (1) his counsel’s performance was deficient and
(2) the deficient performance prejudiced the defense so as to deprive him of
a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052 (1984); see, also, State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904(2001); State v. Goff, 82 Ohio St. 3d 123, 694 N.E.2d 916 (1998). We note
that both prongs of the Strickland test need not be analyzed if the claim can
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 12
be resolved under only one. See State v. Madrigal, 87 Ohio St. 3d 378, 389,
2000-Ohio-448, 721 N.E.2d 52. If a claim may be resolved on grounds of
lack of prejudice, that course should be followed. See State v. Loza, 71 Ohio
St. 3d 61, 641 N.E.2d 1082 (1994).
LEGAL ANALYSIS
{¶21} In his second assignment of error, Appellant contends his
attorney rendered ineffective assistance of counsel by “forcing” Appellant
into entering the guilty pleas. He supports this contention by referencing
only the fact that trial counsel requested a recess. There is no evidence in
the record to suggest the recess was used by counsel to coerce Appellant into
entering the guilty pleas. Appellant made no complaint or objection about
his attorney after court resumed following the recess. Appellant’s argument
is based on private communication between Appellant and his attorney, i.e.,
depending on alleged evidence outside of the record. The proper vehicle for
Appellant to raise this argument is in a petition for post-conviction relief
under R.C. 2953.21. See State v. Ables, 4th Dist. No. 11CA22, 2012-Ohio-
3377, ¶ 12; State v. Whitaker, 4th Dist. No. CA3349, 2011-Ohio-6923, ¶ 11,
citing State v. Cooperrider, 4 Ohio St. 3d 226, 228, 448 N.E.2d 452(1983)(per curiam). Accordingly, this issue is not properly before us on
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 13
appeal. We therefore reject and overrule this second potential assignment of
error.
POTENTIAL ASSIGMENT OF ERROR THREE
III. THE TRIAL COURT ERRED BY IMPOSING A NO-CONTACT
ORDER PROHIBITING DEFENDANT-APPELLANT FROM
HAVING CONTACT WITH HIS WIFE AS A COMMUNITY
CONTROL SANCTION.
STANDARD OF REVIEW
{¶22} We review a misdemeanor sentence for an abuse of discretion.
State v. Knowlton, 971 N.E.2d 395, 2012-Ohio-2350, (4th Dist.) ¶ 28; R.C.
2922.22(A); State v. Leeth, 4th Dist. No. 05CA745, 2006-Ohio-3575, ¶ 6.
See, e.g., City of Youngstown v. McElroy, 7th Dist. No. 05MA13, 2005-
Ohio-6595. An abuse of discretion implies that a court’s ruling is
unreasonable, arbitrary, or unconscionable; it is more than an error in
judgment. Leeth, supra, citing State ex rel. Richard v. Seidner, 76 Ohio St.
3d 14, 666 N.E.2d 1134 (1996).
LEGAL ANALYSIS
{¶23} The overriding purposes of misdemeanor sentencing are to
protect the public from future crime by the offender and others and to punish
the offender. R.C. 2929.21(A). To achieve those purposes the sentencing
court shall consider the impact of the offense upon the victim and the need
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 14
for changing the offender’s behavior, rehabilitating the offender, and making
restitution to the victim for the offense, the public, or the victim and the
public. Id. R.C. 2929.21(B) further provides that a sentence imposed for a
misdemeanor shall be reasonably calculated to achieve the two overriding
purposes of misdemeanor sentencing and consistent with sentences imposed
for similar offenses committed by similar offenders.
{¶24} Trial courts are given broad discretion in their sentencing
authority when it comes to conditions of probation. Garfield Hts. v.
Tvergyak, 8th Dist. No. 84825, 2005-Ohio-2445, ¶ 5. The sentencing court
can impose additional conditions aimed at preserving the interests of justice,
protection of the community, and the rehabilitation of the offender. Id.; R.C.
2929.25(B). To determine whether a condition of probation as part of
sentencing is appropriate and valid, the Supreme Court of Ohio has held,
when deciding probation conditions, “[C]ourts should consider whether the
condition (1) is reasonably related to rehabilitating the offender, (2) has
some relationship to the crime of which the offender was convicted, and (3)
relates to the conduct which is criminal or reasonably related to future
criminality and serves the statutory ends of probation.” State v. Jones, 49
Ohio St. 3d 51, 52, 550 N.E. 2d 469 (1990). The Court further explained in
State v. Talty, 103 Ohio St. 3d 177, 181, 2004-Ohio- 4888, 814 N.E.2d 1201,
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 15
“Jones stands for the proposition that probation conditions must be
reasonably related to the statutory ends of probation and must not be overly
broad. Because community control is the functional equivalent of probation,
this proposition applies with equal force to community control sanctions.”
State v. Lane, 2nd Dist. No. 2010 CA21, 2010-Ohio-5639, Fn 1. “The
community control statute, despite changing to the manner in which
probation was administered, did not change the underlying goals of
rehabilitation, administering justice, and ensuring good behavior….” Id.3
{¶25} In his third assignment of error, Appellant contends the trial
court erred in imposing a “no-contact” order between Appellant and his wife
as a community control sanction. Appellant directs us to his wife’s statement
to the court that she did not want a protection order at the August 17, 2012
hearing. On that date, Patricia advised the trial court she did not believe her
physical safety was threatened and she reiterated her previous statements
that the protection orders created a hardship.
{¶26} The State of Ohio also points out generally, where a no contact
order between spouses has been upheld as a condition of community control,
the marital relationship was abusive and the defendant was convicted of
3
The Lane opinion noted “[T]he precise holding of Jones and its effect on probation and community-
control conditions has been questioned with regards to sentencing because it predates Am. Sub. S.B. No. 2
(1995). Lane, supra, Fn1. However, the Lane court also acknowledged “[W]ith the passage of Am. Sub.
S.B. No. 2 in 1995, community control replaced probation as a possible sentence under Ohio’s felony
sentencing law.” Id. (Citations omitted).
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 16
domestic violence. State v. Marcum, 4th Dist. Nos. 11CA8 and 11CA10,
2012-Ohio- 572, ¶ 11. See, also, City of Garfield Heights v. Tvergyak, 8th
Dist. No. 84825, 2005-Ohio-2445; State v. Brillhart, 129 Ohio App.3d 180,
717 N.E.2d 413 (1998); State v. Conkle, 129 Ohio App.3d 177, 717 N.E.2d
411 (1998). See also State v. Harford, 5th Dist. No. 00CA89, 2001 WL
227704, (Mar. 6, 2001); City of University Heights v. Roders, 8th Dist. No.
76252, 1999 WL 632922 (Aug. 19, 1999).
{¶27} The State of Ohio argues here, Appellant’s no contact order is
reasonably related to rehabilitating the offender, and we agree. The State
cites Tvergyak, supra, a case in which Tvergyak entered a “no contest” plea
and was found guilty of misdemeanor domestic violence after an altercation
between Tvergyak and his wife which occurred subsequent to a night of
drinking. Upon sentencing, Tvergyak was given a jail sentence, fine, and
community service. He was also ordered to have no contact with his wife
during five years of active probation. In affirming the trial court’s sentence,
the Tyergyak court held:
“The trial court is in the best position to evaluate the
circumstances and sentence the defendant accordingly. In this
case, the facts are such that the trial court’s sentence and
conditions of probation clearly pass the three-prong test as
applied in Jones, supra. The no-contact order as a condition of
Tvergyak’s probation clearly bears a relationship to the crime at
issue, is related to rehabilitating the defendant, and is fashioned
as such to prevent future instances of domestic violence.”
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 17
{¶28} Here, Appellant was convicted of two acts of domestic violence
involving his wife as victim. He was also convicted of two charges of
violating a temporary protection order. Appellant has a violent history of
actions and threats. We agree with the State’s observation that in this case,
rehabilitation cannot happen without court intervention. There is an absolute
need to separate the parties until, at least, Appellant can demonstrate he has
modified and corrected his way of interacting with his wife.
{¶29} Here, the trial court imposed the no- contact order for a period
of two years. In addition to the no -contact order, Appellant was ordered to
participate in mental health programs and abstain from using drugs and
alcohol. The trial court’s order also stated the no-contact aspect of the order
could be modified in the future as circumstances change. In our opinion,
the order is not overbroad and reasonably relates to the statutory ends of
probation, pursuant to Jones.
{¶30} In State v. Marcum, supra, we reversed the trial court’s
judgment in Patricia Marcum’s appeal of her sentence upon conviction for
obstructing official business and misuse of 911. There, Mrs. Marcum
argued the trial court abused its discretion when it imposed a no- contact
order between the Marcums as a condition of her community control. Under
the above-cited Jones test, we reasoned that the condition was not
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 18
reasonably related to rehabilitating Mrs. Marcum because it did nothing to
ensure that she uses 911 only for legitimate purposes or that she does not
obstruct official business. We also reasoned that the order did not
reasonably relate to future criminality. Here, the convictions in Appellant’s
case are for domestic violence and violations of a protection order. Thus, the
no-contact order has a relationship to the crimes committed and otherwise
fits all prongs of the Jones test.
{¶31} We believe, as did the appellate court in Tvergyak, that the no-
contact order as a condition of probation clearly bears a relationship to the
crime at issue, is related to rehabilitating the defendant, and is fashioned to
prevent future crimes of domestic violence. We also believe Appellant’s
sentence is consistent with sentences imposed for similar offenses
committed by similar offenders. The no- contact order is not overbroad and
is consistent with the purposes of misdemeanor sentencing. As such, we
find the trial court did not err and abuse its discretion in fashioning the no-
contact order as a condition of probation. We therefore, overrule Appellant’s
third potential assignment of error.
CONCLUSION
{¶32} In the case sub judice, the trial court’s findings are supported by
the record. As such, we also conclude that the potential assignments of error
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 19
advanced by appellate counsel are wholly without merit. The motion of
counsel for Appellant requesting to withdraw as counsel is granted. This
appeal is dismissed for the reason that it is wholly frivolous.
APPEAL DISMISSED.
Hocking App. Nos. 12CA20, 12CA24, and 12CA25 20
JUDGMENT ENTRY
It is ordered that the APPEAL IS DISMISSED and that Appellant 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 Hocking
County Municipal 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.
Exceptions.
Hoover, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.