State v. Smith

[Cite as State v. Smith, 2023-Ohio-1504.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellant, : Case No. 22CA21
v. :
CULLEY G. SMITH, : DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
________________________________________________________________
APPEARANCES:
Carrie L. Charles, Ross County Assistant Prosecuting Attorney,
Chillicothe, Ohio, for appellant.
Max Hersch, Assistant State Public Defender, Columbus, Ohio, for
appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:5-1-23
ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas
Court judgment that granted a motion to dismiss an indictment
based upon the failure to bring Culley Smith, defendant below
and appellee herein, to trial within the statutory speedy-trial
time frame.
{¶2} The State of Ohio, plaintiff below and appellant
herein, assigns the following errors for review:
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FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT GRANTED
APPELLEE’S MOTION TO DISMISS BY RULING TIME
WAS NOT TOLLED PURSUANT TO R.C. 2945.71 FROM
APRIL 12, 2021 UNTIL SEPTEMBER 24, 2021.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT’S DECISION GRANTING
APPELLEE’S MOTION TO DISMISS WAS NOT
SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE.”
{¶3} The present appeal concerns appellee’s right to a
speedy trial. On March 6, 2020, a Ross County Grand Jury
returned an indictment that charged appellee with three counts
of aggravated vehicular assault, in violation of R.C. 2903.08.
Appellee’s arrests occurred on March 21, 2020, and his release
on his own recognizance on March 23, 2020. The trial court
later scheduled the matter for a November 17, 2020 jury trial.
{¶4} On October 28, 2020, appellant filed a motion to
continue the trial. On February 4, 2021, the trial court
granted the motion to continue the trial and scheduled the
matter for an April 13, 2021 jury trial. The court also noted
that speedy-trial time would be tolled.
{¶5} On April 12, 2021, the trial court visiting judge
recused himself from the case and vacated the April 13, 2021
trial date. The court stated that “Defendant’s speedy trial
deadline is tolled by a previous entry.” This document bears a
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stamp that indicates “filed with the judge of the Ross County
Common Pleas Court.”
{¶6} On August 20, 2021, the Ohio Supreme Court assigned a
second visiting judge to preside over the case. On August 23,
2021, the court scheduled a September 24, 2021 status
conference. On September 24, 2021, the trial court issued an
order and noted that the parties discussed whether the April to
September 2021 delay posed a speedy-trial issue and gave
appellee an opportunity to file a motion to dismiss. The
court’s entry stated that the April 12, 2021 entry had been
“received but not filed on April 12, 2021.” Additionally, on
September 27, 2021, the second visiting judge noted that he had
a conflict that required recusal and ordered the court
administrator to contact the Ohio Supreme Court to appoint a new
judge.
{¶7} On October 8, 2021, appellee filed a motion to dismiss
and asserted that the first visiting judge did not file the
entry of recusal with the clerk’s office and the entry was not
“filed or docketed with the Court in any manner.” He also
asserted that 167 speedy-trial days elapsed through April 2021,
but the days that have since elapsed should not be excluded from
the speedy-trial date count. Appellee contended that, before
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the April 2021 status conference, his trial counsel learned that
the first visiting judge planned to recuse himself and the
status conference and jury trial would not occur as scheduled.
Appellee argued that neither the court nor the state took
further action until the second visiting judge held a September
24,2021 status conference. Appellee claimed “nothing [was]
docketed, signed, journalized, or filed in this matter until
September 2021, well outside the time limits of speedy trial.”
{¶8} Appellant, however, asserted that the first visiting
judge prepared an entry and placed it in the file, but it may
not have been properly docketed due to an internal office error.
The state nonetheless argued that the speedy-trial clock
remained tolled due to the absence of a judge to preside over
the case because it had no “practical ability” to bring appellee
to trial until a new judge had been assigned.
{¶9} In his response brief, appellee continued to assert
that the first visiting judge’s April 12, 2021 entry had not
been filed until five months after the fact.
{¶10} On April 4, 2022, the Ohio Supreme Court assigned a
third visiting judge to hear the case. On June 21, 2022, the
court granted appellee’s motion to dismiss the indictment. The
court found that the indictment was filed on March 6, 2020, the
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defendant arraigned on March 23, 2020, the case set for trial on
April 13, 2021, then on April 12, 2021 the judge recused himself
and vacated the trial date. The court found, however, that the
April 12, 2021
entry was not filed or docketed in any manner until
nearly five months later. There is no reason given in
the entry for the continuance aside from the retirement
of the assigned Judge. There is no mention of the
reasonableness of the continuance. There is no mention
of any of the tolling provisions of R.C. 2945.72, no
mention of speedy trial whatsoever.
The court found that the first visiting judge “failed to enter
an order of continuance and the reason therefor by journal entry
prior to the expiration of the time limit prescribed by R.C.
2945.71” in accordance with State v. Mincy, 2 Ohio St.3d 6, 441
N.E.2d 571 (1982), and State v. King, 70 Ohio St.3d 158, 637
N.E.2d 903 (1994) and dismissed the indictment. This appeal
followed.
A
{¶11} For ease of discussion, we combine our review of
appellant’s two assignments of error. Appellant asserts that
the trial court incorrectly concluded that the speedy-trial time
period had not been extended between April 13, 2021 and
September 24, 2021. Appellant asserts that on April 12, 2021,
the first visiting judge filed an entry to indicate that he
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recused himself from the matter, vacated the April 13, 2021
trial date, and stated that the speedy-trial clock remained
tolled. Appellant further points out that the April 12, 2021
entry’s stamp states that the entry was “filed with the judge of
the Ross County Common Pleas Court” and “acknowledges same had
not been docketed with the Clerk of Courts.” Appellant
nevertheless contends that the court’s entry properly extended
the speedy-trial time period.
{¶12} Appellee, on the other hand, asserts that the April
12, 2021 entry did not extend the speedy-trial time period
because it had not been docketed until five months later.
Appellee contends that, even if the court timely prepared the
entry, the clerk had not docketed the entry before the speedy-
trial deadline expired.
B
{¶13} “Review of a speedy-trial claim involves a mixed
question of law and fact. Therefore, we defer to the trial
court’s factual findings if they are supported by competent,
credible evidence, but we review the application of the law to
those facts de novo.” State v. Long, 163 Ohio St.3d 179, 2020-
Ohio-5363, 168 N.E.3d 1163, ¶ 15; accord State v. Howerton, 4th
Dist. Lawrence No. 20CA2, 2021-Ohio-913, ¶ 11; State v. Spencer,
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2017-Ohio-456, 84 N.E.3d 106, ¶ 16 (4th Dist.); State v. Brooks,
2018-Ohio-2210, 114 N.E.3d 220, ¶ 21 (4th Dist.).
C
{¶14} Criminal defendants are guaranteed the right to a
speedy trial under the Ohio and United States Constitutions.
Sixth Amendment to the U.S. Constitution (an “accused shall
enjoy the right to a speedy and public trial”); Ohio
Constitution, Article I, Section 10 (an accused has the right to
“a speedy public trial by an impartial jury”). The speedy-trial
guarantee “minimize[s] the possibility of lengthy incarceration
prior to trial,” “reduce[s] the lesser, but nevertheless
substantial, impairment of liberty imposed on an accused while
released on bail,” and “shorten[s] the disruption of life caused
by arrest and the presence of unresolved criminal charges.”
United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71
L.Ed.2d 696 (1982); accord State v. Triplett, 78 Ohio St.3d 566,
568, 679 N.E.2d 290 (1997).
{¶15} Ohio’s speedy trial provisions, R.C. 2945.71 to
2945.73, “constitute a rational effort to enforce the
constitutional right to a public speedy trial of an accused
charged with the commission of a felony or a misdemeanor.”
State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980),
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syllabus; accord State v. Martin, 156 Ohio St.3d 503, 2019-Ohio-
2010, 129 N.E.3d 437, ¶ 15; State v. Parker, 113 Ohio St.3d 207,
2007-Ohio-1534, 863 N.E.2d 1032, ¶ 11; Brecksville v. Cook, 75
Ohio St.3d 53, 55, 661 N.E.2d 706 (1996); see Barker v. Wingo,
407 U.S. 514, 523, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (states
“are free to prescribe a reasonable period consistent with
constitutional standards”). To that end, R.C. 2945.71
designates specific time requirements for the state to try an
accused. State v. Hughes, 86 Ohio St.3d 424, 425, 715 N.E.2d
540 (1999). As relevant in the case at bar, R.C. 2945.71(C)(2)
requires a person accused of a felony to be brought to trial
within 270 days of the individual’s arrest.
{¶16} Generally, the 270-day speedy trial time period clock
begins the day after a defendant’s arrest. State v. Davis, 4th
Dist. Scioto No. 12CA3506, 2013–Ohio–5311, ¶ 21, citing R.C.
1.14 and Crim.R. 45(A) (“When computing how much time has run
against [the state] under R.C. 2945.71, we begin with the day
after the date [the defendant] was arrested”). Also, “For
purposes of calculating speedy-trial time, ‘each day during
which the accused is held in jail in lieu of bail on the pending
charge shall be counted as three days.’” State v. Ramey, 132
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Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, ¶ 15, quoting
R.C. 2945.71(E).
{¶17} R.C. 2945.72 specifies the circumstances that may
extend the 270-day period. Id. at ¶ 24. As relevant in the
case at bar, R.C. 2945.72(H) states that “the period of any
reasonable continuance granted other than upon the accused’s own
motion” extends the 270-day time period.
{¶18} In general, courts must “strictly construe the speedy
trial statutes against the state,” Brecksville v. Cook, 75 Ohio
St.3d 53, 57, 661 N.E.2d 706 (1996), and must “strictly enforce
the legislative mandates evident in these statutes.” Pachay, 64
Ohio St.2d at 221; e.g., State v. Parker, 113 Ohio St.3d 207,
2007-Ohio-1534, 863 N.E.2d 1032, ¶ 15. Consequently, “[t]he
prosecution and the trial courts have a mandatory duty to try an
accused within the time frame provided by the statute.” Ramey
at ¶ 14. If an accused is not brought to trial within the time
limits set forth in the speedy-trial statutes, and if an
exception does not apply, R.C. 2945.73(B) requires the court,
upon motion at or before trial, to discharge the accused.
{¶19} In the case sub judice, the parties dispute whether
the trial court’s April 12, 2021 entry extended the 270-day
period to bring appellee to trial. Appellant argues that after
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the first visiting judge filed the April 12, 2021 entry to
recuse himself, the speedy-trial time was extended until
September 24, 2021, the date of the second visiting judge’s
status conference. Appellant contends that, as of the date that
the second visiting judge recused himself, September 27, 2021,
only 197 speedy-trial days had elapsed. Appellant further
asserts that speedy-trial time remained tolled until the third
visiting judge ruled on appellee’s motion. Appellant therefore
argues that the 270-day period did not expire.
{¶20} Appellee counters that, because the court did not
docket the trial court’s April 12, 2021 entry until five months
later, the first visiting judge’s entry did not comply with the
requirement that an entry that extends speedy-trial time must be
journalized before the 270-day period expires. As such, he
argues that because the 166 days that elapsed between April 12,
2021 and September 24, 2021 do not fall within one of the
exceptions to extend speedy-trial time, well over 270 days
elapsed by the time of the second visiting judge’s September 27,
2021 recusal.
{¶21} To support his argument, appellee relies upon State v.
Mincy, 2 Ohio St.3d 6, 441 N.E.2d 571 (1982), and State v. King,
70 Ohio St.3d 158, 637 N.E.2d 903 (1994). In Mincy, the court
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held that when a trial court sua sponte continues a criminal
trial, the court “must enter the order of continuance and the
reasons therefor by journal entry prior to the expiration of the
time limit prescribed in R.C. 2945.71 for bringing a defendant
to trial.” Id. at syllabus. In Mincy, on the date the case had
been scheduled for trial court personnel contacted the
defendant’s trial counsel to inform counsel that the trial would
not be held as scheduled. Also, the court did not file a
journal entry to explain a reason for the continuance. At the
time, the defendant had been incarcerated for 87 days.
{¶22} On the defendant’s 94th day of confinement, the trial
court held a scheduling conference and scheduled the trial to be
held 6 days later, on the defendant’s 100th day of confinement.
Before trial, the defendant moved to dismiss the indictment
based upon the state’s failure to bring him to trial within the
speedy-trial time period. The trial court, however, overruled
the motion. Subsequently, a jury found the defendant guilty and
he appealed the decision that overruled his motion to dismiss.
The appellate court concluded that the defendant did not receive
a speedy trial and reversed the trial court’s judgment. The
state then appealed to the Ohio Supreme Court.
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{¶23} After review, the Ohio Supreme Court affirmed the
appellate court’s decision and judgment. The court
characterized the issue as “whether a trial court may wait until
after the expiration of the statutory time within which a
criminal defendant must be brought to trial to file its journal
entry continuing the case and setting forth the reasons for
granting the continuance.” Id. at 7. The court noted that its
previous decisions had upheld sua sponte continuances as
reasonable, but further pointed out that in those prior cases,
“the continuances were made by journal entry prior to the
expiration of the time limit in R.C. 2945.71.” Id. at 8. Thus,
the court rejected the state’s argument that “because the trial
was set within the ninety day period and the continuance was
reasonable, no violation of R.C. 2945.71 occurred even though no
entry had been made prior to the expiration of the ninetieth
day.” Id. The court explained that it had “previously
condemned after-the-fact extension and does not find it to be a
meaningful distinction that [the defendant’s] trial was
initially scheduled within the statutory time limit.” Id.
Consequently, the court held: “Since a court may only speak
through its journal, it is necessary that such an entry be
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spread upon its journal prior to the expiration of the statutory
time limit.” Id. (citations omitted).
{¶24} In King, the court reaffirmed Mincy that when a trial
court sua sponte continues a criminal trial, it must enter the
continuance order and state the reasons for the continuance
before speedy-trial time expires. Id. at 163. In King, the
trial court sua sponte continued the defendant’s trial “without
recording a judgment entry explaining the reasons for continuing
the trial beyond the expiration of the ninety-day period.” Id.
at 162. Instead, the trial judge’s secretary sent the parties
notice of the new trial date. The court reasoned that the
secretary’s notice was ineffective because “[i]t is axiomatic
that ‘[i]n Ohio a court speaks through its journal.’” Id.,
quoting State ex rel. Worcester v. Donnellon, 49 Ohio St.3d 117,
118, 551 N.E.2d 183 (1990). The court thus concluded that trial
courts must journalize sua sponte continuances before speedy-
trial time expires.
{¶25} More recently, the Ohio Supreme Court discussed
Mincy’s requirements as follows:
Ideally, “[w]hen sua sponte granting a continuance
under R.C. 2945.72(H), the trial court must enter the
order of continuance and the reasons therefor by journal
entry prior to the expiration of the time limit
prescribed in R.C. 2945.71 for bringing a defendant to
trial.”
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Ramey at ¶ 32, quoting Mincy, syllabus. The Ramey court noted
that it had “[o]n several occasions, * * * found it necessary to
address trial courts’ imperfect handling of continuances under
R.C. 2945.72(H).” Id. at ¶ 33, citing State v. McRae, 55 Ohio
St.2d 149, 152, 378 N.E.2d 476, 477 (1978). The court stated
that in these imperfect situations, “an appellate court may
affirm a conviction challenged on speedy-trial grounds even if
the trial court did not expressly enumerate any reasons
justifying the delay when the reasonableness of the continuance
is otherwise affirmatively demonstrated by the record.”1 Id.;
State v. Lee, 48 Ohio St.2d 208, 210, 357 N.E.2d 1095 (1976)
(“[t]he record of the trial court must in some manner
affirmatively demonstrate that a sua sponte continuance by the
court was reasonable in light of its necessity or purpose”).
{¶26} In Lee, for example, the court stated that when a
court, by entry before the speedy-trial time expires, lists a
In State v. Belville, ___ Ohio St.3d ___, 2022-Ohio-3879, ___
N.E.3d ___, the court rejected the defendant’s argument that R.C.
2945.72(E), which tolls the speedy-trial clock for “[a]ny period
of delay necessitated by reason of a * * * motion, proceeding, or
action made or instituted by the accused,” required trial courts
to “contemporaneously announce that a tolling event is taking
place.” Id. at ¶ 31. The court stated that the plain language of
the statute only requires “that the delay be necessitated by the
defendant’s action.” Id.
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reason for the continuance and notifies the defendant and the
defendant’s counsel of the continuance, entry, and reasons, then
“the reasonableness of the extension cannot be seriously
questioned and is satisfactorily evidenced by the failure of the
defendant to object and to assert persuasively his basis for a
contrary conclusion.” Id. at 210.
{¶27} Additionally, in State v. Martin, 56 Ohio St.2d 289,
384 N.E.2d 239 (1978), the court held that a trial court’s sua
sponte continuance entry, filed as an App.R. 9(E) supplement to
the record, adequately demonstrated the reasonableness of the
continuance. In that case, the defendant was arrested and
waived the Crim.R. 5 time frame to hold a preliminary hearing.
The court scheduled a preliminary hearing and, upon defense
counsel’s request, later reset the hearing. Some witnesses did
not appear, however, so the court rescheduled the hearing.
Eventually, the court held the preliminary hearing, found
probable cause, and ordered the defendant remain incarcerated
pending further action from the grand jury. The court then held
a jury trial and the jury found the defendant guilty. The
defendant appealed the trial court’s decision.
{¶28} During the pendency of the appeal, the trial court
filed an App.R. 9(E) supplemental entry that recited the reasons
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for continuing the preliminary hearing (crowded docket * * * and
due to the expected length of the preliminary hearing).” Next,
the entry observed that defense counsel asked the court to
continue the preliminary hearing. The entry, however, did not
mention the reason for further continuing the hearing, but the
trial court record indicated that it had been continued because
witnesses did not appear. The appellate court reversed the
trial court’s judgment and determined that the trial occurred
beyond the speedy-trial time limit. The state appealed to the
Ohio Supreme Court.
{¶29} After review, the Ohio Supreme Court reversed the
appellate court’s judgment and determined that the defendant’s
waiver of the Crim.R. 5 time frame and the trial court’s
continuances extended the speedy-trial time until the date of
the preliminary hearing. In doing so, the court noted that a
trial court’s sua sponte continuance extends speedy-trial time
so long as the record demonstrates “the ‘necessity and
reasonableness of the continuance.’” Martin, 56 Ohio St.2d at
293, quoting State v. Wentworth, 54 Ohio St.2d 171, 176, 375
N.E.2d 424 (1978). The court further observed that “‘[m]ere
entries by the trial court’ would satisfy the statutory
requirement ‘when the reasonableness of the continuance cannot
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be seriously questioned.’” Id., quoting Lee, 48 Ohio St.2d at
209. The court thus applied these principles and concluded that
the continuances of the preliminary hearing were both “good
cause” under Crim.R. 5 and “reasonable” under R.C. 2945.72(H).
The court noted that the defendant agreed to waive the Crim.R. 5
time period and that the court set the preliminary hearing to be
held within a reasonable amount of time, given the court’s
crowded docket and the anticipated length of the preliminary
hearing. Additionally, defense counsel requested an additional
continuance that further extended the speedy-trial time period.
Next, the court sua sponte continued the preliminary hearing
when some witnesses did not appear as scheduled.
{¶30} The court concluded that the record and the
supplemental journal entry showed that the delay in holding the
preliminary hearing was reasonable and that the time that
elapsed during this period, therefore, did not count for
purposes of computing speedy-trial time.
{¶31} Admittedly, Martin explicitly expressed displeasure
with the use of a “supplemental journal entry * * * to explain
the ‘reasonableness’” of the continuances Id. at 295. The court
cautioned that it did not intend “to advocate the use of this
procedural tool as a substitute for a lower court affirmatively
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demonstrating the reasonableness of an extension pursuant to
R.C. 2945.72(H) in the first place.” Id. The court explained:
It is imperative that the trial courts in this state
conscientiously strive to perform their statutory duties
by stating the circumstances surrounding these
continuances so as not to preclude effective appellate
review. The necessity and purpose of such an extension
should be clearly reflected from the record at the time
it was granted.
Id.
{¶32} Despite these cautions, the Martin court nevertheless
concluded that the record and the supplemental journal entry
adequately demonstrated the reasonableness of the trial court’s
continuance. We also note that Martin has not been overruled.
{¶33} We fully recognize that the events that occurred in
the case sub judice are unusual. Appellee’s arrest occurred on
March 21, 2020, six days before the Ohio Supreme Court’s first
order that acknowledged Am.Sub. HB 197 that tolled all time
limitations and deadlines in the Revised Code. Obviously,
during the ensuing months, courts had to confront extraordinary
circumstances. Nevertheless, in the case at bar the docket
sheet indicates that the trial court’s entry to continue the
April 13, 2021 trial date was filed on April 12, 2021. Yet, the
third visiting judge found, and appellee insists, that this
entry was not filed until five months later. Appellant’s
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memorandum contra to appellee’s motion to dismiss also suggests
some type of internal office error may have occurred when filing
the entry. In any event, we believe that Ramey, Lee, and Martin
support the conclusion that the record before us demonstrates
the necessity and reasonableness of the continuance. Ramey
instructs that “the determination of reasonableness must be made
on the existing record.” Id. at ¶ 34. In the case at bar, the
record, as it currently exists, contains an April 12, 2021 entry
that (1) states that the first visiting judge recused himself
from presiding over the trial, (2) vacated the trial date, and
(3) provided that speedy-trial time remained tolled. This entry
is listed on the court’s docket sheet as filed on April 12,
2021. Thus, according to the docket sheet, this entry, docketed
on April 12, 2021, tolled the speedy trial time before speedy-
trial time expired. Therefore, based upon our review of the
existing record, the trial court entered the April 12, 2021
entry before the expiration of appellant’s speedy-trial time.
We are unable to locate anything in the record to support the
assertion that the April 12, 2021 entry was not docketed. The
parties did not point to anything in the record, other than
unsupported assertions, to demonstrate that the April 12, 2021
entry was not filed until five months after the fact.
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{¶34} Furthermore, we believe that the trial court’s sua
sponte continuance was reasonable. The court’s entry states
that the trial judge recused himself. A trial judge’s recusal
constitutes reasonable cause to continue a trial. See State v.
Nichols, 4th Dist. Adams No. 12CA955, 2013-Ohio-308, ¶ 21,
citing Lyndhurst v. Di Fiore, 8th Dist. No. 88654, 2007–Ohio–
3538, ¶ 10. Moreover, using Martin’s logic, even if some
procedural irregularity occurred when filing the April 12, 2021
entry, this entry is part of the record on appeal and the
clerk’s docket sheet indicates that it was filed April 12, 2021.
Therefore, we believe that we may properly consider this entry
when we ascertain the reasonableness of the continuance. See
Craig v. Welply, 104 Ohio St. 312, 315, 136 N.E. 143 (1922)
(“the court speaks by its journal, and * * * the date of the
judgment is the date of its entry upon the journal of the
court”).
{¶35} Additionally, we do not believe that our decision
conflicts with either Mincy or King. In those cases, the record
did not contain any documents that revealed the reasons the
trial courts continued the matters. In the case at bar, by
contrast, the record contains an entry that expressly reveals
the reason that the trial court continued the trial, and the
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docket sheet indicates that it was filed before the speedy-trial
time expired.
{¶36} Consequently, based upon our review of the record, we
believe that the trial court’s April 12, 2021 sua sponte
continuance extended the time period within which the state must
bring appellee to trial. Therefore, we agree with appellant
that the speedy-trial clock tolled between April 12, 2021 and
September 24, 2021.
{¶37} Accordingly, based upon the foregoing reasons, we
sustain appellant’s assignments of error, reverse trial court’s
judgment and remand the matter for further proceedings
consistent with this opinion.
JUDGMENT REVERSED AND CAUSE
REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION.
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JUDGMENT ENTRY
It is ordered that the judgment be reversed and the case
remanded for further proceedings consistent with this opinion.
Appellant shall recover of appellee the 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 Ross County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
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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.