[Cite as State v. Adams, 2017-Ohio-519.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
STATE OF OHIO, : : Case No. 16CA23 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY JASON M. ADAMS, : : Defendant-Appellant. : Released: 02/06/17 _____________________________________________________________ APPEARANCES:
Jason Adams, Lima, Ohio, Pro Se Appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert C. Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶1} Jason Adams appeals the judgment entry of the Lawrence
County Court of Common Pleas, dated July 11, 2016, which dismissed his
petition for post-conviction relief without a hearing. On appeal, Appellant
asserts the trial court erred by: (1) failing to conduct a hearing pursuant to
R.C. 2953.21(C); and (2) failing to provide findings of fact and conclusions
of law. Upon review, we find no merit to Appellant’s arguments.
Accordingly, we overrule Appellant’s sole assignment of error and affirm
the judgment of the trial court. Lawrence App. No. 16CA23 2
FACTS
{¶2} A Lawrence County Common Pleas Jury convicted Appellant of
complicity to aggravated robbery, a felony of the first degree. By final
judgment entry of December 23, 2014, he was sentenced to a nine-year
prison term.
{¶3} Appellant’s conviction arose from an ill-conceived plan to rob
Charles (Sam) Jones, an elderly “bookie” in Ironton, Ohio. On January 14,
2014, church volunteers near Central Christian Church saw a commotion in
front of the church, observed two men running away, and assisted Jones and
Appellant, who appeared to have been robbed. One of the assailants was
chased to a black Dodge Durango pickup truck. Once surveillance video of
the robbery and truck was obtained from a nearby school, the investigation
quickly unfolded. Appellant, his long-time friend Scott Lewis, and a third
man, Ed Hampton, Lewis’s uncle, were subsequently indicted for robbing
Jones.1
{¶4} Appellant’s co-defendants entered guilty pleas and did not
proceed to trial. Appellant, however, an Iraq war veteran with no prior
criminal record and good standing in the community, proceeded to trial and
testified on his own behalf. Appellant maintained throughout the
1 Appellant was indicted on March 25, 2014. Lawrence App. No. 16CA23 3
investigation and during his testimony at trial that he was not involved in
planning or participation and was, in fact, also a victim of the crime.
{¶5} The State presented testimony from Jones, the
bystanders/witnesses at the church, the investigating officers, Scott Lewis,
and additional witnesses who identified the State’s exhibits. The State’s
exhibits included surveillance film of the robbery and escape; records of
multiple phone contacts between Appellant and Lewis before, during, and
after the incident; Appellant’s initial statement to responding officers;
Appellant’s recorded statement at the police station; surveillance film from a
local store showing Appellant and his co-defendants purchasing toy guns on
the day of the incident; and photographs of the victim’s injuries.
{¶6} The defense strategy was to attempt to cast doubt as to the
credibility of the investigating officers and Scott Lewis. However, the jury
must have found the circumstantial evidence overwhelming and Appellant
not to be a credible witness. After Appellant was sentenced, a timely appeal
followed.
{¶7} In his direct appeal, Appellant raised six assignments of error,
including manifest weight of the evidence, an evidentiary issue, sentencing
issues, and an ineffective assistance of counsel claim. On June 14, 2016,
while his direct appeal was still pending, Appellant filed a petition for post- Lawrence App. No. 16CA23 4
conviction relief, alleging his conviction was void or voidable under the
Sixth and Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution because his trial counsel did
not render effective assistance. On July 11, 2016, the trial court dismissed
Appellant’s petition without conducting an evidentiary hearing and by
judgment entry which did not separately caption findings of fact and
conclusions of law.
{¶8} On July 25, 2016, Appellant filed a notice of appeal of the
court’s decision on his post-conviction petition. On November 10, 2016,
this court issued its decision in the direct appeal. See State v. Adams, 4th
Dist. Lawrence No. 15CA2, 2016-Ohio-7772. We overruled four
assignments of error which included the ineffective assistance claim,
declined to consider one which the parties had resolved, and found merit to
Appellant’s post-release control notification argument. We now consider
the appeal of the dismissal of Appellant’s post-conviction petition.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT’S PETITION FOR POSTCONVICTION RELIEF WITHOUT A HEARING PURSUANT TO R.C. 2953.21(C), WHEN APPELLANT PROVIDED SUFFICIENT EVIDENCE DEHOR THE RECORD TO WARRANT A HEARING.” Lawrence App. No. 16CA23 5
“II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN IT DENIED APPELLANT’S POSTCONVICTION PETITION WITHOUT FURNISHING FINDINGS OF FACTS AND CONCLUSIONS OF LAW.”
A. STANDARD OF REVIEW
{¶9} “[A] trial court's decision granting or denying a post-conviction
petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of
discretion; a reviewing court should not overrule the trial court's finding on a
petition for post-conviction relief that is supported by competent and
credible evidence.” State v. Black, 4th Dist. Ross No. 15CA3509, 2016-
Ohio-3104, ¶7, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 58. “A trial court abuses its discretion when its
decision is unreasonable, arbitrary, or unconscionable.” State v. Knauff, 4th
Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 19, citing Cullen v. State
Farm Mut. Auto Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d
614, ¶ 19. Because Appellant’s assignments of error are related, we
consider them jointly.
B. LEGAL ANALYSIS
{¶10} A petition for post-conviction relief brought pursuant to R.C.
2953.21 provides convicted individuals with a means to collaterally attack
their convictions. Black, supra, at ¶ 8, citing In re B.C.S., 4th Dist. Lawrence App. No. 16CA23 6
Washington No. 07CA60, 2008-Ohio-5771, ¶ 10. “It is a civil proceeding
designed to determine whether ‘there was such a denial or infringement of
the person's rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States.” R.C. 2953.21(A).
Thus, a petitioner must demonstrate errors of a constitutional magnitude and
resulting prejudice before being entitled to relief under the statute.” Id . R.C.
2953.21 specifically provides:
(A)(1)(a) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
***
(C) * * * Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized record of the clerk of the court, and the court reporter's transcript. The court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. Lawrence App. No. 16CA23 7
(E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending.
{¶11} However, a petitioner seeking post-conviction relief is not
automatically entitled to an evidentiary hearing. Black, supra, at ¶ 9, citing
State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999); State v.
Slagle, 4th Dist. Highland No. 11CA22, 2012-Ohio-1936, ¶ 13. Rather,
before granting a hearing on a petition, the trial court must first determine
that substantive grounds for relief exist. R.C. 2953.21(C). “Substantive
grounds for relief exist and a hearing is warranted if the petitioner produces
sufficient credible evidence that demonstrates the petitioner suffered a
violation of the petitioner's constitutional rights.” In re B.C.S. at ¶ 11.
Furthermore, in order to merit a hearing, the petitioner must show that the
claimed “errors resulted in prejudice.” Id., quoting Calhoun at 283.
{¶12} Res judicata applies to proceedings involving post-conviction
relief. Black, supra, at ¶ 10, citing State v. Szefcyk, 77 Ohio St.3d 93, 95, 671
N.E.2d 233 (1996). “Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from that judgment, Lawrence App. No. 16CA23 8
any defense or any claimed lack of due process that was raised or could have
been raised by the defendant at the trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.” State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
“Therefore, ‘any issue that could have been raised on direct appeal and was
not is res judicata and not subject to review in subsequent proceedings.’ ”
State v. Segines, 8th Dist. Cuyahoga No. 99789, 2013-Ohio-5259, ¶ 8,
quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d
824, ¶ 16.
1. Failure to conduct evidentiary hearing.
{¶13} Appellant argues the trial court abused its discretion in denying
his petition without a hearing as it never gave any consideration to the
evidence that he attached to his petition, never addressed the issues of the
witnesses’ credibility, and never explained why Appellant’s evidence was
lacking in credibility. Appellant asserted in his petition that defense counsel
was provided information from the private investigator that placed severe
scrutiny in the truthfulness and credibility of the lead detective, Joe Ross,
Appellant’s co-defendant Scott Lewis, and the victim Sam Jones. Appellant
concludes an evidentiary hearing would have considered the issue of what Lawrence App. No. 16CA23 9
was reasonable or strategic, given the information within counsel’s
possession.
{¶14} A trial court may dismiss a petition for post-conviction relief
without holding an evidentiary hearing when the claims raised in the petition
are barred by the doctrine of res judicata. State v. Canada, 10th Dist.
Franklin No. 16AP-7, 2016-Ohio-5948, at ¶ 23; State v. Ibrahim, 10th Dist.
Franklin No. 14AP355, 2014-Ohio-5307, at ¶ 10; State v. Sullivan, 10th
Dist. Franklin No. 13AP–861, 2014-Ohio-1260, ¶ 10, citing State v.
Melhado, 10th Dist. Franklin No. 13AP–114, 2013-Ohio-3547, ¶ 10.
However, the doctrine of res judicata does not apply where the petitioner
relies on competent, relevant, and material evidence, outside the trial court's
record, and such evidence must not be evidence that existed or was available
for use at the time of trial. Id. at ¶ 11, citing State v. Braden, 10th Dist.
Franklin No. 02AP–954, 2003-Ohio-2949, ¶ 27. “Where new counsel
represents a defendant on direct appeal and the ineffectiveness of trial
counsel could have been determined without resort to evidence outside the
record, a petition for post-conviction relief alleging ineffective assistance of
trial counsel is barred by res judicata.” Id.
{¶15} Here, Appellant’s supplemental answers to discovery filed in
the trial court proceedings were attached to his post-conviction petition. Lawrence App. No. 16CA23 10
During the underlying proceedings, Appellant hired a private investigator
who submitted various memoranda and reports to defense counsel who, in
turn, provided them in discovery. The various memoranda and reports
included:
1) Interview of Shannon Colson;
2) Telephone interview of Thomas Adams, Appellant’s father (March 22, 2014);
3) Written statement of Jim Carry, Appellant’s father-in- law;
4) Telephone interview of Thomas Adams (June 7, 2014);
5) Interviews of Josh Wheeler and Tracy Wheeler (March 17, 2014);
6) Follow-up telephone interviews of Josh Wheeler (April 29, 2014 and August 18, 2014);
7) Telephone interview of Travis Waulk (April 9, 2014);
8) In-person interview of Curtis Cooke (March 31, 2014);
9) In-person interview of Eric Williams (March 25, 2014);
10) Telephone interview of Blake Copley, Appellant’s co-worker (April 17, 2014);
11) Telephone interview of Chris Bowman, Acting Police Chief of Ironton Police Department (May 16, 2014); Lawrence App. No. 16CA23 11
12) In-person interview of Rich Blankenship, Mayor of Ironton (April 23, 2014);
13) Memorandum by the private investigator to defense counsel entitled “Defense Investigator Impressions and Judgements” (June 16, 2014);
14) Memorandum by private investigator to defense counsel entitled “Initial Discovery File Review” (March 26, 2014);
15) Telephone interview of Lucas Morris (October 4, 2014);
16) Memorandum of Investigation entitled “Collection of Video from Cell Phone” (Meeting with Appellant after phone call between Appellant and co-defendant Edward Hampton on October 2, 2014);
17) Memorandum of Investigation entitled “Collection of Video from Cell Phone”) (Meeting with Appellant after second phone call between Appellant and co-defendant Hampton, October 16, 2014);
18) Synopsis prepared by Captain Joseph Ross, Ironton Police Department (January 14, 2014);
19) Email between Nicole Adams, Appellant’s wife, and the investigator (June 15, 2014);
20) Continuation of Investigation, Captain Joseph Ross (June 10, 2014).
{¶16} We are unable to determine whether all of the memoranda and
reports submitted with Appellant’s petition were submitted with discovery
and actually made part of the trial court record. However, it is clear that all
the memoranda and reports were submitted to defense counsel and available Lawrence App. No. 16CA23 12
for use at trial. A petition for post-conviction relief is not the proper vehicle
to raise issues that were or could have been determined on direct appeal.
Black, supra, at ¶ 11, citing State v. Perry, supra, 10 Ohio St.2d at 182, 226
N.E.2d at 109.
{¶17} We pause to recognize that pursuant to our decision in State v.
Keeley, 989 N.E.2d 80, 2013-Ohio-474, the doctrine of res judicata would
not apply to bar a trial court’s consideration of post-conviction claims that
were not raised in an appeal of right that was pending at the time the post-
conviction petition was filed. There we stated:
“[W]e have found no precedent to determine whether res judicata may be invoked during postconviction proceedings when the first appeal of right is pending. We believe, for the following reasons, that the answer to that question is in the negative. First, as noted above, the Szefcyk syllabus is phrased in past tense and, thus, suggests that res judicata may be invoked after the first appeal of right has been determined. * * * Second, and more important, invoking the doctrine of res judicata while a first appeal of right is pending renders R.C. 2953.21(C) meaningless. The Ohio General Assembly instructed trial courts that they could consider the merits of such petitions even while an appeal is pending. However, to allow the application of res judicata at that stage of an appeal means that a trial court could always avoid ruling on the petition’s merits as long as no decision had been rendered on the appeal.”
{¶18} While Appellant’s appeal was pending at the time he filed his
post-conviction petition and the trial court ruled on it, we as an appellate
court are not precluded from utilizing the doctrine of res judicata where it is Lawrence App. No. 16CA23 13
applicable. We find Appellant’s case somewhat akin to the situation in
Black, supra, in that Appellant’s current claims of ineffective assistance of
trial counsel could have, and should have, been raised in the direct appeal of
his conviction. Appellant, like Black, was present during the trial court
proceedings and was well aware of the actions, and inactions of his counsel.
Black claimed that prior to trial he instructed his trial counsel to contact
witnesses on his behalf, but counsel failed to do so. Black also claimed that
he provided his trial counsel with information about the victim, but that
counsel failed to use the information at trial. This court reasoned that Black
was cognizant of these claims and other claims and could have included
them in his direct appeal. We further observed Black obtained new counsel
for his direct appeal, presumably so that he could pursue such a claim.
{¶19} Importantly, we observed that Black's direct appeal raised the
issue of ineffective assistance without including the arguments that he raised
in his post-conviction petition, and that Black could have included those
arguments in the direct appeal but did not. We found the doctrine of res
judicata applied to bar Black's ineffective assistance of counsel claims, and
that the trial court did not err by dismissing Black's petition.
{¶20} In Appellant’s post-conviction petition, he argued his counsel
was ineffective for: (1) failing to utilize evidence of inconsistent statements Lawrence App. No. 16CA23 14
made by his co-defendant and the victim; and (2) failing to attack the
credibility of the detective in the case.2 And, Appellant specifically sets
forth in his petition:
“Defense counsel had these statements and information that was given to him from the private investigator, (SEE ATTACHMENTS) but never brought this information into the trial for the jury to hear. * * * Counsel for the defendant had this information but failed to use any of it at trial to attack the truthfulness and credibility of the lead detective. In this matter. (sic.) Counsel for Defendant failed to call the Private Detective, Mr. Pennington as a witness to clarify all of these things involving the Lead Detective, Scott Lewis, and the victim. Counsel for the Defendant failed to even put on a rudimentary defense that was readily available * * *. None of the evidence and/or information described herein was hidden from trial counsel or not available for trial. * * * The information was presented to counsel during the course of his review of materials * * *.”
{¶21} We find, as in Black, that Appellant’s current claims of
ineffective assistance of trial counsel could have and should have been
raised in the direct appeal of his conviction. Appellant had different counsel
in his direct appeal and did not raise an ineffective assistance of counsel
claim. Although the trial court could not have relied on res judicata because
Appellant’s direct appeal was still pending at the time the petition was
dismissed, it is applicable. Like Black, Appellant was well aware of his
2 In Appellant’s direct appeal, he claimed ineffective assistance occurred when defense counsel failed to object to numerous instances throughout his trial when the jury was informed of his co-defendants’ guilty pleas. We found no merit to this argument, observing that counsel’s failure to object fell within the realm of reasonable trial strategy and also noted the overwhelming circumstantial evidence of Appellant’s guilt. Lawrence App. No. 16CA23 15
counsel’s actions and/or claimed inactions. Like Black, Appellant generally
claims he provided his counsel with evidence and information which his
counsel failed to use at trial. Appellant, like Black, was aware of these
claims and others and could have included them in his direct appeal. For the
foregoing reason, we find the claims Appellant raised his post-conviction
petition are barred by the doctrine of res judicata. Accordingly, the trial
court did not err by dismissing his petition. We hereby overrule the first
assignment of error.
2. Failure to issue findings of fact and conclusions of law.
{¶22} Appellant argues the trial court’s entry concluded that defense
counsel’s decisions fall within a wide range of trial strategy, but did not
reference any evidence that Appellant was using competent trial strategy,
and simply stated “This was a well tried two day jury trial before twelve
jurors who found the Defendant guilty.” Further, the entry did not address
the issue of the witnesses’ credibility. Appellant contends the findings of
fact and conclusions of law should be explicit to give the appellate court a
clear understanding of the ground for the court’s decision and concludes the
judgment entry of the trial court lacks recognition of the basis of the
decision. Lawrence App. No. 16CA23 16
{¶23} When a trial court dismisses a post-conviction relief petition
without holding an evidentiary hearing, it must enter findings of fact and
conclusions of law. R.C. 2953.21(C). State v. Jackson, 10th Dist. Franklin
No. 03AP–1065, 2004-Ohio-6438, ¶ 11, citing State v. Lester, 41 Ohio
St.2d. 51 (1975), paragraph two of the syllabus (“Pursuant to R.C. 2953.21,
if the trial court finds no grounds for an evidentiary hearing, the court is
required to make and file findings of fact and conclusions of law as to the
reasons for dismissal and to the grounds for relief relied upon in the
petition.”). “ ‘While a trial court need not discuss every issue that the
petitioner raises or engage in an elaborate and lengthy discussion in its
findings of fact and conclusions of law, its findings must be sufficiently
comprehensive and pertinent to the issues to form a basis upon which the
evidence supports the conclusion.’ ” State v. Banks, 10th Dist. Franklin No.
10AP–1065, 2011-Ohio-2749, ¶ 5, quoting State v. McKnight, 4th Dist.
Vinton No. 06CA645, 2006-Ohio-7104, ¶ 5, citing Calhoun at 291-92.
Failure to make the required findings of fact and conclusions of law in
denying a petition for post-conviction relief is prejudicial error. Jackson at
¶ 11, citing State v. Brown, 41 Ohio App.2d 181, 185 (8th Dist.1974).
{¶24} The trial court’s decision stated, in pertinent part:
“The essence of the State of Ohio’s argument in response to the petition for postconviction relief is that Defense Counsel’s Lawrence App. No. 16CA23 17
decision whether to call certain witnesses or Counsel’s decision to pursue a particular line of questioning falls within the area of trial strategy, State v. Davis, 2013-Ohio-3878, 22 (Ct. App. 2013). * * * This was a well tried two day jury trial before twelve jurors who found the Defendant guilty. This Court finds that the Defendant failed to make a prima facie argument or argue substantive grounds for relief as required in R.C. 2953.21(C).”
{¶25} Here, we find Appellant’s ineffective assistance claims are
barred by the doctrine of res judicata and we decline to consider Appellant’s
argument herein. As such, we do not find the trial court’s dismissal of
Appellant’s post-conviction petition constituted prejudicial error. Therefore,
we also overrule Appellant’s second assignment of error, and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED. Lawrence App. No. 16CA23 18
Harsha, J., dissenting:
{¶26} I respectfully dissent. In his first assignment of error Adams
asserts that the trial court erred by failing to conduct a hearing on his
petition. The principal opinion relies on our opinion in State v. Black, 4th
Dist. Ross No. 15CA3509, 2016-Ohio-3104, to hold that res judicata barred
Adams’s claim of ineffective assistance of his trial counsel. But in State v.
Keeley, 2013-Ohio-474, 989 N.E.2d 80, ¶ 7-8 (4th Dist.), we held that the
doctrine of res judicata does not bar consideration of postconviction claims
that were not raised in an appeal of right that was pending at the time the
postconviction petition was filed.
{¶27} In Black we upheld a trial court’s dismissal of a petition for
postconviction relief without holding an evidentiary hearing based in part on
res judicata although the petition was filed when a direct appeal was
pending. However, Black is distinguishable from both Keeley and this case
because the trial court there dismissed the defendant’s petition for
postconviction relief after we decided the defendant’s appeal. The trial
court could correctly rely on res judicata to resolve the pending Lawrence App. No. 16CA23 19
postconviction petition based on res judicata at that point because his direct
appeal was no longer pending.3
{¶28} Conversely, the facts in this case are more like the
circumstances in Keeley than the situation in Black, i.e., when the trial court
dismissed Adams’s petition for postconviction relief, his direct appeal was
still pending. Based on Keeley we should sustain Adams’s first assignment
of error and remand the cause to the trial court to consider the petition. On
remand, because his direct appeal is no longer pending, the trial court is free
to consider whether his claims are now barred by res judicata.
{¶29} In his second assignment of error Adams argues that the trial
court erred by failing to issue findings of fact and conclusions of law. The
principal opinion finds that because res judicata bars his claims, any failure
by the trial court was not prejudicial. But because the trial court erred in
dismissing the petition based on res judicata when his direct appeal was still
pending, the opinion’s rationale on his second assignment of error is also
erroneous. “Ohio law requires a trial court to make findings of fact and
conclusions of law when it dismisses a petition or denies postconviction
relief on the merits.” State v. Brooks, 4th Dist. Scioto No. 09CA3329, 2010–
Ohio–3262, ¶ 4, citing R.C. 2953.21(C) and (G). We should sustain
3 See, Black (Harsha, J., concurring) in which this judge applied res judicata to some of Black’s claims and rejected its application to two others. Lawrence App. No. 16CA23 20
Adams’s second assignment of error and direct the trial court on remand to
issue findings of fact and conclusions of law if it determines that dismissal
of the petition without a hearing is warranted.
{¶30} Therefore, I dissent. We should sustain Adams’s assignments
of error and reverse and remand the cause to the trial court. Lawrence App. No. 16CA23 21
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellants.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence 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 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.
Abele, J.: Concurs in Judgment Only. Harsha, J.: Dissents with Dissenting Opinion.
For the Court,
BY: __________________________________ Matthew W. McFarland, 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.