[Cite as State v. Ashcraft, 2021-Ohio-3842.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 21CA000002 : MICHAEL P. ASHCRAFT : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 20CR03- 0050
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 28, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CHIP MCCONVILLE TODD W. BARSTOW KNOX COUNTY PROSECUTOR 261 West Johnstown Road 117 East High St. Suite 204 Suite 234 Columbus, OH 43230 Mount Vernon, OH 43050 [Cite as State v. Ashcraft, 2021-Ohio-3842.]
Delaney, J.
{¶1} Defendant-Appellant Michael P. Ashcraft appeals the January 22, 2021
sentencing entry of the Knox County Court of Common Pleas. Plaintiff-Appellee is the
State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 1, 2013, Defendant-Appellant Michael P. Ashcraft was
convicted of unlawful sexual conduct with a minor, a third-degree felony.
{¶3} On March 9, 2020, the Knox County Grand Jury indicted Defendant-
Appellant Michael P. Ashcraft on one count of Failure to Provide Change of Address, a
third-degree felony in violation of R.C. 2950.05(F)(1). The indictment stated that Ashcraft
was previously convicted for a violation of R.C. 2950.05(F)(1) on June 1, 2018. As this
appeal relates solely to sentencing, a recitation of the underlying facts giving rise to the
indictment are unnecessary for the disposition of this appeal.
{¶4} Ashcraft entered a guilty plea to the charge on December 22, 2020. During
the plea colloquy, the trial court informed Ashcraft of the maximum penalty:
THE COURT: * * * I want you to understand that the maximum penalty you
face on the charge of failure to provide a change of address in this case, a
third degree felony is, a maximum penalty is a basic prison term of no less
than three years. And in addition to any sanction or penalty imposed for the
charged offense, pursuant to Ohio Revised Code Section 2950.99, and as
a third degree felony it carries with it a definite term of imprisonment of six
–
MR. MCCONVILLE: Nine. [Cite as State v. Ashcraft, 2021-Ohio-3842.]
THE COURT: Nine.
MR. MCCONVILLE: Twelve.
THE COURT: Twelve.
MR. MCCONVILLE: Eighteen.
THE COURT: Eighteen.
MR. MCCONVILLE: Twenty-four, 30 or 36 months.
THE COURT: Right, okay. So in addition to the – thank you. In addition to
the basic prison term of no less than three years, you could also get up to
36 months of additional time. Do you understand that?
(T. 5-6). Ashcraft answered affirmatively and counsel for Ashcraft did not object to the
trial court’s explanation of the maximum penalty. The trial court accepted the plea and
found Ashcraft guilty. The matter was set for a sentencing hearing after the completion of
a presentence investigation.
{¶5} The trial court held the sentencing hearing on January 21, 2021. Prior to
sentencing, the trial court noted for the record that Ashcraft had pleaded guilty to a
violation of R.C. 2950.05(F)(1), which was subject to R.C. 2929.13(C). (T. 3). The State
asked the trial court to adopt the joint recommended sentence in the case. (T. 3). Counsel
for Ashcraft stated, “Your Honor, there’s not much we can say in terms of trying to
minimize the sentence, but I’ve read the presentence investigation. The prosecutor’s
recommendation is a, what appears to be a statutory minimum sentence, so thank you.”
(T. 3). After considering the purposes and principles of sentencing, the trial court ordered
Ashcraft to “serve a definite term of imprisonment for three years plus nine months on [Cite as State v. Ashcraft, 2021-Ohio-3842.]
count one. Mr. Ashcraft’s given credit for 168 days served towards his sentence.” (T. 4).
Counsel for Ashcraft did not object to the sentence.
{¶6} The trial court filed the Sentencing Entry on January 22, 2021, which stated
that Ashcraft was to “serve a definite term of imprisonment of three (3) years and nine (9)
months, pursuant to Ohio Revised Code Section 2950.99(A)(2)(b).” It is from this
Sentencing Entry that Ashcraft now appeals.
ASSIGNMENT OF ERROR
{¶7} Ashcraft raises one Assignment of Error:
{¶8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
SENTENCING HIM TO A PRISON TERM THAT WAS CONTRARY TO LAW AS IT WAS
NOT AUTHORIZED BY OHIO’S SENTENCING STATUTES. (T. 1/22/21; R. Judgment
Entry 1/22/21).
ANALYSIS
{¶9} Ashcraft contends in his sole Assignment of Error that his sentence of 45
months for a violation of R.C. 2950.05(F) was contrary to law under the language of R.C.
2950.99.
Standard of Review
{¶10} R.C. 2953.08 governs appeals based on felony sentencing guidelines.
Subsection (G)(2) sets forth this Court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court. [Cite as State v. Ashcraft, 2021-Ohio-3842.]
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
(b) That the sentence is otherwise contrary to law.
“Clear and convincing evidence is that measure or degree of proof which is more than a
mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶11} A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.” State v. Morris, 5th Dist. Ashland No. 20-COA-
015, ¶ 90 quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-022 and CA2019-
03-026, 2019-Ohio-4209, ¶ 36. [Cite as State v. Ashcraft, 2021-Ohio-3842.]
{¶12} Criminal sentencing is “a creature of the legislature[.]” State v. Farris, 6th
Dist. Erie No. E-20-019, 2021-Ohio-2135, 2021 WL 2624129, ¶ 8 quoting State v.
Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 13, citing Wilson v.
State, 5 N.E.3d 759 (Ind. 2014). Trial courts may only impose “sentences that are
authorized by statute[.]” Id. In this case, Ashcraft asks this Court to engage in statutory
interpretation to determine whether his sentence was contrary to law. Interpretation of a
statute or ordinance is a matter of law, and thus, the proper standard of review is de novo.
State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9.
{¶13} The paramount concern is determining legislative intent in enacting the
statute. State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815
N.E.2d 1107, ¶ 21. To discern this intent by looking at the language used in the statute
itself, we must read words and phrases in context and construe them in accordance with
rules of grammar and common usage. State ex rel. Choices for S.W. City Schools v.
Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 40. “[I]f such intent is
clearly expressed therein, the statute may not be restricted, constricted, qualified,
narrowed, enlarged or abridged.” State ex rel. McGraw v. Gorman, 17 Ohio St.3d 147,
149, 478 N.E.2d 770 (1985). In other words, if the meaning is unambiguous and definite,
then the statute is to be applied as written and needs no further interpretation. State ex
rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651 N.E.2d 995 (1995). When the
court must interpret a criminal statute, the language should be strictly construed against
the state and liberally construed in favor of the accused. R.C. 2901.04(A).
{¶14} Before we begin our analysis, we note the record shows that Ashcraft did
not object at the plea hearing to the trial court’s explanation of the maximum penalty [Cite as State v. Ashcraft, 2021-Ohio-3842.]
available, nor did Ashcraft object at the sentencing hearing when the trial court imposed
the 45-month prison sentence. Because he failed to object and bring the alleged
sentencing error to the attention of the trial court, Ashcraft has waived all but plain error
review of the trial court’s sentence. Under the plain error rule, “[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention
of the court.” Crim.R. 52(B). The rule places the following limitations on a reviewing court's
determination to correct an error despite the absence of timely objections at trial: (1) “there
must be an error, i.e. a deviation from a legal rule,” (2) “the error must be plain,” that is an
error that constitutes “an ‘obvious’ defect in the trial proceedings,” and (3) the error must
have affected “substantial rights” such that “the trial court's error must have affected the
outcome of the trial.” State v. Wood, 5th Dist. Knox No. 20CA000010, 2020-Ohio-4251,
2020 WL 5092841, ¶ 18 citing State v. Dunn, 5th Dist. Stark No. 2008-CA-00137, 2009-
Ohio-1688, ¶ 89, citing State v. Morales, 10th Dist. Franklin Nos. 03-AP-318, 03-AP-319,
2004-Ohio-3391, ¶ 19.
Sentencing Guidelines
General Sentencing Statute
{¶15} R.C. 2919.14(A)(3) is a general sentencing statute that controls third-
degree felonies. State v. Pribble, 158 Ohio St.3d 490, 2019-Ohio-4808, 145 N.E.3d 259,
¶ 15. “R.C. 2929.14(A)(3)(a) narrow[ed] the applicability of third-degree-felony sentences
longer than three years; it specifically identifie[d] violations for which a judge may impose
prison terms from 12 to 60 months.” Id. at ¶ 6; State v. Harris, 2020-Ohio-154, 141 N.E.3d
996, ¶ 12 (12th Dist.). “As amended, R.C. 2929.14(A)(3)(b) limits sentences to three years [Cite as State v. Ashcraft, 2021-Ohio-3842.]
for third-degree felonies to which division (A)(3)(a) does not apply.” Id. R.C. 2929.14(A)(3)
reads:
(3)(a) For a felony of the third degree that is a violation of section 2903.06,
2903.08, 2907.03, 2907.04, 2907.05, 2907.321, 2907.322, 2907.323, or
3795.04 of the Revised Code or that is a violation of section 2911.02 or
2911.12 of the Revised Code if the offender previously has been convicted
of or pleaded guilty in two or more separate proceedings to two or more
violations of section 2911.01, 2911.02, 2911.11, or 2911.12 of the Revised
Code, the prison term shall be a definite term of twelve, eighteen, twenty-
four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.
(b) For a felony of the third degree that is not an offense for which division
(A)(3)(a) of this section applies, the prison term shall be a definite term of
nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.
Specific Sentencing Statute
{¶16} R.C. 2950.99 specifically addresses sentencing for a violation of R.C.
2950.05, failing to provide a change of address. Two provisions of R.C. 2950.99 apply to
Ashcraft considering his current conviction for failure to provide a change of address and
his prior convictions for unlawful sexual conduct with a minor and failure to provide a
change of address.
{¶17} First, pursuant to R.C. 2590.99(A)(1)(b)(ii), Ashcraft’s current violation of
the notice-requirement statute is a felony of the third degree. That section provides in
pertinent part: [Cite as State v. Ashcraft, 2021-Ohio-3842.]
(b) If the offender previously has been convicted of or pleaded guilty to * * *
a violation of a prohibition in section * * * 2950.05, * * * of the Revised Code,
whoever violates a prohibition in section * * * 2950.05 * * * of the Revised
Code shall be punished as follows:
***
(ii) If the most serious sexually oriented offense or child-victim oriented
offense that was the basis of the registration, notice of intent to reside,
change of address notification, or address verification requirement that was
violated under the prohibition is a felony of the * * * third degree if committed
by an adult * * *, the offender is guilty of a felony of the same degree as the
most serious sexually oriented offense or child-victim oriented offense that
was the basis of the registration, notice of intent to reside, change of
address, or address verification requirement that was violated under the
prohibition * * *.
* * *.
Because Ashcraft’s sexually oriented offense that was the basis of his notification
requirement was unlawful sexual conduct with a minor and a felony of the third degree,
his violation of R.C. 2950.05 was likewise a felony of the third degree.
{¶18} Second, R.C. 2950.99(A)(2)(b) is the specific sentencing statute for repeat
nonreporting sex offenders. State v. Prisby, 11th Dist. Portage No. 2017-P-0012, 2017-
Ohio-9340, ¶ 9. If there has been a prior conviction under R.C. 2950.05, R.C.
2950.99(A)(2)(b) provides the following sentencing guidelines: [Cite as State v. Ashcraft, 2021-Ohio-3842.]
(b) In addition to any penalty or sanction imposed under division (A)(1)(b)(i),
(ii), or (iii) of this section or any other provision of law for a violation of a
prohibition in section * * * 2950.05 * * * the Revised Code, if the offender
previously has been convicted of or pleaded guilty to, or previously has
been adjudicated a delinquent child for committing, a violation of a
prohibition in section * * * 2950.05 * * * of the Revised Code when the most
serious sexually oriented offense or child-victim oriented offense that was
the basis of the requirement that was violated under the prohibition is a
felony if committed by an adult or a comparable category of offense
committed in another jurisdiction, the court imposing a sentence upon the
offender shall impose a definite prison term of no less than three years. The
definite prison term imposed under this section, subject to divisions (C) to
(I) of section 2967.19 of the Revised Code, shall not be reduced to less than
three years pursuant to any provision of Chapter 2967. or any other
provision of the Revised Code.
R.C. 2950.99.
{¶19} This Court has held that R.C. 2950.99(A)(2)(b) requires the trial court to
impose a mandatory minimum sentence of three years. State v. Koch, 5th Dist. Knox No.
16-CA-16, 2016-Ohio-7926, ¶ 14; State v. Smithhisler, 2017-Ohio-5725, 93 N.E.3d 1274,
¶ 21 (5th Dist.). We have held under the circumstances in this case, and Ashcraft
concedes the same, the trial court was required to impose a prison sentence of at least
three years. The question before the Court is whether the trial court was permitted to
sentence Ashcraft to an additional nine months in prison. [Cite as State v. Ashcraft, 2021-Ohio-3842.]
In Addition to Any Penalty or Sanction
{¶20} In his appeal, Ashcraft argues his three years and nine months prison
sentence is contrary to law based on the language of R.C. 2950.99(A)(2)(b). He contends
R.C. 2950.99(A)(2)(b) does not authorize the trial court to impose a non-mandatory prison
term in addition to the mandatory minimum sentence of three years. Ashcraft takes
umbrage with the State’s argument that in addition to the three-year mandatory term, R.C.
2950.99 permits the trial court to impose an additional prison term of 9, 12, 18, 24, 30, or
36 months pursuant to R.C. 2929.14(A)(3)(b) for his conviction under R.C. 2950.05. In
support of its argument, the State directs the Court to the language of R.C.
2950.99(A)(2)(b), which states, “In addition to any penalty or sanction imposed under
division (A)(1)(b)(i), (ii), or (iii) of this section or any other provision of law for a violation
of a prohibition in section * * * 2950.05 * * * the Revised Code, * * * the court * * * shall
impose a definite prison term of no less than three years.” The issue before this Court
then is whether R.C. 2950.99(A)(2)(b) permits the trial court, under these circumstances,
to impose an additional prison term to the three-year minimum mandatory term. We note
this issue is a matter of first impression for this Court.
{¶21} “’It is well settled that the General Assembly has the plenary power to
prescribe crimes and fix penalties.’” State v. Prisby, 11th Dist. Portage No. 2017-P-0012,
2017-Ohio-9340, ¶ 8 quoting State v. Barnes, 9th Dist. Lorain Nos. 13CA010502,
13CA010503, 2014-Ohio-2721, ¶ 7. A rule of statutory interpretation is that statutory
provisions are to be construed together “and the Revised Code be read as an interrelated
body of law.” State v. Moaning, 76 Ohio St.3d 126, 128, 666 N.E.2d 1115 (1996). “‘This
court in the interpretation of related and co-existing statutes must harmonize and give full [Cite as State v. Ashcraft, 2021-Ohio-3842.]
application to all * * * statutes [concerning the same subject matter] unless they are
irreconcilable and in hopeless conflict.’ United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d
369, 372, 643 N.E.2d 1129 (1994), quoting Johnson's Mkts., Inc. v. New Carlisle Dept. of
Health, 58 Ohio St.3d 28, 35, 567 N.E.2d 1018 (1991); State v. Cook, 128 Ohio St.3d
120, 2010-Ohio-6305, 942 N.E.2d 357, ¶ 45.” State v. Pribble, 158 Ohio St.3d 490, 2019-
Ohio-4808, 145 N.E.3d 259, ¶ 12. Under these parameters, we review the penalties and
sanctions fixed by the General Assembly as to R.C. 2950.99 and related statutes to
determine if Ashcraft’s sentence was contrary to law.
{¶22} Construing R.C. 2950.99(A)(1)(b)(ii) and (A)(2)(b) together, along with other
provisions of the Revised Code as an interrelated body of law, we find the language of
the sections are harmonized and reconcilable. We review each section in turn to
demonstrate they are not in conflict.
{¶23} First, there is no dispute that whoever violates the change of address
notification requirement under R.C. 2950.05, the offender is to be punished according to
the sentencing guidelines found within R.C. 2950.99.
{¶24} Second, R.C. 2950.99(A)(1)(b)(ii), relevant to this case, prescribes the
punishment for an offender who has been previously convicted of a change of address
notification violation. If the previously convicted offender has (1) violated a change of
address notification requirement and (2) the sexual offense that gave rise to the duty to
notify was a first-, second-, or third-degree felony, the trial court shall find the offender
“guilty of the felony of the same degree as the most serious sexually oriented offense or
child-victim oriented offense that was the basis of the * * * change of address requirement
* * * that was violated under the prohibition.” R.C. 2950.99(A)(1)(b)(ii). Based on R.C. [Cite as State v. Ashcraft, 2021-Ohio-3842.]
2950.99(A)(1)(b)(ii), the trial court found Ashcraft guilty of a third-degree felony. Ohio’s
felony sentencing scheme is codified in R.C. 2929.14 where R.C. 2929.14(A)(3) outlines
the sentencing schema for felonies of the third degree. The statutory violations listed in
R.C. 2929.14(A)(3)(a) do not include R.C. 2950.05. R.C. 2929.14(A)(3)(b) therefore limits
sentences to a definite prison term of 9, 12, 18, 24, 30, or 36 months for third-degree
felonies to which division (A)(3)(a) does not apply.
{¶25} Our statutory interpretation is assisted by a key phrase in R.C.
2950.99(A)(1)(b), which states, “[i]f the offender has been previously convicted of * * * a
violation of * * * 2950.05 * * *, whoever violates a prohibition in section * * * 2950.05 * * *
shall be punished as follows.” (Emphasis added). The emphasized language is written in
the present tense, which is pertinent to the basis for sentencing under R.C.
2950.99(A)(1)(b). The plain language of the statute contemplates that an offender, while
previously convicted of a violation of a change of address notification requirement, is
currently before the trial court for sentencing based on a present violation of a change of
address notification requirement. R.C. 2950.99(A)(1)(b) instructs the trial court how to
determine the felony level for a current offender with a prior conviction where the related
statute R.C. 2929.14 instructs the trial court as to the range of felony prison terms.
{¶26} Third, the language used in R.C. 2950.99(A)(2)(b) underscores that a trial
court is permitted to punish an offender for a present violation of a change of address
notification under R.C. 2950.99(A)(1)(b). R.C. 2950.99(A)(2)(b) states that “in addition to
any penalty or sanction imposed under division (A)(1)(b)(i), (ii), or (iii) of this section * * *
for a violation of * * * [R.C] * * * 2950.05,” the trial court shall impose a definite sentence
of “no less than three years” on an offender who fails to notify the sheriff of a change of [Cite as State v. Ashcraft, 2021-Ohio-3842.]
address if: (1) they have previously been convicted of failing to provide a change of
address notification and (2) the sexual offense that gave rise to the duty to notify was a
felony. (Emphasis added). R.C. 2950.99(A)(2)(b).
{¶27} Applying the rules of statutory construction to the language of R.C.
2950.99(A)(2)(b), we refer to the Revised Code to determine the General Assembly’s
meaning when it included the language, “in addition to any penalty or sanction.” R.C.
2929.01(DD) defines “sanction” as “any penalty imposed upon an offender who is
convicted of or pleads guilty to an offense, as punishment for the offense. ‘Sanction’
includes any sanction imposed pursuant to any provision of sections 2929.14 to 2929.18
or 2929.24 to 2929.28 of the Revised Code.” Pursuant to R.C. 2929.01(DD), a felony
prison term imposed under R.C. 2929.14 is a “sanction.” Accordingly, the plain language
of R.C. 2950.99(A)(2)(b) emphasizes the General Assembly permits the trial court to
impose a sanction under R.C. 2950.99(A)(1)(b), which includes a prison term as defined
by R.C. 2929.01(DD), on a current offender with a prior conviction in addition to a
mandatory three-year minimum sentence under R.C. 2950.99(A)(2)(b). Our interpretation
is supported by this Court’s prior holdings in State v. Koch, 5th Dist. Knox No. 16-CA-16,
2016-Ohio-7926, ¶ 14 and State v. Smithhisler, 2017-Ohio-5725, 93 N.E.3d 1274, ¶ 21
(5th Dist.), that R.C. 2950.99(A)(2)(b) has been described as a “sentencing enhancement
provision.”
{¶28} Ashcraft argues the phrase, “in addition to any penalty or sanction imposed”
is not specific as to what penalty or sanction may be imposed for a violation of R.C.
2950.05. He contends the phrase could be interpreted to include a fine or post-release
control as the General Assembly chose to state, “in addition to any penalty or sanction [Cite as State v. Ashcraft, 2021-Ohio-3842.]
imposed” instead of, “in addition to any prison term.” We cannot support this argument
based on the definition of “sanction” found in R.C. 2929.01(DD) and the rules of statutory
construction to harmonize the related statutes.
{¶29} We further note that in dicta, the Eleventh District Court of Appeals in State
v. Prisby, 11th Dist. Portage No. 2017-P-0012, 2017-Ohio-9340, proposed, but did not
hold, that a trial court could not impose an additional prison term for a notification violation
beyond the three-year mandatory minimum in R.C. 2950.99(A)(2)(b). Id. at ¶ 22. We find
the Eleventh District’s contemplations unpersuasive because the court ultimately declined
to rule on the issue. In that case, the court did not rule because the state raised the issue
for the first time on appeal and the state did not file a cross-appeal of the appellant’s
sentence. Id. at ¶ 29.
{¶30} In the present case, we find the trial court was permitted by Ohio’s
sentencing guidelines to impose the sentence of a nine-month prison term pursuant to
R.C. 2950.99(A)(1)(b)(ii) and a three-year mandatory minimum prison term pursuant to
R.C. 2950.99(A)(2)(b) for a violation of R.C. 2950.05 and a prior conviction under R.C.
2950.05. The 45-month sentence was not contrary to law and within the permissible
statutory range.
{¶31} Ashcraft’s sole Assignment of Error is overruled. [Cite as State v. Ashcraft, 2021-Ohio-3842.]
CONCLUSION
{¶32} The judgment of the Knox County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, Earle, J., concur.