State v. Butler

2023 Ohio 1716

Opinion

[Cite as State v. Butler, 2023-Ohio-1716.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : KEVIN A. BUTLER : Case No. CT2022-0079 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2022-0300

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 22, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH RICHARD D. HIXSON Prosecuting Attorney 3808 James Court, Suite 2 Muskingum County, Ohio Zanesville, Ohio 43701

By: JOHN CONNOR DEVER Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2022-0079 2

Baldwin, J.

{¶1} Appellant Kevin A. Butler appeals his sentence, imposed by the trial court

after he changed his plea to guilty pursuant to a plea agreement. Appellee is the State of

Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On July 7, 2022, the Muskingum County Grand Jury indicted the appellant

on the following charges:

{¶3} (1) Two counts of aggravated robbery in violation of R.C. 2911.01(A)(1),

with a firearm specification in violation of R.C. 2941.145, felonies of the first degree;

{¶4} (2) Two counts of aggravated burglary in violation of R.C. 2911.11(A)(1),

with a firearm specification in violation of R.C. 2941.145, felonies of the first degree; and,

{¶5} (3) Two counts of aggravated assault in violation of R.C. 2903.11(A)(1) and

(2), with a firearm specification, felonies of the second degree.

{¶6} Bond was set at $1,000.000.00. The appellant pleaded not guilty at his July

13, 2022 arraignment, and bond was continued.

{¶7} The appellant entered into a plea agreement with the appellee, and on

September 14, 2022 withdrew his not guilty plea and entered a plea of guilty to count one,

robbery, as amended, in violation of R.C. 2911.02(A)(2), a felony of the second degree;

and, count six, felonious assault, as amended, in violation of R.C. 2903.11(A)(2), a felony

of the second degree. The Plea of Guilty document set forth that the appellant understood

that the maximum penalty for each offense was as follows: a stated minimum prison term

of 2, 3, 4, 5, 6, 7, or 8 years; an indefinite term of up to 4 years; a possible maximum term

of 12 years; a fine of $0.00 up to $15,000.00; no mandatory prison time; and, prison time Muskingum County, Case No. CT2022-0079 3

need not be consecutive. The Plea of Guilty also set forth, inter alia, that “[p]rison terms

for multiple charges, even if consecutive sentences are not mandatory, may be imposed

consecutively by the Court.”

{¶8} The appellant specifically acknowledged receipt of the “Notice of Non-Life

Felony Indefinite Prison Term” document, and specifically acknowledged that post

release control upon release from prison was 18 months to 3 years. Significantly, the Plea

of Guilty stated:

In consideration of the Defendant’s plea of “guilty” to Counts One and

Six, as amended, the parties agree to a joint recommendation that the

Defendant be sentenced to five (5) years prison. The State agrees to

dismiss Counts Two, Three, Four and Five of the indictment as well as the

Firearm Specifications attached to Counts One and Six of the indictment at

the time of sentencing.

Such recommendation is conditioned upon Defendant’s compliance

with all bond conditions, and Defendant’s compliance with all laws pending

sentencing on this matter.

The Defendant further acknowledges that he understands any

sentencing recommendation does not have to be followed by the

Court.

(Underlining original, boldface added.)

{¶9} The Plea of Guilty was signed by the appellant and his counsel, as well as

the prosecuting attorney. Muskingum County, Case No. CT2022-0079 4

{¶10} A Plea Hearing was conducted on September 14, 2022, at which the

appellant’s trial counsel stated that he “reviewed [the plea form] carefully” with the

appellant, who signed it in the presence of counsel. The trial court addressed the

appellant personally pursuant to Crim. R. 11(C)(2) prior to accepting his plea. The trial

court’s discussion with the appellant regarding his guilty plea included, but was not limited

to, the following exchange:

THE COURT: Thank you. Mr. Butler, you understand you are here

today to plead guilty to two amended counts?

THE DEFENDANT: Yes, Your Honor.

THE COURT: They’re both charged as felonies of the second degree.

You understand that?

THE COURT: Count 1 is a charge - - is a charge, as amended, of

robbery, charged as a felony of the second degree, carries with it a

maximum - - or a minimum stated prison term of 2 through 8 years in one-

year increments. That’s a non-life indefinite felony because it’s a felony of

the second degree. There’s a maximum fine of $15,000.00.

If you go to prison in this matter, if you’re sentenced to prison on this count,

there will be a choice, the Court will decide between the 2 and 8 years in

one-year increments what your prison sentence would be. Once the

minimum sentence is imposed, then the maximum indefinite sentence is

one and a half times the minimum. You understand that?

THE DEFENDANT: Yes, Your Honor Muskingum County, Case No. CT2022-0079 5

THE COURT: So there’s a possible maximum prison term of 12 years

with regard to this count.

* * *

THE COURT: With regard to Count 6, felonious assault, as amended,

a felony of the second degree, again, it’s the same sentencing parameters.

The minimum is 2 to 8 years on one-year increments. The maximum then -

- maximum indefinite sentence becomes 12 years subject to all of the

provisions I just described. You understand - - but you can only be

sentenced on the indefinite maximum on one of the two, the more serious

of the two. They’re both the same. You understand - -

THE COURT: You understand that?

{¶11} The trial court summarized the parties’ plea agreement as follows:

THE COURT: You understand, Mr. Butler, that in exchange for your

pleas of guilty, there’s a joint recommendation that you be sentenced to five

years in prison. The State would agree to dismiss Counts 2, 3, 4, and 5 of

the indictment as well as the firearm specification attached to Counts 1 and

6. Is that your understanding?

THE COURT: Have you been promised anything else or threatened

in any way in order for you to enter these pleas of guilty? Muskingum County, Case No. CT2022-0079 6

THE DEFENDANT: No, Your Honor.

THE COURT: You understand that is joint recommendation is

not binding on this Court and, at sentencing, I do not have to follow

it?

(Boldface original.)

{¶12} The trial court engaged in the requisite Crim. R. 11(C)(2) colloquy, and

reviewed with the appellant all the rights he was giving up by pleading guilty pursuant to

the negotiated plea agreement, which the appellant acknowledged. The trial court

accepted the appellant’s guilty plea. The trial court ordered a presentence investigation,

and thereafter scheduled the matter for sentencing.

{¶13} The sentencing hearing was conducted on October 31, 2022. The trial court

noted for the record that the indictment contained six counts, and the charges were

reduced to two counts for purposes of the plea agreement. The appellant’s trial counsel

acknowledged the extensive contents of the presentence investigation, but submitted that

the appellant’s record was known during the plea negotiations, that the victim was the

appellant’s former drug dealer and therefore not “an innocent”, and that the appellant

maintained that he did not strike the victim in the head, but rather, the victim was struck

by the other assailant. He argued that the joint recommendation of five years was fair,

and urged the trial court to follow the recommendation.

{¶14} The trial court, noting that the appellant had been released from prison in

March of 2022 and committed the offenses in this case in June of 2022, summarized the

appellant’s presentence investigation as follows: Muskingum County, Case No. CT2022-0079 7

THE COURT: In May of 2021, domestic violence. April of 2011,

breaking and entering. That’s Franklin County. March of 2010, Franklin

County, failure to comply, receiving stolen property, unauthorized use of a

motor vehicle. January of 2010, Franklin County, theft. Franklin County,

December 2009, theft.

Franklin County, April, 2008, receiving stolen property. September,

2007, Franklin County, theft. November,2007, Franklin County, receiving

stolen property. A separate case, November, 2007, first-degree

misdemeanor theft, that was amended from a felony.

Then misdemeanors, there’s June of 2022, domestic violence by

threat and menacing out of Zanesville Municipal Court. April of this year,

domestic violence by threat, Zanesville Municipal Court.

May of 2021, criminal damaging, unauthorized use of a motor

vehicle. That one was dismissed. March of ’20, Zanesville Municipal Court,

unauthorized use of a motor vehicle. March of 2020, Zanesville Municipal

Court, two counts of assault, criminal trespass. Zanesville Municipal Court,

December of 2018, domestic violence.

Fairfield Municipal Court, July of 2017, theft. Franklin County, July of

’17, theft, criminal mischief, criminal trespass, possession of marijuana,

possession of drug paraphernalia. Here’s an active warrant. That’s been

active for five years. Muskingum County, Case No. CT2022-0079 8

Franklin County, January of 2010, petty theft and criminal trespass.

That was dismissed. Franklin County, April of 2008, disorderly conduct.

Does all that sound about right?

THE COURT: So it’s really significant. Based upon the facts and

circumstances of this case, on Count 1 you will be sentenced to a minimum

prison term of eight years in prison up to an indefinite maximum of twelve

years in prison.

With regard to Count 6, you’ll be sentenced to seven years in prison.

Those two terms will run concurrently for an aggregate - - aggregate

minimum prison sentence of eight years to a maximum indefinite of twelve

years.

{¶15} The appellant filed a timely appeal, and sets forth the following assignment

of error:

{¶16} “I. THE TRIAL COURT ERRED BY IMPOSING A SENTENCE IN EXCESS

OF A REASONABLE CALCULATION MADE TO ACHIEVE THE OVERRIDING

PURPOSES OF FELONY SENTENCING, AS REQUIRED BY OHIO REVISED CODE

SECTION 2929.1(A), AND, AS A RESULT, THE SENTENCE IMPOSED WAS

CONTRARY TO LAW UNDER OHIO REVISED CODE SEC. 2953.08(G)(2).”

{¶17} The appellant argues that the trial court erred in imposing sentence. We

disagree. Muskingum County, Case No. CT2022-0079 9

STANDARD OF REVIEW

{¶18} Felony sentences are reviewed on appeal under R.C. 2953.08(G)(2). State

v. Goings, 6th Dist. Lucas No. L-13-1103, 2014-Ohio-2322, 2014 WL 2480615, ¶ 20. An

appellate court may increase, modify, or vacate and remand a judgment only if it clearly

and convincingly finds either “(a) 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” or “(b) the sentence is otherwise contrary to law.” State v. Yeager, 6th Dist.

Sandusky No. S-15-025, 2016-Ohio-4759, 2016 WL 3573887, ¶ 7, citing R.C.

2953.08(G)(2).

ANALYSIS

{¶19} The appellant pleaded guilty to one count of robbery in violation of R.C.

2911.02(A)(2), a felony of the second degree, and felonious assault in violation of R.C.

2903.11(A)(2), a felony of the second degree.

{¶20} R.C. 2929.14(A) sets forth prison terms for felonies of various degrees, and

states in pertinent part:

(2)(a) For a felony of the second degree committed on or after March 22,

2019, the prison term shall be an indefinite prison term with a stated

minimum term selected by the court of two, three, four, five, six, seven, or

eight years and a maximum term that is determined pursuant to section

2929.144 of the Revised Code, except that if the section that criminalizes

the conduct constituting the felony specifies a different minimum term or

penalty for the offense, the specific language of that section shall control in Muskingum County, Case No. CT2022-0079 10

determining the minimum term or otherwise sentencing the offender but the

minimum term or sentence imposed under that specific language shall be

considered for purposes of the Revised Code as if it had been imposed

under this division.

{¶21} R.C. 2929.144 addressed the determination of maximum prison terms, and

(B) The court imposing a prison term on an offender under division (A)(1)(a)

or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of

the first or second degree shall determine the maximum prison term that is

part of the sentence in accordance with the following:

If the offender is being sentenced for one felony and the felony is a

qualifying felony of the first or second degree, the maximum prison term

shall be equal to the minimum term imposed on the offender under division

(A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code plus fifty per cent

of that term.

{¶22} Thus, the maximum term for appellant’s robbery count was twelve years,

which is precisely the sentence the trial court imposed.

{¶23} The trial court had the same options for sentencing on the felonious assault

charge, also a second degree felony, for which it imposed a seven-year sentence. The

trial court ordered that the sentences be served concurrently, for an aggregate minimum

prison sentence of eight years to a maximum indefinite sentence of twelve years. Thus,

again, the trial court’s sentence is within the parameters of the applicable statute. Muskingum County, Case No. CT2022-0079 11

{¶24} The appellant argues that the sentence imposed by the trial court failed to

comply with R.C. 2929.11(A) or properly weigh the factors set forth in R.C. 2929.12. We

disagree. As set forth by this court in State v. Worden, 5th Dist. Muskingum No. CT2022-

0030, 2022-Ohio-4648:

A court reviewing a criminal sentence is required by R.C. 2953.08(F) to review the

entire trial-court record, including any oral or written statements and presentence-

investigation reports. R.C. 2953.08(F)(1) through (4). Although a court imposing a

felony sentence must consider the purposes of felony sentencing under R.C.

2929.11 and the sentencing factors under R.C. 2929.12, “neither R.C. 2929.11 nor

2929.12 requires [the] court to make any specific factual findings on the record.”

State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, at ¶ 20,

citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 31,

and State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000).

Id. at ¶8.

{¶25} R.C. 2929.11 provides in pertinent part:

(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony

sentencing are to protect the public from future crime by the offender and

others, to punish the offender, and to promote the effective rehabilitation of

the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on

state or local government resources. To achieve those purposes, the

sentencing court shall consider the need for incapacitating the offender, Muskingum County, Case No. CT2022-0079 12

deterring the offender and others from future crime, rehabilitating the

offender, and making restitution to the victim of the offense, the public, or

both.

(B) A sentence imposed for a felony shall be reasonably calculated to

achieve the three overriding purposes of felony sentencing set forth in

division (A) of this section, commensurate with and not demeaning to the

seriousness of the offender's conduct and its impact upon the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders.

{¶26} R.C. 2929.12 provides:

(A) Unless otherwise required by section 2929.13 or 2929.14 of the

Revised Code, a court that imposes a sentence under this chapter upon an

offender for a felony has discretion to determine the most effective way to

comply with the purposes and principles of sentencing set forth in section

2929.11 of the Revised Code. In exercising that discretion, the court shall

consider the factors set forth in divisions (B) and (C) of this section relating

to the seriousness of the conduct, the factors provided in divisions (D) and

(E) of this section relating to the likelihood of the offender's recidivism, and

the factors set forth in division (F) of this section pertaining to the offender's

service in the armed forces of the United States and, in addition, may

consider any other factors that are relevant to achieving those purposes and

principles of sentencing. Muskingum County, Case No. CT2022-0079 13

(B) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant

factors, as indicating that the offender's conduct is more serious than

conduct normally constituting the offense:

(1) The physical or mental injury suffered by the victim of the offense due

to the conduct of the offender was exacerbated because of the physical or

mental condition or age of the victim.

(2) The victim of the offense suffered serious physical, psychological, or

economic harm as a result of the offense.

(3) The offender held a public office or position of trust in the community,

and the offense related to that office or position.

(4) The offender's occupation, elected office, or profession obliged the

offender to prevent the offense or bring others committing it to justice.

(5) The offender's professional reputation or occupation, elected office, or

profession was used to facilitate the offense or is likely to influence the

future conduct of others.

(6) The offender's relationship with the victim facilitated the offense.

(7) The offender committed the offense for hire or as a part of an organized

criminal activity.

(8) In committing the offense, the offender was motivated by prejudice

based on race, ethnic background, gender, sexual orientation, or religion.

(9) If the offense is a violation of section 2919.25 or a violation of section

2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who Muskingum County, Case No. CT2022-0079 14

was a family or household member at the time of the violation, the offender

committed the offense in the vicinity of one or more children who are not

victims of the offense, and the offender or the victim of the offense is a

parent, guardian, custodian, or person in loco parentis of one or more of

those children.

(C) The sentencing court shall consider all of the following that apply

regarding the offender, the offense, or the victim, and any other relevant

factors, as indicating that the offender's conduct is less serious than conduct

normally constituting the offense:

(1) The victim induced or facilitated the offense.

(2) In committing the offense, the offender acted under strong provocation.

(3) In committing the offense, the offender did not cause or expect to cause

physical harm to any person or property.

(4) There are substantial grounds to mitigate the offender's conduct,

although the grounds are not enough to constitute a defense.

(D) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating

that the offender is likely to commit future crimes:

(1) At the time of committing the offense, the offender was under release

from confinement before trial or sentencing; was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code; was

under post-release control pursuant to section 2967.28 or any other

provision of the Revised Code for an earlier offense or had been Muskingum County, Case No. CT2022-0079 15

unfavorably terminated from post-release control for a prior offense

pursuant to division (B) of section 2967.16 or section 2929.141 of the

Revised Code; was under transitional control in connection with a prior

offense; or had absconded from the offender's approved community

placement resulting in the offender's removal from the transitional control

program under section 2967.26 of the Revised Code.

(2) The offender previously was adjudicated a delinquent child pursuant to

Chapter 2151. of the Revised Code prior to January 1, 2002, or pursuant to

Chapter 2152. of the Revised Code, or the offender has a history of criminal

convictions.

(3) The offender has not been rehabilitated to a satisfactory degree after

previously being adjudicated a delinquent child pursuant to Chapter 2151.

of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152.

of the Revised Code, or the offender has not responded favorably to

sanctions previously imposed for criminal convictions.

(4) The offender has demonstrated a pattern of drug or alcohol abuse that

is related to the offense, and the offender refuses to acknowledge that the

offender has demonstrated that pattern, or the offender refuses treatment

for the drug or alcohol abuse.

(5) The offender shows no genuine remorse for the offense.

(E) The sentencing court shall consider all of the following that apply

regarding the offender, and any other relevant factors, as factors indicating

that the offender is not likely to commit future crimes: Muskingum County, Case No. CT2022-0079 16

(1) Prior to committing the offense, the offender had not been adjudicated

a delinquent child.

(2) Prior to committing the offense, the offender had not been convicted of

or pleaded guilty to a criminal offense.

(3) Prior to committing the offense, the offender had led a law-abiding life

for a significant number of years.

(4) The offense was committed under circumstances not likely to recur.

(5) The offender shows genuine remorse for the offense.

(F) The sentencing court shall consider the offender's military service

record and whether the offender has an emotional, mental, or physical

condition that is traceable to the offender's service in the armed forces of

the United States and that was a contributing factor in the offender's

commission of the offense or offenses.

{¶27} The appellant argues that the victim had been his drug dealer prior to the

attack, and argues that he was merely the driver and not the one who actually struck the

victim, and that these mitigating factors render the trial court’s sentence violative of Ohio

law. The appellant’s arguments are unpersuasive and do not establish that the trial court

failed to comply with R.C. 2929.11(A) or properly weigh the factors set forth in R.C.

2929.12, particularly since the appellant has a criminal history containing a significant

number of criminal offenses committed prior to the offenses in this case, and had not led

a law-abiding life for many years prior to the offenses herein. Furthermore, the offenses

committed by the appellant in this case were not committed “under circumstances not

likely to recur.” Muskingum County, Case No. CT2022-0079 17

{¶28} The court in Worden, supra, discussed a similar sentencing issue:

R.C. 2953.08(G)(2)(b) does not provide a basis for an appellate court

to modify or vacate a sentence based on its view that the sentence is not

supported by the record under R.C. 2929.11 and 2929.12. State v. Jones,

163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶39. The Ohio

Supreme Court further elucidated in State v. Toles, 166 Ohio St.3d 397,

2021-Ohio-3531, 186 N.E.3d 784, ¶10, “R.C. 2953.08, as amended,

precludes second-guessing a sentence imposed by the trial court based on

its weighing of the considerations in R.C. 2929.11 and 2929.12.’’

Id. at ¶27.

{¶29} In the case sub judice, the sentence imposed by the trial court on the

charges to which the appellant pleaded guilty complies with the applicable sentencing

statutes. The sentence was within the statutory sentencing range. The appellant has not

shown that the trial court imposed the sentence based upon impermissible

considerations, for example, considerations that fall outside those that are contained in

R.C. 2929.11 and R.C. 2929.12. In fact, the record contains evidence supporting the trial

court's findings based upon the applicable law. The trial court did not err in imposing

sentence upon the appellant, and we find no basis for concluding that the trial court’s

decision is contrary to law.

{¶30} Two of the overriding purposes of felony sentencing include punishing the

offender, and protecting the public from future crime by the offender. The appellant’s

presentence investigation established that he had a significant criminal history. The

sentence imposed by the trial court achieves the aforesaid statutory purposes, as it Muskingum County, Case No. CT2022-0079 18

punishes the appellant for his offenses and protects the public from future crime by the

appellant. The trial court properly considered the need for incapacitating the offender,

and deterring the offender and others from future crime. The appellant committed two

second degree felonies, and has a significant history of criminal behavior. R.C. 2929.12

gives the trial court discretion to determine the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11.

{¶31} Furthermore, the appellant acknowledged during his Plea Hearing that he

was aware the trial court was not obligated to follow the joint recommendation at

sentencing, and that he could possibly be sentenced to as much as twelve years in prison.

As set forth by the court in State v. Oakley, 3rd Dist. Logan No. 8-19-06, 2019-Ohio-2487:

Moreover, trial courts are not bound by a jointly recommended

sentence. State v. Lyttle, 3d Dist. Auglaize No. 2-12-22, 2013-Ohio-2608, ¶

24, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 28. In

fact, “ ‘[a] trial court does not err by imposing a sentence greater than that

forming the inducement for the defendant to plead guilty when the trial court

forewarns the defendant of the applicable penalties, including the possibility

of imposing a greater sentence than that recommended by the prosecutor.’

” Lyttle at ¶ 24, quoting State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58,

2005-Ohio-3674, ¶ 6; State v. Spencer, 3d Dist. No. 6-12-15, 6-12-16, 2013-

Ohio-137, ¶ 10.

Id. at ¶ 12. In this case, the trial court forewarned the appellant that the “joint

recommendation is not binding on this Court and, at sentencing, I do not have to follow Muskingum County, Case No. CT2022-0079 19

it,” which the appellant affirmatively acknowledged. As such, the trial court did not err in

imposing a greater sentence that that jointly recommended by the parties.

{¶32} Based upon the foregoing, we find that the trial court did not commit error

when it sentenced the appellant. The trial court forewarned the appellant that it did not

have to follow the joint recommendation regarding sentencing. Further, the trial court’s

sentence for the charges to which the appellant pleaded guilty complies with the

applicable rules and sentencing statutes. While the appellant may disagree with the way

in which the trial court weighed those factors, his sentence was within the applicable

statutory parameters. Accordingly, there is no basis upon which to conclude that the

sentence imposed by the trial court is contrary to law.

{¶33} The appellant’s sole assignment of error is overruled, and the judgment of

the Muskingum County Court of Common Pleas is hereby affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, John, J. concur.