[Cite as State v. Elliott, 2015-Ohio-3766.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102226
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
LA ROSCOE D. ELLIOTT
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-587806-A
BEFORE: Boyle, J., E.A. Gallagher, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: September 17, 2015 ii
ATTORNEY FOR APPELLANT
J. Philip Calabrese Porter Wright Morris & Arthur 950 Main Avenue, Suite 500 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: Glen Ramdhan Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 iii
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, La Roscoe D. Elliott, appeals his conviction and
sentence for intimidation, tampering with evidence, and drug possession. We affirm.
Procedural History and Facts
{¶2} In August 2014, Elliott was indicted on five counts: two counts of
intimidation, a violation of R.C. 2921.03(A); tampering with evidence, a violation of R.C.
2921.12(A)(1); possessing criminal tools, a violation of R.C. 2923.24(A); and drug
possession, a violation of R.C. 2925.11(A). The possessing criminal tools and drug
possession counts carried forfeiture clauses for a cell phone and $466. The allegations
supporting the charges were that on July 24, 2014, Elliott verbally threatened Det.
Schroeder at the Justice Center in Cleveland, Ohio. It was further alleged that Elliott
possessed suspected heroin and attempted to swallow all of the heroin upon recovery.
Elliott pleaded not guilty to the charges.
{¶3} In October 2014, a week before his trial date, Elliott and the state reached a
plea agreement wherein the state agreed to dismiss one of the intimidation counts and the
possession of criminal tools account in exchange for Elliott pleading guilty to the
remaining charges of the indictment. After fully complying with Crim.R. 11 and
advising Elliott of his statutory and constitutional rights, the trial court accepted Elliott’s
guilty plea to intimidation, tampering with evidence, and drug possession. Upon the
state’s motion, the remainder of the counts were nolled. iv
{¶4} Prior to accepting Elliott’s plea, the trial court inquired whether Elliott was
taking any prescribed medications. Elliott responded that he was supposed to be taking
medication for his schizophrenia but has not for “like two months,” since being in jail.
The trial court further inquired as to Elliott’s symptoms of his schizophrenia, which he
responded, “Just loud outbursts, but I be okay freely. It’s under pressure.” The trial
judge responded by requesting Elliott to interrupt him if at any point Elliott did not
understand something, indicating that the court would explain it at that time, which Elliott
responded that he would. The trial judge also specifically asked Elliott if he was
satisfied with his attorney, which he indicated that he was. Elliott also specifically
indicated that pleading guilty was his “own choice” and that he was not being pressured
to do so. The trial court next accepted Elliott’s guilty plea and found him guilty on the
amended charges.
{¶5} Following the acceptance of Elliott’s guilty plea, the trial court proceeded
immediately to sentencing. The prosecutor urged the trial court to impose a prison term,
highlighting the facts of the underlying charges as well as Elliott’s prior criminal
convictions, which included weapons charges in 2012 and 2013; aggravated burglary in
2008; prior drug possessions and failures to comply in 2008; drug trafficking in 2007; and
an aggravated robbery as a juvenile.
{¶6} Conversely, defense counsel requested the court to consider community
control sanctions. Defense counsel further requested, in the alternative, that the trial v
court impose concurrent sentences if the court found that a term of incarceration was
necessary.
{¶7} The trial court ultimately imposed a total prison term of three years.
Specifically, the court imposed three years on Count 1 for intimidation; three years on
Count 2 for tampering with evidence; and 11 months on Count 5 for drug possession but
ordered that all three counts be run concurrently. The court further informed Elliott that
he was subject to three years postrelease control.
{¶8} Following the imposition of Elliott’s sentence and after Elliott’s counsel
indicated that he did not need to place anything on the record, Elliott blurted out two
questions: (1) “Can I file for appeal?” — which the trial court answered affirmatively,
and (2) “Can I take my plea back or something? You gave me three years? I didn’t do
nothing.” The trial court did not respond to the second question, thanking the sheriff and
ordering Elliott remanded for transport to prison.
{¶9} Elliott appeals, raising the following two assignments of error:
I. The trial court erred by accepting Defendant’s plea of guilty to offenses that arise out of a warrantless stop and arrest unsupported by probable cause or reasonable suspicion.
II. Defendant’s conviction and sentence violate the federal Constitution, the Ohio Constitution, and state law, and the trial court erred by not addressing Defendant’s request at sentencing to withdraw his guilty plea.
{¶10} Although Elliott assigns only two assignments of error, his second
assignment of error contains several subparts that Elliott separately raises as grounds for vi
reversal. For ease of discussion, we will treat these subparts as assignments of error and
address them accordingly.
Guilty Plea
{¶11} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶12} Crim.R. 11(C)(2) requires a court, prior to accepting a guilty plea, to address
the defendant personally; the court must specify each of the constitutional rights the
defendant is waiving by entering his plea, and, further, must determine, in pertinent part,
that “he is making the plea voluntarily, with an understanding of the nature of the charge
and the maximum penalty involved,” that “he understands the effect of his plea of guilty”
and that he understands the court “may proceed to judgment and sentence.” See State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.
No Probable Cause or Reasonable Suspicion to Stop and Arrest
{¶13} In his first assignment of error, Elliott argues that his conviction must be
reversed because it is “based on a stop and arrest for which there is no probable cause or
reasonable suspicion.” Although Elliott never challenged the stop and arrest below, he
urges this court to apply the plain error doctrine and reverse his conviction. vii
{¶14} Aside from never raising this argument below in a motion to suppress,
Elliott pleaded guilty in this case. It is well settled that “a guilty plea waives all
non-jurisdictional defects (other than errors affecting the validity of the guilty plea) in the
prior proceedings.” State v. Moore, 2d Dist. Montgomery No. 22365, 2008-Ohio-4322, ¶
12, citing State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶
78. Stated differently, “‘a guilty plea waives all appealable errors except for a challenge
as to whether the defendant made a knowing, intelligent and voluntary acceptance of the
plea.’” State v. Robinson, 4th Dist. Lawrence No. 13CA18, 2015-Ohio-2635, ¶ 45,
quoting State v. Patterson, 5th Dist. Muskingum No. CT2012-0029, 2012-Ohio-5600, ¶
30.
{¶15} Elliott’s argument as to the underlying stop and arrest is unrelated to his
guilty plea and therefore provides no basis to reverse his conviction. Indeed, as noted by
the Second Appellate District, “even if [defendant] had filed a motion to suppress, and
had it overruled by the trial court, his guilty plea would have waived any error in the
disposition of his motion to suppress.” Moore at ¶ 12.
{¶16} We likewise find no merit to Elliott’s claim that the trial court committed
plain error in failing to, sua sponte, suppress any evidence arising out of his detention and
arrest.
{¶17} The first assignment of error is overruled.
Competency to Enter a Plea viii
{¶18} In his second assignment of error, Elliott argues he was incompetent at the
time of his plea, thereby rendering his plea void. He further contends that the trial court
should have held a competency hearing, sua sponte, prior to accepting any plea.
{¶19} The standard for determining competence to enter a guilty plea is the same
as the standard for determining competence to stand trial. State v. Mink, 101 Ohio St.3d
350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 57, citing Godinez v. Moran, 509 U.S. 389,
399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). The United States Supreme Court has
defined the test for competence to stand trial (or to plead guilty) is whether the defendant
“has sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding and whether he has a rational as well as factual understanding of
the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4
L.Ed.2d 824 (1960).
{¶20} “Consistent with the notions of fundamental fairness and due process, a
criminal defendant who is incompetent may not be tried or convicted.” State v. Harris,
142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 16, citing Pate v. Robinson, 383
U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); State v. Berry, 72 Ohio St.3d 354, 359,
650 N.E.2d 433 (1995). Likewise, the conviction of a defendant who is not competent to
enter a plea violates due process of law. See State v. Skatzes, 104 Ohio St.3d 195,
2004-Ohio-6391, 819 N.E.2d 215, ¶ 155. A defendant, however, is presumed competent
to enter a guilty plea in the absence of any evidence rebutting the presumption. State v. ix
Pigge, 4th Dist. Ross No. 09CA3136, 2010-Ohio-6541, ¶ 28, citing R.C. 2945.37(G), and
State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 45.
{¶21} R.C. 2945.37 provides that if the issue of a defendant’s competency is raised
before trial, a trial court must conduct a competency hearing, but if the issue is raised
after the trial has begun, the court must only hold a hearing for “good cause shown.”
State v. Beck, 1st Dist. Hamilton Nos. C-020432, C-020449, and C-030062,
2003-Ohio-5838, ¶ 11. Aside from the statutory requirement, the Ohio Supreme Court
has recognized that “an evidentiary competency hearing is constitutionally required
whenever there are sufficient indicia of incompetency to call into doubt defendant’s
competency to stand trial.” State v. Were, 94 Ohio St.3d 173, 2002-Ohio-481, 761
N.E.2d 591, paragraph two of the syllabus, following State v. Berry, 72 Ohio St.3d 354,
650 N.E.2d 433 (1995) (The right to a competency hearing “rises to the level of a
constitutional guarantee where the record contains ‘sufficient indicia of incompetence,’
such that an inquiry * * * is necessary to ensure the defendant’s right to a fair trial.”).
{¶22} According to Elliott, once the trial court learned that he had schizophrenia
and that he had not been taking his medication, the trial court, sua sponte, should have
conducted a competency hearing. He further argues that his statement that “he did not
understand he could receive a sentence including a term of imprisonment reflects his
incompetence to enter a plea.” We find these arguments to lack merit. x
{¶23} The record in this case does not reflect “sufficient indicia of incompetence”
to have required the trial court to conduct a competency hearing. First, as observed by
the Ohio Supreme Court, mental illness is not necessarily legal incompetency. Berry at
syllabus. Indeed, “[a] defendant may be emotionally disturbed or even psychotic and still
be capable of understanding the charges against him and of assisting his counsel.” State
v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986). Here, the trial court
specifically inquired as to Elliott’s symptoms associated with schizophrenia — none of
which indicated an inability to understand the charges against him and to assist his
counsel. Additionally, the record does not reflect anything out of the ordinary in Elliott’s
behavior and demeanor in the courtroom, and his counsel at no point suggested that
Elliott was unable to assist in the defense. See State v. McCoy, 5th Dist. Muskingum No.
CT 2008 0020, 2009-Ohio-4284 (diagnosis of mild mental retardation does not warrant a
sua sponte competency hearing when nothing in the record suggests that appellant did not
understand the nature and objective of the proceedings against him or that he was unable
to assist in his defense).
{¶24} We further find no evidence in the record to support Elliott’s claim that “he
did not understand he could receive a sentence including a term of imprisonment.”
Elliott relies on an affidavit attached to his motion for an untimely appeal and his remark
at the conclusion of the sentencing hearing in support of this claim. The affidavit,
however, was not part of the proceedings in the trial court and therefore cannot be xi
properly considered in a direct appeal to support Elliott’s claim. State v. Geraci, 8th
Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 7, fn. 2. Additionally, the
trial court expressly explained to Elliott that he could be sentenced to a maximum of 36
months in prison on the third-degree felonies, which Elliott indicated that he understood.
We do not agree that Elliott’s remark, “You gave me three years” at the end of the
proceedings, is indicative that he did not understand the proceedings. His apparent
disappointment in the sentence does not equate to his being incompetent to understand the
proceedings.
{¶25} The second assignment of error is overruled.
Ineffective Assistance of Trial Counsel
{¶26} In his third assignment of error, Elliott argues that “this court should set
aside [his] guilty plea and sentence due to the ineffective assistance of his trial counsel.”
He broadly asserts that the ineffective assistance of counsel rendered his plea involuntary.
{¶27} Reversal of a conviction for ineffective assistance of counsel requires a
defendant to show that (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the defense. State v. Smith, 89 Ohio St.3d 323, 327, 731 N.E.2d
645 (2000), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Defense counsel’s performance must fall below an objective
standard of reasonableness to be deficient in terms of ineffective assistance of counsel.
See State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Moreover, the xii
defendant must show that there exists a reasonable probability that, were it not for
counsel’s errors, the results of the proceeding would have been different. State v. White,
82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998).
{¶28} To establish ineffective assistance of counsel, a defendant must show (1)
deficient performance by counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for
counsel’s errors, the proceeding’s result would have been different. Strickland at
687-688, 694; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs
two and three of the syllabus.
{¶29} In evaluating a claim of ineffective assistance of counsel, a court must give
great deference to counsel’s performance. Strickland, 466 U.S. at 689. “A reviewing
court will strongly presume that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” State v.
Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.
1. Failing to File a Motion to Suppress and Take Case to Trial
{¶30} Elliott first argues that his trial counsel was deficient in failing to file a
motion to suppress. Relying on the same arguments raised in his first assignment of
error, Elliott contends that a motion to suppress would have been successful, thereby
“obviating the need for a plea.” This argument, however, applies the wrong standard and xiii
ignores that Elliott pleaded guilty to the charges. It is well settled that when a defendant
has entered a guilty plea,
“the defendant must show that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. The mere fact that, if not for the alleged ineffective assistance of counsel, the defendant would not have entered a guilty plea is not sufficient to establish the necessary connection between ineffective assistance and the plea. Ineffective assistance will only be found to have affected the validity of plea when it precluded defendant from entering the plea knowingly and voluntarily. The relevant inquiry is not whether defendant ultimately would have prevailed at trial, but whether defendant would have pled guilty if properly advised by counsel.” State v. Neu, 4th Dist. Adams No. 12CA942, 2013-Ohio-616, ¶ 16, quoting 25 Ohio
Jurisprudence 3d, Criminal Law: Procedure, Section 78 (2011). As explained above, “‘a
defendant who pleads guilty generally waives the right to make allegations of ineffective
assistance of counsel * * * for failure to move for suppression unless he alleges that the
error caused the plea to be less than knowing, voluntary, and intelligent.’” State v.
Arnold, 2d Dist. Clark Nos. 2014-CA-23, 2014-CA-24, 2014-CA-25, and 2014-CA-26,
2015-Ohio-1580, ¶ 10, quoting State v. Jackson, 7th Dist. Mahoning No. 13 MA 121,
2014-Ohio-2249, ¶ 17. See also State v. Taylor, 8th Dist. Cuyahoga No. 97798,
2012-Ohio-5065, ¶ 11.
{¶31} Here, Elliott’s argument as to his counsel failing to file a motion to suppress
does not support a claim that his guilty plea was less than knowingly, intelligently, and
voluntarily made. Additionally, the other deficiencies alleged by Elliott — that his trial
counsel failed to pursue available defenses and failed to test the sufficiency of the xiv
prosecutor’s case by taking it to trial — are completely unrelated to his plea. These
claims provide no grounds for an ineffective assistance of counsel claim. See Arnold at ¶
9 (“since none of the charges against [defendant] went to trial, his trial counsel never
even had the opportunity to present or attack any evidence or witnesses[;] * *
*[defendant’s] claim that counsel provided deficient performance in failing to do these
things is clearly without merit”).
2. No Benefit from the Plea
{¶32} Elliott argues that his trial counsel was ineffective because he received no
benefit from his plea. According to Elliott, trial counsel advised him to plead guilty
without a plea agreement and that, based on the sentence that Elliott received, he “had
nothing to lose by going to trial.”
{¶33} Ohio courts have recognized that “‘[a]n attorney, who advises his client to
plead guilty as charged when the client receives no benefit at all in exchange therefore,
could possibly be deemed to have failed in his duty to competently represent his client.’”
State v. Orleans, 7th Dist. Mahoning No. 07-MA-175, 2008-Ohio-5937, citing State v.
Underwood, 4th Dist. Meigs No. 98CA11, 1999 Ohio App. LEXIS 2234 (May 7, 1999).
However, “the benefit a defendant receives as a result of pleading guilty is not necessarily
reflected by the penalty ultimately imposed on him.” Underwood, citing State v. Spivey,
81 Ohio St.3d 405, 692 N.E.2d 151 (1998). Instead, courts should consider “the totality xv
of the circumstances surrounding the plea in determining whether the appellant received
any benefit in exchange for the plea.” Id.
{¶34} We find Elliott’s argument unsupported by the record. First, Elliott’s trial
counsel reached a plea agreement wherein the state agreed to dismiss two of the charges
of the indictment in exchange for his guilty plea. Further, the record reveals that the trial
court imposed a concurrent sentence upon Elliott, consistent with his counsel’s request
not to impose a consecutive sentence. Thus, we find no basis to Elliott’s claim that he
received no benefit from the plea agreement based on his trial counsel’s performance.
3. Breakdown in Communication
{¶35} Elliott also argues that a breakdown in communication between himself and
his attorney rendered his plea not voluntarily and knowingly made. Specifically, he
claims that his trial counsel informed him that he was receiving probation in exchange for
his plea. In support of this claim, Elliott relies on evidence outside of the record — an
affidavit that he filed in support of his delayed appeal. Such evidence is not properly
considered on a direct appeal. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947,
2015-Ohio-2699, ¶ 7, fn. 2, citing State v. Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 53
(8th Dist.) (ineffective assistance of counsel claim that would require proof outside of
the record “‘is not appropriately considered on a direct appeal’”), quoting State v.
Madrigal, 87 Ohio St.3d 378, 391, 721 N.E.2d 52 (2000); see also State v. Woody, 8th
Dist. Cuyahoga No. 99774, 2014-Ohio-302, ¶ 13 (where issues could not have been xvi
raised on direct appeal because they relied on matters outside the record, they were
properly the subject of a postconviction motion to withdraw guilty plea).
{¶36} Based on the record before us, we fail to see any breakdown in
communication to support Elliott’s claim. Aside from Elliott expressly indicating that he
understood that he may be sentenced up to 36 months on each of the third-degree
felonies, he further indicated that he was satisfied with his trial counsel’s representation.
He additionally indicated that he had not been pressured to enter the plea and that it was
his own choice to do so.
{¶37} Having found that Elliott failed to establish the initial prong of deficient
performance, we find no merit to his ineffective assistance of counsel claim. The third
assignment of error is overruled.
Extraordinary Circumstances Warrant Withdrawal of Plea
{¶38} In his fourth assignment of error, Elliott argues that “the extraordinary
circumstances in this case, including the trial court’s failure to give any consideration to
defendant’s motion, defendant’s competency, and counsel’s ineffective assistance, require
withdrawal of the guilty plea.” We find no merit to this argument.
{¶39} Aside from Elliott never filing a motion to withdraw his guilty plea, we have
already found no merit to his claims of incompetency and ineffective assistance of
counsel. Accordingly, we overrule the fourth assignment of error.
Sentence xvii
{¶40} In his final assignment of error, Elliott argues that his sentence is contrary to
law because the trial court failed “to consider the purposes and principles of felony
sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.”
We disagree.
{¶41} The trial court has the full discretion to impose any term of imprisonment
within the statutory range, but it must consider the sentencing purposes in R.C. 2929.11
and the guidelines contained in R.C. 2929.12. State v. Holmes, 8th Dist. Cuyahoga No.
99783, 2014-Ohio-603, ¶ 8.
{¶42} R.C. 2929.11(A) provides that a sentence imposed for a felony shall be
reasonably calculated to achieve the two overriding purposes of felony sentencing: (1) “to
protect the public from future crime by the offender and others,” and (2) “to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes.” The sentence imposed shall also be “commensurate with and not demeaning
to the seriousness of the offender’s conduct and its impact on the victim, and consistent
with sentences imposed for similar crimes committed by similar offenders.” R.C.
2929.11(B).
{¶43} Under R.C. 2929.12(A), the court must consider a nonexhaustive list of
mitigating and aggravating factors and “any other factors that are relevant to achieving
those purposes and principles of sentencing.” xviii
{¶44} R.C. 2929.11 and 2929.12, however, are not fact-finding statutes. State v.
Wright, 8th Dist. Cuyahoga No. 100433, 2014-Ohio-3230, ¶ 13. “While trial courts
must carefully consider the statutes that apply to every felony case, it is not necessary for
the trial court to articulate its consideration of each individual factor as long as it is
evident from the record that the principles of sentencing were considered.” Id., citing
State v. Roberts, 8th Dist. Cuyahoga No. 89236, 2008-Ohio-1942, ¶ 10. Indeed, “we
may presume a trial court has considered these factors absent an affirmative
demonstration by a defendant to the contrary.” Holmes, 8th Dist. Cuyahoga No. 99783,
2014-Ohio-603, at ¶ 8. Ultimately, the trial court possesses the discretion to determine
whether the sentence satisfies the overriding purpose of Ohio’s sentencing structure.
Wright at ¶ 13.
{¶45} Here, the record demonstrates that the trial court properly considered and
applied R.C. 2929.11 and 2929.12 in imposing Elliott’s sentence. Aside from expressly
stating that it had, the trial court also indicated as much in its written journal entry. See
State v. Clayton, 8th Dist. Cuyahoga No. 99700, 2014-Ohio-112, ¶ 9 (“trial court’s
statement that it considered the required statutory factors [in the journal entry], without
more, is sufficient to fulfill its obligations under the sentencing statutes”).
{¶46} As for Elliott’s claim that the trial court should have considered the
unlawfulness of the stop and arrest that precipitated the offenses, we find this argument xix
misplaced. Elliott pleaded guilty to the charges, and there is no evidence in the record to
support this proposition.
{¶47} We find no basis to conclude that Elliott’s sentence is contrary to law and,
therefore, overrule the final assignment of error.
{¶48} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution. The defendant’s conviction having been affirmed, any bail pending appeal
is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR