State v. Gibson

2017 Ohio 691

• Court: Ohio Court of Appeals
• Decided: February 24, 2017
• Docket: 2016-CA-12
• Status: Published

Opinion

[Cite as State v. Gibson, 2017-Ohio-691.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2016-CA-12 : v. : Trial Court Case Nos. 2012-CR-260 : and 2013-CR-64 ASHLEY N. GIBSON : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

...........

OPINION

Rendered on the 24th day of February, 2017.

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

AMY E. FERGUSON, Atty. Reg. No. 0088397, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Ashley N. Gibson, appeals from the sentence she

received in the Champaign County Court of Common Pleas for violating the felony

community control sanctions that were imposed on her in Case Nos. 2012-CR-260 and

2013-CR-64. Gibson specifically argues that the trial court abused its discretion in

imposing a 33-month prison term and consecutive sentences. For the reasons outlined

below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} In Champaign County Case No. 2012-CR-260, Gibson pled guilty to two

counts of possessing criminal tools in violation of R.C. 2923.24(A) and one count of

possessing heroin in violation of R.C. 2925.11(A), (C)(6)(a), all felonies of the fifth degree.

The trial court sentenced Gibson for those offenses on January 31, 2013, by imposing

five years of community control sanctions with several conditions. The trial court advised

Gibson that if she violated the conditions of community control, the court may impose a

longer time under the same sanction, more restrictive sanctions, or a prison term of 11

months.

{¶ 3} In Champaign County Case No. 2013-CR-64, Gibson pled guilty to various

offenses that she had committed before she was sentenced in Case No. 2012-CR-260,

but while she was released on personal recognizance and awaiting sentencing.

Specifically, Gibson pled guilty to five counts of forgery in violation of R.C. 2913.31(A)(1),

all felonies of the fifth degree, one count of possessing heroin in violation of R.C.

2925.11(A), (C)(6)(a), also a felony of the fifth degree, and one count of petty theft in -3-

violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. The trial court

sentenced Gibson for those offenses on March 20, 2013, by imposing three years of

community control sanctions with several conditions. The trial court advised Gibson that

if she violated the conditions of community control, the court may impose a longer time

under the same sanction, more restrictive sanctions, or a prison term of 4 years that would

run consecutive to the 11-month prison term in Case No. 2012-CR-260.

{¶ 4} On June 2, 2014, Gibson’s probation officer filed a notice of supervision

violation for both Case Nos. 2012-CR-260 and 2013-CR-64. The notice alleged that

Gibson violated the conditions of her community control by changing her residence

without permission from her supervising officer and by failing to report to her supervising

officer as ordered.

{¶ 5} Following the violation notice, on June 10, 2014, the trial court held a hearing

on the merits of the alleged violations. During the hearing, Gibson admitted to both

violations and the trial court proceeded to sentencing. After the State recommended that

Gibson be returned to community control, and after the trial court considered the possible

penalties under R.C. 2929.15(B)(1), the purposes and principles of sentencing in R.C.

2929.11, and the seriousness and recidivism factors in R.C. 2929.12, the trial court

decided to return Gibson to community control under the same conditions previously

imposed without any additional penalty. However, the court once again advised Gibson

that if she violated the conditions of community control, the court may impose a longer

time under the same sanction, more restrictive sanctions, or a prison term of 4 years and

11 months.

{¶ 6} Approximately two years later, on May 23, 2016, Gibson’s probation officer -4-

filed a second notice of supervision violation for both Case Nos. 2012-CR-260 and 2013-

CR-64. Like the first notice, the second notice alleged that Gibson violated the

conditions of her community control by changing her residence without permission from

her supervising officer and by failing to report to her supervising officer as ordered.

{¶ 7} Following the second violation notice, on June 6, 2016, the trial court held a

hearing on the merits of the alleged violations. At the hearing, Gibson once again

admitted to both violations and the trial court once again proceeded to sentencing.

During sentencing, the court considered the purposes and principles of sentencing in R.C.

2929.11, weighed the seriousness and recidivism factors in R.C. 2929.12, and

determined that it had discretion to impose a prison term pursuant to R.C.

2929.13(B)(1)(b)(xi). In exercising its discretion, the trial court revoked community

control and imposed a term of imprisonment for Gibson’s community control violations.

{¶ 8} For Case No. 2012-CR-260, the trial court sentenced Gibson to serve 11

months in prison for both counts of possessing criminal tools, as well as for the count of

possessing of heroin. The trial court then ordered the 11-month sentences to run

concurrently with each other for a total prison term of 11 months.

{¶ 9} For Case No. 2013-CR-64, the trial court sentenced Gibson to serve 11

months in prison for each of her five forgery counts, as well as for the count of possessing

heroin. For the petty theft count, the trial court ordered Gibson to serve five months in

jail. The trial court then ordered the 11-month prison sentences for forgery and the five-

month jail sentence for petty theft to run concurrently with each other, but consecutively

to the 11-month prison sentence for possessing heroin. Accordingly, Gibson was

sentenced to a total term of 22 months in prison in Case No. 2013-CR-64. -5-

{¶ 10} The trial court ordered the 22-month prison term in Case No. 2013-CR-64

to be served consecutively with the 11-month prison term in Case No. 2012-CR-260.

Therefore, Gibson was sentenced to a total of 33 months in prison for both cases, a

sentence which was significantly less than the four year and 11 month prison sentence

the trial court had originally indicated it would impose upon revoking community control.

{¶ 11} Despite receiving a significantly reduced prison sentence, Gibson now

appeals from the trial court’s sentencing decision, raising a single assignment of error for

review.

Assignment of Error

{¶ 12} Gibson’s sole assignment of error is as follows:

A JUDGMENT REVOKING DEFENDANT’S COMMUNITY CONTROL AND

SENTENCING HER TO PRISON WAS IMPROPER.

{¶ 13} Under her sole assignment of error, Gibson concedes that a prison term is

an appropriate sanction for violating community control sanctions, but claims that under

the circumstances of this case, the trial court’s decision to impose a 33-month prison term

and consecutive sentences was an abuse of discretion because her violations did not

involve new crimes, were not egregious or violent in nature, and were the result of a drug

relapse.

{¶ 14} We review prison sentences imposed for violations of felony community

control sanctions in accordance with the Supreme Court of Ohio’s decision in State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. See State v. Von Ward,

2d Dist. Champaign No. 2015-CA-42, 2016-Ohio-5733 (applying the standard of review -6-

announced in Marcum to prison sentences imposed for violating community control

sanctions). In Marcum, the Supreme Court made clear that felony sentences are no

longer reviewed under an abuse of discretion standard but, instead, in accordance with

the standard of review set forth in R.C. 2953.08(G)(2). Marcum at ¶ 1, 7, 10.

{¶ 15} R.C. 2953.08(G)(2) provides, in relevant part, as follows:

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.

{¶ 16} Accordingly, this court may vacate or modify Gibson’s sentence only if we

“determine by clear and convincing evidence that the record does not support the trial

court’s findings under relevant statutes or that the sentence is otherwise contrary to law.”

Marcum at ¶ 1.

{¶ 17} In this case, the trial court made findings under two of the “relevant statutes”

referred to in R.C. 2953.08(G)(2); namely, R.C. 2929.13(B) and R.C. 2929.14(C)(4). For

the reasons outlined below, we do not clearly and convincingly find that the record fails -7-

to support those findings, nor do we clearly and convincingly find that Gibson’s sentence

is otherwise contrary to law.

R.C. 2929.13(B)

{¶ 18} In sentencing Gibson, the trial court made a finding under R.C.

2929.13(B)(1)(b)(xi), which provides the trial court with discretion to impose a prison term

for a fifth degree felony offense that is not an offense of violence or qualifying assault

offense if it finds “the offender committed the offense while under a community control

sanction, while on probation, or while released from custody on a bond or personal

recognizance.” Specifically, the trial court found that Gibson committed the offenses in

Case No. 2013-CR-64 while under a community control sanction in Case No. 2012-CR-

260.

{¶ 19} A review of the record, however, reveals that the offenses Gibson pled guilty

to in Case No. 2013-CR-64 were committed before she was sentenced to community

control sanctions in Case No. 2012-CR-260.1 Nevertheless, the record establishes that

Gibson was released on personal recognizance in Case No. 2012-CR-260 while she

1 The February 7, 2013 indictment charging Gibson in Case No. 2013-CR-64 alleged that forgery counts one through five (the counts Gibson pled guilty to) were committed on dates ranging between January 14 and 24, 2013. The indictment further alleged that Gibson’s possession of heroin charge, which is set forth in count seven of the indictment, occurred on January 27, 2013. The bill of information charging Gibson with petty theft alleged that the theft offense occurred between November 24, 2012 and December 30, 2012. Accordingly, all the offenses Gibson pled guilty to in Case No. 2013-CR-64 occurred before she was sentenced to community control sanctions on January 31, 2013, in Case No. 2012 CR 260. -8-

committed the offenses in Case No. 2013-CR-64.2 Therefore, the fact that the trial court

incorrectly based its finding on Gibson being under a community control sanction is

harmless error, as the trial court’s finding with respect to R.C. 2929.13(B)(1)(b)(xi) was

still correct, albeit for a different reason. See State v. Hall, 2d Dist. Miami No. 97 CA 22,

1997 WL 691509, *1 (Oct. 24, 1997) (“[i]f a trial court has stated an erroneous basis for

its judgment, an appellate court will affirm the judgment if it is legally correct on other

grounds, that is, when it achieves the right result for the wrong reasons”), citing Newcomb

v. Dredge, 105 Ohio App. 417, 152 N.E.2d 801 (2d Dist.1957), paragraph seven of the

syllabus. Accord State v. Handcock, 2d Dist. Clark No. 2016-CA-3, 2016-Ohio-7096,

¶ 14. Accordingly, we do not clearly and convincingly find that the record fails to support

the trial court’s finding that the factor in R.C. 2929.13(B)(1)(b)(xi) applied in this case and

gave the court discretion to impose a prison term for Gibson’s offenses.

R.C. 2929.14(C)(4)

{¶ 20} “When an offender’s community control is revoked and multiple prison terms

are imposed for the underlying offenses, the trial court must make the findings under R.C.

2929.14(C)(4) before imposing consecutive sentences at the revocation sentencing

hearing.” (Citations omitted.) State v. Stevens, 2d Dist. Greene No. 2014-CA-10, 2015-

Ohio-1051, ¶ 9.

{¶ 21} Pursuant to R.C. 2929.14(C)(4), a trial court may impose consecutive

sentences if it determines that: (1) consecutive service is necessary to protect the public

2 The record indicates that Gibson was released from custody on personal recognizance in Case No. 2012-CR-260 on September 18, 2012, and that she thereafter committed the offenses in Case No. 2013-CR-64. -9-

from future crime or to punish the offender; (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public; and (3) one or more of the following three findings are

satisfied.

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

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

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 22} “ ‘[A] trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.’ ” State v. Bittner,

2d Dist. Clark No. 2013-CA-116, 2014-Ohio-3433, ¶ 11, quoting State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Moreover, the trial court is not

required “to recite any ‘magic’ or ‘talismanic’ words when imposing consecutive -10-

sentences.” State v. Horobin, 2d Dist. Montgomery No. 26639, 2015-Ohio-5300, ¶ 7,

quoting State v. Graham, 2d Dist. Montgomery No. 25934, 2014-Ohio-4250, ¶ 36.

(Other citation omitted.) As stated by the Supreme Court, “a word-for-word recitation of

the language of the statute is not required, and as long as the reviewing court can discern

that the trial court engaged in the correct analysis and can determine that the record

contains evidence to support the findings, consecutive sentences should be upheld.”

Bonnell at ¶ 29.

{¶ 23} In this case, the record establishes that the trial court made all the required

consecutive-sentence findings under R.C. 2929.14(C)(4) at the sentencing hearing and

in the sentencing entry. At the sentencing hearing, the trial court stated as follows:

In imposing consecutive sentences, the Court finds that consecutive

sentencing is necessary to protect the public from future crime or to punish

the Defendant. Consecutive sentences are not disproportionate to the

seriousness of Defendant’s conduct and the danger she poses to the public.

And the Defendant committed one or more of the multiple offenses while

she was on community control for a prior offense.

Plea and Sentencing Hearing Trans. (June 6, 2016), p. 23.

{¶ 24} In the sentencing entry, the trial court similarly provided that:

In imposing consecutive sentences, the Court makes the following findings

per R.C. 2929.14(C)(4): Consecutive sentencing is necessary to protect the

public from future crime or to punish the Defendant and consecutive

sentences are not disproportionate to the seriousness of the Defendant’s

conduct and to the danger the Defendant poses to the public. R.C. -11-

2929.14(C)(4). The Defendant committed one or more of the multiple

offenses while the Defendant was awaiting trial or sentencing, was on

community control or was under post release control for a prior offense.

R.C. 2929.14(C)(4)(a).

Journal Entry of Community Control Merits and Disposition (June 6, 2016), Champaign

County Court of Common Pleas Case Nos. 2012-CR-260 and 2013-CR-64, Docket Nos.

74 and 79, p. 7.

{¶ 25} “[W]here a trial court properly makes the findings mandated by R.C.

2929.14(C)(4), an appellate court may not reverse the trial court’s imposition of

consecutive sentences unless it first clearly and convincingly finds that the record does

not support the trial court’s findings.” State v. Withrow, 2d Dist. Clark No. 2015-CA-24,

2016-Ohio-2884, ¶ 38.

{¶ 26} In imposing consecutive sentences, the trial court found during the

sentencing hearing that R.C. 2929.14(C)(4)(a) applied to Gibson because she committed

the offenses in Case No. 2013-CR-64 while on community control sanctions in Case No.

2012-CR-260. R.C. 2929.14(C)(4)(a) provides that consecutive sentences are

appropriate if “the offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.”

{¶ 27} As previously discussed, the record indicates that Gibson was not yet

placed on community control in Case No. 2012-CR-260 at the time she committed the

offenses in Case No. 2013-CR-64. Gibson was, however, awaiting sentencing in Case -12-

No. 2012-CR-260 when she committed those offenses. Therefore, the record supports

the trial court’s finding that R.C. 2929.14(C)(4)(a) applied to Gibson, albeit for a different

reason than stated by the trial court at the sentencing hearing. See Hall, 2d Dist. Miami

No. 97 CA 22, 1997 WL 691509 at *1, citing Newcomb, 105 Ohio App. 417, 152 N.E.2d

801. Accord Handcock, 2d Dist. Clark No. 2016-CA-3, 2016-Ohio-7096 at ¶ 14.

Accordingly, we do not clearly and convincingly find that the record fails to support the

trial court’s decision to impose consecutive sentences under the finding in R.C.

2929.14(C)(4)(a). See Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659 at

¶ 29. (“as long as the reviewing court can discern that the trial court engaged in the

correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld”).

{¶ 28} The record also does not clearly and convincingly fail to support the trial

court’s other consecutive sentence findings—that consecutive sentencing is necessary

to protect the public from future crime or to punish the offender and is not disproportionate

to the seriousness of the defendant’s conduct in the commission of the offenses and to

the danger she posed to the public.

{¶ 29} The record indicates that while Gibson was released on personal

recognizance and was awaiting her sentencing for two counts of possessing criminal tools

and possession of heroin in Case No. 2012-CR-260, she continued to possess heroin,

committed petty theft, and through several counts of forgery, stole money from multiple

victims. The record further indicates that Gibson has a history of criminal convictions

and has not responded favorably to sanctions previously imposed given her multiple

community control violations, which Gibson admitted on the record was due to her pattern -13-

of drug abuse.

{¶ 30} Moreover, Gibson admitted to violating the conditions of her community

control by changing her residence without permission from her supervising officer and by

failing to report to her supervising officer as ordered for five months. Gibson had

previously admitted to committing the same type of violations in 2014, and was given a

second chance to comply with her conditions without penalty. Despite being given a

second chance, Gibson violated community control in the same manner throughout 2015

and part of 2016.

{¶ 31} For the foregoing reasons, we do not clearly and convincingly find that the

record does not support the trial court’s consecutive sentence findings. Accordingly, we

uphold the trial court’s decision to impose consecutive sentences.

Gibson’s 33-Month Prison Sentence is Not Otherwise Contrary to Law

{¶ 32} We also do not clearly and convincingly find that Gibson’s 33-month

sentence is otherwise contrary to law. “The trial court has full discretion to impose any

sentence within the authorized statutory range, and the court is not required to make any

findings or give its reasons for imposing maximum or more than minimum sentences.”

(Citation omitted.) State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

However, in exercising its discretion, a trial court must consider the statutory policies that

apply to every felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12.

State v. Leopard, 194 Ohio App.3d 500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.),

citing State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

{¶ 33} R.C. 2929.11 sets forth the principles and purposes of felony sentencing. -14-

R.C. 2929.12 sets forth the statutory “seriousness” and “recidivism” factors that are used

to guide a court’s sentencing discretion. We have held that a trial court need not

expressly state that it has considered R.C. 2929.11 and R.C. 2929.12. State v. Neff, 2d

Dist. Clark No. 2012-CA-31, 2012-Ohio-6047, ¶ 5. Accord State v. Guy, 2d Dist. Clark

Nos. 2015-CA-28, 2015-CA-29, 2016-Ohio-425, ¶ 16. A trial court is presumed to have

considered R.C. 2929.11 and R.C. 2929.12 unless the sentence is contrary to law. Neff

at ¶ 5, citing State v. Imber, 2d Dist. Clark No. 11CA0063, 2012-Ohio-3720, ¶ 26.

{¶ 34} “[A]n appellate court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.” Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231 at ¶ 23.

{¶ 35} As previously noted, we do not clearly and convincingly find that Gibson’s

33-month prison sentence is contrary to law, nor do we find that the record fails to support

Gibson’s sentence. Gibson’s individual prison sentences are within the authorized

statutory range provided in R.C. 2929.14(A)(5) and, although not required, the trial court

expressly stated at the sentencing hearing and in its sentencing entry that it had

considered the purposes and principles of sentencing in R.C. 2929.11 and weighed the

seriousness and recidivism factors in R.C. 2929.12. Moreover, in its detailed sentencing

entry, the trial court made a specific finding under each section of R.C. 2929.11 and

weighed each of the relevant seriousness and recidivism factors in R.C. 2929.12. The

trial court also discussed how it weighed each of those factors at the sentencing hearing,

as it stated the following:

With regard to more serious factors as they pertain to the community -15-

control violations, the Court finds that the Defendant was on community

control for two separate cases involving convictions for possession of

heroin. Defendant failed to report to her probation officer for five months

due to her subsequent use of heroin. And this is Defendant’s second

community control violation for failure to report to her probation officer.

Court also notes that the second community control violation case not only

involved drugs—not only involved drug use, but also an organized scheme

to steal from multiple individuals.

With regard to less serious in factors, the Court finds in committing

the offense the Defendant did not cause or expect to cause physical harm

to persons or property. Court concludes that factors establishing the

defendant’s conduct is more serious outweigh factors establishing that

conduct is less serious.

With regard to recidivism and more likely to commit future crimes,

the Court finds that at the time she committed 13 CR 64 that the Defendant

was on community control in 12 CR 260. She has a history of criminal

convictions. She has not responded favorably to sanctions previously

imposed. She has demonstrated a pattern of drug abuse related to the

offense. And she refuses treatment by virtue of her failure to maintain

contact with the probation department.

With regard to less likely to commit future crimes, the Court finds that

in committing the offense the Defendant was not adjudicated a delinquent

child. Court concludes factors establishing the Defendant’s recidivism is -16-

more likely outweigh factors establishing recidivism is less likely. The

Court considered the military service. Finds she has no military service

record.

Plea and Sentencing Hearing Trans. (June 6, 2016), p. 20-21.

{¶ 36} Although the trial court incorrectly found that Gibson committed the offenses

in Case No. 2013-CR-64 while she was on community control in Case No. 2012-CR-260,

as previously discussed, that finding amounts to harmless error. In making that finding,

the trial court was weighing the recidivism factor under R.C. 2929.12(D)(1), which

indicates that an offender is more likely to commit future crimes if:

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

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.

While the trial court based its finding under R.C. 2929.12(D)(1) on the wrong reason, the

trial court appropriately considered this factor as an indicator that Gibson was likely to

commit future crimes, because at the time Gibson committed her offenses in Case No. -17-

2013-CR-64, she was under release from confinement before her sentencing in Case No.

2012-CR-260.

{¶ 37} Because we are unable to find by clear and convincing evidence that the

record does not support the trial court’s findings under R.C. 2929.13(B) and R.C.

2929.14(C)(4), or that Gibson’s sentence is otherwise contrary to law, Gibson’s sole

assignment of error is overruled.

Conclusion

{¶ 38} Having overruled Gibson’s sole assignment of error, the judgment of the

trial court is affirmed.

DONOVAN, J. and FROELICH, J., concur.

Copies mailed to:

Jane A. Napier Amy E. Ferguson Hon. Nick A. Selvaggio