[Cite as State v. Gifford, 2022-Ohio-1620.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1201
Appellee/Cross-appellant Trial Court No. CR0202001397
v.
Charles Edward Gifford DECISION AND JUDGMENT
Appellant/Cross-appellee Decided: May 13, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for Appellee/Cross-appellant.
Michael H. Stahl, for Appellant/Cross-appellee.
MAYLE, J.
{¶ 1} In this accelerated appeal, defendant-appellant/cross-appellee, Charles
Gifford, appeals the September 30, 2021 judgment of the Lucas County Court of
Common Pleas, convicting him of two counts of robbery and sentencing him to a minimum of four years in prison and a maximum of six years in prison on count 1, and
four years in prison on count 2, to be served consecutively. The state cross-appeals,
arguing that the trial court incorrectly calculated the indefinite prison term for counts 1
and 2. For the following reasons, we reverse the trial court judgment, in part, and affirm,
in part. As explained below, we modify Gifford’s sentence under the authority of R.C.
2953.08(G)(2).
I. Background
{¶ 2} Charles Gifford was indicted on two counts of aggravated robbery,
violations of R.C. 2911.01(A)(1) and (C), first-degree felonies, after robbing a carryout
on February 12, 2020, and again on February 14, 2020. He brandished a knife during
both robberies.
{¶ 3} Gifford entered a plea of guilty to amended Counts 1 and 2, robbery,
violations of R.C. 2911.02(A)(1) and (B), second-degree felonies. The court accepted
Gifford’s plea, made a finding of guilty, ordered a presentence investigation report, and
continued the matter for sentencing.
{¶ 4} Because the offenses were qualifying offenses of the second degree, Gifford
was sentenced under the Reagan Tokes Law to indefinite sentences. On each count, the
trial court imposed a minimum sentence of four years and a maximum sentence of six
years. Despite the state’s recommendation that the court order the prison terms to be
served concurrently, the court ordered that they be served consecutively. While not
2. reflected in the sentencing entry, the trial court stated at the sentencing hearing that the
imposition of consecutive sentences resulted in a total minimum term of eight years and a
total maximum term of 12 years. In other words, the court added the two minimum terms
together and added the maximum terms together in calculating the total minimum and
maximum sentences.
{¶ 5} Gifford appealed, and assigned three errors for our review: (1) “[t]he trial
court erred in ordering consecutive sentences,” (2) “[a]ppellant’s sentence to an indefinite
term under R.C. 2929.144 violates the constitutional doctrine of the separation of
powers,” and (3) “[a]ppellant’s sentence to an indefinite term under R.C. 2929.144
violates his right to due process under the Fifth and Fourteenth Amendments to the
United States Constitution.” State v. Gifford, 6th Dist. Lucas No. L-20-1152, 2021-Ohio-
2967, ¶ 7.
{¶ 6} We determined, sua sponte, that the trial court erred in calculating Gifford’s
total maximum sentence. We found that while the total minimum prison term was
correctly calculated to be eight years, under R.C. 2929.144(B)(2), the total maximum
prison term should have been calculated to be ten years—not 12. We remanded the
matter for resentencing. We did not reach the merits of Gifford’s assignments of error.
{¶ 7} On remand, at the sentencing hearing, the trial court again sentenced Gifford
to four years on each count. It properly recognized that a four-year sentence would result
in a two-year tail. It again ordered that the sentences be served consecutively, and it
3. properly calculated the total minimum term to be eight years and the total maximum term
to be ten years. This calculation was not included in the sentencing entry, however,
which was journalized September 30, 2021. That entry simply states that a term of four
years was imposed as to Count 1 and Count 2, and “Defendant’s minimum state[d] prison
term as to Count 1 is 4 years. The Defendant’s maximum state[d] prison term as to count
1 is 6 years. The indefinite portion of the Defendant’s prison term is 2 years.” It does
not state the effect of consecutive service of Counts 1 and 2.
{¶ 8} Gifford again appealed and again challenges the imposition of consecutive
sentences and the constitutionality of the Reagan Tokes Law. He assigns two errors for
our review:
Assignment of Error I: The trial court erred in imposing consecutive
sentences, as while there was a course of conduct leading to the two counts,
nothing about the harm caused was “great or unusual” as required by R.C.
2929.14(C), the acts were not committed while awaiting trial or under
supervision, and no history of criminal conduct was apparent[.]
Assignment of Error II: The statutory requirement of the imposition
of indeterminate sentences under R.C. 2929.144 invades the province of the
judiciary and as such violates the separation of powers required by the Ohio
Constitution, and due process under the Ohio and U.S. Constitutions[.]
4. {¶ 9} The state cross-appealed, challenging the court’s calculation of Gifford’s
total indefinite prison term. It assigns one error for our review:
The trial court erred in the sentencing entry by failing to properly
calculate the total indefinite prison term for counts 1 and 2.
II. Law and Analysis
{¶ 10} The parties have filed cross-appeals. Gifford challenges the imposition of
consecutive sentences and the constitutionality of the sentencing scheme under which he
was sentenced. The state argues that the trial court failed to properly calculate Gifford’s
total indefinite prison term. We address the parties’ assignments of error in turn.
A. Consecutive Sentences
{¶ 11} In his first assignment of error, Gifford argues that the imposition of
consecutive sentences was contrary to law. Specifically, he claims that the trial court’s
findings are not supported by the record because (1) while more than one armed robbery
occurred, there is nothing in the record demonstrating that the multiple offenses were so
great or unusual as to warrant consecutive sentences, and (2) he did not have a significant
criminal history, so the court relied on his history of instability and drug and alcohol
abuse as aggravating factors instead of as mitigating factors.
{¶ 12} The state responds that the trial court made the appropriate findings
required to support the imposition of consecutive sentences, and ultimately concluded
that (1) two robberies were committed, just days apart, during which Gifford threatened
5. the store clerk with a knife; (2) both incidents were serious crimes with long-lasting
psychological effects on the victims; (3) Gifford had a history of drug and alcohol abuse;
and (4) overall, Gifford was unstable while out in the community.
{¶ 13} We review a challenge to a felony sentence under R.C. 2953.08(G)(2).
R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise
modify a sentence or may vacate the sentence and remand the matter to the sentencing
court for resentencing 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.
{¶ 14} Under R.C. 2929.14(C)(4), where a trial court imposes multiple prison
terms for convictions of multiple offenses, it may require the offender to serve the prison
terms consecutively if it finds that “consecutive service is necessary to protect the public
from future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public,” and if it also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
6. 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.
{¶ 15} This statute requires the trial court to make three statutory findings before
imposing consecutive sentences. State v. Beasley, 158 Ohio St.3d 497, 2018-Ohio-493,
108 N.E.3d 1028, ¶ 252; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, ¶ 26. It must find that (1) consecutive sentences are necessary to protect the
public or to punish the offender; (2) consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger that the offender poses to the
public; and (3) R.C. 2929.14(C)(4)(a), (b), or (c) is applicable. Beasley at ¶ 252. “[T]he
trial court must make the requisite findings both at the sentencing hearing and in the
sentencing entry.” (Emphasis in original.) Id. at ¶ 253, citing Bonnell at ¶ 37. While “a
word-for-word recitation of the language of the statute is not required,” a reviewing court
7. must be able to discern that the trial court engaged in the correct analysis and the record
must contain evidence to support the trial court’s findings. Bonnell at ¶ 29.
{¶ 16} Here, the trial court made all the required findings under R.C.
2929.14(C)(4), and specifically found R.C. 2929.14(C)(4)(b) to be applicable. It
explained:
[C]onsecutive sentences are necessary to protect the public from
future crime or to punish the defendant and are not disproportionate to the
seriousness of the defendant’s conduct or the danger the defendant poses to
the public. The court further finds that these offenses were committed as
part of one or more courses of conduct and the harm caused 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.
These findings are reflected in the sentencing entry.
{¶ 17} Gifford does not dispute that the trial court made the required findings.
Rather, he argues that the trial court’s findings are not supported by the record. He
claims that the fact that he brandished a knife while committing the offenses does not
make the crimes “more serious than any other armed robbery prohibited by statute.” And
while he notes that any crime victim will suffer a psychological impact, “nothing in the
record suggests” that the victims here suffered “any ‘great or unusual’ psychological
8. harm.” He emphasizes that not only did the state not articulate any information that
would support the trial court’s finding, the state actually recommended concurrent
sentences as part of the plea agreement.
{¶ 18} “A trial court’s finding of great or unusual harm must be supported by
actual evidence, not just the potential for such harm.” State v. Goings, 6th Dist. Lucas
No. L-13-1103, 2014-Ohio-2322, ¶ 20, citing State v. Williams, 6th Dist. Lucas Nos. L-
15-1259, L-15-1260, 2016-Ohio-4905, ¶ 27. “Nonetheless, we may reverse only if we
find by clear and convincing evidence that the finding of great or unusual harm is not
supported by the record.” Id.
{¶ 19} Here, we find by clear and convincing evidence that there is no evidence in
the record to support a finding of great or unusual harm. While the trial court stated that
there was “long-lasting psychological impact on the victims,” there is no evidence in the
record to support this conclusion. The PSI includes a victim impact statement. One of
the categories examined as part of the victim impact statement is “psychological impact.”
That section is marked “N/A.” The PSI also notes that there was no physical harm to the
victims. The record suggests that letters were submitted to the court on behalf of Gifford;
there is no indication that any victim submitted a letter to the court that may support the
court’s finding.
{¶ 20} In addition to the absence in the PSI of any indication of psychological
impact, we note that both the prosecutor and the probation officer who conducted the PSI
9. recommended concurrent sentences. This is not to say that the trial court is bound to
follow these recommendations; it is not. Nevertheless, there must be actual evidence to
support a finding of great or unusual harm, and none exists here. See State v. Hawley,
2020-Ohio-1270, 153 N.E.3d 714, ¶ 16 (8th Dist.) (“After reviewing the record in this
case, however, we find that the record does not clearly and convincingly support a
finding under R.C. 2929.14(C)(4)(b) because the harm caused was not so great or unusual
that a single prison term would not adequately reflect the seriousness of the offender’s
conduct.”).
{¶ 21} Accordingly, we agree with Gifford, and find clearly and convincingly that
the record does not support the sentencing court’s finding of great or unusual harm under
R.C. 2929.14(C)(4)(b). We find Gifford’s first assignment of error well-taken. Under
the authority granted to us under R.C. 2953.08(G)(2), we modify Gifford’s sentence to
reflect that his sentences on Counts 1 and 2 are to be served concurrently. See id. at ¶ 30
(vacating consecutive portion of defendant’s sentence and modifying his sentence to
concurrent.).
B. Reagan Tokes Law
{¶ 22} Senate Bill 201—the Reagan Tokes Law—became effective on March 22,
2019. The Law “significantly altered the sentencing structure for many of Ohio’s most
serious felonies” by implementing an indefinite sentencing system for non-life, first and
second-degree felonies committed on or after its effective date. State v. Polley, 6th Dist.
10. Ottawa No. OT-19-039, 2020-Ohio-3213, ¶ 5, fn. 1. The Law specifies that the indefinite
prison terms will consist of a minimum term, selected by the sentencing judge from a
range of terms set forth in R.C. 2929.14(A), and a maximum term determined by
formulas set forth in R.C. 2929.144. The Law establishes a presumptive release date
from prison at the end of the minimum term, but the Ohio Department of Rehabilitation
and Correction (“ODRC”) may rebut the presumption if it determines, after a hearing,
that one or more factors apply, including that the offender’s conduct while incarcerated
demonstrates that he continues to pose a threat to society. R.C. 2967.271(B), (C)(1), (2)
and (3). If ODRC rebuts the presumption, the offender may remain incarcerated for a
reasonable, additional period of time, determined by ODRC, but not to exceed the
offender’s maximum prison term. R.C. 2967.271(D).
{¶ 23} In his second assignment of error, Gifford argues that the imposition of
indeterminate sentences under R.C. 2929.144 violates the doctrine of separation of
powers and the right to due process. While his assignment of error encompasses both
separation of powers and due process, his argument focuses solely on his separation-of-
powers challenge. Gifford claims that the determination of guilt and sentencing of a
defendant convicted of a crime are solely the province of the judiciary, thus the Reagan
Tokes Law violates the province of the judiciary by allowing ODRC to rebut the
presumption that an offender will be released after expiration of the minimum sentence
11. “by presenting non-criminal bad acts before a non-judicial hearing authority.” He asks
that we declare the Law unconstitutional.
{¶ 24} The state ignores Gifford’s specific claims, instead incorporating the full
array of arguments that it has devised for responding to general constitutional challenges
to the Reagan Tokes Law. We address only those arguments Gifford actually raises.
{¶ 25} “[T]he doctrine of separation of powers is ‘implicitly embedded in the
entire framework of those sections of the Ohio Constitution that define the substance and
scope of powers granted to the three branches of state government.’” State ex rel. Bray v.
Russell, 89 Ohio St.3d 132, 134, 729 N.E.2d 359 (2000), quoting S. Euclid v. Jemison, 28
Ohio St.3d 157, 158-159, 503 N.E.2d 136 (1986). “The legislative has the sole right and
power to enact laws, the judiciary to declare their meaning and application, and the
executive to enforce their execution.” Chesnut v. Shane’s Lessee, 16 Ohio 599, 621
(1847). “‘The essential principle underlying the policy of the division of powers of
government into three departments is that powers properly belonging to one of the
departments ought not to be directly and completely administered by either of the other
departments, and further that none of them ought to possess directly or indirectly an
overruling influence over the others.’” Bray at 134, quoting State ex rel. Bryant v. Akron
Metro. Park Dist., 120 Ohio St. 464, 473, 166 N.E. 407 (1929).
{¶ 26} In connection with its role in declaring the “meaning and application” of
laws, the judiciary is solely responsible for determining guilt and sentencing a defendant
12. who has been convicted of a crime. Id. at 136. Gifford argues that because R.C.
2967.271 permits ODRC to rebut the presumption that an offender will be released after
serving his or her minimum sentence for conduct, including non-criminal bad acts,
allegedly committed while in prison (and presented to a non-judicial hearing authority),
the statute deprives the judiciary of its exclusive authority and instead authorizes ODRC
to increase a criminal defendant’s sentence, thereby undermining judicial power and
vesting ODRC with even more authority than county prosecutors. We disagree.
{¶ 27} Under the Reagan Tokes Law, it is the trial court that imposes both a
minimum and maximum sentence. R.C. 2929.14 and 2929.144. While R.C. 2967.271(C)
and (D) permit ODRC to “maintain” an offender’s incarceration for “additional”—and
“reasonable”—periods beyond the prisoner’s presumptive minimum term, ODRC is not
permitted to “increase” the prisoner’s sentence beyond the maximum sentence imposed
by the trial court. In this way, the Law is different than other legislation struck down by
the Ohio Supreme Court as violating separation of powers, such as former R.C. 2967.11,
which governed “bad time” and allowed ODRC to extend an offender’s prison term
beyond the original sentence imposed by the court for misconduct committed during
incarceration. Here, any additional period of incarceration “shall not exceed the
offender’s maximum prison term.” R.C. 2967.271(D). In this way, the authority granted
to ODRC under the Reagan Tokes Law is more comparable to the authority granted to
the parole board under the postrelease control statute, R.C. 2967.28, which the Ohio
13. Supreme Court upheld in Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103, 1110
(2000).
{¶ 28} In Woods, the Ohio Supreme Court summarized the evolution of Ohio’s
sentencing statutes up to that point. It explained that Ohio enacted truth-in-sentencing
laws, Senate Bill 2, to ensure that sentences imposed by trial judges were the sentences
served, unless altered by the judge. “This was primarily accomplished by two methods:
eliminating indefinite sentences and eliminating parole.” Id. at 508. The court described
that before S.B. 2, offenders rarely served the time to which they were actually sentenced
because (1) indefinite sentences were prescribed for most serious felonies, (2) upon
entering a correctional institution, an offender’s sentence was automatically reduced by
30 percent for good behavior, and (3) the parole board “reviewed all prison sentences for
disparity among offenders and attempted to abate inequities.” Id. at 508. Under S.B. 2,
offenders were sentenced to definite sentences, good time was significantly reduced and
had to be earned, and the parole board no longer had authority to determine how long an
offender stayed in prison.
{¶ 29} The Ohio Supreme Court explained that before S.B. 2, offenders were
subject to parole if they were convicted of first- or second-degree felonies or third- or
fourth-degree felonies that involved an act of violence, or if they had been previously
been convicted of a crime of violence. Instead of parole, S.B. 2 introduced “post-release
control.” Similar to parole, a period of postrelease control is required for all offenders
14. imprisoned “for first- or second-degree felonies, felony sex offenses, or a third-degree
felony, not a felony sex offense, in which the offender caused or threatened to cause
physical harm to a person.” Id., citing R.C. 2967.28(B). Post-release control may also be
required at the discretion of the Parole Board for offenders imprisoned for other felonies.
Id., citing R.C. 2967.28(C).
{¶ 30} The Ohio Supreme Court recognized that R.C. 2967.28 gives the parole
board significant discretion to impose conditions of release “designed to protect the
public and to promote the releasee’s successful reintegration into the community.” Id.,
citing Ohio Adm.Code 5120:1–1–17(A). R.C. 2967.28(D) sets forth factors for the APA
to consider in determining whether to impose postrelease control and what conditions to
impose. It even permits the board to impose residential sanctions including a prison term.
{¶ 31} Ultimately, the Ohio Supreme Court reversed the decision of this court—
which had found that the postrelease control statute violated the separation of powers
doctrine because the delegation of powers to the Adult Parole Authority usurped judicial
authority—after it concluded that the delegation of power to the APA is no different for
postrelease control than it was under the former system of parole. It compared the two
systems.
{¶ 32} Under the parole system, the Ohio Supreme Court explained, a sentencing
court imposed an indefinite sentence with the possibility of parole. It could control the
maximum length of the prison sentence, but had no power over when parole might be
15. granted or what conditions of parole would be imposed. Similarly, under postrelease
control, the sentencing court imposes a sentence from the options available under the
sentencing scheme, informs the offender that he or she may be subject to a period of
postrelease control, and advises him or her that a violation of the conditions of
postrelease control could result in additional time up to 50 percent of the original
sentence.
{¶ 33} In Woods, the defendant argued that the postrelease control statute was
similar to the bad time statute that was found unconstitutional in Bray. But the Ohio
Supreme Court found that unlike bad time—where a crime committed while incarcerated
resulted in an additional sentence not imposed by the trial court—the imposition of
postrelease control is part of the judicially-imposed sentence. Also, it explained,
postrelease control sanctions are aimed at behavior modification to facilitate reintegration
into the community rather than mere punishment for an additional crime, as was the case
with the bad-time statute. The court acknowledged that the sentencing judge has no
control over how much time an offender may serve on postrelease control, but it observed
that this was also true for parole. It noted that “for as long as parole has existed in Ohio,
the executive branch * * * has had absolute discretion over that portion of an offender’s
sentence.” Id. at 512, citing State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 4 N.E. 81
(1885). It concluded that “the APA’s discretion in managing post-release control does
16. not impede the function of the judicial branch,” therefore, the statute did not violate the
separation of powers doctrine. Id. at 512.
{¶ 34} Since Woods, a unanimous decision of the Ohio Supreme Court reaffirmed
the holding and reasoning in that case, recognizing that a trial court’s imposition of
postrelease-control in its original sentence “avoids any potential separation-of-powers
problem.” Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶
19, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 19.
{¶ 35} Moreover, it is important to note that Woods is not the first time that the
Ohio Supreme Court has recognized the role of the executive branch in determining the
circumstances under which a properly-sentenced offender should be released from prison.
In McDougle v. Maxwell, 1 Ohio St.2d 68, 71, 203 N.E.2d 334, 337 (1964), the Ohio
Supreme Court recognized that “[t]he granting of parole and the final release of prisoners
is the function of the Pardon and Parole Commission * * * as is the supervision of those
on parole * * *.” It emphasized that “[w]hether a prisoner should be released before he
has served his maximum sentence is an administrative not a judicial matter.” Id.
{¶ 36} Here, there are strong similarities between the authority of the judiciary and
executive branches under the Reagan Tokes Law and their authority under the systems of
parole and postrelease control that the Ohio Supreme Court upheld in Woods and
supported in McDougle. Under the Reagan Tokes Law, the trial court imposes a
minimum sentence and a maximum sentence. While ODRC may rebut the presumption
17. that an offender will be released after service of his or her minimum sentence (or on the
presumptive earned early release date) if it demonstrates any of the circumstances
enumerated in R.C. 2967.271(C), under no circumstances may it maintain an offender’s
incarceration beyond the maximum term imposed by the sentencing court. As such, the
executive agency does not impede the function of the judicial branch, and the
constitutional doctrine of separation of powers is not violated.
{¶ 37} Accordingly, we find Gifford’s second assignment of error not well-taken.
C. The State’s Cross-Appeal
{¶ 38} In its cross-appeal, the state argues that the trial court erred in the
sentencing entry by failing to properly calculate the total indefinite prison term for
Counts 1 and 2. Specifically, it claims that the court in its sentencing entry failed to
include in its calculation the prison term imposed for Count 2. We agree with the state
that the sentencing entry did not properly reflect Gifford’s total indefinite prison term
because it failed to articulate the impact of consecutive service in calculating the total
minimum and maximum sentences. However, because we have concluded that the trial
court erred in imposing consecutive sentences, this issue is moot. The sentencing entry
accurately reflects a minimum term of four years and a maximum term of six years.
{¶ 39} We dismiss the state’s cross-appeal as moot.
18. III. Conclusion
{¶ 40} The trial court erred in imposing consecutive sentences. The record does
not support its finding of great or unusual harm under R.C. 2929.14(C)(4)(b). We find
Gifford’s first assignment of error well-taken. Pursuant to our authority under R.C.
2953.08(G)(2), we modify Gifford’s sentence and order that his sentences for Counts 1
and 2 be served concurrently.
{¶ 41} The Reagan Tokes Law does not violate principals of separation of powers
because the trial court imposes both the minimum and maximum sentences. We find
Gifford’s second assignment of error not well-taken.
{¶ 42} We dismiss the state’s cross-appeal as moot.
{¶ 43} We reverse the September 30, 2021 judgment of the Lucas County Court of
Common Pleas insofar as it orders Gifford to serve his sentences for Counts 1 and 2
consecutively, but affirm in all other respects. We order that Gifford’s sentences be
served concurrently. We remand this case for the trial court to issue a judgment entry
reflecting this modification as well as the remaining aspects of Gifford’s sentence. The
costs of this appeal are assessed to the state under App.R. 24.
Judgment reversed, in part, and affirmed, in part, and remanded.
19. State of Ohio v. Charles Edward Gifford L-21-1201
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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