State v. Jensen

2019 Ohio 2474

• Court: Ohio Court of Appeals
• Decided: June 21, 2019
• Docket: L-18-1034
• Status: Published

Opinion

[Cite as State v. Jensen, 2019-Ohio-2474.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1034

Appellee Trial Court No. CR0201701299

v.

David Raymond Jensen DECISION AND JUDGMENT

Appellant Decided: June 21, 2019

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

SINGER, J.

Introduction

{¶ 1} Appellant, David Jensen, appeals from the January 16, 2018 judgment of the

Lucas County Court of Common Pleas, where he was sentenced to five years of

incarceration after pleading guilty pursuant to North Carolina v. Alford, to two counts of

gross sexual imposition. For the reasons that follow, we affirm the trial court judgment. Background

{¶ 2} On February 14, 2017, appellant was indicted on four counts of rape in

violation of R.C. 2907.02(A)(1)(b) and (B), felonies of the first degree, and on two

counts of gross sexual imposition in violation of R.C. 2907.05(A)(4) and (B), felonies of

the third degree. Appellant was alleged to have had sexual contact with two children on

numerous occasions in 1992.

{¶ 3} On November 15, 2017, appellant pleaded guilty pursuant to Alford to the

two lesser counts of gross sexual imposition.

{¶ 4} At the hearing, the plea terms were read into the record, and the trial court

proceeded with its colloquy pursuant to Crim.R. 11. During the colloquy, the court

emphasized that the state would have to prove each and every element, and the state

confirmed that it intended to prove appellant engaged in the sexual contact with the

victims in Lucas County.

{¶ 5} A plea form was submitted in which appellant pleaded to Count Nos. 5 and

6, and confirmed that he understood the maximum penalty was 10 years of nonmandatory

prison time. It further states appellant understood the nature of the charges, was satisfied

with his attorney’s advice, was not intoxicated, waived his constitutional rights, and that

no threat or off-the-record promise had been made for the exchange of his plea. It

reflects that the parties agreed to a five-year sentence, and that appellee agreed not to

seek prosecution on additional victims and to nolle the remaining counts at sentencing.

2. {¶ 6} The court accepted the plea, concluding that appellant made a knowing,

intelligent, and voluntary waiver of his rights, and that he understood the nature of the

charges, the effect of the plea, and the maximum penalties which can be imposed. The

court entered findings of guilty as to the charges for gross sexual imposition.

{¶ 7} Soon after the plea hearing appellant began to file pro se motions, although

he was still represented by appointed counsel. He filed nine motions, including two to

change his plea.

{¶ 8} On January 10, 2018, the trial court held its hearing to both address the

pro se motions and to sentence appellant.

{¶ 9} With respect to the pro se motions, the trial court struck all nine because

appellant was represented by counsel and hybrid representation is prohibited. The court

also reevaluated its plea colloquy and appellant’s responses from the November 15, 2017

hearing in which appellant entered his Alford plea. The court stated as follows:

The court has reviewed, went into great detail to review all of that

about the voluntary decision to make and change his plea, and clearly the

record shows that there was no threat. There was no disagreements

between himself and Counsel, and in fact he had indicated that he has no

objection to the way Counsel explained things, what was happening,

throughout the case, development of the case up to that point, and that he

understood everything going on and that he did in fact intend to enter the

plea.

3. {¶ 10} The court then proceeded to sentence appellant to a total of five years of

incarceration. The judgment entry was journalized on January 16, 2018.

{¶ 11} The journal entry indicates the court referred to “the Court Diagnostic and

Treatment Center for a HB 180 screen,” and that the diagnostic and treatment report was

authored and dated December 20, 2017. The court confirmed that after considering the

report appellant was to be classified and maintain registration as a sexually oriented

offender. Appellant timely appeals from the January 16, 2018 judgment.

Assignments of Error

{¶ 12} Appellant sets forth the following assignments of error:

I. THE TRIAL COURT ERRED TO THE PREJUDICE OF

APPELLANT IN ACCEPTING A GUILTY PLEA WHICH WAS NOT

MADE KNOWINGLY OR VOLUNTARILY, IN VIOLATION OF

APPELLANT’S DUE PROCESS RIGHTS UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF

APPELLANT BY DENYING HIS PRO SE MOTION TO WITHDRAW

HIS PLEA.

4. First Assignment of Error

{¶ 13} Appellant first asserts his plea was not made knowingly or voluntarily.

Appellee contends the plea was made knowingly and voluntarily.

{¶ 14} Crim.R. 11(C)(2) states, in pertinent part, as follows:

* * * (C) Pleas of guilty and no contest in felony cases. * * * (2) In

felony cases the court may refuse to accept a plea of guilty or a plea of no

contest, and shall not accept a plea of guilty or no contest without first

addressing the defendant personally and doing all of the following:

(a) Determining that the defendant is making the plea voluntarily,

with understanding of the nature of the charges and of the maximum

penalty involved, and, if applicable, that the defendant is not eligible for

probation or for the imposition of community control sanctions at the

sentencing hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court,

upon acceptance of the plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant’s favor, and to require the state to

5. prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.

See Crim.R. 11(C)(2)(a)-(c).

{¶ 15} The underlying purpose of Crim.R. 11(C)(2) is to ensure the offender has

the information needed to make a voluntary and intelligent decision regarding whether to

plead guilty. See State v. Contrearus, 6th Dist. Lucas No. L-12-1114, 2014-Ohio-996,

¶ 6, citing State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). With

respect to constitutional rights enunciated in Crim.R. 11(C)(2)(c), a trial court must

strictly comply. State v. Colbert, 71 Ohio App.3d 734, 737, 595 N.E.2d 401 (11th

Dist.1991). A trial court, however, need not use the exact language found in that rule.

Ballard, supra, paragraph two of the syllabus. Rather, a trial court must explain those

rights in a manner reasonably intelligible to the offender. Id.

{¶ 16} For nonconstitutional rights, strict adherence to Crim.R. 11(C) is not

required. Contrearus at ¶ 7. Rather, the trial court must substantially comply, provided

no prejudicial effect occurs before a plea is accepted. State v. Stewart, 51 Ohio St.2d 86,

93, 364 N.E.2d 1163 (1977). “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and the

rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

{¶ 17} Here, appellant argues that his plea did not conform to Crim.R. 11(C),

because the trial court did not explain during his plea colloquy that he would be subject to

sex offender registration requirements and restrictions.

6. {¶ 18} Appellee counters, noting that at the time appellant committed the crimes,

the requirements imposed on sex offenders were civil and remedial in nature, “not

criminal or punitive.” See, e.g., State v. Strong, 6th Dist. Wood No. WD-08-009, 2009-

Ohio-1528, ¶ 41. As a result, appellee argues, notice of the registration requirements and

restrictions were not a mandatory part of the Crim.R. 11 colloquy.

{¶ 19} “The A.W.A. is unconstitutional as applied to any sex offender who

committed the underlying sex offense before the A.W.A’s 2008 enactment.” See, e.g.,

State v. Cruea, 2d Dist. Miami No. 2012 CA 2, 2012-Ohio-5209, ¶ 22, citing State v.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.

{¶ 20} In Cruea, for instance, Cruea was convicted of rape which was found to

have occurred between 1987 and 1994. Id. The trial court incorrectly classified Cruea as

a sex offender under the Adam Walsh Act (A.W.A.). Id. The appellate court reversed,

and held that plain error existed because “Cruea should have been classified under

Megan’s Law” due to the dates of the commission of the crime. Id.

{¶ 21} Appellant here must be classified under Megan’s Law (House Bill 180)

because he was alleged to have committed the relevant crimes in 1992. Under Megan’s

Law, the sex-offender consequences were civil and remedial in nature. Strong, supra.

They were not a mandatory part of the Crim.R 11 colloquy. Id.

{¶ 22} We note that the trial court mentioned “HB 180,” “House Bill 180

screening” and “House Bill 180 requirements,” and addressed “the three types of

offenders [appellant] will be screened for,” that appellant or his counsel did not seek

7. clarity or objected to the mention of HB 180 sex offender consequences, and that

appellant and his counsel admitted in open court that he was familiar with sex offender

registration processes and that he was classified similarly for a 2004 federal (child

pornography) crime until the end of January 2018. Therefore, although not mandatory on

the court to confirm, id., we find the totality of the circumstances indicate it was more

likely than not that appellant subjectively understood by pleading guilty he would subject

himself to certain restrictions and requirements as a sex offender.

{¶ 23} Accordingly, the first assignment of error is not well-taken.

Second Assignment of Error

{¶ 24} Appellant next asserts the trial court abused its discretion by denying

appellant’s motion to withdraw his plea. Appellee contends the trial court did not abuse

its discretion.

{¶ 25} Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no

contest may be made only before sentence is imposed; but to correct manifest injustice

the court after sentence may set aside the judgment of conviction and permit the

defendant to withdraw his or her plea.”

{¶ 26} “[A] presentence motion to withdraw a guilty plea should be freely and

liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

“Nevertheless, it must be recognized that a defendant does not have an absolute right to

withdraw a plea prior to sentencing.” Id. “Therefore, the trial court must conduct a

hearing to determine whether there is a reasonable and legitimate basis for the withdrawal

8. of the plea.” Id.; see State v. Euler, 6th Dist. Wood No. WD-17-058, 2019-Ohio-235,

¶ 7.

{¶ 27} We review a Crim.R 32.1 motion for abuse of discretion. Id. An abuse of

discretion means more than an error of law or judgment; it implies that the trial court’s

attitude in making the determination was unreasonable, arbitrary or unconscionable. See

Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983).

{¶ 28} We specifically analyze the circumstances surrounding the motion pursuant

to these nine factors:

(1) whether the state would be prejudiced by withdrawal; (2) the

representation afforded to the defendant by counsel; (3) the extent of the

Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to

withdraw; (5) whether the trial court gave full and fair consideration to the

motion; (6) whether timing of the motion was reasonable; (7) the reasons

for the motion; (8) whether the defendant understood the nature of the

charges and potential sentences; and (9) whether the accused was perhaps

not guilty or had a complete defense to the crime.

See State v. Richey, 6th Dist. Sandusky No. S-09-028, 2011-Ohio-280, ¶ 43.

(1) Prejudice to prosecution’s case.

{¶ 29} Appellant generally argues the factors weigh in favor of vacating the plea.

{¶ 30} Appellee specifically argues that its case would be prejudiced because “it

would have to assemble witnesses and evidence for a case in which the crimes occurred

9. in 1992—approximately 27 years ago.” Appellee argues “[w]itnesses may no longer be

available to the prosecution and memories of events may no longer be accurate.”

Appellee points to two cases for support, Strong, 6th Dist. Wood No. WD-08-009, 2009-

Ohio-1528, and State v. Baumgartner, 6th Dist. Erie No. E-07-034, 2008-Ohio-5794.

{¶ 31} Nevertheless, we find these cases are distinguishable. Most notably, we

find in both cases our concern under this factor was the accuracy of testimonial evidence

to be given.

{¶ 32} In both Strong and Baumgartner, the prosecution was dealing with criminal

events which had occurred within months or a few years of when trial would have taken

place, had the pleas been withdrawn. The obvious rationale was that the prosecution’s

race against time in these cases to produce competent witnesses and evidence would be

prejudiced by having to reassemble witnesses and have them recall fading memories.

Strong at ¶ 30-31; Baumgartner at ¶ 14.

{¶ 33} In this case, however, we find the prosecution involved criminal events

which were alleged to have occurred in May 1992. Appellant was not indicted in this

matter until February 14, 2017. That is almost 25 years between the events and

indictment. Appellant’s plea was entered in on November 15, 2017, and he sought to

withdraw it on November 28, and December 26, 2017, and again at the January 10, 2018

sentencing hearing. After 25 years, memories must have been sufficient for appellee to

proceed to an indictment, and an additional few months or even a year or two would not

have prejudiced appellee’s case.

10. {¶ 34} Accordingly, this first factor weighs in favor of granting appellant’s motion

to withdraw his plea.

(2) Competency of defense counsel.

{¶ 35} Appellant argues his counsel was ineffective for failing to inform him

about his sex offender consequences before his plea. Appellee contends the record

demonstrates appellant’s counsel was highly competent.

{¶ 36} This factor is analyzed like an ineffective assistance claim. See Strong, 6th

Dist. Wood No. WD-08-009, 2009-Ohio-1528, at ¶ 32. “[I]n order to prove that trial

counsel is ineffective, a defendant must demonstrate counsel’s performance was deficient

and that deficient performance prejudiced the defense[]” and “affected whether the

defendant made a knowing and voluntary plea.” State v. Doak, 7th Dist. Columbiana

Nos. 03CO15, 03CO31, 2004-Ohio-1548, ¶ 3; State v. Romero, Slip Opinion No. 2019-

Ohio-1839, ¶ 18.

{¶ 37} The November 15, 2017 transcript in this case reflects that at the plea

hearing counsel informed appellant to the extent possible and in light of counsel’s limited

information about the possibility and extent of sex offender consequences. At the

opening of the hearing counsel acknowledged to the court that appellant was “aware that

the Court needs to refer this matter to Court Diagnostic and Treatment Center for

purposes of this evaluation and that may delay sentencing for four to six weeks.” The

trial court subsequently suggested appellant resolve with counsel any “questions” he may

11. have had about the screening and imposition of sex offender “House Bill 180”

consequences, and appellant and counsel proceeded because no questions remained.

{¶ 38} We cannot say the record supports defense counsel breached an essential

duty to appellant’s prejudice.

(3) Extent of Crim.R. 11 colloquy and (8) understanding of charges and penalties.

{¶ 39} Appellant argues he was not afforded an opportunity to understand the

charges and penalties because the trial court did not provide a full Crim.R. 11 colloquy

where there was no explanation he would be subject to sex offender consequences.

Appellee argues the court properly conducted its colloquy and that although sex offender

consequences were not a mandatory part, appellant subjectively understood the sex

offender consequences.

{¶ 40} In Strong, we addressed the same argument appellant asserts here. See

Strong, 6th Dist. Wood No. WD-08-009, 2009-Ohio-1528, at ¶ 39-41. We rejected it,

recognizing that no legal authority supported that “a discussion of the of R.C. Chapter

2950 registration requirements is a mandatory part of the Crim.R. 11 colloquy.” Id. at

¶ 41.

{¶ 41} Additionally, based on the trial court’s extensive explanation of

constitutional and nonconstitutional rights to appellant in open court, we find appellant

was provided a full Crim.R. 11 colloquy and hearing from and in which appellant

understood the consequences of his plea.

12. (4) Extent of hearing and (5) court’s consideration of motion to withdraw plea.

{¶ 42} When evaluating these factors, we note “[t]he scope of a hearing on an

appellant’s motion to withdraw his guilty plea should reflect the substantive merits of the

motion.” State v. Hartman, 6th Dist. Huron No. H-17-014, 2018-Ohio-4452, ¶ 21.

{¶ 43} As an example, in Hartman we held that these factors weighed in favor of

Hartman. Id. at ¶ 23. We recognized that the Hartman trial court conducted an extensive

hearing on the substantive merits of Hartman’s motion to withdraw his plea. We noted

that the trial court allowed arguments from both sides, and that Hartman and his counsel

were personally questioned. Id. at ¶ 21. Despite the “extensive hearing,” we took issue

with the Hartman trial court’s “undue emphasis” on the age of the case, which we

determined overshadowed the court’s consideration of the merits of Hartman’s motion.

Id. at ¶ 22.

{¶ 44} Initially, we note appellant’s November 28 and December 26, 2017 pro se

motions were properly stricken from the record by the trial court.

{¶ 45} With respect to the January 10, 2018 oral motion made at sentencing, we

review the transcript to determine the extent of the hearing and whether the court gave

full and fair consideration. The transcript reflects as follows:

THE DEFENDANT: Do I get to anything to say?

THE COURT: You do, and it is exactly that time. So that is

perfect timing, sir. Mr. Jensen, you have a right to allocution before

sentencing. Anything you would like to say today prior to sentencing?

13. THE DEFENDANT: Yes, Your Honor. Still according to

Criminal Rule 32.1 I can change my plea at any time, and I am invoking

that rule. I would like to change this plea because it is not in my best

interest. Because had Prosecution the (sic) followed through on their

responsibility to provide me with evidence that is in my favor they would

have found through extensive address verification not even the mother, the

father, nor these alleged victims ever lived at 741 Woodville Road, in May,

June 1992.

Therefore, no crime could have occurred or has occurred in your

jurisdiction. I have been fighting on that. Mr. Popil, I have told him

several times since April of 2017 (sic) never put forth my alibi * * *.

{¶ 46} After additional exchanges in which, among others, appellant explained to

the court that he always disputed the location of the alleged crimes, he also stated he had

expressed his concern with counsel and that counsel had not properly raised his concern.

Appellant said it would have been impossible to speak through his lawyer, as he claimed

his counsel refused to speak.

{¶ 47} The exchange between the court and appellant finished as follows:

THE DEFENDANT: Other than that I would like to stick to

Criminal 32.1 and withdraw my plea. I would take this to jury trial and

prove jurisdiction.

14. THE COURT: Motion denied. And I will stand by the denial of

the motion once again.

{¶ 48} After the court made this ruling, the state mentioned how it would be able

to prove where the events occurred. We find appellant had an opportunity to be heard,

and that the court below gave full and fair consideration to appellant’s motion.

{¶ 49} Accordingly, the third and eighth factors weigh in favor of affirming the

denial of appellant’s motion to withdraw his plea.

(6) Timing of motion to withdraw plea.

{¶ 50} Appellee recognizes appellant’s initial pro se motion to withdraw his plea

occurred only 13 days after the plea was entered.

{¶ 51} Crim.R. 32.1, supra, provides that a motion to withdraw a plea of guilty

may be made “before sentence is imposed.”

{¶ 52} Here, appellant’s plea was entered on November 15, 2017. His written

motions, which were properly stricken from the record, were filed on November 28 and

December 26, 2017. We do not consider these motions for purposes of this analysis.

Appellant also moved to withdraw his plea at sentencing on January 10, 2018. Because

this oral motion was made before being sentenced, albeit at the absolute last possible

moment, we cannot say this factor weighs against withdrawing the plea.

15. (7) Reasons for motion to withdraw plea.

{¶ 53} Appellant argues his motion to withdraw his plea “should have been

granted by the trial court to correct inconsistencies in the State’s evidence as to where the

alleged acts occurred.” Appellee argues appellant had an impermissible change of heart.

{¶ 54} “Withdrawal of a plea will not be permitted merely because a defendant

has experienced a change of heart.” Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715, at ¶ 6,

citing State v. Posey, 6th Dist. Ottawa No. OT-12-028, 2014-Ohio-1994, ¶ 9.

{¶ 55} Here, our review of the written and oral motions made to the trial court

reveal appellant argued to withdraw his plea to challenge jurisdiction and present other

objections, which he argued were possible because of an alibi and impossibility that the

alleged location was a crime scene. We however cannot say this was a reason to

withdraw his plea, because the record demonstrates that he considered this before

entering his plea.

{¶ 56} Specifically, at a May 3, 2017 hearing, appellant, his counsel, the

prosecutor, and the court all engaged in discussion about how venue was a potential

issue, as follows:

THE COURT: All right. What’s the status, Mr. Popil [defense

counsel]?

[COUNSEL]: Your Honor, the Defense is requesting a trial date be

set. I have had extensive discussions with the State regarding this. There

may be further developments in terms of perhaps having the matter actually

16. proceed in a different jurisdiction, Wood County. The investigator is

checking on that.

So if we could set a trial date I will let the Court know whether the

matter will proceed within probably a month or so.

[PROSECUTOR]: That is correct, Your Honor. It is the State’s

understanding the only element in question is venue regarding this case. So

the State believes it was in Lucas County. However, the Defendant is

alleging that it happened in Wood County.

So I will talk to Wood County, and if he wants to be convicted in

Wood County we can make that happen.

THE COURT: I won’t be so presumptuous that that is going to

happen. Let’s back up.

THE DEFENDANT: Railroad job.

[COUNSEL]: There are other elements we are contesting other

than just venue, but venue is the main element at this point.

THE COURT: Can we simply say venue is an issue and leave it at

that?

{¶ 57} Additionally, at the November 15, 2017 plea hearing, the trial court

explained to appellant that the state would have to prove each and every element of the

crime beyond a reasonable doubt, and the state subsequently noted that it would show

17. that appellant did in fact live with the victims “at 741 Woodville Road in Lucas County,

Ohio, and did have sexual contact [there].”

{¶ 58} Yet appellant pleaded pursuant to Alford, despite these open court

dialogues. We cannot say the issue of where the crimes happened was not considered by

him prior to entering his Alford plea. This supports that appellant experienced a change

of heart.

{¶ 59} As an additional consideration we note how the trial court discussed and

explained the nature of the Alford plea to appellant:

THE COURT: This plea as Mr. Popil [(defense counsel)] I am sure

already told you is a specialized plea. It is called a guilty plea, but it is

being done pursuant to a case called North Carolina versus Alford. It is

where you maintain your innocence on your original charges as they are

contained in the indictment. This was a six count indictment, but you enter

pleas of guilty to lesser charges to limit the exposure that you have on

sentencing.

As we discussed earlier the first four counts of the indictment are

mandatory sentences with sentencing ranges of anywhere from 2 to 10

years. On this plea with Counts 5 and 6 the sentencing range, the

maximum is 5 years on each sentence, so a total of 10 years of

incarceration.

18. I will go over this more in detail in a minute, but that there greatly

reduces your exposure as to Counts 1 through 4, and that is the purpose of a

plea of guilty by way of North Carolina versus Alford, to accept

responsibility even though you maintain your innocence yet not be exposed

to the more serious sentencing options. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Is that the discussion you have had with your

attorney?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Is that generally how he explained it as well?

THE DEFENDANT: Yes.

{¶ 60} Based on this exchange, we find appellant confirmed he understood that the

trial court was accepting his Alford plea, regardless of whether he was ever guilty of the

crimes as charged. Accordingly, and in consideration of these highlighted circumstances,

this seventh factor weighs in favor of affirming the denial of appellant’s motion to

withdraw his plea.

(9) Obvious guilt or potential defense.

{¶ 61} As noted above, appellant argues that his motion to withdraw his plea

should have been granted because of inconsistencies in evidence, a potential alibi, and an

issue related to an incorrect location of the alleged crimes. Appellee argues there is

nothing in the record to demonstrate that appellant has a viable defense. We agree.

19. Further, appellant’s understanding of the meaning and consequences of his Alford plea

was demonstrated in the plea colloquy. We find that appellant argues merely a change of

heart.

{¶ 62} Conclusion

{¶ 63} Appellant’s two assignments of error are found not well-taken and are

denied. The January 16, 2018 judgment of the Lucas County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

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 Arlene Singer, J. _______________________________ Gene A. Zmuda, 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/.

20.