State v. Marcum

2013 Ohio 2447

Opinion

[Cite as State v. Marcum, 2013-Ohio-2447.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

STATE OF OHIO, : : Case Nos. 12CA20 Plaintiff-Appellee, : 12CA24 : 12CA25 vs. : : DECISION AND JUDGMENT JAMES MARCUM : ENTRY : Defendant-Appellant. : Released: 06/04/13 _____________________________________________________________ APPEARANCES:

Timothy P. Gleeson, Logan, Ohio, for Appellant.

Laina Fetherolf, Hocking County Prosecuting Attorney, and Jonah M. Saving, Hocking County Assistant Prosecuting Attorney, Logan, Ohio, for Appellee. _____________________________________________________________

McFarland, P.J.

{¶1} In this consolidated appeal, James Marcum, (hereinafter

“Appellant”), appeals his convictions for two charges of domestic violence,

two charges of violating protection orders, one charge of criminal damaging,

and one charge of obstructing official business in the Hocking County

Municipal Court after he pled guilty to the above charges pursuant to a plea

arrangement with the State of Ohio. Appellant’s counsel has advised this

Court that, after reviewing the record, he cannot find a meritorious claim for

appeal. As a result, Appellant’s counsel has moved to withdraw under Hocking App. Nos. 12CA20, 12CA24, and 12CA25 2

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). We find no merit

to Appellant’s three assignments of error and, after independently reviewing

the record, find no additional error prejudicial to the Appellant’s rights in the

trial court proceedings. The motion of counsel for Appellant requesting to

withdraw as counsel is granted, and this consolidated appeal is dismissed for

the reason that it is wholly frivolous.

FACTS

{¶2} On December 21, 2011, Appellant’s wife, Patricia Marcum,

(hereinafter “Patricia”) placed a call to the Hocking County Sheriff’s Office

reporting a domestic dispute. When officers arrived at the scene, Appellant

was gone. Patricia advised officers Appellant had been drinking and they

argued. She further advised Appellant had punched her head and threatened

to kill her. Appellant was subsequently charged with domestic violence,

R.C. 2919.29(A) and assault, R.C. 2903.13(A), both misdemeanors of the

first degree.

{¶3} The cases were filed as Hocking Municipal Court case number

CRB 1101101(A) and (B). A domestic violence criminal temporary

protection order (DVTPO) was served on Appellant on December 30, 2011.

Patricia was named as the protected person. The order advised Appellant Hocking App. Nos. 12CA20, 12CA24, and 12CA25 3

was not to be present within 500 feet of Patricia, even with her permission.

Appellant was appointed counsel and the trial court proceedings ensued.

{¶4} On March 4, 2012, Appellant allegedly punched Aidan Newton,

Patricia’s son (and Appellant’s step-son), and threw a brick through

Patricia’s window. He also allegedly threatened to kill Patricia. As a result,

Appellant was again charged with domestic violence and assault. In

addition, he was charged with violation of a temporary protection order, a

violation of R.C. 2919.27 and a misdemeanor of the first degree; criminal

damaging, R.C. 2909.06 and a misdemeanor of the second degree; and

menacing, R.C. 2903.22 and a misdemeanor of the fourth degree. These

cases were filed together as Hocking County Municipal Court numbers CRB

1200157 (A) through (E).

{¶5} On May 8, 2012, Appellant was again charged with violation of

a temporary protection order after having been seen at Patricia’s residence.

He was also charged with obstruction of justice, R.C. 2921.31(A), a

misdemeanor of the second degree, after he fled from police. These cases

were grouped as Hocking County Municipal Court numbers

CRB1200393(A) and (B).

{¶6} On June 4, 2012, Appellant’s counsel moved for a psychiatric

evaluation of Appellant. The trial court granted the motion. On July 9, Hocking App. Nos. 12CA20, 12CA24, and 12CA25 4

2012, based on the forensic examiner’s report, the trial court found by a

preponderance of the evidence that [Appellant’s] mental condition rendered

him unable to understand the nature of the proceeding and assist in his

defense. Appellant was committed to the Ohio Department of Mental

Health for 60 days. On August 13, 2012, another mental health evaluation

indicated Appellant was restored to competency. Appellant was then

scheduled for a hearing on August 17, 2012 to determine whether his

competency had indeed been restored.

{¶7} At the August 17th hearing, the parties entered into plea

negotiations. Appellant entered guilty pleas to the following six charges:

1) Domestic violence, CRB 11011101(A)- appellate case number 12CA20;

2) Domestic violence, CRB 1200157 (A)- appellate case number 12CA24;

3) Violating protection order, CRB1200157(B)- appellate case number 12CA24;

4) Criminal damaging, CRB1200157, appellate case number 12CA24;

5) Violating protection order,CRB1200393(A)- appellate case number 12CA25; and,

6) Obstructing official business, CRB 1200393(B)- appellate case number 12CA25. Hocking App. Nos. 12CA20, 12CA24, and 12CA25 5

{¶8} The State dismissed all five remaining charges. Prior to

accepting Appellant’s guilty pleas, the trial court reviewed the charges and

notified Appellant of the maximum jail terms and maximum fines. The trial

court also reviewed Appellant’s constitutional rights to trial, trial by jury,

confrontation of witnesses, and subpoena power.

{¶9} Appellant was sentenced the same day. The trial court heard

recommendations from the State regarding the jail sentence to be served and

conditions of probation. Patricia and Appellant were given opportunities to

address the court. Both verbalized their opposition to the temporary

protection orders.1 The trial court ultimately imposed a 180-day jail

sentence with credit for time served, various fines and costs, and a

community control sanction of two years. The trial court also ordered “no

contact” between Appellant and Patricia during the period of community

control.

{¶10} Appellant now appeals the convictions and sentencing order.

This appeal is timely filed. We have allowed Appellant sufficient time to

respond to counsel’s brief. To date, no response has been received.

1 The record contains, during the course of the proceedings, several written requests made by Patricia Marcum and directed to the trial court, that the charges be dismissed and the protection orders be lifted. Hocking App. Nos. 12CA20, 12CA24, and 12CA25 6

ANDERS BRIEF

{¶11} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396

(1967), counsel may ask permission to withdraw from a case when counsel

has conscientiously examined the record, can discern no meritorious claims

for appeal, and has determined the case to be wholly frivolous. Id. at 744;

State v. Adkins, 4th Dist. No. 03CA27, 2004-Ohio-3627, ¶8. Counsel’s

request to withdraw must be accompanied with a brief identifying anything

in the record that could arguably support the client’s appeal. Anders at 744;

Adkins at ¶8. Further, counsel must provide the defendant with a copy of the

brief and allow sufficient time for the defendant to raise any other issues, if

the defendant chooses to. Id.

{¶12} Once counsel has satisfied these requirements, the appellate

court must conduct a full examination of the trial court proceedings to

determine if meritorious issues exist. If the appellate court determines that

the appeal is frivolous, it may grant counsel’s request to withdraw and

address the merits of the case without affording the appellant the assistance

of counsel. Id. If, however, the court finds the existence of meritorious

issues, it must afford the appellant assistance of counsel before deciding the

merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919,

2007-Ohio-2743, ¶7. Hocking App. Nos. 12CA20, 12CA24, and 12CA25 7

{¶13} In the current action, Appellant’s counsel advises that the

appeal is wholly frivolous and has asked permission to withdraw. Pursuant

to Anders, counsel has filed a brief raising three potential assignments of

error for this Court’s review.

POTENTIAL ASSIGNMENT OF ERROR ONE

I. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT- APPELLANT’S GUILTY PLEAS WERE ENTERED KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY.

STANDARD OF REVIEW

{¶14} In deciding whether to accept a guilty plea, the trial court must

determine whether the plea was made knowingly, intelligently, and

voluntarily. State v. McDaniel, 4th Dist. No. 09CA677, 2010 Ohio-5215, ¶

8. “‘In considering whether a guilty plea was entered knowingly,

intelligently and voluntarily, an appellate court examines the totality of the

circumstances through a de novo review of the record to ensure that the trial

court complied with constitutional and procedural safeguards.’” (Emphasis

sic.) Id., quoting State v. Eckler, 4th Dist. No. 09CA878, 2009-Ohio-7064, ¶

48. See, also, State v. Barner, 4th Dist. No. 10CA9, 2012-Ohio- 4584.

{¶15} “Before accepting a guilty plea, the trial court should engage in

dialogue with the defendant as described in Crim.R.11(C).” McDaniel at ¶

8, citing State v. Morrison, 4th Dist. No. 07CA854, 2008-Ohio-4913, ¶ 9. Hocking App. Nos. 12CA20, 12CA24, and 12CA25 8

The trial court must also inform the defendant hat he or she is waiving the

privilege against self-incrimination, the right to a jury trial, the right to

confront accusers, and the right to compulsory process. State v. Jordan, 4th

Dist. No. 00CA16, 2001-Ohio-2608, 2001 WL 1346129, citing Boykin v.

Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969); State v. Ballard, 66 Ohio St.

2d 473, 423 N.E.2d 115 (1981). Because these are constitutional rights, the

record must affirmatively demonstrate that the waiver was both intelligent

and voluntary. Boykin, supra. An appellant who challenges his plea on the

basis that it was not knowingly and voluntarily made must show a

prejudicial effect. State v. Nero, 56 Ohio St. 3d 106, 564 N.E.2d 474 (1990),

citing State v. Stewart, 51 Ohio St. 2d 86, 94, 364 N.E.2d 1163 (1977);

Crim.R. 52(A). The test is whether the plea would have otherwise been

made. Stewart, supra at 3.

LEGAL ANALYSIS

{¶16} In Appellant’s first assignment of error, he contends the trial

court erred in finding his guilty pleas were entered knowingly, voluntarily,

and intelligently. However, the record shows prior to accepting Appellant’s

pleas, the trial court reviewed the charges and notified Appellant of the

maximum jail sentences and the maximum fines. Appellant verbalized

understanding of these possible sentences and fines. The trial court also Hocking App. Nos. 12CA20, 12CA24, and 12CA25 9

engaged in brief dialogue with Appellant concerning his right to trial.

Appellant also verbalized his understanding of this right. The trial court

then asked Appellant if he had reviewed the documents associated with each

case with his attorney. Appellant responded in the affirmative. The court

then inquired:

“And do you understand that by signing these documents you are giving up that right to have a trial and all rights associated with going to trial?”

Appellant again responded affirmatively. The trial court further

inquired:

“You understand that you are giving up your right to call witnesses to testify on your behalf and to confront any witness called to testify against you by the state?”

Appellant again responded affirmatively. The trial court again

inquired as to whether Appellant fully understood his legal rights. Appellant

again answered “Yes.”

{¶17} Although the trial court did not verbally advise Appellant of his

privilege against compulsory self-incrimination, the record contains

Appellant’s signed waiver of all constitutional rights attendant to trial.

Appellant stated on the record he understood the penalties and charges. At

no time did Appellant indicate he did not understand the charges, the

penalties, or his constitutional rights. Hocking App. Nos. 12CA20, 12CA24, and 12CA25 10

{¶18} Further, this was a plea arrangement. Appellant pled to six

charges and in return, five charges were dismissed. He signed a written plea

agreement and a waiver of rights form. The plea agreement set forth the

terms of the plea arrangement and listed the sanctions. The no-contact order

was included on the written plea arrangement. Appellant was well-aware of

the terms of the plea arrangement. Further, Appellant’s actions in being

charged multiple times with domestic violence and violation of protection

orders after the first domestic incident in March 2011 demonstrate he

blatantly ignored court orders and conditions of bond.2 Nevertheless, five

charges were dismissed. Appellant received substantial benefit from his

bargain.

{¶19} Finally, Appellant makes no showing of prejudice or that he

would not have accepted the plea. Again, the no-contact order was specified

on the written plea agreement which Appellant reviewed with counsel and

signed. There is nothing in the record to suggest Appellant’s plea was not

knowing, voluntary, and intelligent, under the totality of the circumstances.

We find the trial court did not err or abuse its discretion in accepting

Appellant’s guilty pleas. As such, the first potential assignment of error is

2 Appellee’s brief references the fact that for several weeks prior to May 8, 2012 (the day Appellant’s actions gave rise to the third set of charges being filed), Appellant was subject to a statewide warrant for leaving the Salvation Army in Columbus, Ohio after having his bond, relevant to the pending domestic charges, modified to attend a program at the Salvation Army. Hocking App. Nos. 12CA20, 12CA24, and 12CA25 11

overruled.

POTENTIAL ASSIGNMENT OF ERROR TWO

II. TRIAL COUNSEL FOR DEFENDANT-APPELLANT PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE FORCED DEFENDANT-APPELLANT INTO ENTERING THE GUILTY PLEAS.

{¶20} Criminal defendants have the right to effective assistance of

counsel. State v. Adkins, 161 Ohio App. 3d 114, 2005-Ohio-2577, 829

N.E.2d 729 (4th Dist.); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct.

1441 (1970); State v. Lytle, 4th Dist. No. 96CA182, 1997 WL 118069 (Mar.

10, 1997); State v. Doles, 4th Dist. No 1660, 1991 WL 179582 (Sept. 18,

1991). “In Ohio, a properly licensed attorney is presumed competent and

the appellant bears the burden to establish counsel’s ineffectiveness.” State

v. Knowlton, 971 N.E.2d 395, 2012-Ohio-2350, (4th Dist.) ¶ 35. To obtain

reversal of a conviction on grounds of ineffective assistance of counsel, a

defendant must show that (1) his counsel’s performance was deficient and

(2) the deficient performance prejudiced the defense so as to deprive him of

a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052 (1984); see, also, State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d 904

(2001); State v. Goff, 82 Ohio St. 3d 123, 694 N.E.2d 916 (1998). We note

that both prongs of the Strickland test need not be analyzed if the claim can Hocking App. Nos. 12CA20, 12CA24, and 12CA25 12

be resolved under only one. See State v. Madrigal, 87 Ohio St. 3d 378, 389,

2000-Ohio-448, 721 N.E.2d 52. If a claim may be resolved on grounds of

lack of prejudice, that course should be followed. See State v. Loza, 71 Ohio

St. 3d 61, 641 N.E.2d 1082 (1994).

{¶21} In his second assignment of error, Appellant contends his

attorney rendered ineffective assistance of counsel by “forcing” Appellant

into entering the guilty pleas. He supports this contention by referencing

only the fact that trial counsel requested a recess. There is no evidence in

the record to suggest the recess was used by counsel to coerce Appellant into

entering the guilty pleas. Appellant made no complaint or objection about

his attorney after court resumed following the recess. Appellant’s argument

is based on private communication between Appellant and his attorney, i.e.,

depending on alleged evidence outside of the record. The proper vehicle for

Appellant to raise this argument is in a petition for post-conviction relief

under R.C. 2953.21. See State v. Ables, 4th Dist. No. 11CA22, 2012-Ohio-

3377, ¶ 12; State v. Whitaker, 4th Dist. No. CA3349, 2011-Ohio-6923, ¶ 11,

citing State v. Cooperrider, 4 Ohio St. 3d 226, 228, 448 N.E.2d 452

(1983)(per curiam). Accordingly, this issue is not properly before us on Hocking App. Nos. 12CA20, 12CA24, and 12CA25 13

appeal. We therefore reject and overrule this second potential assignment of

error.

POTENTIAL ASSIGMENT OF ERROR THREE

III. THE TRIAL COURT ERRED BY IMPOSING A NO-CONTACT ORDER PROHIBITING DEFENDANT-APPELLANT FROM HAVING CONTACT WITH HIS WIFE AS A COMMUNITY CONTROL SANCTION.

{¶22} We review a misdemeanor sentence for an abuse of discretion.

State v. Knowlton, 971 N.E.2d 395, 2012-Ohio-2350, (4th Dist.) ¶ 28; R.C.

2922.22(A); State v. Leeth, 4th Dist. No. 05CA745, 2006-Ohio-3575, ¶ 6.

See, e.g., City of Youngstown v. McElroy, 7th Dist. No. 05MA13, 2005-

Ohio-6595. An abuse of discretion implies that a court’s ruling is

unreasonable, arbitrary, or unconscionable; it is more than an error in

judgment. Leeth, supra, citing State ex rel. Richard v. Seidner, 76 Ohio St.

3d 14, 666 N.E.2d 1134 (1996).

{¶23} The overriding purposes of misdemeanor sentencing are to

protect the public from future crime by the offender and others and to punish

the offender. R.C. 2929.21(A). To achieve those purposes the sentencing

court shall consider the impact of the offense upon the victim and the need Hocking App. Nos. 12CA20, 12CA24, and 12CA25 14

for changing the offender’s behavior, rehabilitating the offender, and making

restitution to the victim for the offense, the public, or the victim and the

public. Id. R.C. 2929.21(B) further provides that a sentence imposed for a

misdemeanor shall be reasonably calculated to achieve the two overriding

purposes of misdemeanor sentencing and consistent with sentences imposed

for similar offenses committed by similar offenders.

{¶24} Trial courts are given broad discretion in their sentencing

authority when it comes to conditions of probation. Garfield Hts. v.

Tvergyak, 8th Dist. No. 84825, 2005-Ohio-2445, ¶ 5. The sentencing court

can impose additional conditions aimed at preserving the interests of justice,

protection of the community, and the rehabilitation of the offender. Id.; R.C.

2929.25(B). To determine whether a condition of probation as part of

sentencing is appropriate and valid, the Supreme Court of Ohio has held,

when deciding probation conditions, “[C]ourts should consider whether the

condition (1) is reasonably related to rehabilitating the offender, (2) has

some relationship to the crime of which the offender was convicted, and (3)

relates to the conduct which is criminal or reasonably related to future

criminality and serves the statutory ends of probation.” State v. Jones, 49

Ohio St. 3d 51, 52, 550 N.E. 2d 469 (1990). The Court further explained in

State v. Talty, 103 Ohio St. 3d 177, 181, 2004-Ohio- 4888, 814 N.E.2d 1201, Hocking App. Nos. 12CA20, 12CA24, and 12CA25 15

“Jones stands for the proposition that probation conditions must be

reasonably related to the statutory ends of probation and must not be overly

broad. Because community control is the functional equivalent of probation,

this proposition applies with equal force to community control sanctions.”

State v. Lane, 2nd Dist. No. 2010 CA21, 2010-Ohio-5639, Fn 1. “The

community control statute, despite changing to the manner in which

probation was administered, did not change the underlying goals of

rehabilitation, administering justice, and ensuring good behavior….” Id.3

{¶25} In his third assignment of error, Appellant contends the trial

court erred in imposing a “no-contact” order between Appellant and his wife

as a community control sanction. Appellant directs us to his wife’s statement

to the court that she did not want a protection order at the August 17, 2012

hearing. On that date, Patricia advised the trial court she did not believe her

physical safety was threatened and she reiterated her previous statements

that the protection orders created a hardship.

{¶26} The State of Ohio also points out generally, where a no contact

order between spouses has been upheld as a condition of community control,

the marital relationship was abusive and the defendant was convicted of

3 The Lane opinion noted “[T]he precise holding of Jones and its effect on probation and community- control conditions has been questioned with regards to sentencing because it predates Am. Sub. S.B. No. 2 (1995). Lane, supra, Fn1. However, the Lane court also acknowledged “[W]ith the passage of Am. Sub. S.B. No. 2 in 1995, community control replaced probation as a possible sentence under Ohio’s felony sentencing law.” Id. (Citations omitted). Hocking App. Nos. 12CA20, 12CA24, and 12CA25 16

domestic violence. State v. Marcum, 4th Dist. Nos. 11CA8 and 11CA10,

2012-Ohio- 572, ¶ 11. See, also, City of Garfield Heights v. Tvergyak, 8th

Dist. No. 84825, 2005-Ohio-2445; State v. Brillhart, 129 Ohio App.3d 180,

717 N.E.2d 413 (1998); State v. Conkle, 129 Ohio App.3d 177, 717 N.E.2d

411 (1998). See also State v. Harford, 5th Dist. No. 00CA89, 2001 WL

227704, (Mar. 6, 2001); City of University Heights v. Roders, 8th Dist. No.

76252, 1999 WL 632922 (Aug. 19, 1999).

{¶27} The State of Ohio argues here, Appellant’s no contact order is

reasonably related to rehabilitating the offender, and we agree. The State

cites Tvergyak, supra, a case in which Tvergyak entered a “no contest” plea

and was found guilty of misdemeanor domestic violence after an altercation

between Tvergyak and his wife which occurred subsequent to a night of

drinking. Upon sentencing, Tvergyak was given a jail sentence, fine, and

community service. He was also ordered to have no contact with his wife

during five years of active probation. In affirming the trial court’s sentence,

the Tyergyak court held:

“The trial court is in the best position to evaluate the circumstances and sentence the defendant accordingly. In this case, the facts are such that the trial court’s sentence and conditions of probation clearly pass the three-prong test as applied in Jones, supra. The no-contact order as a condition of Tvergyak’s probation clearly bears a relationship to the crime at issue, is related to rehabilitating the defendant, and is fashioned as such to prevent future instances of domestic violence.” Hocking App. Nos. 12CA20, 12CA24, and 12CA25 17

{¶28} Here, Appellant was convicted of two acts of domestic violence

involving his wife as victim. He was also convicted of two charges of

violating a temporary protection order. Appellant has a violent history of

actions and threats. We agree with the State’s observation that in this case,

rehabilitation cannot happen without court intervention. There is an absolute

need to separate the parties until, at least, Appellant can demonstrate he has

modified and corrected his way of interacting with his wife.

{¶29} Here, the trial court imposed the no- contact order for a period

of two years. In addition to the no -contact order, Appellant was ordered to

participate in mental health programs and abstain from using drugs and

alcohol. The trial court’s order also stated the no-contact aspect of the order

could be modified in the future as circumstances change. In our opinion,

the order is not overbroad and reasonably relates to the statutory ends of

probation, pursuant to Jones.

{¶30} In State v. Marcum, supra, we reversed the trial court’s

judgment in Patricia Marcum’s appeal of her sentence upon conviction for

obstructing official business and misuse of 911. There, Mrs. Marcum

argued the trial court abused its discretion when it imposed a no- contact

order between the Marcums as a condition of her community control. Under

the above-cited Jones test, we reasoned that the condition was not Hocking App. Nos. 12CA20, 12CA24, and 12CA25 18

reasonably related to rehabilitating Mrs. Marcum because it did nothing to

ensure that she uses 911 only for legitimate purposes or that she does not

obstruct official business. We also reasoned that the order did not

reasonably relate to future criminality. Here, the convictions in Appellant’s

case are for domestic violence and violations of a protection order. Thus, the

no-contact order has a relationship to the crimes committed and otherwise

fits all prongs of the Jones test.

{¶31} We believe, as did the appellate court in Tvergyak, that the no-

contact order as a condition of probation clearly bears a relationship to the

crime at issue, is related to rehabilitating the defendant, and is fashioned to

prevent future crimes of domestic violence. We also believe Appellant’s

sentence is consistent with sentences imposed for similar offenses

committed by similar offenders. The no- contact order is not overbroad and

is consistent with the purposes of misdemeanor sentencing. As such, we

find the trial court did not err and abuse its discretion in fashioning the no-

contact order as a condition of probation. We therefore, overrule Appellant’s

third potential assignment of error.

CONCLUSION

{¶32} In the case sub judice, the trial court’s findings are supported by

the record. As such, we also conclude that the potential assignments of error Hocking App. Nos. 12CA20, 12CA24, and 12CA25 19

advanced by appellate counsel are wholly without merit. The motion of

counsel for Appellant requesting to withdraw as counsel is granted. This

appeal is dismissed for the reason that it is wholly frivolous.

APPEAL DISMISSED. Hocking App. Nos. 12CA20, 12CA24, and 12CA25 20

JUDGMENT ENTRY

It is ordered that the APPEAL IS DISMISSED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Hocking County Municipal Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Hoover, J.: Concurs in Judgment and Opinion. Harsha, J.: Concurs in Judgment Only.

For the Court,

BY: _________________________ Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.