State v. Meadows

2022 Ohio 287, 184 N.E.3d 168

• Court: Ohio Court of Appeals
• Decided: January 31, 2022
• Docket: 20CA3734
• Status: Published

Opinion

[Cite as State v. Meadows, 2022-Ohio-287.]

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

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 20CA3734 : v. : : DECISION AND JEFFREY MEADOWS, : JUDGMENT ENTRY : Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Roger Soroka and Joshua Bedtelyon, Soroka & Associates, LLC, Columbus, Ohio, for Appellant.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for Appellee. _____________________________________________________________

Smith, P.J.

{¶1} This is an appeal from a Ross County Common Pleas Court judgment

entry convicting Appellant, Jeffrey Meadows, of one count of aggravated

possession of drugs, a second-degree felony in violation of R.C. 2925.11, and

sentencing him to serve a minimum prison term of two years and a maximum

prison term of three years. On appeal, Meadows contends 1) that the trial court

erred in denying his motion to suppress evidence obtained during an unlawful

search and seizure of his vehicle; and 2) that the trial court erred in sentencing him Ross App. No. 20CA3734 2

to an indefinite prison term pursuant to the Reagan Tokes Act, in violation of his

constitutional rights. However, because we find no merit to the arguments raised

under these assignments of error, they are both overruled. Accordingly, the

judgment of the trial court is affirmed.

FACTS

{¶2} This matter stems from the traffic stop of Jeffrey Meadows by Ohio

State Highway Patrol Trooper Atwood in Ross County, Ohio, on US 23 South

during the afternoon of August 29, 2019. The record before us reveals that

Trooper Atwood was sitting stationary on US 23 observing southbound traffic

when he noticed Meadows’ vehicle pass by. The record indicates that the trooper

noticed a loud and unusual sound emanating from the vehicle, and he also noticed

Meadows sitting rigidly in the driver’s seat, leaning up towards the steering wheel.

Upon observing Meadows’ vehicle pass by, Trooper Atwood then observed

Meadows’ vehicle travel over the solid white line by over a tire width until it was

out of sight.

{¶3} Trooper Atwood pulled out and eventually caught up with Meadows.

Upon catching up with him, he observed Meadows move from the left lane to the

right lane without signaling. After confirming Meadows’ vehicle was, in fact, the

vehicle that passed by that was making a loud noise, Trooper Atwood activated his

lights and initiated a traffic stop. Upon stopping, Meadows can be seen on the Ross App. No. 20CA3734 3

cruiser video making a slight jerking motion to the right. As Trooper Atwood

approached the passenger side of the vehicle, he asked Meadows if he was

“shoving” something. Although it cannot be deciphered on the dash cam video,

apparently Meadows told the trooper that he took out his “grill” (gold teeth

covering) and put it in the cup holder.

{¶4} In addition to Meadows, there were two female passengers in the

vehicle. Trooper Atwood asked Meadows to step out of the vehicle and when he

did, it appears from the video that something may have fallen, to which Trooper

Atwood responded by asking Meadows if that was his “burner.” Meadows

responded in the negative and could not produce a driver’s license or identification

card. Trooper Atwood thereafter took him to the front of his cruiser where he

patted him down. He then placed Meadows in the front seat and proceeded to ask

him for identifying information, including his social security number, in order to

run it through the system. He also asked him who owned the vehicle. There was

some confusion over who the owner was.1 As such, Trooper Atwood moved

Meadows to the back seat, which he explained was a safety precaution. Meadows

was not handcuffed at this time, although the door was shut and the window was

open. Trooper Atwood then went to speak with the passengers in the vehicle.

Both passengers denied ownership of the vehicle.

1 Meadows stated the vehicle was owned by his “peoples.” Ross App. No. 20CA3734 4

{¶5} Trooper Atwood then came back and informed Meadows both

passengers denied ownership of the vehicle. Meadows then told Trooper Atwood

it was his vehicle and that he had told him that to begin with. Trooper Atwood

disagreed and asked for consent to search the vehicle. Verbal consent was given

by Meadows. By that time, backup had arrived and Trooper Boetcher stood by

Meadows as he was seated in the cruiser while Trooper Atwood searched the

vehicle. During the search of the vehicle Trooper Atwood located what was later

determined to be 90 grams of methamphetamine rolled up in a sock behind a loose

trim panel in the center console of the vehicle. A cell phone was located there as

well. At that time Trooper Atwood returned to his cruiser and placed Meadows in

handcuffs and read him his Miranda rights.2 After being mirandized, Meadows

stated “I just get high.” Trooper Atwood thereafter seized another cell phone and

$1200.00 cash in small bills from Meadows’ person. Search warrants were issued

for forensic examinations of both phones. There is nothing in the record that

indicates what evidence, if any, was recovered from the forensic review of the cell

phones. Meadows was initially charged in the Chillicothe Municipal Court with

one count of drug trafficking and one count of possession of drugs.

{¶6} After being bound over to the common pleas court, however, Meadows

was only indicted on one count of aggravated possession of drugs on December 6,

2 Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Ross App. No. 20CA3734 5

2019. On February 11, 2020, Meadows filed a motion to suppress all evidence and

statements obtained as a result of the stop, which he claimed was not supported by

reasonable suspicion or probable cause. He also claimed that the issuance of the

search warrants for the cell phones was not supported by probable cause, and he

further argued that the warrants that were issued were overbroad and lacked

particularity. A hearing on the motion to suppress was held on June 4, 2020. After

considering the evidence presented at the hearing as well as arguments made in

post-hearing briefs, the trial court denied the motion on July 16, 2020. Thereafter,

Meadows entered a plea of no contest to the sole count of the indictment and was

convicted and sentenced to a minimum two-year prison term and a maximum

three-year prison term on December 10, 2020. It is from this order that Meadows

now brings his timely appeal, setting forth two assignments of error for our review.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED DURING AN UNLAWFUL SEARCH AND SEIZURE OF HIS VEHICLE.

{¶7} In his first assignment of error, Meadows contends the trial court erred

in denying his motion to suppress the evidence that was obtained after what he

describes as an unlawful search and seizure of his vehicle. He raises four

arguments under this assignment of error. He first argues that the trial court erred

in denying his motion to suppress the evidence that was obtained after a traffic stop Ross App. No. 20CA3734 6

which he contends was not supported by probable cause or reasonable suspicion.

Second, he argues that the trial court erred in denying his motion to suppress the

evidence that was obtained with a search warrant which he claims lacked sufficient

particularity and was overbroad. Third, he argues the trial court erred in denying

his motion to suppress the statements that were obtained during the traffic stop,

which he claims were obtained in violation of his Fifth and Sixth Amendment

rights. Fourth, he argues the trial court erred in denying his motion to suppress the

evidence that he claims was obtained with a search warrant that lacked probable

cause.

Standard of Review

{¶8} Generally, “appellate review of a motion to suppress presents a mixed

question of law and fact.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-

1574, 10 N.E.3d 691, ¶ 7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. The Supreme Court of Ohio has explained as follows:

When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Citations omitted.) Burnside at ¶ 8. Ross App. No. 20CA3734 7

Legal Analysis

{¶9} “The Fourth Amendment to the United States Constitution and the

Ohio Constitution, Article I, Section 14, prohibit unreasonable searches and

seizures.” State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d

787, ¶ 15. The Supreme Court of Ohio has held that these provisions provide the

same protection in felony cases. State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-

4210, 140 N.E.3d 577, ¶ 18. “This constitutional guarantee is protected by the

exclusionary rule, which mandates the exclusion at trial of evidence obtained from

an unreasonable search and seizure.” State v. Petty, 4th Dist. Washington Nos.

18CA26 and 18CA27, 134 N.E.3d 222, 2019-Ohio-4241, ¶ 11.

{¶10} “ ‘[S]earches [and seizures] conducted outside the judicial process,

without prior approval by [a] judge or magistrate, are per se unreasonable under

the Fourth Amendment—subject only to a few specifically established and well-

delineated exceptions.’ ” (Citations omitted.) State v. Conley, 4th Dist. Adams

No. 19CA1091, 2019-Ohio-4172, ¶ 17, quoting Katz v. United States, 389 U.S.

347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “Once a defendant demonstrates

that he or she was subjected to a warrantless search or seizure, the burden shifts to

the state to establish that the warrantless search or seizure was constitutionally

permissible.” State v. Dorsey, 4th Dist. Scioto No. 19CA3874, 2019-Ohio-3478, Ross App. No. 20CA3734 8

¶ 13. In this case, it is clear that Trooper Atwood acted without a warrant in

initiating the traffic stop at issue.

The Initial Stop

{¶11} Meadows first argues under this assignment of error that the initial

stop of his vehicle was not supported by reasonable suspicion or probable cause.

Meadows raises several arguments challenging the initial stop. First, he argues

that Trooper Atwood’s observation of him “sitting and leaning toward the steering

wheel ‘rigidly[]’ ” did not give him reasonable suspicion for the traffic stop. He

next argues that Trooper Atwood’s observation of a “noisy exhaust” failed to

provide reasonable suspicion for the stop because “[t]here is no examination tool

used to measure the noise level of an exhaust for this violation[,]” and thus,

“Trooper Atwood’s assertion that the exhaust was unusually loud is entirely based

on his ‘knowledge, experience, and training.” He argues that although officers

have some discretion in their judgment regarding what constitutes a loud exhaust,

the cruiser video failed to demonstrate the exhaust was loud or provide reasonable

suspicion for the stop. Meadows further argues that although Trooper Atwood

noted he observed Meadows’ vehicle travel over the “hashed line by an entire tire

width” and also fail to signal before changing lanes, Trooper Atwood admitted that

neither of these violations appeared on the cruiser video. Ross App. No. 20CA3734 9

{¶12} The record before us indicates that this case involved an investigatory

stop. Investigatory stops “must be supported by a reasonable, articulable suspicion

that the driver has, is, or is about to commit a crime, including a minor traffic

violation.” Petty at ¶ 12, citing State v. Hudson, 4th Dist. Gallia No. 17CA19,

2018-Ohio-2717, ¶ 14, and State v. Fowler, 4th Dist. Ross No. 17CA3599, 2018-

Ohio-241, ¶ 16, in turn citing United States v. Williams, 525 Fed.Appx. 330, 332

(6th Cir.2013) and Florida v. Royer, 460 U.S. 491, 501-507, 103 S.Ct. 1319, 75

L.Ed.2d 229 (1983). In Petty, supra, we recently explained as follows:

“To justify a traffic stop based upon reasonable suspicion, the officer must be able to articulate specific facts that would warrant a person of reasonable caution to believe that the driver has committed, or is committing, a crime, including a minor traffic violation.” State v. Taylor, 2016-Ohio-1231, 62 N.E.3d 591, ¶ 18 (4th Dist.). The existence of reasonable suspicion depends on whether an objectively reasonable police officer would believe that the driver's conduct constituted a traffic violation based on the totality of the circumstances known to the officer at the time of the stop. Id.

Moreover, a police officer may stop the driver of a vehicle after observing even a de minimis violation of traffic laws. See State v. Williams, 4th Dist. Ross No. 14CA3436, 2014-Ohio-4897, 2014 WL 5513050, ¶ 9, citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus. “[A] traffic stop with the proper standard of evidence is valid regardless of the officer's underlying ulterior motives as the test is merely whether the officer ‘could’ have performed the act complained of; pretext is irrelevant if the action complained of was permissible.” See State v. Koczwara, 7th Dist. Mahoning No. 13MA149, 2014-Ohio-1946, 2014 WL 1877464, ¶ 22, citing Erickson at 7 and 11, 665 N.E.2d 1091. Ross App. No. 20CA3734 10

Petty at ¶ 12-13.

{¶13} Furthermore, “ ‘ “[t]he propriety of an investigative stop by a police

officer must be viewed in light of the totality of the surrounding

circumstances.” ’ ” State v. Strong, 4th Dist. Ross No. 18CA3663, 2019-Ohio-

2888, ¶ 19, quoting State v. Eatmon, 4th Dist. Scioto No. 12CA3498, 2013-Ohio-

4812, ¶ 13, in turn quoting State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044,

paragraph one of the syllabus (1980). The totality of the circumstances approach

“ ‘allows officers to draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information available to them

that “might well elude an untrained person.” ’ ” Strong at ¶ 19, quoting United

States v. Arvizu, 534 U.S 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)

(overruled in part on separate grounds by Davis v. Washington, 547 U.S. 813, 126

S.Ct. 2266, 165 L.Ed.2d 224 (2006), in turn quoting U.S. v. Cortez, 449 U.S. 411,

418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

{¶14} In State v. Bennett, 4th Dist. Pickaway No. 20CA4, 2021-Ohio-937,

¶ 12, this Court was confronted with an argument that a trooper lacked reasonable

suspicion to initiate a traffic stop when the initial behavior that caught the trooper’s

attention consisted of “the driver sitting too close to the steering wheel,” which is

not a violation of any traffic law. This Court upheld the stop, in part, because

along with noticing the driver being positioned very close to the steering wheel, the Ross App. No. 20CA3734 11

trooper also observed a violation of R.C. 4503.21(A), which governs the display of

license plates. Id. at ¶ 14. Similarly, in the present case, Trooper Atwood noticed

Meadows’ position in the driver’s seat while also observing that his vehicle had a

loud exhaust. R.C. 4513.22 provides that “every motor vehicle * * * with an

internal combustion engine shall at all times be equipped with a muffler which is in

good working order and in constant operation to prevent excessive or unusual

noise, * * *.” Further, this Court has previously held that observation of a loud

exhaust provides sufficient reasonable suspicion to justify a traffic stop and

Meadows concedes this fact on appeal. State v. Birchfield, 4th Dist. Ross No.

97CA2281, 1997 WL 531231, *5.

{¶15} Here, Trooper Atwood specifically testified during the suppression

hearing that Meadows’ vehicle was producing an excessive and unusual noise.

During his testimony, he explained that he was stationary on US 23 when

Meadow’s vehicle passed by. He testified that as Meadows’ vehicle passed by, he

“observed * * * an excessive and load [sic] and unusual exhaust violation coming

from his vehicle.” Trooper Atwood also testified that at that time, he also noticed

Meadows was “sitting rigid in his seat, he was leaned up towards the steering

wheel.” He testified he believed that to be unusual compared to all the other

traffic. Trooper Atwood further testified that once Meadows passed by, his vehicle

“traveled over the solid white, fault [sic] line to the right by over a tire width[,]” Ross App. No. 20CA3734 12

and it continued over the line until it was out of sight over a hill. Based upon his

observations, Trooper Atwood pulled out and pursued Meadows’ vehicle.

{¶16} Trooper Atwood then testified that as he caught up with Meadows’

vehicle, he observed Meadows change from the left lane to the right lane without

signaling. After catching up with Meadows and confirming Meadows’ vehicle to

be the vehicle with the loud exhaust, he initiated a traffic stop. On cross-

examination, Trooper Atwood testified that the recording system in his cruiser

starts when he activates his lights; however, he further testified upon cross-

examination that although the sound of Meadows’ exhaust could not be

distinguished on the video, that it was a lot louder than the other vehicles, based

upon his training and experience, and that it was actually making “a loud gurgling”

sound. As set forth above, Trooper Atwood was entitled to rely on his experience

and training in making determinations regarding a loud exhaust violation. Further,

the trial court was in the best position to make a credibility determination regarding

this testimony.

{¶17} Additionally, R.C. 4511.33(A)(1) governs rules for driving in marked

lanes and requires that all vehicles “be driven, as nearly as is practicable entirely

within a single lane or line of traffic * * *.” A marked lanes violation constitutes a

de minimis violation of traffic law and provides justification for an investigatory

stop. See State v. Alexander-Lindsey, 2016-Ohio-3033, 65 N.E.3d 129, ¶ 11. Ross App. No. 20CA3734 13

Finally, R.C. 4511.39(A) governs the use of signals for moving left or right and

provides that “[n]o person shall * * * move right or left upon a highway * * *

without giving an appropriate signal in the manner hereinafter provided.” As with

the loud exhaust, Trooper Atwood also conceded that the lane violations were not

visible on the video.

{¶18} However, “[t]he trier of fact is free to believe all, part, or none of the

testimony of any witness[.]” State v. Hammond, 4th Dist. Ross No. 18CA3662,

2019-Ohio-4253, ¶ 56. Further, we must accord deference to the trier of fact on

credibility issues because “it is in the best position to gauge the witnesses’

demeanor, gestures, and voice inflections, and to use these observations to weigh

their credibility.” Id. Moreover, while the video footage does not support Trooper

Atwood’s testimony about the traffic violations, the footage also does not

contradict his testimony. See generally State v. Shisler, 1st Dist. Hamilton Nos. C-

050860, C-050861, C-050878, and C-050879, 2006-Ohio-5265, ¶ 2-3, 6 (deferring

to trial court's finding that officer's testimony that she observed a marked lanes

violation at a particular intersection was credible even though the video footage did

not show the violation due to the camera angle, the officer's report did not mention

the violation, the officer only cited the driver for weaving at a different

intersection, and the video footage did not reflect that the driver had been weaving

at that location). Ross App. No. 20CA3734 14

{¶19} Here, the record before us indicates that upon being asked why he was

stopped, Trooper Atwood advised Meadows that he stopped him for having a loud

exhaust, a marked lanes violation, and a turn signal violation. It further appears

from the record before us that the initial observation of the loud exhaust, as well as

the marked lanes violation, likely occurred prior to the time the video would have

started recording. Also, a review of the cruiser video reveals that there is excessive

traffic and road noise throughout the stop that renders it very difficult to hear or

differentiate where noise is specifically coming from. As set forth above, the trial

court was free to believe Trooper Atwood’s testimony that he observed a loud

exhaust, as well as a marked lanes violation and turn signal violation, even though

these violations could not be confirmed on review of the cruiser video and,

moreover, any single one of these violations, although de minimis, would have

provided sufficient reasonable suspicion for Trooper Atwood to initiate a traffic

stop. As such, we cannot conclude that the trial court erred in denying Meadows’

motion to suppress based upon the ground that the initial investigatory stop was

invalid.

Investigatory Detention

{¶20} After arguing that the initial stop was not supported by reasonable,

articulable suspicion, Meadows goes on to argue on appeal that he was

unreasonably detained when Trooper Atwood expanded the scope of the initial Ross App. No. 20CA3734 15

stop. However, Meadows did not raise this argument in his underlying suppression

motion, nor did he raise this argument in his post-hearing brief. In fact, the only

reference Meadows’ underlying motion makes to being “unreasonably detained” is

made as part of his separate argument that his statements should be suppressed

based upon a Miranda violation, which we will address more fully below.

{¶21} “It is well settled that issues not raised in an original motion to

suppress cannot be raised for the first time on appeal.” State v. Jones, 4th Dist.

Highland No. 04CA9, 2005-Ohio-768, ¶ 18. See also State v. Markins, 4th Dist.

Scioto No. 10CA3387, 2013-Ohio-602, ¶ 25; State v. Daboni, 4th Dist. Meigs

Nos., 18CA3, 18CA4, 18CA5, 2018-Ohio-4155, ¶ 16. As we stated in Jones, this

is no mere technicality. Jones at ¶ 18. Crim.R. 47 requires a motion to suppress to

“state with particularity the grounds upon which it is made and [to] set forth the

relief or order sought.” State v. Rife, 4th Dist. Ross No. 11CA3276, 2012-Ohio-

3264, ¶ 17. “These requirements exist because ‘the prosecutor cannot be expected

to anticipate the specific legal and factual grounds upon which the defendant

challenges the legality of a warrantless search.’ ” Id., quoting Xenia v. Wallace, 37

Ohio St.3d 216, 218, 524 N.E.2d 889 (1988). Here, because issues related to the

scope and length of Meadows’ investigatory detention were not raised below, we

will not consider this portion of his assignment of error.

Suppression of Statements Ross App. No. 20CA3734 16

{¶22} Meadows also argues under his first assignment of error that the trial

court erred in denying his motion to suppress the statements that he contends were

obtained in violation of his Fifth and Sixth Amendment constitutional rights.

Meadows argues that the question presented here is whether a reasonable person in

his position would have understood himself to be in custody while being

questioned in the front seat of the police vehicle. He further argues that Trooper

Atwood “set the tone of intimidation from the first interaction” because he was a

“uniformed state trooper in a marked vehicle,” and by immediately accusing

Meadows of shoving something near the center console and then asking him if that

was his “burner” he just dropped when he exited the vehicle.

{¶23} He points to additional factors present as well, including the fact that

Trooper Atwood removed him from his vehicle and patted him down less than two

minutes after initiating the stop, as well as the fact that the trooper then placed him

in the front seat of the cruiser with the door closed and began asking him

questions. Meadows contends that a reasonable person in his situation would have

understood himself to be in custody during this questioning from the trooper. He

further argues that he was in custody when Trooper Atwood moved him to the

back seat of the cruiser, with an open window but with doors that only open from

the outside, and left him guarded by a second trooper while he was searching the

vehicle. Meadows argues that Trooper Atwood made further “accusations” about Ross App. No. 20CA3734 17

weapons being in the vehicle when he was seated in the back of the cruiser.

Meadows argues that any and all statements made during this time were elicited

during a custodial interrogation in violation of his Miranda rights, and because the

questioning occurred without a lawyer, that his Sixth Amendment right to counsel

was also violated.

{¶24} The Fifth Amendment to the United States Constitution provides that

no person “shall be compelled in any criminal case to be a witness against

himself.” To safeguard a suspect's Fifth Amendment privilege against self-

incrimination, law enforcement officers seeking to perform a custodial

interrogation must warn the suspect “that he has the right to remain silent, that

anything he says can be used against him in a court of law, that he has the right to

the presence of an attorney, and that if he cannot afford an attorney one will be

appointed for him prior to any questioning if he so desires.” Miranda v. Arizona,

supra, at 479. In the absence of these warnings, a suspect's incriminatory

statements made during a custodial interrogation are inadmissible at trial. See

Michigan v. Mosley, 423 U.S. 96, 99-100, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)

(“[U]nless law enforcement officers give certain specified warnings before

questioning a person in custody [], and follow certain specified procedures during

the course of any subsequent interrogation, any statement made by the person in

custody cannot over his objection be admitted in evidence against him as a Ross App. No. 20CA3734 18

defendant at trial, even though the statement may in fact be wholly voluntary”),

citing Michigan v. Tucker, 417 U.S. 433, 443, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182

(1974). See also Miranda at 479 (stating that no evidence stemming from the

result of a custodial interrogation may be used against defendant unless procedural

safeguards employed); State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9

N.E.3d 930, ¶ 113 (stating that “the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to secure the

privilege against self-incrimination”). Moreover, under Section 10, Article I of the

Ohio Constitution “evidence obtained as the direct result of statements made in

custody without the benefit of a Miranda warning should be excluded.” State v.

Farris, 109 Ohio St.3d 519, 529, 2006-Ohio-3255, 849 N.E.2d 985, 996, ¶ 49.

{¶25} However, Miranda does not protect every individual who is subjected

to police questioning. See State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430,

811 N.E.2d 48, ¶ 26; State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891

(1997); citing Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 50 L.Ed.2d

714 (1977). “ ‘Nor is the requirement of warnings to be imposed simply because *

* * the questioned person is one whom the police suspect.’ ” Biros at 440, quoting

Mathiason at 494. Instead, “[o]nly custodial interrogation triggers the need for

Miranda warnings.” (Citations omitted). Biros at 440. (citations omitted). Ross App. No. 20CA3734 19

{¶26} Miranda defined “custodial interrogation” as “questioning initiated by

law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” Miranda, supra, at 444.

Accord Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d

293 (1994); Mathiason, supra ,at 495 (stating that the Miranda protection attaches

“only where there has been such a restriction on a person's freedom as to render

him in ‘custody’ ”). In Ohio, it has consistently been stated that “[i]n order to

determine whether a person is in custody for purposes of receiving Miranda

warnings, courts must first inquire into the circumstances surrounding the

questioning and, second, given those circumstances, determine whether a

reasonable person would have felt that he or she was not at liberty to terminate the

interview and leave.” State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811

N.E.2d 48, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457,

133 L.Ed.2d 383 (1995). Accord J.D.B. v. North Carolina, 564 U.S. 261, 131

S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011).

{¶27} However, in a more recent decision, the Supreme Court of Ohio has

now held that the test is not whether a reasonable person believes himself or

herself to be free to leave, but rather the relevant inquiry is “whether a reasonable

person in the suspect's position would have understood himself or herself to be in Ross App. No. 20CA3734 20

custody.” Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, ¶

30 (2017). In announcing this new test, the Court reasoned as follows:

This nuance is important and well reasoned. If the inquiry were whether the driver felt free to leave, then every traffic stop could be considered a custodial interrogation because “few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so[.]” [Berkemer v. McCarty, 468 U.S. 420, 436, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).] And a law-enforcement officer, in the midst of investigating a traffic stop and performing all its attendant procedures, would not consider a driver free to leave unless given permission. But ‘not free to leave’ and ‘in custody’ are distinct concepts. Id.

{¶28} The Court further reasoned as follows:

For purposes of constitutional privilege against self- incrimination, the test is not whether the individual feels free to leave but whether the situation “exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.”

Id. at ¶ 31; quoting Berkemer at 437.

Ultimately, in Cleveland v. Oles, based on the totality of the circumstances

the court found that the suspect was not in custody and that no constitutional

violation occurred. Cleveland v. Oles at ¶ 33. In that case, the suspect was

stopped, was asked to step out of the vehicle and sit in the front seat of the patrol

car, and was questioned regarding his destination and how much alcohol he had

consumed that evening. Id. at ¶ 2-4. He was also directed to perform field Ross App. No. 20CA3734 21

sobriety tests, failed the tests, and was arrested, all without receiving Miranda

warnings. Id.

{¶30} Further, the Supreme Court of Ohio has held that an individual

temporarily detained as part of a routine traffic or investigatory stop ordinarily is

not in custody and is therefore not entitled to Miranda warnings. See State v.

Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 13, citing

Berkemer, supra, at 439-440 (noting that investigative stops are not subject to

Miranda requirements and holding that Miranda was not implicated during traffic

stop for swerving when officer questioned driver about his drinking). Thus,

“ ‘most traffic stops and accompanying investigatory questioning do not constitute

custodial interrogations warranting the right to Miranda warnings.’ ” (Citations

omitted). State v. Casteel, 2017-Ohio-8303, 98 N.E.3d 889 (4th.Dist 2017),

quoting State v. Brocker, 11th Dist. Portage No. 2014-P-0070, 2015-Ohio-3412,

¶ 17. See also State v. Jackson, 9th Dist. Summit Nos. 27132, 27200, 27133,

27158, 2015-Ohio-5246 (determining that Miranda did not apply to traffic stop

during which officer asked defendant where he had been and whether he had

purchased any items at the store where he had been); State v. Campbell, 2nd Dist.

Montgomery No. 26497, 2015-Ohio-3381 (determining that Miranda not

implicated during investigative stop to ascertain whether eighteen-year-old

defendant had been drinking when there was no evidence that defendant was Ross App. No. 20CA3734 22

handcuffed, and the defendant was not informed that he was under arrest or

detained in police car); State v. Smoot, 2015-Ohio-2717, 38 N.E.3d 1094, 1112-

1113, ¶ 41 (determining that defendant was not in custody for purposes of Miranda

when officer asked defendant about the contents of his vehicle during traffic stop);

State v. Vineyard, 2nd Dist. Montgomery No. 25854, 2014-Ohio-3846

(determining that defendant was not in custody during traffic stop even though

officer asked defendant to exit his vehicle and asked defendant whether he had any

weapons); State v. Ware, 8th Dist. Cuyahoga No. 89945, 2008-Ohio-2038

(concluding that Miranda was not applicable during a routine traffic stop in which

officer asked defendant if he had any weapons, drugs, or contraband in the

vehicle); State v. Leonard, 1st Dist. Hamilton No. C-060595, 2007-Ohio-3312

(holding that Miranda warnings were not required when an officer removed

defendant from his vehicle and placed defendant in front passenger seat of officer's

patrol vehicle for questioning).

{¶31} However, as explained in Farris, supra, during a traffic or

investigative stop circumstances may change and render an individual “in custody”

for practical purposes and, thus, “ ‘entitled to the full panoply of protections

prescribed by Miranda.’ ” Farris at ¶ 13; quoting Berkemer at 440. “The

determination of whether a suspect is in custody presents a mixed question of fact

and law.” State v. Dukes, 4th Dist. Scioto Nos. 16CA3745 and 16CA3760, 2017- Ross App. No. 20CA3734 23

Ohio-7204, ¶ 45, citing In re R.H., 2nd Dist. Montgomery No. 22352, 2008-Ohio-

773, ¶ 15. Thus, “ ‘[w]e defer to the court's findings of fact, when articulated, but

evaluate de novo whether on those facts, [the suspect] was in custody.’ ” Id. Here,

the trial court denied Meadows’ motion to suppress without providing findings of

fact or conclusions of law and without setting forth its reasoning. However,

implicit in the trial court’s denial of the motion is the trial court’s determination

that Meadows was not “in custody” for purposes of Miranda.

{¶32} We initially note that during a valid traffic stop, officers may order

the occupants out of a vehicle pending completion of the stop without violating the

Fourth Amendment. State v. Dorsey, 4th Dist. Scioto No. 19CA3874, 2019-Ohio-

3478, ¶ 15, citing Pennsylvania v. Mimms, 434 U.S. 106, 111, fn. 6, 985 S.Ct. 330,

54 L.Ed.2d 331 (1977). See also Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882,

137 L.Ed.2d 41 (1997). As set forth above, we have already determined that the

traffic stop at issue was valid. As such, Trooper Atwood was permitted to remove

Meadows from the vehicle. We also note that once a lawful traffic stop has been

made, law enforcement officers may conduct a limited protective search for

concealed weapons if an officer reasonably believes that a suspect may be armed

or a danger to the officer or to others. See State v. Evans, 67 Ohio St.3d 405, 414,

618 N.E.2d 162 (1993). Here, Trooper Atwood testified that upon initiating the

stop of Meadows’ vehicle, he observed Meadows making what were essentially Ross App. No. 20CA3734 24

furtive movements, which he described as “shoving” something in the area of the

center console of the vehicle. “The purpose of this limited search is not to discover

evidence of crime, but to allow the officer to pursue his investigation without fear

of violence.” Evans at 422, citing Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968). Based upon the record before us, we conclude the pat-down

search for weapons was also valid.

{¶33} Meadows contends, however, that he was in custody for purposes of

Miranda essentially from the point Trooper Atwood initially approached him in

light of the fact that Trooper Atwood’s initial encounter with him consisted of

asking Meadows what he was “shoving” and whether something he dropped as he

was exiting the vehicle was his “burner.” He further argues that he was in custody

when he was placed in the cruiser and questioned about his identity, where he was

heading towards and coming from, the ownership of the vehicle, and whether there

were any weapons in the vehicle.3

{¶34} Contrary to Meadows’ arguments, in light of the foregoing case law

coupled with a review of the record before us, we conclude that the evidence

presented at the suppression hearing failed to establish that Meadows was in

custody at any point during the encounter with law enforcement until he was

3 Although Meadows describes the encounter consisting of Trooper Atwood accusing him of having a weapon in the vehicle, a review of the video indicates that Trooper Atwood simply asked him if there were any weapons in the vehicle, to which Meadows responded there were not. Ross App. No. 20CA3734 25

actually handcuffed and Mirandized. This occurred upon Trooper Atwood finding

what appeared to be methamphetamine concealed behind a trim panel of his center

console. We note that this was found in connection with a consent search, the

consent for which was not challenged at the trial court level. Furthermore, the

record reveals that Meadows did not make any incriminating statements until after

he was read his Miranda rights. Prior to being mirandized he simply answered

questions regarding his identity, his destination, the ownership of his vehicle, and

whether there were any weapons in the car. He denied “shoving” anything while

sitting in the car. The fact that those questions were asked and answered did not

convert an investigative stop and detention for a traffic violation into a situation

where Meadows could be considered “in custody” for purposes of Miranda.

{¶35} Because we have determined that Meadows was not in custody for

purposes of triggering a Miranda warning, and further because we have found that

he made no incriminating statements during the encounter in question until after he

had already been Mirandized, we find no merit to this argument raised under his

first assignment of error. Thus, we cannot conclude that the trial court erred in

denying the motion to suppress based upon the ground that his statements were

obtained in violation of his Fifth and Sixth Amendment rights.

Issuance of Search Warrant for Cell Phones Ross App. No. 20CA3734 26

{¶36} Meadows raises two arguments under this assignment of error related

to the seizure and subsequent search of the contents of his two cell phones. First,

he argues that the trial court erred in denying his motion to suppress evidence

obtained from his cell phones, which he argues was obtained with a search warrant

that lacked particularity. More specifically, he argues that the search warrant that

was issued for the search of his cell phones was overly broad and that all evidence

discovered through the use of the search warrant should have been suppressed.

Next, he argues that the trial court erred in denying his motion to suppress

evidence because the search warrant for his cell phones lacked probable cause.

More specifically, he argues that although drugs were found in his vehicle, “there

was nothing found to suggest Drug Trafficking[,]” and that “Trooper Atwood had

no factual evidence to be able to infer that the cellphone(s) may contain

information regarding Drug Trafficking.”

{¶37} A review of the record indicates that Meadows was initially charged,

through the filing of a criminal complaint in the Chillicothe Municipal Court, with

one count of drug trafficking and one count of possession of drugs. It further

appears that although Meadows was initially charged with drug trafficking in the

Chillicothe Municipal Court, he was not indicted for drug trafficking in the

common pleas court after he was bound over. Instead, he was only indicted for

one count of aggravated possession of drugs. Furthermore, when he entered into a Ross App. No. 20CA3734 27

negotiated plea agreement with the State to enter a plea of no contest to the single,

unreduced charge, it was not done in exchange for the dismissal of any other

charge, but rather, it was done in exchange for a minimum sentencing

recommendation by the State.

{¶38} Thus, in our view, arguments related to whether the issuance of the

search warrant was justified, as well as arguments related to the scope and breadth

or lack of particularity of the search warrant are not relevant to the crime in which

Meadows was eventually indicted and convicted. Further, there is no indication

from the record before us what evidence resulted from the search of the cell phones

or what, if any, impact that evidence had on Meadows’ aggravated possession of

drugs conviction. Simply put, the evidence, if any, that was recovered from

Meadows’ cell phones had no relevance to his indictment and conviction for

aggravated possession of drugs, which is the only conviction presently before us on

appeal. In fact, completely removing the seizure and subsequent search of the cell

phones from the picture, Meadows’ conviction for aggravated possession of drugs

would still be sufficiently supported by the evidence in the record, which includes

the fact that 90 grams of methamphetamine were recovered from the vehicle

Meadows was driving, coupled with his statement which we have already

addressed above indicating he is a drug user. Ross App. No. 20CA3734 28

{¶39} Furthermore, if Meadows was separately indicted for drug trafficking,

that matter is not presently before us. As such, we conclude this argument presents

an interesting problem not of mootness, but rather, of ripeness, which we discuss in

more detail below under Meadows’ second assignment of error that challenges the

sentence imposed by the trial court. For now, however, we simply note that the

Supreme Court of Ohio in State ex rel. Jones v. Husted, 149 Ohio St.3d 110, 2016-

Ohio-5752, 73 N.E.3d 110, ¶ 21 has observed as follows:

“In order to be justiciable, a controversy must be ripe for review.” Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio- 5599, 797 N.E.2d 964, ¶ 26. A claim is not ripe if it rests on contingent events that may never occur at all. State v. Booker, 10th Dist. Franklin No. 15AP-42, 2015-Ohio-5118, 2015 WL 8481555, ¶ 21; U.S. Bank, N.A. v. 2900 Presidential Drive, L.L.C., 2d Dist. Greene No. 2013 CA 60, 2014-Ohio-1121, 2014 WL 1339643, ¶ 32-35.

{¶40} Thus, because these arguments are completely irrelevant to Meadows’

aggravated possession of drugs conviction which he is currently appealing, and

because any other possible pending charge for drug trafficking is not presently

before us, we believe the arguments related to the issuance and scope of the search

warrant for the cell phones are not ripe for review. Accordingly, we will not

address them.

{¶41} In light of the foregoing, we cannot conclude that the trial court erred

in denying Meadows’ motion to suppress. Thus, we find no merit to the arguments

raised under his first assignment of error and, accordingly, it is overruled. Ross App. No. 20CA3734 29

ASSIGNMENT OF ERROR II

IN HIS SECOND ASSIGNMENT OF ERROR, MEADOWS CONTENDS THAT THE TRIAL COURT ERRED IN SENTENCING HIM TO AN INDEFINITE PRISON TERM PURSUANT TO THE REAGAN TOKES ACT IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. HE RAISES THREE ARGUMENTS UNDER THIS ASSIGNMENT OF ERROR. HE ARGUES THAT THE TRIAL COURT ERRED IN SENTENCING HIM TO AN INDEFINITE PRISON TERM PURSUANT TO THE REAGAN TOKES ACT 1) IN VIOLATION OF HIS RIGHT TO TRIAL BY JURY; 2) IN VIOLATION OF SEPARATION OF POWERS; AND 3) IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW.

Reagan Tokes Law

{¶42} “ ‘Senate Bill 201, commonly known as the Reagan Tokes Act,

became effective on March 22, 2019. The statute [,R.C. 2929.144,] returns an

indefinite sentencing scheme to Ohio for certain qualifying offenses.’ ” State v.

Walker, 4th Dist. Washington No. 20CA24, 2021-Ohio-2693, ¶ 18, quoting State v.

Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991, ¶ 2. This Court has

further explained as follows regarding this new sentencing framework:

The Reagan Tokes Law requires that a court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second- degree felony committed on or after March 22, 2019, impose a minimum prison term under that provision and a maximum prison term determined under R.C. 2929.144(B). R.C. 2929.144(C). There is a presumption that the offender “shall be released from service of the sentence on the expiration of the offender's minimum prison term or on the offender's presumptive earned early release date, whichever is earlier.” R.C. Ross App. No. 20CA3734 30

2967.271(B). A presumptive earned early release date is a date determined under procedures described in R.C. 2967.271(F) which allow the sentencing court to reduce the minimum prison term under certain circumstances. R.C. 2967.271(A)(2). The ODRC may rebut the presumption if it determines at a hearing that one or more statutorily numerated factors applies. R.C. 2967.271(C). If ODRC rebuts the presumption, it may maintain the offender's incarceration after the expiration of the minimum prison term or presumptive earned early release date for a reasonable period of time, determined and specified by ODRC, that “shall not exceed the offender's maximum prison term.” R.C. 2967.271(D)(1).

State v. Halfhill, 4th Dist. Meigs No. 20CA7, 2021-Ohio-177, ¶ 8.

Constitutional Review

{¶43} “The constitutionality of a statute presents a question of law we

review de novo.” Id., at ¶ 11, citing Hayslip v. Hanshaw, 2016-Ohio-3339, 54

N.E.3d 1272, ¶ 27 (4th Dist.). “However, ‘[i]t is well settled that this court will not

reach constitutional issues unless absolutely necessary.’ ” Halfhill at ¶ 11, quoting

State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9.

Ripeness is a prerequisite to deciding the merits of a constitutional challenge. See

State v. Ramey, 4th Dist. Washington Nos. 20CA1 and 20CA2, 2020-Ohio-6733,

¶ 20. “Ripeness ‘is peculiarly a question of timing.’ ” State ex rel. Elyria Foundry

Co. v. Indus. Comm., 82 Ohio St.3d 88, 89, 1998-Ohio-366, 694 N.E.2d 459,

quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335,

42 L.Ed.2d 320 (1974). Generally, “[a] claim is not ripe for adjudication if it rests

upon ‘ “contingent future events that may not occur as anticipated, or indeed may Ross App. No. 20CA3734 31

not occur at all.” ’ ” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257,

140 L.Ed.2d 406 (1998), quoting Thomas v. Union Carbide Agricultural Products

Co., 473 U.S. 568, 580-581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985), in turn

quoting 13A Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal

Practice and Procedure § 3532, p. 112 (1984). “ ‘The basic principle of ripeness

may be derived from the conclusion that “judicial machinery should be conserved

for problems which are real or present and imminent, not squandered on problems

which are abstract or hypothetical or remote.” ’ ” State v. Walker, supra, at ¶ 19,

quoting Elyria Foundry Co., supra, at 89, in turn quoting Comment, Mootness and

Ripeness: The Postman Always Rings Twice (1965), 65 Colum. L.Rev. 867, 876.

{¶44} This Court has repeatedly held that the constitutionality of sentencing

pursuant to the Reagan Tokes Law is not yet ripe because on direct appeal an

appellant has yet to serve his or her minimum prison term, which is the first

instance in which the department of corrections could take any action that affects

the length of an appellant's incarceration. See Ramey at ¶ 2; Halfhill at ¶ 2; State v.

Hearn, 4th Dist. Washington No. 20CA7, 2021-Ohio-594, at ¶ 33, 34; State v.

Walker, supra, at ¶ 20; and State v. Long, 4th Dist. Pickaway No. 20CA9, 2021-

Ohio-2672, ¶ 13. Most recently in Long, this Court noted that “[t]he question of

whether the Reagan Tokes Law is ripe for review is currently pending before the Ross App. No. 20CA3734 32

Supreme Court of Ohio because of the conflict within Ohio appellate districts on

the ripeness question.” Long at ¶ 9, citing State v. Maddox, 160 Ohio St.3d 1505,

2020-Ohio-6913, 159 N.E.3d 1150. Further, in Long we observed that while

Maddox has been pending in the Supreme Court, the Eighth District Court of

Appeals reversed itself, determining that the Reagan Tokes Law was

unconstitutional. Long at ¶ 10, citing State v. Daniel, 2021-Ohio-1963, ––– N.E.3d

––––, ¶ 19-20, 26 (8th Dist.) and State v. Sealey, 8th Dist. Cuyahoga No. 109670,

2021-Ohio-1949 (in which the Eighth District “reversed course and disagreed with

the analogy to Ohio's parole eligibility regimen and instead decided that the

Reagan Tokes Law is more akin to parole revocation and reduction of good-time

credit proceedings”). We explained that the Daniel court “found that the

procedures identified in R.C. 2967.271(C) and (D) for rebutting the presumptive

release date are constitutionally insufficient because the law, ‘as written, does not

afford inmates a meaningful hearing, which is the fundamental element of due

process required by the liberty interest the statute itself creates.’ ” Long at ¶ 10,

quoting Daniel at ¶ 31-39, 40.

{¶45} In reaching its decision, the Daniel court acknowledged that the

director of the ODRC issued policy number 105-PBD-15, effective on March 15,

2021, “establishing procedures for the ‘Additional Term Hearing Process’ under

the Reagan Tokes Law.” Daniel at ¶ 42. However, finding that the policy was not Ross App. No. 20CA3734 33

in effect at the time the parties brought their appeal, or when they briefed or orally

argued their case, the Daniel court found the question of “whether the new

[ODRC] policy provides due process protections that are absent from the statute[]”

was not properly before the court for consideration. Id. After considering the

reversal of course of the Eight District in both Daniel and Sealy, as well as the

enactment of the new ODRC procedures, this Court held as follows in Long:

Because our district precludes constitutional review of the Reagan Tokes Law for lack of ripeness – and because the ODRC and the Ohio Legislature may adopt additional procedures before any case ripens – we see no need to re-examine our decisions in light of Daniel and Sealey. To the contrary, the fact that the ODRC promulgated rules that will impact the Eighth District's future constitutional analysis post-Daniel further convinces us that our conservative approach is prudent.

Long at ¶ 13.

{¶47} Thus, consistent with our most recent reasoning in Long, we conclude

Meadows’ constitutional arguments regarding the prison sentence imposed under

the Reagan Tokes Law are precluded from review for lack of ripeness.

Accordingly, Meadows’ second assignment of error is also overruled.

{¶48} Having found no merit in either of the assignments of error raised by

Meadows, they are both overruled. Accordingly, the judgment of the trial court is

affirmed.

JUDGMENT AFFIRMED. Ross App. No. 20CA3734 34

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas 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 60 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 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 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. Hess, J. and Wilkin, J. concur in Judgment and Opinion.

For the Court, _______________________________ Jason P. Smith 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.