State v. Davis

[Cite as State v. Davis, 2010-Ohio-5294.]

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

State of Ohio, : Case No. 10CA9

Plaintiff-Appellee, :

v. : DECISION AND
JUDGMENT ENTRY
Geoffrey A. Davis, :

Defendant-Appellant. : Released 10/21/10
______________________________________________________________________
APPEARANCES:1

Geoffrey A. Davis, Noble Correctional Institute, Caldwell, Ohio, pro se.

Chandra L. Ontko, Cambridge, Ohio, for appellant.
______________________________________________________________________

Harsha, J.

{¶1} In 2005 Geoffrey Davis was convicted and sentenced for felonious assault

and abduction. Later, the trial court resentenced Davis after it became clear that his

sentencing entry failed to properly indicate that a period of post-release control was

“mandatory,” rather than discretionary. Davis’ appointed counsel has reviewed the

record of the resentencing hearing and can discern no meritorious claims for appeal.

Accordingly, under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, counsel

has moved to withdraw and presented us with two potential assignments of error.

Additionally, Davis has filed a pro se brief setting forth additional proposed assignments

of error.

{¶2} First, appointed counsel suggests that Davis was prejudiced when the

court refused to allow him to confer privately with his attorney at the start of the

1
The State did not enter an appearance or file a brief in this case.
Washington App. No. 10CA9 2

resentencing hearing. Davis implies that his constitutional right to the assistance of

counsel was violated. However, the resentencing hearing was limited to imposing a

statutorily required term of post-release control, i.e., it was purely ministerial in nature.

Consequently, this resentencing hearing was not a “critical stage” of the proceedings at

which Davis could arguably claim a denial of the right to counsel. Accordingly, this

potential assignment of error lacks arguable merit.

{¶3} Next, appointed counsel suggests that the court erred when it reimposed

the same sentence it previously imposed upon Davis. Appointed counsel suggests that

the failure to include the word “mandatory” in the earlier judgment entry concerning

post-release control made that sentence void. Thus, counsel argues the trial court did

not realize that the new resentencing hearing was not merely a “formality” but rather a

de novo hearing where the court could have considered sentencing Davis anew.

However, pursuant to R.C. 2929.191 and the Supreme Court of Ohio’s analysis of that

statute in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958,

Davis’ earlier sentence was not void and could be properly “corrected” through the

procedures set forth in that statute. Consequently, this potential assignment of error is

also without arguable merit.

{¶4} In his two additional pro se proposed assignments of error, Davis

contends that the trial court abused its discretion for various reasons and that trial

counsel was ineffective. Many of these arguments appear to be directed to Davis’

unrelated and unsuccessful attempts to petition for post-conviction relief. Those issues

are not properly within the scope of this appeal of his resentencing proceedings. His
Washington App. No. 10CA9 3

remaining arguments concerning ineffective assistance of counsel are meritless based

on res judicata and our conclusion that no arguable errors occurred at the resentencing.

{¶5} Finally, after independently reviewing the record we agree with appointed

counsel’s assessment that the record contains no potential assignments of error with

arguable merit.

{¶6} Consequently, we grant appointed counsel’s request to withdraw, find this

appeal wholly frivolous under Anders, and affirm the judgment of the trial court.

I. Summary of the Facts

{¶7} Davis was indicted in 2004 on one count of felonious assault and one

count of abduction. After a jury convicted him of these crimes in 2005, the court

sentenced him to concurrent terms of imprisonment. In his first direct appeal, we

rejected his claim that his conviction for felonious assault was against the manifest

weight of the evidence. However, we agreed that his sentencing was unconstitutional in

light of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and ordered

that he be resentenced. See State v. Davis, Washington App. No. 05CA50, 2006-Ohio-

3549.

{¶8} In 2006 the court conducted a resentencing hearing and imposed the

same sentence it had previously issued, i.e., seven and four years to be served

concurrently. Davis appealed from this judgment entry, claiming that the imposition of

“non-minimum” sentences violated certain rights under the constitution. We rejected

these arguments and affirmed the judgment of the trial court. See State v. Davis,

Washington App. No. 06CA39, 2007-Ohio-1281.
Washington App. No. 10CA9 4

{¶9} In 2009, Davis filed a motion for resentencing because the judgment entry

of conviction from the first resentencing failed to state that post-release control was

“mandatory.” Instead, the judgment entry stated that “a post release control period of

three (3) years may be imposed by the Parole Board.” (Emphasis added.) In fact,

Davis’ convictions required mandatory post-release control. Accordingly, the trial court

scheduled another “resentencing hearing.” At this hearing, the trial court imposed the

same sentence and later issued a nearly identical judgment entry to that used in the first

resentencing. However, this entry stated that post-release control was mandatory.

Davis has appealed from this judgment entry.

II. Anders Procedure

{¶10} In Anders, the United States Supreme Court held that if counsel

determines after a conscientious examination of the record that the case is wholly

frivolous, counsel should so advise the court and request permission to withdraw. Id. at

744. Counsel must accompany the request with a brief identifying anything in the

record that could arguably support the appeal. Counsel also must furnish the client with

a copy of the brief and request to withdraw and allow the client sufficient time to raise

any matters that the client chooses. Once these requirements have been satisfied, the

appellate court must then fully examine the proceedings below to determine if an

arguably meritorious issue exists. If so, the court must appoint new counsel and decide

the merits of the appeal. If the appellate court determines that the appeal is frivolous, it

may grant counsel’s request to withdraw and dismiss the appeal without violating

constitutional requirements or may proceed to a decision on the merits if state law so

requires. Id.
Washington App. No. 10CA9 5

{¶11} Here, appointed counsel satisfied the requirements set forth in Anders.

Additionally, Davis has filed a pro se brief setting forth additional proposed assignments

of error. Accordingly, we will examine appointed counsel’s proposed assignments of

error, the proposed assignments of error raised by Davis, and the entire record to

determine if this appeal is wholly frivolous.

III. Potential Assignments of Error

{¶12} Appointed counsel raises the following potential assignments of error:

1. THE DEFENDANT ALLEGES THAT THE TRIAL COURT’S DENIAL OF THE
DEFENDANT’S ABILITY TO CONSULT WITH HIS ATTORNEY PRIOR TO HIS
RESENTENCING HEARING PREJUDICED HIM AND PREVENTED HIM FROM
ASSISTING HIS COUNSEL WITH HIS DEFENSE AND PREVENTED HIM
FROM BEING ABLE TO PROVIDE INFORMATION TO THE COURT
REGARDING SENTENCING.

2. THE DEFENDANT ALLEGES THAT THE TRIAL COURT’S FAILURE TO
USE THE SPECIFIC WORD “MANDATORY” IN EXPLAINING TO THE
DEFENDANT THE CONSEQUENCE OF POST RELEASE CONTROL MADE
HIS ORIGINAL SENTENCE VOID.

{¶13} Davis adds the following additional proposed assignments of error:

3. TRIAL COURT ABUSED THEIR DISCRETION. [Sic.]

4. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

{¶14} In her first potential assignment of error, appointed counsel suggests that

Davis may have been prejudiced because the court refused his request to speak

privately with his attorney at the beginning of the resentencing hearing. Davis claims he

had “issues” that he wanted to bring up with counsel prior to the hearing. However,

appointed counsel implies that the trial court’s decision was justified because the court

stated that the resentencing was “to address an issue which was correctly addressed by
Washington App. No. 10CA9 6

the Court at the time of the initial sentencing and not correctly carried forward into the

journal entry.”

{¶15} In her second potential assignment of error, appointed counsel suggests

that Davis’ first resentencing entry was void because the court failed to include the word

“mandatory” in its journal entry when it indicated that he “may” be subject to three years

of post-release control by the Parole Board. But counsel posits that the sentence is not

void because the trial court was merely correcting language in the journal entry to reflect

what occurred on record during the initial sentencing hearing, i.e., correcting a

scrivener’s error, and because the resentencing hearing was a mere formality.

{¶16} Because these potential assignments of error involve interrelated issues,

we will address them together.

IV. The Resentencing Hearing

{¶17} The following exchange occurred at the beginning of the resentencing

hearing:

THE COURT: * * * Mr. Smith, are you accompanied by the Defendant in this

case, Mr. Davis?

MR. SMITH: I am, Your Honor. And he would like to speak to me privately

before we go forward this morning. I don’t know if he wants me to ask for

another date, or if he wants to do it this morning, but in light of the things that

he’s filed and the circumstances, I would ask the Court for an opportunity to

speak to him privately. I know he was brought here recently and yesterday was

a holiday, so I did not have the opportunity to talk to him yesterday.

THE COURT: Can you talk to him immediately after court this morning?
Washington App. No. 10CA9 7

MR. SMITH: I – I can – yes, I can ta – I talked to him briefly before we got on the

ben – before you got on the bench, Judge, and he wants to speak to me in

privately [sic]. He has given me some stuff that I have actually read and I do

have a copy of his PSI, but he wants to talk to me in private before we go forward

in – on this matter.

THE COURT: Counsel, this is a resentencing. It’s here for one reason and one

reason only. That is to address an issue which was correctly addressed by the

Court at the time of initial sentencing and not correctly carried forward into the

journal entry. The Court, because this is, as far as the Court is concerned, a pro

forma opportunity to correct the record, you can talk to Mr. Davis after this

hearing. I understand that he’s been filing things. I’ve been ruling on at least

some of his requests as they’ve been filed.

{¶18} Thereafter the court permitted both the State and Davis’ counsel to make

statements concerning sentencing. The State asked the court to reimpose the

previously imposed sentence. Davis’ counsel argued that the original sentence was

void, and that the court now had the opportunity to “go back and set aside the prior

sentencing and start from square one.” Davis’ counsel then offered that Davis had been

in prison for four and a half years, that he had been in the “honors dorm” for three years,

participated in an “incentive program” in prison, that he had no “tickets,” no “hole shots,”

and that his mother, 85 years-old, was still alive and had no other sons. Davis’ counsel

asked the court to release Davis immediately and give him credit for time served.

Additionally, Davis’ counsel read Davis’ written statement into the record.
Washington App. No. 10CA9 8

{¶19} Davis argued in the written statement that the court was obligated to grant

him a lesser sentence and release him on the basis of several United States Supreme

Court, Supreme Court of Ohio, and appellate court cases. The court stated that it

understood these arguments, had heard them from Davis before, and was overruling

them.

{¶20} The court then asked Davis if he wished to add an oral allocution. He

declined. The court then made several findings on the record concerning Davis’ level of

education, employment record, history of alcohol abuse, and financial status. The court

read into the record a list of recidivism and seriousness factors it found present, citing,

among other matters, the seriousness of the crimes, Davis’ prior criminal and traffic

record, Davis’ failure to express remorse for his actions, his history of substance abuse,

and failure to respond favorably to past sanctions.

{¶21} Then, the court sentenced Davis to a term of seven years on the felonious

assault charge and four years on the abduction count, to be served concurrently, with

credit for time served. The Court also notified Davis that he would be subject to a

mandatory period of three years of post-release control upon his release from prison.

Finally, the court notified Davis that he had a right to appeal his sentence.

A. The Right to Counsel at a Resentencing Hearing and “Void” Sentences

{¶22} The Sixth Amendment to the United States Constitution, made applicable

to the States through the Fourteenth Amendment, guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel

for his defence.” Amendment VI, United States Constitution. Similarly, but distinctly, the

Ohio Constitution provides that “[i]n any trial, in any court, the party accused shall be
Washington App. No. 10CA9 9

allowed to appear and defend in person and with counsel * * *.” Section 10, Article I,

Ohio Constitution. When charged with a serious offense, once judicial proceedings

have commenced against an accused, the right to counsel attaches to all “critical

stages” of the proceedings. See Crim.R. 44(A). Normally, sentencing is a “critical

stage.” Gardner v. Florida (1977), 430 U.S. 349, 358, 97 S.Ct. 1197.

{¶23} Under the Ohio Constitution, the accused’s right to counsel impliedly

includes the right to consult privately with his or her attorney. State v. Milligan (1988),

40 Ohio St.3d 341, 342, 533 N.E.2d 724. Under the federal Constitution, a denial of a

right to confer with counsel during a critical stage of the proceeding may violate the Due

Process clause of the Fourteenth Amendment. Hawk v. Olson (1945), 326 U.S. 271,

278, 66 S.Ct. 116.

{¶24} Initially we must determine whether this resentencing hearing constituted

a “critical stage” of Davis’ trial. If it was a critical stage, then Davis had the constitutional

right to the assistance of counsel and this denial of the right to confer with counsel could

arguably establish a constitutional violation. If, however, it was not a critical stage, then

no constitutional rights are at stake and there is no arguable merit to the denial of

counsel claim.

{¶25} A “critical stage” only exists in situations where there is a potential risk of

substantial prejudice to a defendant’s rights and counsel is required to avoid that result;

in other words, counsel must be present “where counsel’s absence might derogate from

the accused’s right to a fair trial.” United States v. Wade (1967), 388 U.S. 218, 226, 87

S.Ct. 1926. If the resentencing hearing was “de novo,” then it is a “critical stage.” Davis

could potentially face a new sentence with increased jail time or conditions and counsel
Washington App. No. 10CA9 10

would be required to assist Davis in making arguments on his behalf for sentencing. If,

however, the resentencing hearing was merely ministerial, then it is not a “critical

stage.”

{¶26} Despite the fact that the trial court stated that the resentencing hearing

was “pro forma,” it did appear to engage in a typical de novo sentencing hearing,

affording the State and Davis the opportunity to present arguments, allowing Davis the

right to allocution, and reciting a list of recidivism and seriousness factors. However,

the sentencing entry mirrors nearly verbatim the earlier sentencing entry. The only

substantive change was the imposition of “mandatory” post-release control. Thus, in

order to determine whether Davis faced a substantial risk of prejudice at the

resentencing, we must determine whether the trial court was authorized to (and did in

fact) conduct a de novo sentencing hearing.

{¶27} The answer to this question is controlled by counsel’s second potential

assignment of error, i.e., that Davis’ first resentencing was “void.” In State v. Jordan,

104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, the Supreme Court of Ohio held

that “[w]hen sentencing a felony offender to a term of imprisonment, a trial court is

required to notify the offender at the sentencing hearing about postrelease control and

is further required to incorporate that notice into its journal entry imposing sentence.” Id.

at paragraph one of the syllabus. Later, in State v. Bezak, 114 Ohio St.3d 94, 2007-

Ohio-3250, 868 N.E.2d 961, the Court held that an offender is entitled to a de novo

resentencing hearing when the trial court omitted notice of post-release control.

Essentially, the Court held that when a trial court fails to inform the defendant of post-

release control, it has imposed a sentence that is contrary to law, and the sentence is
Washington App. No. 10CA9 11

void. Id at ¶12. And when a sentence is “void,” it is treated as if there had been no

sentencing hearing at all and the judgment is a “nullity.” Id.

{¶28} Our analysis might end here but for R.C. 2929.191. That statute, enacted

as part of H.B. 137, and made effective July 11, 2006, established a procedure that trial

court’s can follow if they wish to correct a sentence that failed to properly impose a term

of post-release control. In part it states:

If, prior to the effective date of this section, a court imposed a sentence
including a prison term * * * and failed to notify the offender pursuant to
that division that the offender will be supervised under section 2967.28 of
the Revised Code after the offender leaves prison or to include a
statement to that effect in the judgment of conviction entered on the
journal or in the sentence * * * at any time before the offender is released
from imprisonment under that term and at a hearing conducted in
accordance with division (C) of this section, the court may prepare and
issue a correction to the judgment of conviction that includes in the
judgment of conviction the statement that the offender will be supervised
under section 2967.28 of the Revised Code after the offender leaves
prison.

{¶29} R.C. 2929.191 is applicable to offenders not yet released from prison

who (1) did not receive notice at the sentencing hearing that they would be subject to

post-release control; (2) did not receive notice that the parole board could impose a

prison term for a violation of post-release control; or (3) did not receive both of these

notices incorporated into their sentencing entries. Singleton, supra, at ¶23.

{¶30} R.C. 2929.191(C) describes the type of notice and hearing that must occur

before a court corrects a prior judgment entry that failed to include the required post-

release control notice. It prescribes that: (1) an offender has a right to notice about a

hearing; (2) an offender has a right to be physically present at the hearing; and (3) both

the offender and the prosecuting attorney “may make a statement as to whether the

court should issue a correction to the judgment of conviction.” R.C. 2929.191(C).
Washington App. No. 10CA9 12

{¶31} In Singleton, the Court addressed the prospective and retrospective effect

of R.C. 2929.191. It held that “1. For criminal sentences imposed prior to July 11, 2006,

[the effective date of the statute], in which a trial court failed to properly impose post-

release control, trial courts shall conduct a de novo sentencing hearing in accordance

with decisions of the Supreme Court of Ohio. 2. For criminal sentences imposed on and

after July 11, 2006, in which a trial court failed to properly impose post-release control,

trial courts shall apply the procedures set forth in R.C. 2929.191.” Id. at paragraph one

and two of the syllabus. Singleton implicitly held that sentences imposed after July 11,

2006, which required the imposition of mandatory post-release control but which the

defendant did not receive notice of, either at the hearing or in the sentencing entry, are

not “void” sentences. But sentences handed down prior to the effective date of R.C.

2929.191 would be reviewed under the Court’s prior line of cases holding that such

sentences are void and require the court to engage in a de novo resentencing.

{¶32} Although Davis was originally sentenced in 2005, he was resentenced,

pursuant to our remand, in August of 2006. Accordingly, under Singleton, Davis’ August

2006 resentence was not void and the court was required to apply the procedures set

forth in R.C. 2929.191. Consequently, the sentencing hearing was, as the court

indicated, not a de novo hearing but a ministerial act to create a new journal entry with

the addition of the corrected language noting that post-release control was mandatory.

{¶33} Somewhat complicating this issue is the fact that the trial court, although

stating that the hearing was a formality, in fact went through the familiar motions of a de

novo sentencing hearing. At least in form, the hearing went beyond the scope of that

prescribed by R.C. 2929.191. However, the substantive result of the hearing, i.e., the
Washington App. No. 10CA9 13

judgment entry, indicates the trial court followed the dictates of R.C. 2929.191. Had the

trial court actually changed an aspect of the sentence other than the addition of post-

release control, the court would have acted without jurisdiction and our opinion here

would be different. Here, Davis did not face a substantial risk of prejudice because the

court was limited to adding the words “mandatory” to the imposition of post-release

control, which it was required to do in the first place, i.e., the court did not have the

authority to make any other substantive changes to the already-imposed sentence.

{¶34} Thus, we hold that there is no arguable merit to appointed counsel’s

proposed arguments that Davis was denied the assistance of counsel and that Davis’

earlier sentence was “void.”

B. Pro Se Assignments of Error

{¶35} In his first pro se assignment of error, Davis argues that the trial court

abused its discretion for a number of reasons, all of which he claims were “raised at the

hearing.” First, Davis claims that the court abused its discretion by not granting him a

lesser sentence under the authority of State v. Bolton (2001), 143 Ohio App.3d 185, 757

N.E.2d 841. In his written statement at resentencing, Davis argued that Bolton held that

“upon resentencing, a defendant may not receive the same amount of time without

denying him statutory provisions of law.” After reviewing Bolton we believe that Davis is

arguing that the court failed to hold a de novo sentencing hearing, an argument similar

to that proposed by appointed counsel.

{¶36} Bolton held that when an appeals court reverses and remands a sentence

that is contrary to law, a trial court must “conduct a complete sentencing hearing upon

resentencing a defendant.” Id. at 189. However, as we indicated earlier in this opinion,
Washington App. No. 10CA9 14

Davis was not entitled to a de novo sentencing hearing under Singleton. Rather, the

scope of his hearing was limited by R.C. 2929.191 to the task of adding mandatory

post-release control to his judgment entry. Accordingly, there is no arguable merit to

this sub-argument.

{¶37} Next, Davis argues that the court abused its discretion by failing to hold an

evidentiary hearing concerning his claim of innocence. Apparently, Davis is arguing that

the court failed to grant him an evidentiary hearing on a motion that he filed in January

2010 for post-conviction relief under R.C. 2953.21. However, the judgment entry upon

which this appeal is predicated did not deny post-conviction relief. And for that matter, it

does not appear from the record that the court has yet ruled on Davis’ motion for post-

conviction relief. Accordingly, this sub-argument is also without arguable merit.

{¶38} Third, Davis contends that the court abused its discretion by not

appointing him new counsel to pursue his claims for post-conviction relief. Again, this

argument is unrelated to the resentencing judgment entry at issue in this appeal and

there is no arguable merit to it.

{¶39} Fourth, Davis argues that the “trial court abused its discretion when it

failed to continue the matter and investigate the laws and holdings which I raised to

support that the trial court was violating the constitution, law and holdings of superior

courts.” We are uncertain of the exact nature of this argument but because we can

discern no arguable flaws in the trial court’s resentencing hearing, we see no arguable

merit in this sub-argument.

{¶40} In his second proposed assignment of error, Davis contends that he was

denied the effective assistance of counsel. Initially, he contends that trial counsel was
Washington App. No. 10CA9 15

ineffective for failing to object to “other assignment of errors raised in this appeal at

trial.” Davis then cites certain portions of his trial record without explaining what acts or

omissions by trial counsel amounted to ineffective assistance.

{¶41} These alleged errors occurred in the trial of this matter, not the second

resentencing held nearly five years later. “[A]ny issue that could have been raised on

direct appeal and was not is res judicata and not subject to review in subsequent

proceedings.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, at

¶16. “[T]he doctrine serves to preclude a defendant who has had his day in court from

seeking a second on that same issue *** res judicata promotes the principles of finality

and judicial economy by preventing endless relitigation of an issue on which a

defendant has already received a full and fair opportunity to be heard.” Id. at ¶18, citing

State ex rel. Willys-Overland Co. v. Clark (1925), 112 Ohio St. 263, 268, 147 N.E. 33.

Davis’ opportunity to raise these arguments concerning the efficacy of trial counsel

occurred during his first direct appeal in 2005. Thus, he is barred by the doctrine of res

judicata from raising them now. There is no arguable merit to this sub-argument.

{¶42} Next, Davis contends that counsel was ineffective at the resentencing

hearing for “failure to object, permitting unlawful sentencing” and “failure to submit

evidence to reverse a conviction of an innocent man.” In order to prevail on a claim of

ineffective assistance of counsel, an appellant must show that (1) his counsel’s

performance was deficient, and (2) the deficient performance prejudiced his defense so

as to deprive him of a fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-

5084, 854 N.E.2d 1038, at ¶205, citing Strickland v. Washington (1984), 466 U.S. 668,

687, 104 S.Ct. 2052.
Washington App. No. 10CA9 16

{¶43} Because we have determined that there are no arguable assignments of

error upon which Davis could predicate an appeal, counsel was not ineffective for

“failing to object” and “permitting unlawful sentencing.” Counsel cannot be deficient for

failing to object on the basis of frivolous arguments. And, the resentencing hearing was

not a post-conviction relief hearing. Thus counsel could not be deficient for failing to

introduce new exculpatory evidence. Accordingly, this final potential assignment of

error is without merit.

V. Conclusion

{¶44} Having reviewed appointed counsel’s and Davis’ potential assignments of

error and having independently discovered no arguably meritorious issues for appeal,

we grant counsel’s motion to withdraw, find this appeal wholly frivolous, and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
Washington App. No. 10CA9 17

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED 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
Washington 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 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.

McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________
William H. Harsha, 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.