State v. Phillips

[Cite as State v. Phillips, 2016-Ohio-1198.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27733

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
RONALD PHILLIPS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 1993 02 0207 (A)

DECISION AND JOURNAL ENTRY

Dated: March 23, 2016

MOORE, Judge.

{¶1} Defendant-Appellant, Ronald Phillips, appeals from the judgment of the Summit

County Court of Common Pleas, dismissing his successive petition for post-conviction relief.

This Court affirms.

I.

{¶2} In 1993, a jury found Mr. Phillips guilty of aggravated murder, an attendant

capital specification, felonious sexual penetration, and three counts of rape. The victim in all

five counts was S.M.E., a three-year old girl whose mother had a romantic relationship with Mr.

Phillips. Approximately two days before she died, S.M.E. was severely beaten and suffered a

significant abdominal injury that, if left untreated, would have resulted in her death. The State

presented evidence that, on the day she died, Mr. Phillips beat S.M.E. and anally raped her,

causing her intestine to rupture and hastening her death. Following the mitigation phase of the

trial, the court sentenced Mr. Phillips to the death penalty. On appeal, both this Court and the
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Ohio Supreme Court affirmed his convictions and upheld the sentence of death. See State v.

Phillips, 9th Dist. Summit No. 16487, 1994 WL 479164 (Aug. 31, 1994); State v. Phillips, 74

Ohio St.3d 72 (1995).

{¶3} In 1996, Mr. Phillips filed his first petition for post-conviction relief. The trial

court denied his petition without holding a hearing, and Mr. Phillips appealed. On appeal, this

Court was able to resolve several of his arguments as a matter of law and, therefore, affirmed a

portion of the trial court’s judgment. See State v. Phillips, 9th Dist. Summit No. 18940, 1999

WL 58961, *3-6 (Feb. 3, 1999). We also reversed a portion of the judgment, however, because

it did not contain sufficient findings of fact and conclusions of law. See id. at *2-3. We

remanded the matter to the trial court for it to make the appropriate findings. Id. at *6. On

remand, the court issued a detailed judgment entry, rejecting all of Mr. Phillips’ claims for relief.

Mr. Phillips once again appealed, and this Court affirmed the denial of his petition for post-

conviction relief. See State v. Phillips, 9th Dist. Summit No. 20692, 2002 WL 274637 (Feb. 27,

2002).

{¶4} In 2014, Mr. Phillips filed his second petition for post-conviction relief. The State

responded to the petition by filing a motion to dismiss, and Mr. Phillips filed a memorandum in

opposition to the same. The court held a hearing strictly limited to the issue of whether the

successive petition satisfied the jurisdictional requirements set forth in R.C. 2953.23. Following

the hearing, the court granted the State’s motion to dismiss.

{¶5} Mr. Phillips now appeals from the trial court’s judgment and raises three

assignments of error for our review. For ease of analysis, we consolidate two of the assignments

of error.
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II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT DISMISSED [MR.] PHILLIPS’S
SECOND-IN-TIME PETITION FOR POST-CONVICTION RELIEF FOR
FAILING TO SATISFY REQUIREMENTS OF R.C. [] 2953.23.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY DISMISSING [MR.] PHILLIPS’S
SUCCESSOR POST-CONVICTION PETITION WHERE HE PRESENTED
SUFFICIENT OPERATIVE FACTS AND SUPPORTING EXHIBITS TO
MERIT AT MINIMUM AN EVIDENTIARY HEARING AND DISCOVERY
ON HIS CLAIMS.

{¶6} In his first and second assignments of error, Mr. Phillips argues that the trial court

erred when it dismissed his second petition for post-conviction relief. Specifically, he argues

that his petition satisfied the statutory requirements set forth in R.C. 2953.23. We do not agree

that the court erred when it dismissed his petition.

{¶7} “Generally, this Court reviews a trial court’s denial of a [post-conviction relief]

petition for an abuse of discretion.” State v. Perry, 9th Dist. Summit No. 26766, 2013-Ohio-

4466, ¶ 7. “When a trial court denies a petition solely on the basis of an issue of law, however,

this Court’s review is de novo.” State v. Childs, 9th Dist. Summit No. 25448, 2011-Ohio-913, ¶

9. Because the trial court denied Mr. Phillips’ petition on the basis that it does not satisfy the

procedural requirements set forth in R.C. 2953.23, a de novo standard of review applies in the

instant appeal. See id.

{¶8} If a defendant files an untimely or successive petition for post-conviction relief,

he or she must demonstrate that the petition “satisfies the requirements of [R.C.] 2953.23(A)(1) *

* *.” State v. O’Neal, 9th Dist. Medina No. 14CA0094-M, 2015-Ohio-4006, ¶ 9. Pursuant to
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that statute, both of the following provisions must apply before the court can entertain the

petition:

(a) Either the [defendant] * * * was unavoidably prevented from discovery of the
facts upon which [he] must rely to present the claim for relief, or, [after] * * * the
filing of an earlier petition, the United States Supreme Court recognized a new
federal or state right that applies retroactively to persons in [his] situation, and the
petition asserts a claim based on that right.

(b) The [defendant] shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable fact[-]finder would have found [him]
guilty of the offense of which [he] was convicted or, if the claim challenges a
sentence of death that, but for constitutional error at the sentencing hearing, no
reasonable fact[-]finder would have found [him] eligible for the death sentence.

R.C. 2953.23(A)(1)(a)-(b). “A defendant’s failure to * * * meet his burden under R.C.

2953.23(A)(1) deprives a trial court of jurisdiction to entertain the petition.” State v. Taylor, 9th

Dist. Lorain No. 14CA010549, 2014-Ohio-5738, ¶ 9. Moreover, “[a] petition for post-

conviction relief may be dismissed without a hearing, based upon the doctrine of res judicata,

when the petitioner could have raised the issues in his petition at trial or on direct appeal without

referring to evidence outside the scope of the record.” State v. Houser, 9th Dist. Summit No.

21555, 2003-Ohio-6811, ¶ 21.

{¶9} Mr. Phillips’ second petition for post-conviction relief contains 16 claims for

relief. Seven of those claims relate to the trial testimony of Dr. William Cox, the former Summit

County Coroner. Two of the claims relate to potential mitigation evidence that his attorneys did

not present and the court did not consider when sentencing him to the death penalty. Five of the

claims raise federal and state constitutional challenges to the imposition of the death penalty.

One of the claims pertains to cumulative error, and finally, the last claim challenges the

constitutionality of Ohio’s post-conviction relief statutes. Mr. Phillips’ final claim is discussed
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below, as he has raised it in his third assignment of error. As to his remaining claims for relief,

we address them within the distinct categories to which they relate.

Claims Related to the Testimony of Dr. Cox

{¶10} Mr. Phillips challenged Dr. Cox’ testimony on two fronts. First, he raised several

claims related to the accuracy of the expert medical testimony that Dr. Cox offered, given the

evidence available to him when he formed his opinions. Second, he raised several claims related

to undisclosed and undiscovered evidence allegedly tending to show that Dr. Cox was biased in

favor of the State. We begin by considering the claims related to Dr. Cox’ actual testimony at

trial.

{¶11} At the time the acts giving rise to this case occurred, the Revised Code defined

sexual conduct as vaginal intercourse, anal intercourse, cunnilingus, and fellatio. Former R.C.

2907.01(A). The definition did not include digital penetration or penetration by means of an

instrument. See id. Accordingly, for the State to secure a rape conviction under former R.C.

2907.01, it had to prove that the offender had vaginal, anal, or oral sex with the victim. See

former R.C. 2907.02(A) (rape defined) and 2907.01(A) (sexual conduct defined). Evidence of

digital penetration or penetration by means of an instrument would not suffice.

{¶12} Mr. Phillips was eligible for the death penalty because the jury determined that he

purposely caused S.M.E.’s death during the commission of a rape. See former R.C. 2903.01(B).

The State theorized that, on the day of S.M.E.’s death, Mr. Phillips beat her and then anally

raped her. According to Mr. Phillips, however, he did not rape S.M.E. that day. He confessed to

the police that he had done so in the past, but told them that, on that particular day, he only

thought about doing so. Mr. Phillips told the police that he became sexually aroused while

beating S.M.E., but ultimately decided not to engage in anal intercourse with her. Instead, he
 6

claimed to have used his finger to digitally penetrate her anus. Because digital penetration was

not included in the former definition of sexual conduct, see former R.C. 2907.01(A), the defense

theorized that Mr. Phillips had not raped S.M.E. on the day of her death and, therefore, was not

eligible for the death penalty.

{¶13} Dr. Cox, the former Summit County Coroner, conducted S.M.E.’s autopsy and

testified for the State at Mr. Phillips’ trial. Dr. Cox testified that S.M.E. sustained multiple blunt

force traumatic injuries to her abdomen as well as prior and acute blunt force traumatic injuries

to her anal cavity. During his examination, Dr. Cox observed that S.M.E. had sustained two sets

of injuries. He estimated that one set of injuries occurred about two days before her death and

the second set occurred on the morning of her death. In Dr. Cox’s view, the earlier beating

caused S.M.E.’s intestine to become necrotic and the latter beating caused her already necrotic

intestine to rupture. Dr. Cox opined that S.M.E. ultimately died because a portion of her

intestine perforated, caused internal bleeding, and resulted in cardiovascular failure due to

hypovolemic shock.

{¶14} As to the charges of rape, Dr. Cox testified that he observed older contusions and

dilation when he examined S.M.E.’s anus, evidencing that prior anal penetration had occurred.

He conducted microscopic examinations of sections taken from her anal cavity and opined that

the acute anal injuries that she suffered were inflicted on the morning of her death. According to

Dr. Cox, the anal injuries that S.M.E. suffered were not consistent with digital penetration

because he did not observe any abrasions to her rectal mucosa. He testified that her injuries

would have required “forcible, rapid dilation” by a foreign object with a smooth surface. Dr.

Cox opined that “an erected male penis accomplished [S.M.E.’s injuries” and that it was “not

reasonable to even remotely suspect” her injuries could have been caused by a finger.
 7

{¶15} Mr. Phillips attached to his second post-conviction relief petition the affidavit and

report of Dr. George Nichols, II, a licensed pathologist. In his report, Dr. Nichols indicated that

he had reviewed Dr. Cox’ autopsy report, trial testimony, and several other pieces of evidence

related to the case. Dr. Nichols wrote that, in his opinion, S.M.E.’s intestinal injury occurred two

to three days before her death and her intestine ruptured shortly thereafter. He indicated that

there was “no conclusive medical evidence to determine that a second [intestinal] injury occurred

on the day of her * * * death * * *.” Moreover, he wrote that Dr. Cox “may or may not [have

been] correct” when he opined that S.M.E.’s anal injuries were caused by a penis. Dr. Nichols

agreed that the anal injuries likely occurred on the day of S.M.E’s death and were likely caused

by something with a “relatively smooth outer surface.” He opined, however, that the injuries

could have been caused by a penis, finger(s), or a foreign body.

{¶16} Mr. Phillips argues that he received ineffective assistance of trial counsel because

his attorneys did not retain an expert to rebut Dr. Cox’ testimony or effectively cross-examine

him regarding the viability of his medical conclusions. He further argues that his aggravated

murder conviction and capital specification are based on insufficient evidence and/or he is

actually innocent of them because, as Dr. Nichols reported, the medical evidence does not

establish that he raped S.M.E. on the day of her death or caused her death when beat her. Mr.

Phillips argues that the trial court erred by not at least affording him a hearing on his petition

with regard to the foregoing arguments.

{¶17} As previously noted, the statutory requirements set forth in R.C. 2953.23(A)(1)

are jurisdictional in nature. Taylor, 2014-Ohio-5738, at ¶ 9. Before the court could afford Mr.

Phillips any relief, he had to show that he “was unavoidably prevented from discovery of the

facts upon which [he had to] rely to present [his] claim for relief * * *.” R.C. 2953.23(A)(1)(a).
 8

Even assuming that res judicata does not bar several of Mr. Phillips’ claims, he has failed to

explain why he could not have raised them in a timely manner. When his trial concluded, it was

clear that his attorneys had conducted a limited cross-examination of Dr. Cox and had not

retained a medical expert to refute his testimony. At that time, Mr. Phillips could have secured a

report from an expert such as Dr. Nichols and relied upon it in his 1996 post-conviction relief

petition. See State v. Tayse, 9th Dist. Summit No. 27050, 2013-Ohio-5801, ¶ 8. Instead, he

attempted to raise his claims in a second petition, which he filed more than 18 years later.

Because Mr. Phillips failed to show that he was unavoidably prevented from raising the

foregoing claims in a timely manner, see R.C. 2953.23(A)(1)(a), the trial court did not err by

dismissing those claims.

{¶18} Mr. Phillips also sought post-conviction relief based on undisclosed and

undiscovered evidence that allegedly demonstrated bias on the part of Dr. Cox. The evidence

was that Dr. Cox was struggling financially and had to secure the prosecutor’s blessing before

he, as acting coroner, could establish a private autopsy business. According to Mr. Phillips, the

State never disclosed the fact that Dr. Cox was having discussions with the prosecutor’s office

about his potential, private endeavor. As such, his trial attorneys were never able to attack Dr.

Cox’ credibility on the basis that he was attempting to curry favor with the prosecutor’s office.

Mr. Phillips argues that the State wrongfully withheld the foregoing materials in violation of

Brady v. Maryland, 373 U.S. 83 (1963). Further, he argues that his trial attorneys were

ineffective for not fully investigating and cross-examining Dr. Cox, as several newspaper articles

about his financial difficulties and litigation related thereto were released before he testified.

{¶19} In support of the foregoing claims, Mr. Phillips attached to his successive petition

multiple newspaper articles about Dr. Cox. The articles, released between 1993 and 2002,
 9

chronicle Dr. Cox’ fall from grace as it was discovered that he abused his county position to

conduct private autopsies. Several articles from the spring of 1996, in particular, document the

criminal proceedings that the State ultimately brought against Dr. Cox and the discussions that

he had with certain county officials regarding his desire to conduct private autopsies. According

to Mr. Phillips, he did not learn about the foregoing facts until he pursued habeas relief in federal

court. He argues that, because the State failed to disclose the foregoing, exculpatory evidence,

he was unavoidably prevented from discovering it at an earlier date.

{¶20} We do not agree that Mr. Phillips was unavoidably prevented from discovering

the foregoing facts so as to file his claims in a timely manner. See R.C. 2953.23(A)(1)(a). Mr.

Phillips filed his first post-conviction relief petition in September 1996, and the court did not rule

on his petition until January 1998. A significant number of the newspaper articles that Mr.

Phillips introduced either predate or coincide with that time period. Accordingly, even assuming

that the State should have disclosed certain facts about Dr. Cox to Mr. Phillips, the record

reflects that those facts became publicly available at that time and Mr. Phillips could have

amended his petition so as to include the claims related to those facts. His “‘mere blanket

assertion (that discovery was prevented), without more, [was] insufficient’ to demonstrate that

[he] was unavoidably prevented from discovery of [those] facts.” State v. Jalowiec, 9th Dist.

Lorain No. 02CA008130, 2003-Ohio-3152, ¶ 8, quoting State v. Logan, 9th Dist. Summit No.

21070, 2002-Ohio-6290, ¶ 15. Consequently, the trial court did not err by dismissing the portion

of his petition that related to the testimony of Dr. Cox. Mr. Phillips’ arguments to the contrary

are overruled.
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Claims Related to Potential Mitigation Evidence

{¶21} Two of the claims Mr. Phillips raised in his successive petition pertained to

potential mitigation evidence that was not presented during the mitigation phase of his trial. That

evidence was that Mr. Phillips (1) was sexually and physically abused as a child, and (2) suffered

from certain neurological deficiencies and psychological issues. Mr. Phillips argued that he

received ineffective assistance of counsel because his attorneys failed to thoroughly investigate

records from children’s services and uncover the fact that he was abused. Additionally, he

argued that he did not receive a proper, individualized sentencing determination because the

court was not fully aware of the emotional and mental issues he faced.

{¶22} According to Mr. Phillips, the trial court erred by dismissing his claims regarding

the foregoing evidence because he was unavoidably prevented from discovering the facts

underlying those claims. Mr. Phillips argues that it is well known that victims suppress

memories of abuse. Additionally, he argues that “[t]he testing regimens necessary for some of

these facts to be discovered and presented did not exist in a sufficiently advanced stage or had

not yet even been created at the time of [his] trial or first petition.” According to Mr. Phillips,

since the time of his trial, there have been advances in psychological testing and research

regarding the development of the adolescent brain.

{¶23} Mr. Phillips was not unavoidably prevented from discovering the fact that he was

abused as a child. See R.C. 2953.23(A)(1)(a). Although he generally offers that victims of

abuse frequently suppress memories, he did not present any evidence tending to show that he

himself had done so. It is a defendant’s burden to demonstrate that a successive petition for post-

conviction relief satisfies the elements set forth in R.C. 2953.23(A)(1). See Taylor, 2014-Ohio-

5738, at ¶ 9. Because Mr. Phillips failed to show that he was unavoidably prevented from
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discovering the fact that he was abused as a child, the trial court did not err by dismissing his

claims, as they related to that fact.

{¶24} We also cannot conclude that the trial court erred by dismissing Mr. Phillips’

claims insofar as they relate to new advances in psychological testing and research about the

adolescent brain. Even assuming that the foregoing evidence would satisfy R.C.

2953.23(A)(1)(a), Mr. Phillips failed to demonstrate by clear and convincing evidence that, “but

for constitutional error at [his] sentencing hearing, no reasonable fact[-]finder would have found

[him] eligible for the death sentence.” R.C. 2953.23(A)(1)(b). During the mitigation phase of

his trial,

a defense psychologist presented expert testimony that [Mr. Phillips] function[ed]
with a “low average” level of intelligence[ and] that he [was] “a rather simple,
emotionally immature, psychologically inadequate person” who [was] ill-
equipped to deal with the pressures of a family situation.

Phillips, 74 Ohio St.3d at 86. The jury and the trial court were also well aware that Mr. Phillips

was only 19 years old when he attacked S.M.E. Accordingly, there was evidence introduced

during mitigation about Mr. Phillips’ psychological constitution and his young age. On the other

hand, the jury and the trial court heard Mr. Phillips’ confession that he anally raped three-year

old S.M.E. on more than one occasion before she died. They heard evidence that S.M.E. was

brutally beaten a few days before her death and that the injuries she suffered at that time would

have caused her to be incredibly sick on the morning of her death. They heard evidence that Mr.

Phillips “flip[p]ed out” and savagely beat S.M.E. that morning because she was lying in bed and

would not come to breakfast when he called her. Finally, they heard evidence that he became

sexually aroused while doing so and, after beating her, anally penetrated her.

{¶25} “Clear and convincing evidence requires a degree of proof that produces a firm

belief or conviction regarding the allegations sought to be proven.” State v. Gunner, 9th Dist.
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Medina No. 05CA0111-M, 2006-Ohio-5808, ¶ 8. Having reviewed the evidence, we cannot

conclude that Mr. Phillips established, by clear and convincing evidence, that, had the defense

presented additional mitigation evidence related to his youthfulness and psychological

constitution, he would not have been sentenced to death. See R.C. 2953.23(A)(1)(b). “[W]hen a

defendant kills at the age of eighteen or nineteen, the element of youth * * * is entitled to little

weight.” Phillips at 105. Likewise, “[i]mmaturity[] * * * deserves little if any weight in

mitigation.” Id. Because Mr. Phillips did not satisfy his burden under R.C. 2953.23(A)(1), the

trial court did not err by dismissing his claims regarding potential mitigation evidence. See

Taylor, 2014-Ohio-5738, at ¶ 9. Accordingly, Mr. Phillips’ arguments to the contrary are

overruled.

Constitutional Claims Related to the Imposition of the Death Penalty

{¶26} In five of Mr. Phillips’ claims, he raised federal and state constitutional challenges

to the imposition of the death penalty. All five claims asserted that his death sentence amounted

to cruel and unusual punishment, and the final claim also raised a Double Jeopardy argument.

Mr. Phillips argued that it was cruel and unusual punishment to execute him given “the standards

of the community as they have evolved in the years since [the] imposition [of his death

sentence].” He pointed to both his youthfulness at the time of his offense and evidence that,

while legally an adult, his mental issues caused him to function as an adolescent. Additionally,

he argued that it amounted to cruel and unusual punishment and a violation of the Double

Jeopardy Clause to execute him after such a long period of confinement.

{¶27} It is unclear to this Court how Mr. Phillips’ constitutional claims are related to

facts that he was unavoidably prevented from discovering in a timely, or at least timelier,

manner. See R.C. 2953.23(A)(1)(a). Additionally, Mr. Phillips has not demonstrated that his
 13

claims were based on any new federal or state right that retroactively applies to persons in his

situation. See id. Although Mr. Phillips has cited to several United State Supreme Court cases

that have issued since he was sentenced to die, he has not shown that any of those cases

specifically created a right that would apply retroactively to him. See id. Accordingly, we must

conclude that Mr. Phillips’ constitutional claims failed to satisfy the provisions of R.C.

2953.23(A)(1) and the trial court did not err by dismissing them. See Taylor at ¶ 9. Mr. Phillips’

arguments to the contrary are overruled.

Cumulative Error

{¶28} Finally, Mr. Phillips presented a claim of cumulative error in his successive

petition for post-conviction relief. For the cumulative error doctrine to apply, however, a court

“would first have to find that multiple errors were committed * * *.” State v. Craig, 9th Dist.

Summit No. 24580, 2010-Ohio-1169, ¶ 39, quoting State v. Madrigal, 87 Ohio St.3d 378, 398

(2000). The trial court, having found no errors here, rejected Mr. Phillips’ claim of cumulative

error. In reviewing the matter on appeal, we likewise have not identified any errors.

Accordingly, we conclude that the trial court did not error by dismissing Mr. Phillips’ petition

insofar as it raised a claim of cumulative error. Mr. Phillips’ first and second assignments of

error are overruled.

ASSIGNMENT OF ERROR III

[MR.] PHILLIPS’S CONVICTIONS AND DEATH SENTENCE ARE VOID OR
VOIDABLE BECAUSE OHIO’S POST-CONVICTION PROCEDURES DO
NOT PROVIDE AN ADEQUATE CORRECTIVE PROCESS AND VIOLATE
THE CONSTITUTION.

{¶29} In his third assignment of error, Mr. Phillips challenges the constitutionality of

R.C. 2953.23. He argues that the statute violates various constitutional provisions because it

requires petitioners to satisfy an extremely high burden of proof without the benefit of discovery
 14

or a hearing. According to Mr. Phillips, “the Court should not require a capital petitioner to

make any showing prior to the Court reviewing the claims contained in his petition.”

{¶30} “State collateral review * * * is not a constitutional right,” so “a petitioner

receives no more rights than those granted by the statute.” State v. Calhoun, 86 Ohio St.3d 279,

281 (1999). This Court has previously rejected claims that R.C. 2953.23 is unconstitutional.

See, e.g., State v. Cleveland, 9th Dist. Lorain No. 08CA009406, 2009-Ohio-397, ¶ 30. Mr.

Phillips makes no attempt to explain why this Court should abandon its precedent. See App.R.

16(A)(7). Because we have already found R.C. 2953.23 constitutional and Mr. Phillips has not

addressed our precedent, we reject his arguments concerning the constitutionality of R.C.

2953.23. Accordingly, Mr. Phillips’ third assignment of error is overruled.

III.

{¶31} Mr. Phillips’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
 15

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CARLA MOORE
FOR THE COURT

WHITMORE, P. J.
SCHAFER, J.
CONCUR.

APPEARANCES:

TIMOTHY F. SWEENEY, Attorney at Law, for Appellant.

LISA M. LAGOS, Assistant State Public Defender, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.