State v. Evans, Unpublished Decision (12-5-2007)

{¶ 23} I concur in the resolution of assignments of error two and three; however, in addressing the issues in assignments of error one and four together, the majority opinion uses an abuse of discretion analysis. Neither party has raised the standard of review issue on appeal. Therefore, I simply note that I would apply the clear and convincing standard enunciated in R.C. 2953.08(G) in analyzing this case. See State v. Burton, Franklin *Page 11 App. No. 06AP-690, 2007-Ohio-1941. In utilizing this standard, I would concur, based upon the record, that the sentence given is not improper, but find the sentence not contrary to law.

JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway 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, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.

The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

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

McFarland, P.J.: Concurs in Judgment Opinion *Brown, J.: Concurs in Judgment with Opinion

*Judge Susan Brown, from the Tenth Appellate District, sitting by assignment of the Ohio Supreme Court in the Fourth Appellate District.

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