[Cite as State v. Bridges, 2016-Ohio-7298.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 103634 and 104506
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANDREY L. BRIDGES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574201-A
BEFORE: E.T. Gallagher, J., Jones, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 13, 2016
FOR APPELLANT
Andrey L. Bridges, pro se
Inmate No. 650493
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} In this consolidated appeal, defendant-appellant, Andrey L. Bridges
(“Bridges”), appeals pro se from the trial court’s denial of his motion for leave to
file a delayed motion for new trial and his postconviction motion to correct an
error in his conviction. Bridges raises the following six assignments of error for
our review:
1. Appellant’s right to have effective assistance of counsel during
trial was violated.
2. Appellant was prejudiced when his actual/factual innocence was
on the face of the record.
3. The trial court erred when it denied the defendant’s Motion for
Appointment of Private Investigator, thus depriving him of his right
to a fair trial and due process guaranteed under the Sixth and
Fourteenth Amendments to the United States Constitution, Article I,
Section[s] 10 and 16 of the Ohio Constitution.
4. The trial court abused its discretion when it denied his right to a
new trial where his filing was supported with documentation and
supplements.
5. Appellant was deprived of his right to a fair trial and due process
under the Sixth and Fourteenth Amendments to the United States
Constitution, Article I, Section 10 and 16 of the Ohio Constitution
when he was convicted in violation of a constitutional due process
right and equal protection right.
6. Appellant was deprived of due process when his conviction of
Offense of Murder pursuant to R.C. 2903.02 should have been
voided.
{¶2} After careful review of the record and relevant case law, we affirm.
I. Procedural History
{¶3} On November 8, 2013, a jury found Bridges guilty of murder,
felonious assault, tampering with evidence, and abuse of a corpse in relation to the
death of Carl Acoff. Bridges was sentenced to an aggregate term of life in prison
with the possibility of parole after 18 years and six months. Bridges’s convictions
were affirmed on direct appeal. State v. Bridges, 8th Dist. Cuyahoga No. 100805,
2014-Ohio-4570 (“Bridges I”); see State v. Bridges, 8th Dist. Cuyahoga No.
100805, 2015-Ohio-1447 (denying Bridges’s application for reopening his
appeal).1
{¶4} On July 23, 2014, Bridges filed a petition for postconviction relief,
arguing (1) he received ineffective assistance of counsel throughout the trial
proceedings, (2) his convictions were not supported by sufficient evidence, and (3)
the state committed prosecutorial misconduct at trial. While Bridges’s direct
appeal was pending, the trial court denied his petition for postconviction relief
without a hearing. The court also issued findings of fact and conclusions of law,
which detailed the reasons for the denial. Bridges appealed these rulings in two
cases, both of which were dismissed for failure to file the record. State v.
Bridges, 8th Dist. Cuyahoga Nos. 101938 (Oct. 1, 2014), and 101942 (Oct. 31,
2014).
1 For a thorough recitation of the facts in this case, see Bridges I at ¶ 4-50.
{¶5} In March 18, 2015, Bridges filed a petition to vacate or set aside his
judgment of conviction or sentence, arguing (1) he received ineffective assistance
of counsel throughout the trial proceedings, (2) the trial court lacked subject matter
jurisdiction, (3) he was denied his right to a speedy trial, and (4) the state
committed prosecutorial misconduct at trial. On March 24, 2015, the trial court
denied Bridge’s petition without a hearing.
{¶6} On May 11, 2015, Bridges filed a motion for new trial, arguing (1) his
convictions were not supported by sufficient evidence, (2) the trial court abused its
discretion by admitting prejudicial photographic evidence, and (3) his $5 million
bond was unconstitutional. On May 18, 2015, the trial court denied the motion
without a hearing.
{¶7} On December 24, 2015, this court affirmed the trial court’s denial of
Bridges’s motion for a new trial and his petition to vacate or set aside judgment of
conviction or sentence. State v. Bridges, 8th Dist. Cuyahoga Nos. 102930 and
103090, 2015-Ohio-5428 (“Bridges II”). In affirming the trial court’s judgment,
we determined that Bridges’s motion for new trial was untimely and not based on
newly discovered evidence. Id. at ¶ 10-21. In addition, we concluded that the
claims asserted in Bridges’s postconviction motion to vacate or set aside judgment
of conviction or sentence were barred by res judicata. Id. at ¶ 25-30.
{¶8} While his appeal in Bridges II was pending, Bridges filed a motion for
leave to file a delayed motion for new trial on August 5, 2015, which the trial court
denied without a hearing. On May 12, 2016, Bridges filed a “motion for leave
with memorandum in support to correct error R.C. 2903.02(A) conviction due to
insufficient evidence” (“motion to correct error”). On May 17, 2016, the trial
court denied Bridges’s motion without a hearing.
{¶9} Bridges now appeals from the trial court’s denial of his delayed
motion for new trial and his motion to correct error.
II. Law and Analysis
A. Final Appealable Orders — Appeal No. 103634
{¶10} On August 29, 2016, this court sua sponte consolidated Bridges’s
appeals in Appeal Nos.103634 and 104506. Preliminarily, we note that Bridges’s
notice of appeal in Appeal No. 103634 references the following journal entries:
1. The trial court’s September 9, 2015 denial of Bridges’s motion
to hold in abeyance the defendant’s motion for new trial;
2. The trial court’s September 23, 2015 denial of Bridges’s motion
for leave to supplement pending instanter of delayed motion for
leave to grant motion for new trial;
3. The trial court’s September 23, 2015 denial of Bridges’s motion
for emergency access to trial transcripts;
4. The trial court’s September 23, 2015 denial of Bridges’s motion
for leave to file delayed motion for new trial;
5. The trial court’s September 23, 2015 denial of Bridges’s motion
to supplement his delayed motion for new trial;
6. The trial court’s September 30, 2015 denial of Bridges’s motion
for leave to supplement police reports and facts to delayed motion
for new trial; and
7. The trial court’s October 7, 2015 denial of Bridges’s motion for
reconsideration via the defendant’s emergency reply brief in opposition to
defendant’s motion for leave to file motion for new trial.
{¶11} According to Article IV, Section 3(B)(2), of the Ohio Constitution, an appellate
court may review timely appeals from final orders of inferior courts. The term “final order” is
defined within R.C. 2505.02. Normally, an order is not final and appealable unless it falls into
one of the categories listed in R.C. 2505.02(B). See Chef Italiano Corp. v. Kent State Univ., 44
Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus. R.C. 2505.02(B) provides:
(B) An order is a final order that may be reviewed, affirmed, modified, or reversed,
with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines
the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a
summary application in an action after judgment;
(3) An order that vacates or sets aside a judgment or grants a new trial;
(4) An order that grants or denies a provisional remedy and to which both of the
following apply:
(a) The order in effect determines the action with respect to the provisional
remedy and prevents a judgment in the action in favor of the appealing party with
respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims,
and parties in the action.
(5) An order that determines that an action may or may not be maintained as a
class action;
(6) An order determining the constitutionality of any changes to the Revised Code
made by Am. Sub. S.B. 281 of the 124th general assembly, including the
amendment of sections 1751.67, 2117.06, 2305.11, 2305.15, 2305.234, 2317.02,
2317.54, 2323.56, 2711.21, 2711.22, 2711.23, 2711.24, 2743.02, 2743.43,
2919.16, 3923.63, 3923.64, 4705.15, and 5111.018, and the enactment of sections
2305.113, 2323.41, 2323.43, and 2323.55 of the Revised Code or any changes
made by Sub. S.B. 80 of the 125th general assembly, including the amendment of
sections 2125.02, 2305.10, 2305.131, 2315.18, 2315.19, and 2315.21 of the
Revised Code.
{¶12} In this case, the trial court’s denial of Bridges’s motion to hold his
motion for new trial in abeyance and his various motions to supplement his prior
pleading with additional facts and arguments do not fall into one of the categories
listed in R.C. 2505.02(B). Therefore, those orders are not final appealable orders.
See Holivay v. Holivay, 8th Dist. Cuyahoga No. 89439, 2007-Ohio-6492, ¶ 9;
State v. Tracy, 5th Dist. Licking No. 04-CA-25, 2005-Ohio-1613, ¶ 16. Further,
while the trial court’s denial of a motion for transcripts is a final, appealable order,
Bridges has not assigned the denial of his motion for immediate access to trial
transcripts as error on appeal. State v. Majid, 8th Dist. Cuyahoga No. 102154,
2015-Ohio-2406, ¶ 4. Generally, “the failure to assign an error or to argue it as
required by Appellate Rule 16 may result in the appellate court disregarding the
argument.” See State v. Helmstetter, 3d Dist. Auglaize Nos. 2-13-07 and
2-13-08, 2013-Ohio-3982, ¶ 4. Accordingly, our review in Appeal No. 103634 is
limited to the trial court’s denial of Bridges’s motion for leave to file a delayed
motion for new trial.
B. Motion for New Trial
{¶13} In his first, second, third, and fourth assignments of error, Bridges
collectively argues the trial court abused its discretion by denying his motion for
leave to file a delayed motion for new trial.
{¶14} Crim.R. 33(A) sets forth six grounds on which a trial court may grant
a defendant’s motion for a new trial in a criminal case. In this case, Bridges
alleged that he was entitled to a new trial pursuant to Crim.R. 33(A)(1) and (5),
which state in pertinent part:
A new trial may be granted on motion of the defendant for any of the
following causes affecting materially his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling
of the court, or abuse of discretion by the court, because of which the
defendant was prevented from having a fair trial;
***
(5) Error of law occurring at the trial[.]
{¶15} Crim.R. 33(B) sets forth time limits for such motions and
requirements to secure leave of court to file a motion for a new trial after the time
limits set forth in the rule have expired.
{¶16} Where a motion for a new trial is based upon grounds set forth in
Crim.R. 33(A)(1)-(5), the motion “shall be filed within fourteen days after the
verdict was rendered, or the decision of the court where a trial by jury has been
waived.” Crim.R. 33(B). In order to file at a later time, the rule requires the
defendant to establish “by clear and convincing proof that the defendant was
unavoidably prevented from filing his motion for a new trial * * * within the time
provided.” Id.
{¶17} Motions for a new trial under Crim.R. 33(A)(6), based upon newly
discovered evidence, “shall be filed within one hundred twenty days after the day
upon which the verdict was rendered, or the decision of the court where trial by
jury has been waived.” Id. Such a motion may be filed at a later time where the
defendant demonstrates “by clear and convincing proof that the defendant was
unavoidably prevented from the discovery of the evidence upon which he must
rely.”
{¶18} In the instant case, Bridges was convicted on November 8, 2013, and
he filed his motion for leave to file a delayed motion for new trial on August 19,
2015. Because Bridges’s motion was filed well beyond the applicable time
period, he was required to obtain leave of court to file his motion for new trial.
State v. Hoover-Moore, 10th Dist. Franklin No. 14AP-1049, 2015-Ohio-4863,
¶ 13. “To obtain such leave, the defendant must demonstrate by clear and
convincing proof that he or she was unavoidably prevented from discovering the
evidence within the [time provided].” Id.
{¶19} For purposes of the rule, “unavoidably prevented” from filing a
motion for a new trial means “the party had no knowledge of the existence of the
ground supporting the motion for new trial and could not have learned of the
existence of that ground within the time prescribed for filing the motion for new
trial in the exercise of reasonable diligence.” State v. Glover, 8th Dist. Cuyahoga
Nos. 102828, 102829, and 102831, 2016-Ohio-2833, ¶ 27, citing State v. Davis,
10th Dist. Franklin No. 03AP-1200, 2004-Ohio-6065, ¶ 11.
{¶20} “Clear and convincing proof that the defendant was ‘unavoidably
prevented’ from filing ‘requires more than a mere allegation that a defendant has
been unavoidably prevented from discovering the evidence he seeks to introduce
as support for a new trial.’” State v. Lee, 10th Dist. Franklin No. 05AP-229,
2005-Ohio-6374, ¶ 9. The requirement of clear and convincing evidence puts the
burden on the defendant to prove he was unavoidably prevented from discovering
the evidence in a timely manner. State v. Rodriguez-Baron, 7th Dist. Mahoning
No. 12-MA-44, 2012-Ohio-5360, ¶ 11.
{¶21} We cannot disturb the court’s decision to either grant or deny leave
under Crim.R. 33 unless the court abused its discretion. State v. Washington, 8th
Dist. Cuyahoga No. 103875, 2016-Ohio-5329, ¶ 15, citing State v. Pinkerman, 88
Ohio App.3d 158, 160, 623 N.E.2d 643 (4th Dist.1993).
{¶22} In his motion for leave, Bridges argues he was prevented from having
a fair trial where defense counsel rendered ineffective assistance by “failing to
motion for a suppression hearing, notice of alibi or other defense motions which
are necessary motions to be filed according to Crim.R. 12(C).” Bridges further
raises claims of “actual innocence,” arguing his verdict was not supported by
sufficient evidence. Finally, Bridges argues the trial court committed a
prejudicial error of law by failing to respond to his pretrial motion to appoint a
private investigator.
{¶23} In support of his claims, Bridges relies on numerous affidavits and
exhibits, including (1) an affidavit from his son alleging that Bridges cut his hand
on a can of vegetables while cooking dinner; (2) portions of the Olmsted Township
Police Report; (3) weather reports from various days in the year 2013; (4) various
portions of the docket, including the indictment, bill of particulars, discovery
requests, journal entries, and motions filed during the underlying criminal case; (5)
the investigative report completed by the Olmsted Township Police Department;
(6) a printout of R.C. 1901.02, Jurisdiction of Municipal Courts; (7) various media
reports and coverage of the underlying criminal trial; (8) various copies of
photographs submitted into evidence at trial; (9) letters received by Bridges from
local attorneys declining pro bono legal representation; and (10) a portion of the
Cleveland Police Report regarding the victim’s missing person report.
{¶24} Upon review, we find Bridges has failed to establish by clear and
convincing proof that he was unavoidably prevented from timely filing his motion
for new trial. In our view, the grounds supporting each of Bridges’s claims were
either known to Bridges within the time prescribed for filing the motion for new
trial or would have been known upon the exercise of reasonable diligence. On
appeal, Bridges maintains that he was unavoidably prevented from filing a timely
motion due to the ineffective assistance of his trial counsel and the lack of
cooperation provided by the state and the Olmsted Township Police Department.
However, Bridges merely asserts that he was unavoidably prevented from filing a
timely motion in a self-serving affidavit without providing an evidentiary basis to
support such a claim. See Lee, 10th Dist. Franklin No. 05AP-229,
2005-Ohio-6374, at ¶9. Moreover, there is nothing in the attached affidavits or
exhibits to suggest Bridges discovered new evidence supporting his ineffective
assistance, actual innocence, and error of law claims that was not previously
known or available to him during his trial or during the time period immediately
following his conviction.
{¶25} In addition, we find the claims set forth in Bridges’s motion for leave
are barred by the doctrine of res judicata.
Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented
by counsel from raising and litigating in any proceeding
except an appeal from that judgment, any defense or any
claimed lack of due process that was raised or could have
been raised by the defendant at the trial, which resulted in that
judgment of conviction, or on an appeal from that judgment.
State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982), quoting State v.
Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.
Thus, a defendant may not raise any issue in a motion for postconviction relief if
he could have raised the issue on direct appeal. State v. Reynolds, 79 Ohio St.3d
158, 679 N.E.2d 1131 (1997). Moreover, res judicata bars all subsequent actions
based on any claim arising out of the transaction or occurrence that was the subject
matter of the previous action. State v. Collins, 2d Dist. Montgomery No. 25612,
2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653
N.E.2d 226 (1995).
{¶26} In his brief, Bridges correctly cites Bridges II for the proposition that
“when allegations of ineffective assistance of counsel hinge on facts not appearing
in the record, the proper remedy is a petition for postconviction relief rather than
direct appeal.” Bridges II, 2015-Ohio-5428, at ¶ 10, citing State v. Curtis, 8th
Dist. Cuyahoga No. 89412, 2008-Ohio-916, ¶ 8. Contrary to Bridges’s position,
however, the basis of his ineffective assistance of counsel claims and his
contention that the trial court erred in failing to rule on his motion to appoint a
private investigator do not rely on evidence outside the record — nor has Bridges
produced evidence outside the record to suggest otherwise. Whether defense
counsel was ineffective for failing to file certain pretrial motions, or whether the
trial court committed a legal error in failing to appoint a private investigator, are
issues that were capable of review without consideration of evidence outside the
record. Therefore, such claims should have been raised on direct appeal. See
State v. Lane, 2d Dist. Greene No. 2014-CA-54, 2015-Ohio-2712, ¶ 13 (“Any
ineffective assistance claim relating to matters contained within the record should
be brought through a direct appeal.”).
{¶27} Similarly, the issues incorporated into Bridges’s claim of “actual
innocence” merely reiterated sufficiency and manifest weight arguments
previously raised in Bridges’s direct appeal. See Bridges I, 2014-Ohio-4570, at ¶
71 (“We agree that the evidence against Bridges was mostly circumstantial. The
circumstantial evidence against Bridges, however, was overwhelming.”). Finally,
we note that many of the arguments raised in Bridges’s motion for leave were
previously raised in Bridges’s prior petition for postconviction relief, which this
court determined were claims barred by res judicata in Bridges II. See Bridges II,
at ¶ 10-15.
{¶28} Based on the foregoing, we find the trial court did not abuse its
discretion in denying Bridges’s motion for leave to file a delayed motion for new
trial without a hearing.
{¶29} Bridges’s first, second, third, and fourth assignments of error are
overruled.
C. Motion to Correct Error
{¶30} In his fifth and sixth assignments of error, Bridges collectively argues
the trial court erred in denying his motion to correct error.
{¶31} A vaguely titled motion, including a motion to correct or vacate a
judgment or sentence, may be construed as a petition for postconviction relief
under R.C. 2953.21(A)(1) where the motion (1) was filed subsequent to a direct
appeal, (2) claimed a denial of constitutional rights, (3) sought to render the
judgment void, and (4) asked for a vacation of the judgment and sentence.
Reynolds, 79 Ohio St.3d 158, 160-161, 679 N.E.2d 1131 (1997). Bridges’s
motion to correct error meets these four requirements. Accordingly, we shall
construe his motion as a petition for postconviction relief. See State v. Meincke,
8th Dist. Cuyahoga No. 96407, 2011-Ohio-6473.
{¶32} R.C. 2953.21 governs petitions for postconviction relief and permits
a criminal defendant “who claims that there was such a denial or infringement of
the person’s rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States” to “file a petition in the court
that imposed sentence, stating the grounds for relief relied upon, and asking the
court to vacate or set aside the judgment or sentence or to grant other appropriate
relief.” See R.C. 2953.21(A)(1)(a).
{¶33} As a general matter, a petition for postconviction relief is a collateral
civil attack on a criminal judgment, not an appeal of the judgment. State v.
Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). A petition for
postconviction relief “is a means to reach constitutional issues which would
otherwise be impossible to reach because the evidence supporting those issues is
not contained in the record.” State v. Murphy, 10th Dist. Franklin No. 00AP-233,
2000 Ohio App. LEXIS 6129, *5 (Dec. 26, 2000). Thus, a postconviction
petition does not provide a petitioner a second opportunity to litigate his or her
conviction. State v. Hessler, 10th Dist. Franklin No. 01AP-1011,
2002-Ohio-3321, ¶ 23.
{¶34} “[A] trial court’s decision granting or denying a postconviction
petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of
discretion; a reviewing court should not overrule the trial court’s finding on a
petition for postconviction relief that is supported by competent and credible
evidence.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d
77, ¶ 58.
{¶35} Because Bridges has filed prior petitions for postconviction relief,
this petition is deemed a successive petition. Under R.C. 2953.23(A), a trial court
may entertain a successive petition if the petitioner initially demonstrates either (1)
he was unavoidably prevented from discovering the facts necessary for the claim
for relief, or (2) the United States Supreme Court recognized a new federal or state
right that applies retroactively to persons in the petitioner’s situation. R.C.
2953.23(A)(1)(a). If the petitioner can satisfy one of those two conditions, he
must also demonstrate that but for the constitutional error at trial no reasonable
finder of fact would have found him guilty. R.C. 2953.23(A)(1)(b).
{¶36} The doctrine of res judicata places another restriction on the
availability of postconviction relief. State v. Blalock, 8th Dist. Cuyahoga No.
94198, 2010-Ohio-4494, ¶ 19. When the claims raised in a petition for
postconviction relief are barred by the doctrine of res judicata, a trial court does
not abuse its discretion in denying the petition without a hearing. State v. Szefcyk,
77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus.
{¶37} In his motion to correct error, Bridges argues “the trial court erred by
entering a judgment of conviction of murder and felonious assault that is against
the sufficiency of the evidence, in derogation of his right to due process of law.”
Bridges contends the state failed to produce “at least a modicum of evidence on
each element of the crime,” and that its theory of the case relied on speculation and
inconsistent testimony.
{¶38} Upon review, we find the sufficiency and weight of the evidence
arguments raised in Bridges’s motion to correct error were previously raised and
rejected by this court in Bridges’s direct appeal. See Bridges I, 2014-Ohio-4570,
at ¶ 71. As stated, a postconviction petition does not provide a petitioner a
second opportunity to litigate his or her conviction. Accordingly, Bridges’s
challenges to the sufficiency and weight of the evidence supporting his convictions
are barred by the doctrine of res judicata. Bridges II at ¶ 26 (“The bulk of
Bridges’s argument under this assigned error concerns the sufficiency and weight
of the evidence presented at his trial. These issues were argued and decided in
his direct appeal; therefore, they are improperly raised in his postconviction relief
petition.”). See also State v. Graff, 8th Dist. Cuyahoga No. 83307,
2004-Ohio-1456, ¶ 35.
{¶39} Moreover, even if Bridges’s claims were not barred by res judicata,
his petition was untimely. Significantly, there is nothing in Bridges’s petition to
suggest that he relies on evidence that was not known or available to him at the
time of trial or his first petition. Thus, Bridges’s petition does not adequately
explain, in accordance with R.C. 2953.23(A)(1)(a), why he was unavoidably
delayed from discovering the facts upon which his current petition is based. Nor
did Bridges show that, subsequent to the filing deadline, “the United States
Supreme Court recognized a new federal or state right that applies retroactively to
persons in [Bridges’s] situation.”
{¶40} Accordingly, we find the trial court did not abuse its discretion in
denying Bridges’s motion to correct error without a hearing. Bridges’s fifth and
sixth assignments of error are overruled.
III. Conclusion
{¶41} Based on the foregoing, we find Bridges’s motion for leave to file a
delayed motion for new trial and his motion to correct error were untimely barred
by res judicata. Accordingly, the trial court did not abuse its discretion in
denying the motions without a hearing.
{¶42} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to
carry this judgment into execution. Case remanded to the trial court for execution
of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., A.J., and
MARY EILEEN KILBANE, J., CONCUR