[Cite as State v. Brooks, 2018-Ohio-2210.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
STATE OF OHIO, : Case No. 17CA3
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
PERRY BROOKS, :
RELEASED: 06/05/2018
Defendant-Appellant. :
APPEARANCES:
Timothy Young, Ohio Public Defender, and Allen Vender, Ohio Assistant Public
Defender, Columbus, Ohio, for appellant.
Justin Lovett, Jackson County Prosecuting Attorney, and Nick Wille, Jackson County
Assistant Prosecuting Attorney, Jackson, Ohio, for appellee.
Harsha, J.
{¶1} On May 17, 2016, Perry Brooks was arrested and jailed on drug charges.
His jury trial did not occur until almost a year later on May 11, 2017. Brooks asserts that
the trial court erred by failing to grant his motion to dismiss the charges based on the
denial of his statutory right to a speedy trial. We agree. Brooks established a prima
facie speedy-trial violation, but the record does not affirmatively demonstrate that the
court’s next-to-last continuance of the trial date was reasonable in both purpose and
length.
{¶2} We sustain his assignment of error, reverse the judgment, and remand
with instructions to vacate the convictions and discharge him.
I. FACTS1
1
Because this appeal concerns a challenge to Ohio’s statutory speedy trial requirements, we provide a detailed
statement of dates and procedures.
Jackson App. No. 17CA3 2
{¶3} On May 17, 2016, Ohio State Trooper Atwood pulled over Perry Brooks
for two traffic infractions. After Brooks advised the trooper that his driver’s license was
suspended, Atwood asked Brooks to step out of the vehicle. As Brooks started to
comply, the trooper spotted a sandwich bag containing what appeared to be crack
cocaine on the driver’s floorboard near his feet. He then arrested Brooks, who admitted
that the bag contained 190 grams of drugs, and took him to jail. A crime lab later
determined that it tested positive for 191.863 grams of crack cocaine. The trooper filed
complaints in the Jackson County Municipal Court charging Brooks with trafficking in
and possessing cocaine. After a preliminary hearing, the court bound him over to the
Jackson County Court of Common Pleas.
{¶4} On July 12, 2016, the Jackson County Grand Jury returned an indictment
charging Brooks with one count of possessing cocaine and one count of trafficking
cocaine in an amount exceeding 100 grams, both felonies of the first degree, and a
major-drug-offender specification. Brooks entered a plea of not guilty to the charges at
his arraignment on July 20, 2016. Brooks and the state represented to the common
pleas court that he had been in jail since his May 17 arrest, i.e., around 60 days. The
state advised that the deadline for Brooks to stand trial “looks like the middle of next
month,” i.e. mid-August 2016.
{¶5} By entry filed July 21, 2016, the trial court appointed an attorney to
represent Brooks and continued his $150,000 full surety bond from municipal court.
The court set an August 4 trial date. On July 25, Brooks filed a demand for discovery
and a request for a bill of particulars. Brooks also filed a motion to continue the August
4 trial date and to waive the speedy-trial time because he needed “time to investigate
Jackson App. No. 17CA3 3
this matter and time to file any motions that may be proper and necessary, including but
not limited to a suppression motion challenging the probable cause for the traffic stop.”
On August 3, 2016, the state responded to Brooks’s demand for discovery and filed a
bill of particulars. On the same date the trial court granted Brooks’s motion and
continued the trial from August 4 to September 29, 2016, noting in its entry that Brooks
waived time during the period of the continuance.
{¶6} On September 2, Brooks filed a motion to suppress the evidence seized
as a result of the search of the automobile after the traffic stop. After conducting a
hearing on the motion, the trial court denied it on September 26.
{¶7} On September 29, 2016, the date scheduled for trial, Brooks sought to
represent himself because he felt that his court-appointed attorney was not effective
and had refused to show him the evidence. The trial court decided not to proceed with
the trial, and Brooks agreed to the appointment of new counsel. Based on his request
for new counsel, the trial court tolled the speedy-trial time. On October 4, 2016, the trial
court appointed new counsel for Brooks. On October 25, Brooks’s new counsel filed a
motion for leave to refile the motion to suppress and a request to review the evidence
that was the subject of the prior suppression hearing.
{¶8} At a final pretrial hearing on October 31, 2016, new counsel raised the
issue of whether a DVD he had of the traffic stop was the same as the DVD introduced
in evidence at the suppression hearing. The purported conflict was the basis for his
request to review the DVD in the court’s possession. The trial court noted that it would
deny Brooks’s request to refile a suppression motion, unless he could point to a
discrepancy in the DVDs or CDs.
Jackson App. No. 17CA3 4
{¶9} The trial court then discussed arranging a time for Brooks and his new
counsel to view the DVD/CD in the upcoming few days:
JUDGE: And then Mr. Nash, if you get with Court Staff, we can make
arrangements for you to view that CD.
ATTORNEY NASH: Can that be at a time that Mr. Brooks is here as well?
JUDGE: Uh… Mr. Brooks, where are they keepin’ ‘ya?
DEFENDANT: Right across the street.
JUDGE: Okay. Then, if you want to make arrangements about when you
can come up, we’ll make… I’m trying to think… we’re full every day.
Wednesday or Thursday the Magistrate’s Courtroom may be available, but
I guess we can… no, there’s not a way to view it up there.
APA STORY: If you want to bring a laptop we could make a space
available for him in our office. Um… the back office would be a private
setting for him and his client.
{¶10} The trial court then asked the state whether it had a plea offer to resolve
the case, and the state noted that it had offered to drop the major-drug-offender
specification and recommend that Brooks serve nine years in prison. Brooks’s counsel
noted that Brooks did not want to accept the plea offer and “[w]hat he really wants to do
before he accepts, or denies anything, is to review that DVD.” The trial court stated that
it would give Brooks 14 days to accept or reject the state’s plea offer. Finally, upon
Brooks’s request, the trial court ordered the state to notify Brooks in seven days
whether body camera footage existed of the traffic stop and arrest.
{¶11} On November 9, 2016, the trial court issued a pretrial order reflecting its
October 31 actions: (1) ordering Brooks to notify the court within 14 days, in writing,
whether he accepts or rejects the state’s plea offer; and (2) ordering the state to provide
highway patrol body camera video, if it exists, within seven days. Five days later, the
Jackson App. No. 17CA3 5
state responded that the highway patrol did not use body cameras, but it did use
dash/cruiser cameras; the state mailed a DVD of the dash/cruiser video and discovery
documents to Brooks’s new counsel. There is no written response from Brooks to the
state’s plea offer in the record.
{¶12} A December 6, 2016 notice issued by the court’s assignment
commissioner rescheduled the two-day jury trial from September 29 and 30, 2016 to
February 16 and 17, 2017. The trial court did not issue an entry stating whether the
speedy-trial time was tolled or the reason for the delay.
{¶13} In the meantime on December 23, 2016, the Supreme Court of Ohio in
State v. Gonzales, 150 Ohio St.3d 261, 2016 -Ohio- 8319, 81 N.E.3d 405 (“Gonzales
I”), held that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b)
through (f) involving mixed substances, the state must prove that the weight of the
actual cocaine, excluding the weight of any filler materials, meets the statutory
threshold. The state applied for reconsideration of that judgment on January 3, 2017.
{¶14} On January 27, 2017, the Jackson County Prosecutor’s Office filed a
motion for a continuance of the February 16-17 trial pending the Supreme Court’s
reconsideration of Gonzales I. The state claimed that the request was reasonable and
tolled the speedy-trial time because of the “far-ranging effect of the Gonzales holding on
effective prosecutions of cocaine possession and trafficking, the extremely limited and
expensive availability of labs performing the testing now required, and the possibility
that the Supreme Court, on reconsideration, will reverse itself within a relatively short
time.” And in the event that the Supreme Court did not reconsider and vacate its
decision in Gonzales I, the state contended it would need additional time for testing that
Jackson App. No. 17CA3 6
comported with that decision to effectively prosecute Brooks. Brooks objected to the
state’s request for a continuance of the jury trial based on statutory speedy-trial
requirements.
{¶15} By a February 21, 2017 pretrial order, the trial court granted the state a
60-day continuance of the trial date, which it determined to be reasonable for speedy-
trial purposes. The court scheduled the matter for jury trial on May 11 and 12, 2017.
The court explicitly stated in its entry that “[t]he trial date is the first available time due to
the Court’s docket.”
{¶16} On March 6, 2017, the Supreme Court of Ohio vacated its decision in
Gonzales I and held that “the entire compound, mixture, preparation, or substance,’
including any fillers that are part of the usable drug, must be considered for the purpose
of determining the appropriate penalty for cocaine possession under R.C.
2925.11(C)(4).” State v. Gonzales, 150 Ohio St.3d 276, 2017 -Ohio- 777, 81 N.E.3d
419 (“Gonzales II”). That same day, the state filed a notice in the trial court of the
Supreme Court’s grant of reconsideration and reversal of Gonzales I. It also withdrew
the balance of any requested continuance.
{¶17} On May 11, the first day of the rescheduled jury trial, Brooks filed a motion
to dismiss the charges because of the violation of his statutory right to a speedy trial.
He claimed that because he had been arrested on May 17, 2016 and held in jail since
then, his trial should have occurred within 90 days thereafter, but that instead he was
being tried nearly a year after he was arrested and jailed. More specifically, Brooks
claimed that by November 9, 2016, all of his new counsel’s pending motions had been
Jackson App. No. 17CA3 7
resolved, but his trial did not begin until May 11, 2017. The state did not file a response
to the motion, nor did the trial court issue a ruling on it.
{¶18} On May 11 and 12, 2017, the trial court finally held the scheduled trial.
Upon deliberation the jury returned verdicts finding Brooks guilty of possession of
cocaine, trafficking in cocaine, and the major-drug-offender specification accompanying
the trafficking count. The trial court merged the counts for purposes of sentencing, and
upon the state’s election, sentenced Brooks to an 11-year mandatory prison term on the
trafficking charge and the major-drug-offender specification, and a mandatory post-
release control period.
II. ASSIGNMENT OF ERROR
{¶19} Brooks assigns the following error for our review:
THE TRIAL COURT ERRED BY FAILING TO DISMISS PERRY
BROOKS’S CASE FOR DENIAL OF A SPEEDY TRIAL UNDER R.C.
2945.71 AND 2945.73. STATE V. BUTCHER, 27 OHIO ST.3D 28, 500
N.E.2D 1368 (1986); STATE V. WHITT, 4TH DIST. SCIOTO NO.
04CA2962, 2005-OHIO-5154.
III. STANDARD OF REVIEW
{¶20} Based on Ohio’s statutory speedy-trial provisions, Brooks contests the trial
court’s failure to grant his motion to dismiss the charges against him. Because the trial
court failed to rule on the pretrial motion we presume the court overruled it. State ex rel.
Scott v. Streetsboro, 150 Ohio St.3d 1, 2016-Ohio-3308, 78 N.E.3d 809, ¶ 14 (“When a
trial court fails to rule on a pretrial motion, it is presumed that the court overruled it”).
{¶21} “Appellate review of a trial court’s decision on a motion to dismiss for a
violation of the speedy trial requirements presents a mixed question of law and fact.”
State v. Spencer, 2017-Ohio-456, 84 N.E.3d 106, ¶ 16 (4th Dist.); State v. Baugh, 5th
Jackson App. No. 17CA3 8
Dist. Tuscarawas No. 2017AP030007, 2018-Ohio-857, ¶ 71. “Thus, appellate courts
will defer to a trial court’s findings of fact as long as competent, credible evidence
supports them.” Spencer at ¶ 16, citing State v. Brown, 131 Ohio App.3d 387. 391, 722
N.E.2d 594 (4th Dist.1998). “Appellate courts then independently determine whether
the trial court properly applied the law to the facts.” Spencer at ¶ 16. And when
reviewing the legal issues in a speedy trial claim, we must strictly construe the statutes
against the state. See Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706
(1996); Spencer at ¶ 16; State v. Deacy, 2d Dist. Montgomery No. 27408, 2017-Ohio-
8102, ¶ 75.
{¶22} Because the trial court effectively overruled the motion without issuing any
decision, the record does not include any findings of fact. Thus, we are free to make an
independent factual review.
IV. LAW AND ANALYSIS
Statutory Speedy Trial Claim
{¶23} The Sixth Amendment to the United States Constitution (which is made
applicable to the states through the Due Process Clause of the Fourteenth Amendment)
and Article I, Section 10 of the Ohio Constitution guarantee a criminal defendant the
right to a speedy trial; this guarantee is implemented by R.C. 2945.71, which provides
specific statutory time limits within which a person must be brought to trial. State v.
Blackburn, 118 Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, ¶ 10. R.C.
2945.71(C)(2) “requires that a person against whom a felony charge is pending shall be
brought to trial within 270 days after the person's arrest.” State v. Adams, 144 Ohio
St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 81. “For purposes of calculating speedy-
Jackson App. No. 17CA3 9
trial time, ‘each day during which the accused is held in lieu of bail on the pending
charge shall be counted as three days.’ ” State v. Ramey, 132 Ohio St.3d 309, 2012-
Ohio-2904, 971 N.E.2d 937, ¶ 15, quoting R.C. 2945.71(E). “Thus, subject to certain
tolling events, a jailed defendant must be tried within 90 days.” Id.
{¶24} Brooks was arrested and jailed on May 17, 2016, and his trial commenced
almost a year later, i.e., more than 350 days, on May 11, 2017. Because this exceeded
the 90-day period, Brooks presented a prima facie speedy-trial violation. State v. Smith,
4th Dist. Lawrence No. 16CA10, 2017-Ohio-7864, ¶ 21, citing State v. Squillace, 10th
Dist. Franklin No. 15AP-958, 2016-Ohio-1038, ¶ 14. Once a defendant establishes a
prima facie case for dismissal, the burden shifts to the state to prove that the time was
sufficiently tolled to extend the period. Smith at ¶ 21, citing Squillace and State v.
Anderson, 4th Dist. Scioto No. 15CA3696, 2016-Ohio-7252, ¶ 19.
{¶25} “R.C. 2945.72 contains an exhaustive list of events and circumstances
that extend the time within which a defendant must be brought to trial.” Ramey at ¶ 24.
The pertinent tolling provisions in this case are R.C. 2945.72(E) (“Any period of delay
necessitated by reason of a * * * motion, proceeding, or action made or instituted by the
accused”) and (H) (“The period of any continuance granted on the accused’s own
motion, and the period of any reasonable continuance granted other than upon the
accused’s own motion”).
{¶26} The parties agree that the 67 days that Brooks spent in jail from the day
following his May 17, 2016 arrest,2 until the day before Brooks’s first appointed counsel
2“The day of arrest does not count when computing speedy-trial time.” Adams, 144 Ohio St.3d 429,
2015-Ohio-3954, 45 N.E.3d 127, at fn. 7.
Jackson App. No. 17CA3 10
filed a demand for discovery and request for a bill of particulars on July 25, 2016, are
charged against the 90-day speedy trial period.
{¶27} The parties also agree that the period from July 25, 2016 until November
9, 2016 was tolled for three reasons: (1) Brooks’s demand for discovery and request for
a bill or particulars, State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d
159, syllabus (a demand for discovery or a bill of particulars constitutes a tolling event
under R.C. 2945.72(E)), (2) the trial court’s grant of Brooks’s motion for a continuance
of the trial, see Smith, 2017-Ohio-7864, at ¶ 26 (“R.C. 2945.72(H) tolls the time for ‘any
continuance granted on the accused’s own motion’ ”), and (3) Brooks’s request for the
appointment of new counsel and his new counsel’s filing of additional motions. Id. at ¶
28 (days between when motion to withdraw as counsel and the appointment of new
counsel tolled the speedy-trial period).
{¶28} However, after November 9, 2016, the date that Brooks claimed all of his
new counsel’s pending motions and requests were resolved, the parties disagree about
the tolling of any of the remaining period up to May 11, 2017, when trial began.
{¶29} The state argues that the entire time between the original September 29,
2016 trial date and the rescheduled date of February 16, 2017 must be tolled because:
(1) the September 29 trial was rescheduled in light of Brooks’s request for a new
attorney on that date; (2) on October 31, 2016, Brooks’s new counsel requested that he
and Brooks view the DVD submitted into evidence at the suppression hearing to
determine whether to refile a suppression motion, or to accept the state’s plea offer; and
(3) February 16, 2017 was the next available trial date, as the court noted at the
October 31 pretrial hearing that its schedule was “full every day.”
Jackson App. No. 17CA3 11
{¶30} Brooks concedes that his request for a new attorney and his new
counsel’s filings tolled the speedy-trial time until he was appointed new counsel and his
new counsel’s filings were resolved, which occurred on November 9. We agree
because these actions by the defendant necessitated a delay and tolled the time under
R.C. 2945.72(E).
{¶31} Moreover, we agree with the state that the brief delay caused by Brooks’s
October 31 request to view the previously submitted DVD evidence and to determine
whether to accept the state’s plea offer was a delay attributable to the accused’s
actions. But the trial court’s November 9, 2016 entry ordered Brooks to notify the court
in writing within 14 days of his decision whether to accept the state’s plea offer.
Therefore, by November 23, when no written notification appears on the record, the trial
court would have been ready to proceed the next business day thereafter, i.e., the day
after Thanksgiving, on Friday, November 25, 2016. Thus, we are persuaded that the
speedy-trial period began to run again on that date.
{¶32} On December 6, 2016, the court’s assignment commissioner filed a notice
rescheduling the trial to February 16, 2017. However, the trial court did not provide any
journal entry noting this continuance and the reasons for it. In general, “[w]hen sua
sponte granting a continuance under R.C. 2945.72(H), the trial court must enter the
order of continuance and the reasons therefor by journal entry prior to the expiration of
the time limit prescribed in R.C. 2945.71 for bringing a defendant to trial.” State v.
Mincy, 2 Ohio St.3d 6, 441 N.E.2d 571 (1982), syllabus. Clearly, the trial court’s
continuance on December 6, 2016 of the trial from September 29, 2016 until February
16, 2017, did not comply with Mincy.
Jackson App. No. 17CA3 12
{¶33} Nevertheless, the state cites an exception to the Mincy rule that provides
that “an appellate court may affirm a conviction challenged on speedy-trial grounds
even if the trial court did not expressly enumerate any reasons justifying the delay when
the reasonableness of the continuance is otherwise affirmatively demonstrated by the
record.” Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, at ¶ 33. The
state argues that after the September 29 trial was postponed because of Brooks’s
request for new counsel, the record affirmatively demonstrates that the next available
trial dates were February 16 and 17, 2017, based on the trial court’s statement at the
October 31, 2016 pretrial hearing that “we’re full every day.”
{¶34} We disagree. The state takes this response by the trial court out of its
limited context, which was a reply to making arrangements in the upcoming few days for
Brooks and his new counsel to view the DVD/CD admitted into evidence at the
suppression hearing. In that response the trial court noted that the magistrate’s
courtroom was available that same week, but it lacked the equipment for people to view
the DVD/CD. The trial court did not state, and the record does not otherwise
affirmatively demonstrate, that the court could not schedule a new trial date in the
period starting from November 25, 2016 (the date after the deadline for Brooks to notify
the court in writing of whether he accepted the state’s plea offer and one day after
Thanksgiving) to February 16, 2017 (the date the court rescheduled the trial by notice
on December 6, 2016). In this regard the court’s continuance of the trial to February 16,
2017 differs from its continuance of the trial from February 16, 2017 to May 11, 2017,
where the court expressly stated in its entry that “[t]he trial date is the first available time
due to the Court’s docket.”
Jackson App. No. 17CA3 13
{¶35} The state also relies on the following language from our decision in Smith,
2017-Ohio-7864, at ¶ 29 to assert that the entire time from September 29, 2016 until
February 16, 2017 tolled the speedy-trial time:
Although counsel’s motion to withdraw was not an explicit request for a
continuance, it necessitated the cancellation of the December 7 scheduled
trial and the rescheduling to a later date. Where a trial court must
reschedule a trial because of a motion of the accused, regardless of
whether it is styled as a motion for a continuance, the entire time between
the motion and the rescheduled trial date is a delay is attributable to a
motion filed by the accused under R.C. 2945.72(E).
(Emphasis added.)
{¶36} Again, the state is lifting language out of the context in which it was
presented. In Smith at ¶ 31 we emphasized that any continuance warranting a
rescheduled trial must be reasonable in both purpose and length for speedy-trial
purposes, and that the peculiar circumstances of that case—including the defendant’s
statement that he did not care how long it took for his new counsel to prepare for trial—
justified the tolling of the speedy-trial time for the entire period of the continuance for the
rescheduled trial:
The reasonableness of the continuance from the December 7, 2015 (date
that Smith's new counsel was appointed), until February 4, 2016 (when
the trial commenced) is affirmatively demonstrated by the record. At the
proceeding on the motion to withdraw, Smith noted that an attorney could
not prepare his case in a week and that he was dissatisfied with his first
attorney because counsel had not filed motions he had requested. When
the trial court advised him that it would take time for his new lawyer to be
prepared to represent him at trial, Smith specifically stated that he did “not
care how long it takes.” Smith appeared to acquiesce in the trial court's
statement that it would take six or seven weeks to reschedule his trial. In
fact, in substitute counsel's motion for extraordinary fees, which the trial
court granted, he represented that these additional fees were warranted
“[d]ue to the amount of time necessary to prepare for a trial with such
serious charges along with the fact that extra time was necessary to
investigate this matter [and] extra time was necessary to prepare this case
for trial.” * * * Under these circumstances the record affirmatively
Jackson App. No. 17CA3 14
demonstrates that the continuance of the trial from the date of the
appointment of new counsel until the rescheduled trial was reasonable in
both purpose and length. See Ramey at ¶ 33; State v. Carr, 4th Dist. Ross
No. 12CA3358, 2013-Ohio-5312, ¶ 31.
{¶37} There was no similar acquiescence by Brooks here to the trial court’s
continuance of the trial date to February 16, 2017. Consequently, the state’s reliance
on Smith is misplaced.
{¶38} Because the record does not affirmatively demonstrate that rescheduling
the trial to February 16, 2017 was reasonable in either purpose or length, we find that
the speedy-trial time was not tolled beginning November 25, 2016. Thus, the 90-day
trial deadline would have expired by Monday, December 19, 2016 at the latest.
{¶39} Because the trial court did not conduct a trial for Brooks within the
applicable 90-day speedy-trial period, it erred by failing to dismiss the charges. Thus,
we need not address the state’s claim that the additional continuance granted by the
trial court pending the Supreme Court’s reconsideration of Gonzales I tolled the speedy-
trial time. It had already expired. We sustain Brooks’s assignment of error.
V. CONCLUSION
{¶40} After Brooks established a prima facie case of a speedy-trial violation,
the state failed to meet its burden to establish that the time was tolled to extend the
period to the date that Brooks was tried. Having sustained Brooks’s assignment of
error, we reverse the judgment of the trial court and remand the cause to that court with
instructions to vacate his convictions and discharge him.
JUDGMENT REVERSED
AND CAUSE REMANDED.
Jackson App. No. 17CA3 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee 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 Jackson
County Court of Common Pleas 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.
Hoover, 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.