State v. Straley

[Cite as State v. Straley, 2018-Ohio-3080.]

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

STATE OF OHIO, : Case No. 17CA4

Plaintiff-Appellee, :

v. : DECISION AND
JUDGMENT ENTRY
GREGORY S. STRALEY, :

Defendant-Appellant. : RELEASED 07/27/2018

APPEARANCES:

Gregory S. Straley, Chillicothe Correctional Institution, Chillicothe, Ohio, pro se appellant.

Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for appellee.

Hoover, P.J.
{¶1} Defendant-appellant, Gregory S. Straley, appeals from the judgment of the

Highland County Court of Common Pleas denying his post-sentence motion to withdraw his

guilty plea. Because the trial court abused its discretion by denying the motion based on res

judicata when it imposed a void sentence that improperly consisted of a non-mandatory prison

term, we reverse the judgment and remand for further proceedings.

I. Facts and Procedural Posture

{¶2} In September 2008, the Highland County Grand Jury returned an indictment

charging Straley with 14 counts, including five counts of sexual battery, four counts of gross

sexual imposition, four counts of rape, and one count of illegal use of a minor in nudity-oriented

material or performance. Straley initially pleaded not guilty to all of the charges.
Highland App. No. 17CA4 2

{¶3} In January 2009, Straley, who was represented by counsel, withdrew his not-

guilty plea and in return for the dismissal of the remaining counts, pleaded guilty to two counts

of gross sexual imposition in violation of R.C. 2907.05(A)(4), third-degree felonies, three counts

of sexual battery in violation of R.C. 2907.03(A)(5), second-degree felonies, two counts of gross

sexual imposition in violation of R.C. 2907.05(A)(1), fourth-degree felonies, and one count of

sexual battery in violation of R.C. 2907.03(A)(5), a third-degree felony. The written plea form

included a handwritten “No” in the “Prison Term is Mandatory/Consecutive” column for each of

the offenses, and an agreed prison sentence of various terms to be run consecutively for an

aggregate term of 35 years and 10 months.

{¶4} At the plea hearing, the trial court in its Crim.R. 11 colloquy emphasized to

Straley that none of the sentences were mandatory:

THE COURT: Okay. Now, under the law none of these sentences are
mandatory, meaning that you have to be sent to prison. Some cases there are
mandatory prison sentences where community control is not permitted.
Community control is permitted by law in this case. It’s not recommended and
it’s improbable that even if it were recommended that it would be granted. * * *
So, you understand that that is legally possible, although it’s not going to happen
in this case?

MR. STRALEY: Yes, Your Honor.

{¶5} In one of the gross sexual imposition counts he pleaded guilty to, Straley was

charged with knowingly having sexual contact with K.S. beginning on or about January 1, 2005

and continuing through April 30, 2007, on Antioch Road in Highland County, with K.S. being

less than 13 years old during that period. The three second-degree sexual battery counts that

Straley pleaded guilty to also involved the same victim during the same period and at the same

location, i.e. they occurred when the victim was less than 13 years old and included a period on

or after August 3, 2006.
Highland App. No. 17CA4 3

{¶6} The trial court accepted Straley’s plea and convicted him of the offenses. It then

proceeded to sentence him to the agreed aggregate prison term of 35 years and 10 months, which

included consecutive seven-year terms for each of the second-degree felony sexual battery

convictions. The trial court then issued a judgment entry reflecting the sentence. In its sentencing

entry, the trial court specified that “a mandatory prison term * * * is not * * * required by [R.C.]

2929.13(F).” The trial court did not mention any sex-offender classification.

{¶7} On appeal, Straley, represented by counsel, raised several assignments of error,

including that “THE TRIAL COURT ERRED BY IMPOSING A MANDATORY SENTENCE

WITHOUT ADVISING THE APPELLANT THAT THE SENTENCE WAS MANDATORY.”

We overruled Straley’s assignments of error and affirmed the trial court’s judgment. State v.

Straley, 4th Dist. Highland No. 09CA4, 2009-Ohio-6170 (“Straley I”). For his assignment of

error concerning the trial court’s purported imposition of a mandatory sentence, we held that

because the sentence was agreed to by the parties, it was not reviewable under R.C.

2953.08(D)(1). Id. at ¶¶ 23-26.

{¶8} The trial court later issued a nunc pro tunc sentencing entry to add his sex-

offender classification. In its March 2012 nunc pro tunc entry, the trial court reiterated that “a

mandatory prison term * * * is not * * * required by [R.C.] 2929.13(F).” Subsequent appeals

involved the trial court’s sex offender classification of Straley. See State v. Straley, 4th Dist.

Highland No. 12CA3, 2013-Ohio-3334 (“Straley II”); State v. Straley, 4th Dist. Highland No.

13CA30, 2014-Ohio-5110 (“Straley III”).

{¶9} In April 2017, Straley filed a Crim.R. 32.1 motion to withdraw his guilty plea. He

claimed that res judicata did not apply to his motion and that his guilty plea was invalid because

the trial court’s sentence on his three second-degree felony sexual battery convictions was void
Highland App. No. 17CA4 4

because it imposed a non-mandatory prison sentence when a mandatory prison sentence was

required. The State filed a response; and Straley submitted a reply to the response.

{¶10} The trial court denied the motion, finding that res judicata barred it. In the

alternative, the court found that Straley had not established a manifest injustice because he did

not allege that at the time of his plea, he was unaware that the sentences for his second-degree

felony sexual battery charges were mandatory or that he would not have entered a guilty plea had

he known of their mandatory nature; and he waited eight years to file his motion.

II. Assignments of Error

{¶11} Straley assigns the following errors for our review:

I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING THE MOTION TO WITHDRAW BY APPLYING RES JUDICATA
TO A VOID SENTENCE.

II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
DETERMINING A MANIFEST INJUSTICE HAD NOT OCCURRED.

III. Law and Analysis

A. Standard of Review

{¶12} Straley contests the trial court’s denial of his post-sentence motion to withdraw

his guilty plea. “A defendant who seeks to withdraw a plea of guilty after the imposition of

sentence has the burden of establishing the existence of manifest injustice.” State v. Smith, 49

Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus; State v. Ogle, 4th Dist.

Hocking No. 13CA18, 2014-Ohio-2251, ¶ 8. A manifest injustice is a clear and openly unjust

act; it relates to a fundamental flaw in the proceedings resulting in a miscarriage of justice or a

deprivation of due process. See State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699

N.E.2d 83 (1998); Ogle at ¶ 8; State v. Hall, 10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939,

¶ 12. “This is an ‘extremely high standard’ that permits a defendant to withdraw his plea ‘only in
Highland App. No. 17CA4 5

extraordinary cases.’ ” State v. Walton, 4th Dist. Washington No. 13CA9, 2014-Ohio-618, ¶ 10,

quoting State v. Darget, 4th Dist. Scioto No. 12CA3487, 2013-Ohio-603, ¶ 21.

{¶13} The decision to grant or deny a Crim.R. 32.1 postsentence motion to withdraw a

guilty plea is committed to the sound discretion of the trial court; thus appellate review of the

denial of the motion is limited to a determination of whether the trial court abused its discretion.

Walton at ¶ 11; see also Smith at paragraph two of the syllabus (“A motion made pursuant to

Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility

and weight of the movant’s assertions in support of the motion are matters to be resolved by that

court.”). “A trial court abuses its discretion when it makes a decision that is unreasonable,

unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986

N.E.2d 971, ¶ 34.

B. Res Judicata Did Not Bar Straley’s Motion to Withdraw

{¶14} In his first assignment of error, Straley asserts that the trial court abused its

discretion by denying the motion to withdraw by applying res judicata to a void sentence. The

State initially counters that the trial court correctly applied res judicata based on our decision in

Straley I.

{¶15} As its primary rationale for denying Straley’s post-sentence motion to withdraw

his guilty plea, the trial court held that it was barred by res judicata because he raised it in his

prior appeal in Straley I.

{¶16} Res judicata generally bars defendants from raising claims in a Crim.R. 32.1 post-

sentence motion to withdraw a guilty plea that they either raised or could have raised in a direct

appeal from their conviction. See State v. Snyder, 2017-Ohio-8091, 96 N.E.3d 833, ¶ 29 (4th

Dist.), quoting State v. Mackey, 4th Dist. Scioto No. 14CA3645, 2014-Ohio-5372, ¶ 15 (“
Highland App. No. 17CA4 6

‘Courts, including this one, have applied res judicata to bar defendants from raising claims in a

Crim.R. 32.1 postsentence motion to withdraw that they either raised or could have raised in a

direct appeal from their judgment of conviction and sentence’ ”); State v. Ketterer, 126 Ohio

St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59 (“Ohio courts of appeals have applied res

judicata to bar the assertion of claims in a motion to withdraw a guilty plea that were or could

have been raised at trial or on appeal”).

{¶17} In Straley I, Straley unsuccessfully raised the issue of whether the trial court erred

regarding the mandatory nature of his prison term for his three second-degree felony sexual

battery convictions. The trial court and the State understandably relied upon our holding in

Straley I.

{¶18} Nevertheless, the Supreme Court of Ohio has held that “ ‘[a]ny attempt by a court

to disregard statutory requirements when imposing a sentence renders the attempted sentence a

nullity or void.’ ” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 20,

quoting State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984). This precept necessarily

follows from the trial court’s role at sentencing, which is to impose a sentence provided for by

statute; “ ‘[a] court has no power to substitute a different sentence for that provided by statute or

one that is either greater or lesser than that provided for by law.’ ” Williams at ¶ 20, quoting

Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964).

{¶19} The Supreme Court of Ohio’s void-sentence jurisprudence “ ‘reflects a

fundamental understanding of constitutional democracy’ that the power to define criminal

offenses and prescribe punishment is vested in the legislative branch of government and that

courts may impose sentences only as provided by statute.” Williams at ¶ 22, quoting State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶¶ 21-22. “Because ‘[n]o court
Highland App. No. 17CA4 7

has the authority to impose a sentence that is contrary to law,’ * * * when the trial court

disregards statutory mandates, ‘[p]rinciples of res judicata, including the doctrine of the law of

the case, do not preclude appellate review. The sentence may be reviewed at any time, on direct

appeal or by collateral attack.’ ” Williams at ¶ 22, quoting Fischer at ¶¶ 23, 30; State v. Walker,

8th Dist. Cuyahoga No. 105350, 2017-Ohio-7609, ¶ 13.

{¶20} The trial court sentenced Straley to an aggregate prison term of 35 years and 10

months. Included within the sentence was the trial court’s imposition of 21 years in prison for his

three convictions for second-degree felony sexual battery. Because the victim of these sexual

battery offenses was less than 13 years of age at the time of the offenses and they were

committed on or after August 3, 2006, R.C. 2929.13(F)(3)(c)(ii) required a mandatory prison

term for them.1 See, e.g., State v. Stephen, 7th Dist. Belmont No. 14 BE 0037, 2016-Ohio-4803,

¶ 11 (“R.C. 2929.13(F)(3) provides in pertinent part that a prison term is mandatory for a sexual

battery conviction ‘if the victim is less than thirteen years of age.’ ”); see also R.C. 2907.03(B)

(“Whoever violates this section is guilty of sexual battery. * * *If the other person is less than

thirteen years of age, sexual battery is a felony of the second degree, and the court shall impose

upon the offender a mandatory prison term equal to one of the prison terms prescribed in section

2929.14 of the Revised Code for a felony of the second degree.”).

{¶21} Instead, the trial court ignored R.C. 2929.13(F)(3) and sentenced Straley to non-

mandatory terms on these sexual battery convictions. Therefore, because the trial court

disregarded the statutory mandate of R.C. 2929.13(F)(3), its sentence for these convictions was

void and not subject to res judicata notwithstanding what Straley raised or could have raised in

Straley I.

1
The State does not argue that the imposition of non-mandatory prison sentences for these convictions was not
precluded by R.C. 2929.13(F).
Highland App. No. 17CA4 8

{¶22} The State next argues that any error by the trial court in relying on res judicata

was harmless because it imposed an agreed sentence pursuant to R.C. 2953.08(D)(1), which

provides that “[a] sentence imposed upon a defendant is not subject to review under this section

if the sentence is authorized by law, has been recommended jointly by the defendant and the

prosecution in the case, and is imposed by a sentencing judge.”

{¶23} In Straley I, we determined that R.C. 2953.08(D)(1) applied; and thus we held

that we did not have authority to review Straley’s assignment of error concerning the trial court’s

purported imposition of a mandatory sentence. Straley I at ¶¶ 23-26. Of note, we stated that

Straley’s sentence was authorized by law because it was within the statutory range of available

sentences. Id. at ¶ 25. However, following the release of Straley I, the Supreme Court of Ohio

defined a sentence “authorized by law” to mean more than whether the sentence falls with the

statutory range for the offense:

We do not agree with such a narrow interpretation of “authorized by law.”

Adopting this reasoning would mean that jointly recommended sentences

imposed within the statutory range but missing mandatory provisions * * * would

be unreviewable. Our recent cases illustrate that sentences that do not comport

with mandatory provisions are subject to total resentencing. * * * Nor can

agreement to such sentences insulate them from appellate review, for they are not

authorized by law. We hold that a sentence is “authorized by law” and is not

appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all

mandatory sentencing provisions. A trial court does not have the discretion to

exercise its jurisdiction in a manner that ignores mandatory statutory provisions.
Highland App. No. 17CA4 9

See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶

27 (“Every judge has a duty to impose lawful sentences”).

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶¶ 20-21.

{¶24} Underwood, in effect, abrogated our holding in Straley I as it pertains to the

assignments of error challenging his sentence. Here, we have already stated that the trial court

was statutorily required to impose mandatory prison terms for the three second-degree felony

sexual battery counts. Thus, the trial court’s failure to follow the mandatory statutory provisions

rendered Straley’s sentence void, and unauthorized by law. Again, although the State’s reliance

on Straley I’s rationale is understandable, the State’s claim that the agreed sentence could not be

reviewed is meritless.

{¶25} The State next contends that any error by the trial court in failing to advise Straley

that he would be subject to mandatory prison terms for the three counts of second-degree felony

sexual battery charges and its failure to sentence him to the required mandatory terms did not

prejudice him because he understood that he would be serving an aggregate prison term of 35

years and 10 months.

{¶26} We reject the State’s contention because Straley did not understand that R.C.

2929.13(F)(3) required a mandatory prison term for the 21 years of the sentence associated with

the second-degree felony sexual battery charges. The trial court’s failure to follow that statutory

mandate prejudiced Straley because it rendered his sentence void so that he has not yet been

properly and legally sentenced in the underlying case.

{¶27} The trial court thus abused its discretion by denying Straley’s motion to withdraw

his guilty plea based on res judicata. We sustain Straley’s first assignment of error.
Highland App. No. 17CA4 10

C. Straley Established a Manifest Injustice Warranting Withdrawal of his Guilty Plea

{¶28} In his second assignment of error, Straley asserts that the trial court abused its

discretion by determining that a manifest injustice had not occurred. As an alternative rationale

for its denial of Straley’s motion to withdraw his guilty plea, the court found that Straley had not

established a manifest injustice because he did not allege that at the time of his plea, he was

unaware that the sentences for his second-degree felony sexual battery charges were mandatory

or that he would not have entered a guilty plea had he known of their mandatory nature, and he

waited eight years to file his motion.

{¶29} As previously discussed, a manifest injustice is a clear and openly unjust act; it

relates to a fundamental flaw in the proceedings resulting in a miscarriage of justice or a

deprivation of due process. Schneider, 83 Ohio St.3d 203, 208, 699 N.E.2d 83. It is difficult to

fathom a more fundamental flaw in proceedings than when a court imposes an illegal, void

sentence on a defendant. See Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶

22, citing Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶¶ 21-22 (void-

sentence jurisprudence reflects a fundamental understanding of constitutional democracy that

courts may impose sentences only as provided by statute).

{¶30} In State v. Whitfield, 4th Dist. Scioto No. 14CA3615, 2015-Ohio-4139, we

addressed a comparable question. In that case, in accordance with a plea agreement, the

defendant pleaded guilty to one count of drug trafficking, which required a mandatory prison

sentence, but the trial court sentenced him to an illegal hybrid (part mandatory, part non-

mandatory) sentence. After the trial court denied the defendant’s pro se post-sentence motion to
Highland App. No. 17CA4 11

withdraw his guilty plea, we reversed, finding at ¶¶ 12-13, that he had established a manifest

injustice entitling him to withdrawal of his guilty plea:

Despite the absence of a transcript in the record, we believe that it is

evident from the trial court’s October 11, 2013 sentencing entry and February 28,

2014 judgment that overruled appellant’s motion to withdraw guilty plea that

appellant was led to believe that only six of his nine year sentence is mandatory.

In fact, under Ware the entire nine years are mandatory.

It may well be that appellant would have accepted the plea agreement even

if it had been explained that the agreed nine year sentence was all mandatory.

However, this misunderstanding is sufficient to persuade us that a manifest

injustice has occurred for purposes of Crim.R. 32.1. Thus, we hereby sustain

appellant’s second assignment of error.

{¶31} In this case, the trial court misadvised Straley that his entire 35 year, 10 month

agreed prison sentence was non-mandatory even though R.C. 2929.13(F)(3) made 21 years of

that sentence mandatory. The trial court then set forth the erroneous, illegal sentence in its

judgment entry.

{¶32} Regarding the trial court’s finding and the State’s claim that Straley’s undue delay

of over eight years justified the court’s denial of his Crim.R. 32.1 motion, we disagree. Because

his sentence was void in that it included 21 years of non-mandatory prison time for his three

second-degree felony sexual battery convictions, he is permitted to contest the sentence at any

time. See Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22, quoting Fischer,
Highland App. No. 17CA4 12

128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 30 (void “ ‘sentence may be reviewed at

any time, on direct appeal or by collateral attack’ ”).

{¶33} Therefore, consistent with Whitfield and void-sentence jurisprudence, the trial

court abused its discretion by denying Straley’s post-sentence motion to withdraw his guilty plea.

Res judicata did not bar his motion; and he established a manifest injustice. See also Whitfield at

¶ 15 (Harsha, J. concurring) (“res judicata does not apply because a void judgment is subject to

collateral attack at any time”).

{¶34} We are completely cognizant of the absurdity of this result—especially with

Straley waiting approximately eight years to file his motion to withdraw his guilty plea from an

agreed upon sentence; however, we, as an intermediate appellate court, are bound by the law as

set forth by the Ohio Legislature and the Supreme Court of Ohio’s interpretation of that law.

Although we personally may not agree with the result set forth in this decision, we must sustain

Straley’s second assignment of error.

IV. Conclusion

{¶35} Having sustained Straley’s first and second assignments of error, we reverse the

judgment of the trial court denying his motion to withdraw his guilty plea and remand the cause

to that court for further proceedings consistent with this opinion.

JUDGMENT REVERSED AND CAUSE REMANDED.
Highland App. No. 17CA4 13

Harsha, J.: Concurs with Concurring Opinion.

{¶36} I agree that our result seems absurd, but that we must apply the law as pronounced

by the Supreme Court of Ohio. I also note that the real absurdity here is the fact that if Straley

had taken a direct appeal and won, his sentence would have been vacated but his conviction

would have remained in effect. Only the illegal sentence was void. See Fischer at ¶ 29. Here he

waits 8 years, makes a motion to withdraw his plea based upon the imposition of an illegal, i.e.

void, sentence. Now his motion to withdraw his plea must be granted, and his conviction vacated

based upon the Supreme Court of Ohio’s determination that a trial court’s failure to follow a

mandatory sentencing provision results in the sentence not simply being erroneous and thus

voidable, but rather, void ab initio. Accordingly, such an error need not be raised on direct

appeal, but is subject to collateral attack at any time, by a motion to vacate.

{¶37} Ohio should return to the traditional approach correcting such legal errors and

declare them to be errors in the exercise of jurisdiction, not ones that divest a court of the power

to make such mistakes. See Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980.
Highland App. No. 17CA4 14

Abele, J.: Dissents with Dissenting Opinion.

{¶38} The absurd result in this case is regrettable, unfortunate and difficult to believe.

Any attempt to explain this result to a member of the general public will certainly be met with an

expression of incredulity.

{¶39} In this case the appellant, with the assistance of counsel and pursuant to the

parties’ plea agreement, pled guilty to eight counts of gross-sexual imposition and sexual battery,

all involving a victim under thirteen years of age. In conformance with the parties’ agreement,

the trial court sentenced the appellant to serve thirty-five years and ten months in prison. At that

time, the appellant was fully aware and in full agreement with the sentence. The problem,

unbeknownst to anyone at that time, is that the trial court, as it attempted to navigate through the

labyrinth we call Ohio’s felony sentencing statutes, is that the court indicated that the sentence is

non-mandatory when, in fact, mandatory sentences apply.

{¶40} Eight years later, appellant filed a motion to withdraw his guilty pleas. Appellant

argued, citing Ohio Supreme Court decisions, that the trial court’s failure to follow mandatory

statutory provisions results in sentences that are unauthorized by law, and thus void. I believe

that the root of the problem is the supreme court’s characterization of errors in sentencing as void

judgments. Generally, a void judgment is one that a court issues when it lacks jurisdiction over

the parties or the subject matter, or if a court lacks the inherent power to enter a particular

judgment. This is not the situation when Ohio common pleas courts issue felony sentences,

unless, for example, the court exceeds the maximum sentence or somehow strays beyond the

court’s specific jurisdiction. That did not happen here. Obviously, the appellant is entitled to a

remedy to correct his sentence, or to see that he receives the benefit of his bargain. However the

withdrawal of appellant’s plea at this juncture does not serve the interests of justice.
Highland App. No. 17CA4 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 Highland 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.

Harsha, J.: Concurs with Concurring Opinion.
Abele, J.: Dissents with Dissenting Opinion.

For the Court

By:
Marie Hoover, Presiding 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.