State v. Morris

[Cite as State v. Morris, 2020-Ohio-704.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-18-1187

Appellee Trial Court No. CR0201703167

v.

Richard Morris DECISION AND JUDGMENT

Appellant Decided: February 28, 2020

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Eric Allen Marks, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas which found appellant guilty of two counts of felonious assault with specifications.

For the reasons set forth below, this court affirms the judgment of the trial court.
 {¶ 2} On December 14, 2017, a Lucas County Grand Jury indicted defendant-

appellant, Richard Morris, with four charges in a six-count indictment arising from an

officer-involved shooting on December 6, 2017, in Toledo, Lucas County, Ohio. The

second and fourth counts concerned co-defendants who are not parties to this appeal.

{¶ 3} The first count was for felonious assault against a peace officer with a

deadly weapon, a violation of R.C. 2903.11(A)(2) and (D), a first degree felony, with the

specification appellant displayed, brandished, indicated possession of or used a firearm

pursuant to R.C. 2941.145(A),(B),(C), and (F), and with the additional specification

appellant discharged a firearm from a motor vehicle pursuant to R.C. 2941.146(A),(B),

and (D). The third count was for felonious assault against a second peace officer with a

deadly weapon, a violation of R.C. 2903.11(A)(2) and (D), a first degree felony, with the

specification appellant displayed, brandished, indicated possession of or used a firearm

pursuant to R.C. 2941.145(A),(B),(C), and (F). The fifth county was for improperly

handling firearms in a motor vehicle, a violation of R.C. 2923.16(B), a fourth degree

felony. The sixth count was for having weapons while under disability, a violation of

R.C. 2923.13(A)(3), a third degree felony.

{¶ 4} Appellee alleged that on December 6, 2017, appellant and the co-defendants

were observed by Toledo police to enter a vehicle “suspected of being involved in a

shooting incident earlier that day.” On December 6, 2017, appellant was on community

control for an unrelated 2016 criminal conviction. When the vehicle stopped at a

carryout, two policemen attempted to surround the vehicle from different directions, and

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shots were fired from the vehicle at them. Appellant fled the vehicle, and a foot chase

ensued by one of the policemen. Appellant raised his gun towards the chasing

policeman, who responded by shooting appellant “above the left buttock area” and

apprehended him.

{¶ 5} Appellant originally pled not guilty to all of the charges, and after a series of

pretrials and discovery exchanges, on July 19, 2018, he chose to withdraw his earlier not

guilty pleas and enter guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91

S.Ct. 160, 27 L.Ed.2d 162 (1970) to lesser included offenses that deleted the references to

the victims as police officers and the firearms specification in one count. He pled to the

first count for felonious assault with a deadly weapon, a violation of R.C. 2903.11(A)(2)

and (D)(1)(a), a second degree felony, with the specification appellant displayed,

brandished, indicated possession of or used a firearm pursuant to R.C. 2941.145. He also

pled to the third count, sometimes referred to the “second” count for plea and sentencing

purposes, for felonious assault with a deadly weapon, a violation of R.C. 2903.11(A)(2)

and (D)(1)(a), a second degree felony, where appellee dismissed the specification for this

count. As a result of the plea agreement, appellee then asserted nolle prosequi on the

fifth and sixth counts and the additional specifications that were attached to the first and

third counts. By order journalized on July 23, 2018, the trial court accepted the Alford

pleas and found appellant guilty of the plea agreement offenses.

{¶ 6} Appellant then filed a sentencing memorandum requesting leniency at the

upcoming sentencing hearing. The sentencing hearing was held on August 6, 2018, and

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the hearing transcript is in the record. The trial court sentenced appellant to serve eight

years in prison plus an additional mandatory, consecutive three years pursuant to R.C.

2929.14(C)(1)(a) for the first count. The trial court further sentenced appellant to serve

eight years in prison for the second count, to run consecutively with the first sentence

pursuant to R.C. 2929.11 and 2929.14(C)(4). The trial court’s nunc pro tunc sentencing

judgment entry was journalized on August 13, 2018.

{¶ 7} Appellant timely filed his appeal setting forth two assignments of error:

FIRST ASSIGNMENT OF ERROR: The trial court erred in finding

appellant guilty of felonious assault where the factual basis was legally

insufficient, in light of the defendant’s protestation of innocence, in

violation of the due process guarantees of the Fifth Amendment and

Fourteenth Amendment of the United States Constitution and Article I,

Section 16, of the Ohio Constitution..

SECOND ASSIGNMENT OF ERROR: The trial court erred by

considering an improper sentencing factor when imposing a maximum

sentence.

{¶ 8} In support of his first assignment of error, appellant argued the trial court

erred by accepting his Alford guilty pleas where there was insufficient evidence because

he maintained his innocence. Appellant argued the trial court failed to inquire and

determine that he made a rational calculation to plead guilty despite his belief in his

innocence. He argued the trial court failed to inquire of his reasons for deciding to plead

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guilty and of the state’s evidence to determine that the likelihood of convictions of the

offenses of equal or greater magnitude to what he pled was great enough to warrant an

intelligent decision to plead guilty. Appellant argued the only evidence solicited by the

trial court was that he “raise[d] a weapon towards Sgt. Poole as he was running away

from the scene. He did not try to pull the trigger and he did not make any verbal threats

to the officers in conjunction with raising the gun. There is no overt act committed by

Appellant and directed towards Sgt. Poole.” Appellant further argued that as a result of

the trial court’s failure to conduct a detailed Crim.R. 11 colloquy, the trial court lacked

the necessary factual basis upon which to accept his Alford pleas.

{¶ 9} In response, appellee argued the trial court did not err when it accepted

appellant’s Alford plea. Appellee there was sufficient evidence for then finding appellant

guilty of both felonious assault offenses.

{¶ 10} A guilty plea is a complete admission of guilt: an admission of committing

the crime charged against the defendant and consent to entry of judgment without a trial.

State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 14. Unless the

defendant asserts his actual innocence when entering a plea of guilty, the defendant “is

presumed to understand that he has completely admitted his guilt.” Id. at ¶ 19.

{¶ 11} In contrast, in an “‘Alford plea’ * * * a defendant pleads guilty yet

maintains actual innocence of the charges.” Id. at ¶ 13, citing Alford, infra. The standard

of validity of an Alford plea is “a criminal defendant may enter a guilty plea while

maintaining his innocence provided that the plea is entered voluntarily, knowingly, and

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intelligently and that some factual basis exists to support the allegations in the

indictment.” In re Kirby, 101 Ohio St.3d 312, 2004-Ohio-970, 804 N.E.2d 476, ¶ 15. A

defendant does not have an absolute constitutional right to enter an Alford plea. Id. at ¶

19.

{¶ 12} “‘Before accepting an Alford plea, the trial court must * * * require the

state to show a basic factual framework for the charge and plea.’” (Citation omitted.)

State v. Woods, 6th Dist. Lucas No. L-13-1181, 2014-Ohio-3960, ¶ 6. The trial court

may rely on the entire record to determine that basic factual framework. State v. Dyer,

6th Dist. Lucas No. L-17-1258, 2019-Ohio-1558, ¶ 10.

The Ohio Supreme Court has outlined the analysis required to

determine whether an Alford plea has been voluntarily and intelligently

made: “[W]here the record affirmatively discloses that: (1) a guilty plea

was not the result of coercion, deception or intimidation; (2) counsel was

present at the time of the plea; (3) his advice was competent in light of the

circumstances surrounding the plea; (4) the plea was made with the

understanding of the nature of the charges; and, (5) the plea was motivated

either by a desire to seek a lesser penalty or a fear of the consequences of a

jury trial, or both, the guilty plea has been voluntarily and intelligently

made.”

Woods at ¶ 7, quoting State v. Piacella, 27 Ohio St.2d 92, 96, 271 N.E.2d 852 (1971).

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 {¶ 13} The record shows at the July 19, 2018 plea hearing the trial court received

evidence of the scope of the plea agreement between the parties. The trial court inquired

from appellant, among other matters, his understanding of the consequences of the

withdrawal of a pending motion to suppress and of “the rights you’re giving up by

entering the plea today” and of the range of potential penalties if found guilty of the

offenses pled. The trial court continued its colloquy with appellant.

Court: Now you’re entering a guilty plea pursuant to a case known

as North Carolina versus Alford. It’s a unique type of guilty plea. It’s one

in which you’re saying, judge, I’m pleading guilty but I deny I did anything

wrong, and I wish to plead guilty to avoid the risk of going to trial on more

serious charges, and being sentenced on those more serious charges, okay?

The law allows you to do that. And what you need to understand is that if I

accept this Alford plea from you, you will be found guilty of the charges

and sentenced as if you are, in fact, guilty of those charges. There’s no

lessor (sic.) penalty because you haven’t pled guilty. Do you understand

that?

A: I understand.

Court: Do you also understand most importantly that by entering

these pleas today you’re waiving your right to a trial?

A: Correct.

***

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 Court: As you stand before me are you satisfied with the

opportunities you had to discuss this case with your attorney, Mr. Riley?

A: I am, judge.

Court: Are you satisfied with his advice in this matter?

A: I am.

Court: Do you believe it’s in your best interest to enter in this plea

agreement?

A: I do.

Court: Has anyone threatened you in any way to get you to enter

this plea?

A: Not at all.

Court: The promises that I have been made aware of and there are a

number of them are as follows, I think you already heard them, but let’s

clarify that. You heard the state ask this court to amend both Count 1 and 3

from a first degree felony to a second degree felony. That’s one promise.

In exchange for you entering pleas to those two amended counts as well as

the 3-year gun specification attached to the first count, the state is also

recommending that at time of sentence the remaining 5-year gun

specifications and the 3-year gun specification attached to Count 3 will be

dismissed as well as Counts 5 and 6, correct?

A: Correct.

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 Court: Any other promises made to you by anyone else to get you to

enter this plea?

A: No.

Court: Have you reviewed this plea form?

A: Yes.

Court: Any questions about what this document says?

A: No.

***

Court: Record will reflect this defendant has in open court this date

reviewed and then signed this plea agreement, his signature having been

obtained in open court, has been witnesses by his attorney, as well as the

assigned assistant county prosecutor to whom I look for recitation of facts.

Mr. Herr: Thank you, Your Honor. May it please the court, had this

case proceeded to trial the State of Ohio intended to produce evidence to

prove beyond a reasonable doubt that on or about the 6th day of December,

of 2017, in Lucas County, Ohio, this defendant * * * [with two other co-

defendants] were involved in a shootout with members of the Toledo Police

division.

Judge, there was a shooting incident that happened earlier that day in

the City of Toledo was well as some ongoing problems that caused

members of the special intelligence group from the Toledo Police division

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 to conduct surveillance at a hotel known as the Sleep Inn in Oregon, Lucas

County, Ohio. There were several vehicles the police were watching, one

of which was believed to be involved in the earlier shootout that day. As

the surveillance was ongoing and as the police were intent on getting a

search warrant for that hotel and that hotel room, * * * this defendant,

Richard Morris, entered a tan Chevy Trailblazer and left from that parking

area.

The police continued their surveillance on the move. * * * [T]he

defendants pulled into a parking area in front of a carryout, the Monroe

Carryout itself.

The police, knowing the dangers involved, set up and intended to do

something called a vehicle containment technique. They were going to

block the car in once it started to move again. And that’s what happened.

After the car started to back from the parking lot, members of the special

intelligence group came in front different directions and blocked that * * *

tan Chevy Trailblazer in its place and almost immediately shots rang out.

***

So as the police blocked in this tan Chevy Trailblazer another shot

came from the rear seat, and that was where Richard Morris was seated at

the time. There’s a perforation from the inside of the driver side window

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 that traveled out of that car. So he shot one round right past the driver’s

head essentially * * *.

Detective Norm Carroll (sic.), as I described earlier, was magnificent

in all of this chaos and as he moved from the cover of his vehicle while

being shot at, he managed to shoot through the gap going towards the cover

of his door and strike [a co-defendant]. Now at that very same time, this

defendant exited the rear seat of the vehicle and was running away when he

was encountered by Sergeant Duane Poole, Detective Poole. Detective

Poole yelled police, stop. A civilian as well as Detective Poole would

indicate that this defendant then raised his pistol as if he was going to try to

shoot then Sergeant Poole. Detective Poole fired, hitting the defendant

above the left buttock area, and then he dropped the gun, ran off a short

distance, and was apprehended at the scene.

As it turns out the weapon that was pointed at this detective, through

a witness, her name was Kiera Johnson, described as looking like he was

trying to shoot the officer, was found to have been jammed. The earlier

shot that was fired, the spent shell casing did not eject properly, so it made

it impossible to fire at that point, but he (sic.) could have easily been

ejected, that spent casing, and made operable to fire again.

So this defendant was then taken into custody at the scene. The gun

was recovered. The gun involved was test fired by Kevin Belsick of the

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 Bureau of Criminal Identification, it was found to be operable, Your Honor.

And those are the facts the state would have presented at trial.

***

Court: So Mr. Morris, do you have any questions of me as it relates

to this plea?

A: No, sir.

Court: Do you want me to accept this plea you now entered into?

A: Yes, I would.

Court: And you’re entering this plea as your own free will?

A: Yes.

Court: Court accepts the plea agreement. * * *.

{¶ 14} We find appellant’s guilty pleas were voluntarily and intelligently made.

We further find the record affirmatively discloses that: (1) appellant’s guilty pleas were

not the result of coercion, deception or intimidation; (2) counsel was present at the time

of appellant’s pleas; (3) counsel’s advice was competent in light of the circumstances

surrounding the pleas; (4) the pleas were made with the understanding of the nature of the

charges; and, (5) the pleas were motivated either by a desire to seek a lesser penalty or a

fear of the consequences of a jury trial, or both. Given the dialogue between appellant

and the trial court, his voluntary execution of the plea form, the explanations of the

amended, lesser charges, and the state’s summary of the evidence it would have

presented at trial, we find that the trial court properly determined appellant’s reasons for

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entering the Alford pleas and ascertained that he had made a rational calculation that it

was in his best interest to do so. State v. Hopings, 6th Dist. Lucas No. L-18-1038, 2019-

Ohio-1486, ¶ 14.

{¶ 15} The record shows that at no time did appellant raise with the trial court any

concerns about the validity of his Alford pleas. This court has previously stated that

where appellant failed to raise the validity of his plea to the trial court prior to being

sentenced, the appellant waived the issue on appeal except for plain error. State v. Little,

6th Dist. Lucas No. L-17-1008, 2018-Ohio-2864, ¶ 10. “Plain error does not exist unless

it can be said that but for the error, the outcome below would clearly have been

otherwise.” State v. Jells, 53 Ohio St.3d 22, 24, 559 N.E.2d 464 (1990). We reviewed

the entire record and find no actual and obvious plain error from which the trial court

clearly would not have accepted his Alford pleas and convict him of the two felonious

assault offenses.

{¶ 16} Although, appellant argued there was insufficient evidence with which the

trial court could find him guilty of the two amended felonious assault offenses because

the victims’ status as peace officers was removed from each charge, we find he waived

this argument with his valid Alford plea in which he waived his right to require appellee

to prove his guilt beyond a reasonable doubt. State v. Battigaglia, 6th Dist. Ottawa No.

OT-09-009, 2010-Ohio-802, ¶ 20.

{¶ 17} Appellant’s first assignment of error is not well-taken.

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 {¶ 18} In support of his second assignment of error, appellant argued the trial

court erred when it improperly imposed the maximum sentences. Appellant argued the

trial court improperly considered the victims as police officers, factors which were

specifically deleted as a result of his plea agreement. “The trial court impermissibly used

the element from the original charges, the victim’s (sic.) status as police officers, to

enhance Appellant’s sentence to a maximum, consecutive sentence * * *.”

{¶ 19} In response, appellee argued the trial court did not err because the victims’

status as police officers was not an element of each felonious assault offense. Appellee

further argued the record supported imposing the maximum sentences because appellant

was likely to commit future crimes: (1) appellant committed these new felonies while on

community control in another matter, (2) appellant “had stopped reporting for that

community control in March and that a capias had been issued for his arrest after he

failed to appear in May,” (3) appellant’s lack of credibility insisting he was only in the

wrong place at the time he shot at the victims, and (4) appellant’s lack of remorse for the

offenses.

{¶ 20} We review a contrary-to-law challenge to a trial court’s felony sentencing

determination for clear and convincing evidence in the record. R.C. 2953.08(G)(2)(b). If

we find clear and convincing evidence the record does not support the sentence, we may

increase, reduce, modify or vacate the felony sentence. State v. Carnicom, 6th Dist.

Wood No. WD-15-077, 2016-Ohio-7290, ¶ 10-11. “Clear and convincing evidence is

that measure or degree of proof which will produce in the mind of the trier of facts a firm

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belief or conviction as to the allegations sought to be established. * * * It does not mean

clear and unequivocal.” (Emphasis sic.) Cross v. Ledford, 161 Ohio St. 469, 477, 120

N.E.2d 118 (1954).

{¶ 21} Appellant was sentenced to a total of 19 years in prison. As stated in the

August 13, 2018 journalized sentencing judgment entry, the trial court sentenced

appellant to serve eight years in prison plus an additional mandatory, consecutive three

years pursuant to R.C. 2929.14(C)(1)(a) for the first count.

{¶ 22} For a felony in the second degree committed prior to March 22, 2019, the

trial court could impose a prison term within the range from two to eight years. R.C.

2929.14(A)(2)(b); State v. Salman, 6th Dist. Lucas No. L-17-1223, 2018-Ohio-3516, ¶ 4.

The trial court had full discretion to impose the maximum sentence with no obligation to

make any special findings. State v. Grace, 6th Dist. Sandusky No. S-18-044, 2019-Ohio-

3812, ¶ 25. The trial court ordered appellant to serve eight years for the first count,

which was within the range, and the maximum sentence was not dependent on the

victim’s status as a peace officer.

{¶ 23} For the specification that appellant displayed, brandished, indicated

possession of or used a firearm pursuant to R.C. 2941.145(A),(B),(C), and (F), it required

the imposition of a three-year mandatory prison term pursuant to R.C.

2929.14(B)(1)(a)(ii). The mandatory prison term was also not dependent on the victim’s

status as a peace officer. The three-year mandatory prison term must be served

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“consecutively to and prior to any prison term imposed for the underlying felony * * *.”

R.C. 2929.14(C)(1)(a).

{¶ 24} As further stated in the August 13, 2018 journalized sentencing judgment

entry, the trial court sentenced appellant to serve a consecutive eight years in prison for

the third count. The court’s findings were not dependent on the victims’ status as police

officers. Rather, the trial court found “the defendant was on community control, the

harm caused was great or unusual such that no single prison term is adequate, and the

defendant’s criminal history demonstrates that consecutive sentences are necessary to

protect the public, therefore the sentences are ordered to be served consecutively.”

{¶ 25} According to the August 6, 2018 sentencing hearing transcript in the

record, one victim testified, “On December 6th, 2017, Richard Morris fired one round at

me and thankfully it missed. * * * The round missed, and his gun jammed. Thankfully it

jammed since I was already in a gun battle with the front seat passenger. The outcome

could have been a lot worse had his gun not jammed.”

{¶ 26} During appellant’s statement at the sentencing hearing, he admitted to

shooting at somebody. “Fearing for my own safety, yes, sir, I did blindly like (sic.) shoot

out of the closed driver’s side window hoping that like (sic.) to stop whoever was

shooting into the vehicle from continuing to do so long enough for me to get out of the

vehicle.”

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 {¶ 27} At the conclusion of appellant’s lengthy statement, the trial court then

directly addressed appellant about his pattern of criminal behavior and concerns for

violating his community control sanction from a prior conviction.

Court: Where to begin with you. Let’s begin with you at the

beginning, meaning the prior case. Do you even remember what you said

to me when you stood in front of me on that other case at the time that I

said we’ll give you an opportunity on community control and I placed you

on community control? Do you remember what you said about that case?

A: Absolutely.

Court: Do you see the pattern with what you said there verses what

you said here?

A: Yes.

Court: And that pattern is once again I’m in the wrong place at the

wrong time.

A: Yes, sir.

Court: I’m in a car with a dude selling drugs that gets stopped by

undercover cops. He flees. * * * And I end up pleading to those drug

counts because that guy, the driver fled, and I’m just, Judge, I’m sorry, I’m

in the wrong place at the wrong time. That’s what you said. Placed you on

community control. You did fairly well until March of last year when you

stopped reporting. * * * Your last physical appearance was in May. * * *

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 A capias was issued for your arrest. * * * The only reason you’re in

custody is because of this incident, and the capias that was issued in May

was placed upon you upon your arrest as a consequence of this incident.

* * * You knew you had a capias for your arrest. You didn’t act upon it.

So you’re out doing whatever you’re doing in this community without a

care about your obligation to our court and therefore our community on the

case for which you’ve been paced on community control. And then in

December of last year you once again find yourself at the wrong place at

the wrong time, but this a lot more serious than the drug case.

It is striking to me the cavalierness with which I’ll just pick up a gun

and start shooting. * * * If you had only known they were police officers, I

would have never shot at them. Do you understand how horrible that is?

Do you understand what that says? It says, well, if it was just people out

there who was (sic.) trying to do me wrong, I’m going to kill them, because

if I don’t kill them they’ll kill me. What does that say about your life, the

lifestyle and the people that you’re hanging with? * * * What does that say

about our community, that that’s how you have to live, and therefore, when

you get caught in this situation, it’s like, oh, I didn’t know they were police

officers. Holy God. * * * You’ll listen to me because I have a gun

pointing at you. That’s not how civilized societies can and should function.

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 * * * But you intentionally shot at a person who happened to be a police

officer. That’s why you’re being sent to prison.

{¶ 28} Our review of the record finds clear and convincing evidence supporting

appellant’s felony sentences for two counts of felonious assault with one firearm

specification, and the sentences were not contrary to law. State v. Davis, 6th Dist. Lucas

No. L-16-1313, 2018-Ohio-2984, ¶ 45-46. We find the trial court considered the

purposes and principles of sentencing under R.C. 2929.11, the seriousness and recidivism

factors under R.C. 2929.12, and the sentences were within the statutory ranges. The

undisputed fact the victims happened to also be peace officers do not disturb our findings.

{¶ 29} Appellant’s second assignment of error is not well-taken.

{¶ 30} On consideration whereof, we find that substantial justice has been done in

this matter. The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE

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 This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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