State v. Walker

[Cite as State v. Walker, 2021-Ohio-235.]

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

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 19CA1102
:
v. :
: DECISION AND JUDGMENT
ERNEST A. WALKER, : ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Timothy P. Young, Ohio State Public Defender, Katheryn R. Ross-Kinzie,
Assistant Public Defender, Columbus, Ohio, for Appellant.

David Kelley, Adams County Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

{¶1} Ernest A. Walker appeals the judgment entry of the Adams

County Court, entered September 19, 2019. Subsequent to a bench trial,

Walker was convicted of misdemeanor traffic charges. On appeal, Walker

asserts three assignment of errors: (1) that the trial court unconstitutionally

shifted the State’s burden of proof; (2) that Walker’s convictions are against

the manifest weight of the evidence; and (3) that the trial court abused its

discretion when it denied Walker’s request for a jury trial. Upon review of

the record, we find merit to Appellant’s third assignment of error. Thus, we
Adams App. No. 19CA1102 2

reverse the judgment of the trial court and remand for further proceedings

consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} After law enforcement officers confronted Ernest A. Walker,

“Appellant,” outside the United Dairy Farmers in West Union on June 28,

2019, Appellant was cited for operating a vehicle under the influence of

alcohol or a drug of abuse, R.C. 4511.19(A)(1)(A); OVI refusal, R.C.

4511.19(A)(2); failure to control a motor vehicle, R.C. 4511.202; and failure

to stop after an accident, R.C. 4549.03. Appellant was arraigned at the

Adams County Court on July 1, 2019. He was brought with other inmates

from the Adams County Jail.1

{¶3} Appellant did not have the benefit of legal counsel with him at

the arraignment. The arraignment transcript reflects that the trial court

inquired as to whether Appellant was able to hear the “general statement” as

to the “arraignment consequences,” and Appellant replied, “Yes.” Appellant

pled not guilty to all four offenses. After entering his plea, the trial court

informed, “We will set the matter for a pretrial and a trial.”

{¶4} Appellant informed the court he could not afford an attorney so

the court advised that it would appoint legal counsel. The matter was also

1
Appellant was held in the jail pending arraignment due to a prior outstanding warrant for failing to appear
in that court.
Adams App. No. 19CA1102 3

scheduled for a trial on July 22, 2019. A “Notice of Trial Pretrial, Etc.”

dated July 2, 2019 contains Appellant’s signature. This notice indicates

“court trial.”

{¶5} On July 8, 2019, Appellant’s counsel filed a notice of

representation, request for discovery, and bill of particulars. A transcript of

that same date, entitled “Transcript of Final Pretrial,” indicates that

Appellant’s counsel appeared in court on that date but Appellant did not.

However, Appellant was still lodged in the jail. The only significance of this

brief transcript is that it indicates that Appellant would be brought over from

the jail. The transcript does not contain any discussion with Appellant or

any indication that Appellant was in fact brought into the courtroom.

{¶6} The record also contains a transcript of “court trial” held July 22,

2019. The transcript reflects that another attorney was substituting for

Appellant’s appointed counsel, who was not feeling well that day. The

transcript is actually unclear as to whether the trial court or the assistant

prosecutor stated as follows:

At the. [sic] Discovery was complete and we were actually
going to do a Court Trial today before Ms. Drinnon came up ill.
So, this would be whether we want to continue the Court trial
for another time.

{¶7} At this point, Appellant’s substitute attorney indicated that
Adams App. No. 19CA1102 4

Appellant had some concerns about his charges, i.e. whether he was

being charged with a second or third offense OVI. Everyone agreed

that Appellant needed to talk to his own attorney, the one familiar

with his case. The trial court stated a six-week continuance would be

appropriate. On July 22, 2019, a journal entry indicates Appellant’s

case was reassigned for court trial on September 6, 2019.

{¶8} On September 6, 2019, the proceedings began with

another discussion about the level of Appellant’s OVI offense.

However, Appellant’s court-appointed counsel advised the court

Appellant had another concern. The trial transcript contains the

following discussion of Appellant’s request for a jury trial.

Appellant: We will leave it to a jury trial.

Atty. Drinnon: Is the fact that my client has stated he believes he’s

not going to receive a fair trial.

Appellant: Yeah.

Court: I think he’s under a little bit of a misconception

because he keeps saying move it to a jury trial, so

it goes upstairs. I keep telling him that that [sic.]

doesn’t mean it goes upstairs. I would still be

down here, but at this point and time I don’t know
Adams App. No. 19CA1102 5

what the court would want or wish. I do have to

do I think, um, you know, ethically.

***

Prosecutor: I would oppose that just to because it’s within the

seven days.

Court: Um it’s absolutely in the seven days. And if there

were, if you had wanted a jury trial that was part of

the arraignment when I went through the

arraignment actually with you probably twice I

talked to you about that.

Appellant: Yeah, you see my lawyer the 28th of last month so,

how am I going to get anything done within seven

days?

Court: So, we, uh, you were here for an arraignment and

at the arraignment I always discuss very clearly

about how the demand for jury trial is done. That

time has come and gone if we’re otherwise ready

for trial. We’ve got our witnesses here were going

to go [inaudible].

Appellant: Well let’s do it then.
Adams App. No. 19CA1102 6

***

Court: On behalf of your client who brought those things

up both in regard to the question about the second

OVI charge and also in regard to a jury trial which

would be overruled. We are going to go forward

with trial today.

{¶9} Appellant was found guilty of all charges. The trial court

ordered a pre-sentence investigation and report. The matter was

deferred for sentencing on September 19, 2019.

{¶10} At sentencing, the trial court merged the two OVI convictions.

The trial court sentenced Appellant on the second offense OVI charge to 180

days in the Adams County Jail, 150 days suspended, a $525 fine and court

costs. The court further ordered two years probation and one-year license

suspension. As part of probation, Appellant was to obtain a drug and

alcohol assessment. Appellant was also ordered to pay fines and costs on

the failure to control and failure to stop after an accident charges.

{¶11} This timely appeal followed. Appellant’s sentence was stayed

pending appeal. Where pertinent, additional facts are set forth below.
Adams App. No. 19CA1102 7

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT UNCONSTITUTIONALLY
SHIFTED THE STATE’S BURDEN TO PROVE ALL
ELEMENTS OF THE OFFENSE BEYOND A
REASONABLE DOUBT TO THE DEFENDANT,
ERNEST WALKER, IN VIOLATION OF HIS RIGHT
TO DUE PROCESS UNDER THE UNITED STATES
AND THE OHIO CONSTITUTIONS.

II. THE TRIAL COURT VIOLATED ERNEST
WALKER’S RIGHTS TO DUE PROCESS AND A
FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF
CONVICTION FOR OPERATING A VEHICLE
UNDER THE INFLUENCE OF ALCOHOL AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.

III. THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT DENIED ERNEST WALKER’S REQUEST
FOR A JURY TRIAL.”

{¶12} For ease of analysis, we begin with Appellant’s third

assignment of error.

STANDARD OF REVIEW

{¶13} As a general rule, the United States Supreme Court has

always set high standards of proof for the waiver of constitutional

rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.1461

(1938), (“Trial courts must indulge every reasonable presumption

against waiver.”); State v. Tackett, 4th Dist. Jackson No. 04CA12,

2005-Ohio-1437, at ¶ 19. Because of the fundamental importance of

the right to a jury trial, the trial court must not lightly infer a waiver of
Adams App. No. 19CA1102 8

the right to a jury trial. Id. See State v. Scott, 123 Ohio App.3d 331,

704 N.E.2d 265, (2d. Dist. 1997), citing Tallmadge v. DeGraft-Biney,

39 Ohio St.3d 300, 301-302, 530 N.E.2d 1310 (1988).

LEGAL ANALYSIS

{¶14} An accused charged with a first-degree misdemeanor is entitled

to a trial by jury. See R.C. 2945.17; Section 10, Article I, Ohio Constitution.

See also State v. Wilson, 4th Dist. Adams No. 19CA1084, 2019-Ohio-2965,

at ¶ 10. However, in misdemeanor cases, the state does not violate a

defendant's constitutional rights when it conditions the right upon the filing

of a written demand for a jury trial. See Tackett, supra, at ¶ 19, citing,

Mentor v. Giordano, 9 Ohio St.2d 140, 224 N.E.2d 343 (1967), at paragraph

one of the syllabus. Crim.R. 23 governs the procedure for obtaining or

waiving a trial by jury. See Tackett, supra, at ¶ 20. Crim.R. 23 provides, in

relevant part:

In petty offense cases, where there is a right of jury trial, the
defendant shall be tried by the court unless he demands a jury
trial. Such demand must be in writing and filed with the clerk
of court not less than ten days prior to the date set for trial, or
on or before the third day following receipt of notice of the date
set for trial, whichever is later. Failure to demand a jury trial as
provided in this subdivision is a complete waiver of the right
thereto.

{¶15} “The purpose behind Crim.R. 23(A) is to ensure that criminal

defendants do not wait until they have reached the courthouse steps on the
Adams App. No. 19CA1102 9

day of trial to demand a jury. This would result in undue delay and expense

and possibly prejudice the state.” Tackett, supra, at ¶ 21, quoting State v.

Burton, 39 Ohio App.3d 151, 151, 530 N.E.2d 955 (6th Dist. 1988).

However, “[w]here a request for jury trial is made sufficiently in advance of

the actual trial as not to interfere with the orderly administration of the

business of the court and will not result in any unnecessary delay or

inconvenience to witnesses or prejudice to the state, it may well be an abuse

of discretion for the trial court to deny a jury trial.” Tackett, supra, quoting

State v. Edwards, 4 Ohio App.2d 261, 266, 208 N.E.2d 758 (4th Dist. 1965),

(internal citations omitted.).

{¶16} We begin our analysis by reiterating that Appellant was

unrepresented at arraignment. He was brought from the jail with other

inmates. It appears that the July 8th pretrial was conducted without

his presence, but the record also indicates he was allowed to sign a

recognizance bond on that date. Appellant presented to the court on

July 22nd, but another attorney substituted for his counsel.

Appellant’s chief concern appeared to be his confusion regarding the

level of his OVI offense. The matter was rescheduled for court trial

on September 6th.
Adams App. No. 19CA1102 10

{¶17} In his brief, Appellant summarizes these facts, arguing that they

culminated in his failure to timely make a written demand for jury trial due

to a lack of access to his appointed counsel. The State of Ohio’s brief does

not address these pretrial facts but focuses solely on Appellant’s untimely

verbal request for a jury trial on the morning of his September 6th trial.

Appellant emphasizes that September 6th was the first time that he and his

court-appointed counsel ever appeared in court together.

{¶18} The record reveals that the second pleading in the court’s

record appears to be a court entry describing the arraignment process,

Appellant’s not guilty plea, his updated address, the terms of bond, the name

of his appointed counsel, and upcoming dates. This entry also contains this

language: “Defendant having been fully informed of his rights pursuant to

Criminal Rule 5….” Pursuant to Crim.R. 5(A)(5), a court must inform an

accused of his right to a jury trial during the accused’s initial court

appearance. It is mandatory that the court comply with this rule. See

Wilson, supra, at ¶ 10; (internal citations omitted.) Crim.R. 5(A) applies to

criminal charges. For traffic offenses, the corresponding Traffic Rules

apply. Traf.R. 8, “Arraignment,” contains elements from Crim.R. 5 as well.

See State v. Donkers, 170 Ohio App.3d 509, 2007-Ohio-1557, 867 N.E.2d

903, at ¶ 30 (11th Dist.). See also 1975 Staff Note 1 and 5 to Traf.R. 8.
Adams App. No. 19CA1102 11

Similar to the Criminal Rules, the Traffic Rules also require an explanation

of rights at the arraignment stage. Traf. R 8(D). “Specifically, before

calling the defendant to plea, the judge shall cause him to be informed and

shall determine that defendant knows and understands…that he has, where

such right exists, a right to jury trial which must be demanded in petty

offenses.” Id. Donkers, supra, at ¶ 31.

{¶19} This court most recently considered a defendant’s claim that he

was unfairly denied a jury trial in a criminal case in State v. Wilson, supra.

After a bench trial, Wilson was convicted of violation of a protection order,

a violation of R.C. 2919.27 and a misdemeanor of the first degree. On

appeal, Wilson argued that the trial court erred when it did not inform him

that he had a right to a jury trial and was required to make an affirmative

demand for a jury if he wanted to exercise that right.

{¶20} In our decision, we recognized that the right to a trial by jury is

one of the most important rights guaranteed in the United States

Constitution. Our review of the transcript of Wilson’s arraignment

demonstrated that the trial court did not comply with the Crim.5(A)

requirements. Our research led us to an 11th District case, State v. Bates,

11th Dist. Ashtabula No. 2005-A-0078, 2006-Ohio-3777, which held under

somewhat similar circumstances:
Adams App. No. 19CA1102 12

Pursuant to Crim.R. 5(A)(5) the trial court must inform a
defendant of his or her right to a jury trial during the initial
appearance. State v. Stewart 5th Dist. Coshocton No.
01CA002, 2001 WL 1744692, (Nov. 28, 2001), at *2. This
court stated that a trial court's failure to inform an accused of
his or her rights as required by Crim.R. 5 constitutes prejudicial
error. State v. Fonseca, 124 Ohio App.3d 231, 234, 705 N.E.2d
1278, (11th Dist. 1997), citing State v. Orr, 26 Ohio App.3d 24,
25, 498 N.E.2d 181 (11th Dist. 1985). A trial court's failure to
comply with the provisions of Crim.R. 5 invalidates the entire
proceeding. Mentor v. Carter, 11th Dist. Lake No. 93-L-104,
1994 WL 102394, at 2, citing Cleveland v. Whipkey, 29 Ohio
App.2d 79, 278 N.E.2d 374 (8th Dist. 1972); State v. Boerst, 45
Ohio App.2d 240, 241, 343 N.E.2d 141 (9th Dist. 1973).

Bates, supra, at ¶ 22. In Bates, a review of the arraignment transcript

revealed that the trial court failed to inform Bates, unrepresented at the time,

of her right to be tried by a jury, thus failing to comply with Crim.R. 5(A).

In Wilson, the State conceded that Wilson was not properly advised at the

initial appearance regarding his right to a jury trial but argued that because

Wilson was later represented, he should be deemed to have waived the issue.

We disagreed with the State, concluding:

We readily acknowledge the arguable merit in the appellee's
argument that appellant did, in fact, have the benefit of legal
representation during the trial court proceedings after his initial
appearance and that one could assume that his counsel must
have advised appellant of his constitutional right to a trial by
jury. However, while this could arguably be a valid assumption
in most instances, the right to a trial by jury is one of the most
important rights guaranteed in the United States Constitution.
Thus, absent actual compliance with Crim.R. 5, or absent some
later curative action undertaken by the trial court to
affirmatively advise the appellant of his right to a trial by jury,
Adams App. No. 19CA1102 13

we are reluctant to simply assume that, sometime during the
course of the trial court proceeding, appellant must have been
made aware of this important constitutional right. Thus, based
upon the facts present in the case sub judice, we are reluctant to
conclude that appellant waived this particular constitutional
guarantee.

Id. at ¶ 14.

{¶21} In another case from this district, State v. Tackett, supra,

Tackett was convicted of “domestic violence by menacing,” a violation of

R.C. 2919.25(C). Tackett appealed, asserting as one of his assignments of

error, that he did not waive his right to a jury trial. The record revealed at

Tackett’s arraignment, the court played a videotape that briefly outlined a

criminal defendant’s legal rights. The videotape explained the right to have

a matter tried by a jury and the time requirements for a written demand. The

tape concluded by suggesting if a defendant had questions concerning the

nature of the charges or the rights at the hearing, the defendant should ask

questions when he or she is seated at the counsel table.

{¶22} When Tackett was called, the court inquired as to whether

Tackett understood his rights as outlined in the video. Tackett indicated he

did. The court then informed Tackett of the range of punishment. Tackett

pled not guilty and requested a court-appointed attorney. After some

discussion, the court informed Tackett he did not qualify for a court-

appointed defender.
Adams App. No. 19CA1102 14

{¶23} The court next explained that Tackett’s trial would occur within

45 days if he did not waive speedy trial. Tackett asked, “Can it be a jury

trial?” The court responded that there was a procedure to be followed, that

the procedure was explained on the video, and that Tackett had already

affirmed he understood his rights. Tackett replied: “But it didn’t say how

you go about getting a Jury,” to which the court replied, “Oh, yes, it did Sir.”

Tackett subsequently proceeded to a bench trial and was convicted.

{¶24} Upon review, this Court found that it was not disputed that

Tackett did not file a written request for jury trial. However, the record also

indicated Tackett did not fully understand this right and the action required

to preserve it. The videotape specifically invited defendants to ask

questions, and Tackett’s later question about a jury trial revealed that he was

uncertain about how to obtain one. We observed that the trial court chose to

sidestep Tackett’s questions rather than directly answer them. We

commented that the court appeared to take Tackett’s understanding of the

videotape to mean that he memorized it.

{¶25} We found that the court’s actions did not further the purpose of

Crim.R. 23(A). We further found:

Because the right to a jury trial is a constitutional right and
Civ.R. 23(A) is a procedural rule, because the trial court
ignored the indicators that Tackett did not fully understand his
rights and the steps needed to preserve them, and because the
Adams App. No. 19CA1102 15

trial court did not afford Tackett any latitude with respect to the
formal requirements for preserving his rights, we find that the
trial court abused its discretion in denying Tackett's request for
a jury trial.
Id. at ¶ 26.

{¶26} In Donkers, supra, the defendant was convicted of various

criminal and traffic charges. Initially, she was arraigned in two municipal

courts. On appeal, Donkers asserted that the trial courts erred by failing to

follow the required procedure upon her initial appearances by not fully

advising her of the charges against her and of her rights. At Donkers’

arraignments, the state played videos which contained recitations of her

constitutional rights.

{¶27} At the outset, the 11th district court acknowledged problems

because they did not have a video or a transcript of its contents within the

record on appeal. The state countered that providing a record of the

arraignment was Donkers’ burden on appeal. The appellate court, quoting

State v. Boerst, 45 Ohio App.2d 240, 241-242, 343 N.E.2d 141 (9th Dist.

1973), noted:

“ ‘* * * Here, the defendant requested and filed the transcripts,
and the reviewing court can determine from such transcripts
whether or not an error was committed. We must assume that
those transcripts, as certified by the clerk and the trial judge,
respectively, are complete and accurate.’ ”

Id. at ¶ 39. The Donkers court further observed:
Adams App. No. 19CA1102 16

In the case before us, appellant ordered the entire transcript of
the proceedings in her case from the dates of the initial
appearances. The court reporter certified the submitted
transcripts as true and correct. The transcripts of the initial
appearances make no reference to a video and do not allude to
any previous explanation of rights. If the state insists that there
is more content that the court reporter failed to include and that
is crucial to their position, the state could have used App.R.
9(E) to correct the record and to submit the video along with a
certification that it was played at appellant's initial appearance
so that we could judge its contents.

Id. at ¶ 40.

{¶28} The Donkers court found:

[E]ven if a complying video was played on both dates and if
appellant can be confirmed as being present and if the
importance of watching it was explained in her presence, a
video or other en masse description of rights is merely that―a
description of the rights. It does not satisfy the requirement that
directs the court to determine that the defendant “understands”
the rights listed in Crim.R. 10(C) or “understands and knows”
the rights listed in Traf.R. 8(D). These provisions require an
individualized inquiry. (Emphasis sic.)

Id. at ¶ 42.

{¶29} In Appellant’s case, the arraignment hearing transcript

reveals that when Mr. Walker’s case was called, the trial court inquired

about his name and address and inquired as to whether he received a copy of

the traffic ticket. The only possible reference to an explanation of

Appellant’s constitutional rights pursuant to Traf. R. 8(D) is as follows:
Adams App. No. 19CA1102 17

Court: And were you able to hear my general statement that I

made to everybody in regard to. [sic]

Appellant: Yeah, I heard you.

Court: The arraignment consequences?

Appellant: Yes.

{¶30} The trial court did not ask Appellant if he had any

questions about the “general statement.” It is at this point that the trial court

began to read through the nature of the four charges; explained the potential

penalties; took Walker’s not guilty plea; discussed Walker’s request for a

court-appointed attorney; and discussed the terms of his bond. At the end of

all of this discussion, the trial court asked, “Mr. Walker do you have any

questions about what has happened here”?

{¶31} While the record does not indicate Appellant herein was a first-

time visitor to the Adams County Court, we cannot conclude, based on these

facts, that Appellant was properly advised as to his right to a jury trial and

how to make a timely demand pursuant to Crim.R. 23. We assume that the

“general statement of arraignment consequences” was the trial court’s

explanation of Appellant’s constitutional rights but we cannot confirm that.

The arraignment transcript simply does not provide this information. “While

the defendant does have the burden of seeing that the record is complete,
Adams App. No. 19CA1102 18

under the appellate rules, he can do no more than request the clerk to prepare

and forward the transcript of docket and journal entries, and the transcript of

proceedings.” Boerst, supra, at 242. While a full explanation of the

constitutional rights pursuant to Crim.R. 5(A) may well have occurred, the

arraignment transcript does not contain this discussion.

{¶32} Based on our review of the record, we find Appellant was not

fully apprised of his right to a jury trial and of the requirements, pursuant to

Crim.R. 23(A), to timely demand one in writing. We acknowledge the

record does contain a “Notice of Trial, Pretrial, Etc.,” dated July 2nd, with

Appellant’s signature, and several documents indicate Appellant’s being

scheduled for a “court trial.” However, we cannot simply assume Appellant

understood “court trial” to mean “trial to the bench” or “trial to the judge.”

{¶33} Further, as in Wilson, we cannot simply assume because

Appellant was later appointed a lawyer that he must have been fully

informed of this important constitutional right, particularly in light of the

lack of access to his lawyer which he claims and the record supports.

Assuming Appellant was properly apprised pursuant to Crim.R. 5(A), it does

not appear the trial court inquired as to whether Appellant had any questions

about his constitutional right to trial. Under the circumstances of
Adams App. No. 19CA1102 19

Appellant’s case, we find the trial court abused its discretion in denying

Appellant’s request. We sustain the third assignment of error. 2

{¶34} In light of our disposition of Appellant’s third

assignment of error, Appellant’s first and second assignments of error are

rendered moot. Accordingly, the judgment of the Adams County Court is

reversed and the matter is remanded for further proceedings consistent with

this opinion.

JUDGMENT REVERSED.

2
We recognize that many courts in the 4th District utilize general statements and/or videos to inform
multiple defendants of their constitutional rights at arraignment. Our decision here does not find that
practice to be improper. In fact, this decision could very possibly have been resolved in favor of Appellee
had we been supplied with a record of the trial court’s “general statement” of Defendant/Appellant’s rights
at arraignment.
Adams App. No. 19CA1102 20

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE 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 Adams County Court 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.

Abele, J. and Hess, J. concur in Judgment and Opinion.

For the Court,

_______________________________
Jason P. Smith
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.