State v. Newland
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[Cite as State v. Newland, 2003-Ohio-3230.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 02CA2666 : vs. : : COURTNEY D. NEWLAND, : DECISION AND JUDGMENT ENTRY : Defendant-Appellant. : : Released 6/17/03 ___________________________________________________________ APPEARANCES: Kenneth R. Spiert, Columbus, Ohio, for Appellant. Scott W. Nusbaum, Prosecuting Attorney, and Michael M. Ater, Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee. ___________________________________________________________ Harsha, J. {¶1} Courtney Newland appeals the Ross County Common Pleas Court s judgment convicting him of misuse of credit cards, in violation of R.C. 2913.21, and taking identity of another, in violation of R.C. 2913.49. appeals the trial court's order to pay the He also restitution. Appellant asserts that the trial court erred by (1) denying his request to substitute counsel, (2) refusing to accept his guilty restitution plea, without and (3) ordering specifying an appellant amount. to pay Appellant further asserts that he was denied his constitutional right to effective assistance of counsel. does not reveal that appellant and Because the record trial counsel had a complete breakdown of the attorney-client relationship, but instead reveals that appellant was unhappy with the state's plea offer, we conclude that the trial court did not abuse its discretion by substitute counsel. denying appellant s request for We further conclude that the trial court did not abuse its discretion by refusing to accept appellant s guilty plea. The record shows that appellant, after stating that he wished to plead guilty, changed his mind and opted to have the Additionally, we conclude demonstrated that trial Therefore, we overrule charges that counsel appellant s fourth assignments of error. tried to appellant was first, the has jury. not ineffective. second, and However, because the trial court failed to specify an amount of restitution, as R.C. 2929.18(A)(1) requires, we sustain appellant s third assignment of error and reverse and remand that part of the trial court's judgment. {¶2} Appellant used an Ohio Identification card that contained his picture, but his brother's name and other identifying information, to obtain credit and to purchase items at the Sears and Elder-Beerman department stores in Chillicothe, Ohio. on closed The stores monitored the transactions circuit videotape. television Appellant and recorded subsequently was them on arrested and apparently remained in jail until February 27, 2002.1 On March an 8, 2002, the Ross County Grand Jury returned indictment charging appellant with misuse of credit cards and taking the identity of another. On May 6 and 7, 2002, the trial court held a jury {¶3} trial. the Immediately before his trial began, appellant asked trial court to appoint a new attorney. Appellant submitted a letter to the judge, in which he stated: Corzine, I m not understanding these proceedings. Mr. Please, I need five minutes to explain what it is I have an issue with. I m not happy. I need a new attorney. He will not listen to me. Please hear me out. The following colloquy then ensued: [APPELLANT]: Sir, from the very I think I was not the first arraignment back in September or October, our first trial was back in December I had brought up some issues with you, Mr. Corzine, about my situation with Mr. McCleese and about being misrepresented. Now, when I first got out in February, I actually thought this was over until I did receive a re-indictment which was March I m sorry, 1 Nothing in the record shows what period of time appellant spent in jail. However, both appellant and the state agree that appellant was in jail from September 26, 2001 to February 27, 2002. sir, well I never did receive it, but I know it was out there. My parole officer called me. believe. From that point trying to on, I get It was March 8, I have a been whatever, started job to attorney. working get That s what I ve been trying to do. or my own I actually had a private attorney that s out of town, that s out of town. His name is Cooper Mr. Cooper from Columbus, Ohio. I have issues with the charges and the dollar amount of the charges. a few I ve sat down with Mr. McCleese while in jail on occasions numbers with numbers. him and painstak[i]nly and they don t I have a calculator. went add through up. I these have the I just went through them again and they re not reflecting what I ve been charged with. THE COURT: Well, Mr. McCleese indicated that to the Court and talked to the prosecutor. to reduce the charge a degree to The prosecutor offered reflect that. Mr. McCleese has indicated to the Court that you were unhappy with the amount of time that was being discussed. state still stands ready to reduce that on a plea. be pleading to two felony fives. The You d [APPELLANT]: The only thing I had a a problem with that, Mr. Corzine, is that that s what they are. they are. You see, they charged me that s what The numbers, once somebody takes the time out -- * * * -- to seriously go through like I did, they will understand that s what they are period. * * * Misuse of a credit card is a thousand dollars. felony four because THE COURT: Right. over five thousand. it s over five [APPELLANT]: It s not That s what I m trying to explain. THE COURT: Well, I understand Listen, Mr. Newland. * * * The state has offered to reduce the charge, so it s under five thousand dollars. It d be a felony five. Mr. McCleese indicated that you weren t willing to accept a plea to that. didn t like That s fine. the numbers that That s your business. were being that, I mean the possible sentences. sir. THE COURT: That s fine. The The only discussed. By [APPELLANT]: Yes, state willing to reduce that to a felony five. sir. You still stands [APPELLANT]: Yes, THE COURT: It s a matter besides it s a matter of proof any way. I don t see how you re unhappy. The state s going to have to prove it beyond a reasonable doubt if they want to convict you. there, the numbers aren t there. jury believes them, so be it. that s what I meant that s understand the proceeding. If the numbers aren t If they re there and the [APPELLANT]: --But again, what I meant by I don t I have from the time that I ve been charged, Mr. Corzine Judge Corzine. Like I told you that last time when I sat in you all s county jail for five months, five and a half months, I only talked to Mr. McCleese twice * * * in that time frame trying to get this situation out. Since I ve been home, we have no defense I ve not spoken to Mr. McCleese about a defense about how we re going to go about it. There s no-the defense has no witnesses and we ve not he s not come to me once and sat down and said, okay, Courtney, these This is what I think we should do. opportunity. are your options. We have not had this THE COURT: Mr. McCleese, I understand that you extended the state s offer to Mr. Newland, did you not? MR. MCCLEESE: [APPELLANT]: On more That was than one occasion, your honor. today, Mr. Corzine. I m talking about before all this happened before we even came to this point. THE COURT: Well, what witnesses do you have that [APPELLANT]: None. He s not THE COURT: witnesses do you have that are to be called? sat through Ms. Barnes [appellant's [APPELLANT]: Right. what I mean, I ve co-defendant] and I ve seen [APPELLANT]: Yes, sir. videotape. --No, trial THE COURT: --the THE COURT: What witnesses do you have and what will they testify to. [APPELLANT]: Well, it s not so much as what witnesses do I have and what will they testify to. Mr. Corzine. It s about just this case itself, I don t even know what s going on. idea what s going on and the-- I have no THE COURT: Well, obviously, you do know what s going on, Mr. Newland. [APPELLANT]: -- You know, what just being with my paper, but as far as with the state offering me, Judge Corzine, the only reason that I didn t think that was a deal, because again, that s what it is. Them [sic] are the charges. If I was charged today, if I went out committed a crime and they charged me with an F-5 and two months later they came and said, okay, this is the deal and they offered me the maximum of F-5, that s not a deal. THE COURT: Well, required to offer you what you want. I understand. THE COURT: [APPELLANT]: Yes, sir. Do the state s not [APPELLANT]: No, sir. you understand that? THE COURT: It sounds to me like you want a trial and you want the state to prove your guilt beyond a reasonable doubt and that s what we re going to have. I haven t heard any reason-- [APPELLANT]: The only THE COURT: --to take Mr. McCleese off. don t have I mean, how [APPELLANT]: --you THE COURT: No, sir. --He s not representing me, Mr. Corzine. can do right now. you it s There s nothing I I would go to trial you just told me not a THE COURT: Well, matter You ve just told me you don t have any. I m saying, he s the lawyer. don t I just don t think * * * you want [APPELLANT]: of witnesses. [APPELLANT]: But THE COURT: I just to go to trial. [APPELLANT]: I do want to go to trial, Mr. Corzine. he s not THE COURT: No. But [APPELLANT]: --if he s not going to represent me, what is there to go with THE COURT: Well, you haven t told me anything other than the fact that you don t think he s visited haven t told me the first thing. what? you enough, [APPELLANT]: --As far as Why he shouldn t represent me at trial? Right. [APPELLANT]: I don t know what we re We re going to go upstairs and begin trial. don t know what s going to happen. going to call. we re I don t know nothing. going to do when he [sic] stands questioning the people like with the jury. me not one time about nothing. I I don t know who he s even seen a witness list for them, for me. what THE COURT: Because he s not came [sic] to me and said what we going [sic] to do. doing. you [sic] [APPELLANT]: I don t know nothing. I ve never I don t know up and starts He did not ask THE COURT: Okay. THE COURT: Well, I haven t heard anything, Mr. Newland, that makes me think this is anything other than an attempt can t hire a lawyer? I cannot hire any attorney? COURT: We re in the middle of a trial. [APPELLANT]: I wouldn t let me. asked [APPELLANT]: So I you the last THE You should have time, sir, and you THE COURT: --and you didn t have enough then. {¶4} appellant As the court attempted to start the jury trial, asked the trial court whether the time he previously served would count against the sentence he might receive for the two current charges. that his attorney advised him that would serve would be twelve months. Appellant claimed the maximum time he The trial court stated that the maximum would be twenty-four months less any time previously served. Appellant displeasure with trial counsel: this man directly told me that MR. then I told --today. didn t say that he said because my cases oh, come on. voiced you Before Well, horse. Nobody s been convicted of anything yet. even saying. talking about putting sentence. the today he cart THE COURT: Okay. not is we re Courtney MR. MCCLEESE: -- [APPELLANT]: --were the same. this his "[APPELLANT]: Mr. Corzine, MCCLEESE: [APPELLANT]: again before [APPELLANT]: THE COURT: I m going to go to trial. the So we re But I m Right now I m calling the jury in. * * *" {¶5} Appellant s counsel then advised the court that appellant wished to enter guilty pleas to the offenses: "MR. MCCLEESE: Now he s telling me he wants to plead. THE COURT: I m not going to you know, I m not going to get jerked around. MR. MCCLEESE: Well, I don t I don t blame you. THE COURT: Well, you know, we ve been through all this. I think we re just going to go ahead." After the state presented its opening statement, {¶6} appellant s counsel repeated appellant's request to plead guilty. The following colloquy occurred: "THE COURT: What s he going to do when I tell him it s all going to be consecutive to his parole violation. find out right now. ask, Mr. Newland? * * * MR. MCCLEESE: I ll THE COURT: What do you want to [APPELLANT]: This is the only thing; I was willing to take the deal, your honor, but the thing I didn t understand was that s at the time that he told me my six months wasn t that s the only thing. never came this prosecutor told ahead the of anything. far. me [sic] THE horse. He COURT: You told me THE talking about what COURT: haven t I m sentence not what I m telling you. six putting been until the the cart convicted of I m saying when they talking you re sentence you re not going to get. me We re [APPELLANT]: -- No, sir. offered We wouldn t have going about I m to get, not what MR. MCCLEESE: That s THE COURT: If you plead guilty, you re subject to two twelve months consecutive sentences. They are also subject to be run consecutively to any parole violation and I m making no commitments as to what your sentence is going to be. [APPELLANT]: Well, when they first came in it was twelve months, that s the only thing. MR. MCCLEESE: That was before. THE COURT: Are we going to trial? Yeah, Are we going to finish up this trial. but they didn t give me the COURT: Let s go let s go to trial. months. [APPELLANT]: THE Okay. On the second day of trial, appellant failed to {¶7} appear twelve [APPELLANT]: and the trial appellant's absence. court continued the jury trial in After the jury found appellant guilty of both offenses, the trial court sentenced appellant to two consecutive eleven-month prison terms and ordered appellant to pay restitution in an unspecified amount. Appellant {¶8} judgment and raises timely the appealed following the trial assignments court s of error. "FIRST ASSIGNMENT OF ERROR - The trial court violated Mr. Newland's rights to counsel and to due process clause [sic] under the Ohio and United States Constitutions denied his request for substitution of counsel. when it SECOND ASSIGNMENT OF ERROR - The trial court abused its discretion under Criminal Rule 11 and deprived appellant his rights under the due process clauses of the Ohio and United States Constitutions when it refused to accept his guilty pleas. THIRD ASSIGNMENT OF ERROR - The trial court committed plain error and violated appellant's rights under the due process clauses of the Ohio and United States Constitutions when it required appellant to pay restitution in an undetermined amount. FOURTH ASSIGNMENT OF ERROR - Mr. Newland was denied his rights to counsel and due process under the Ohio and United States Constitutions by his counsel's insufficient preparation and advise." In his first assignment that the trial court {¶9} argues denying his request to of abused error, its substitute appellant discretion counsel sufficiently inquiring into his request. by without Appellant further contends that he raised specific allegations to support his request to substitute counsel and that the allegations demonstrate a complete breakdown in his relationship with trial counsel. Specifically, appellant claims that (1) trial counsel had not communicated with appellant about a defense, (2) his counsel did not explain appellant s options and advise appellant what counsel thought appellant should do, and (3) counsel did not advise appellant regarding jail time credit. Appellant asserts that the record no shows that "virtually communication" occurred between appellant and trial counsel and that appellant did not trust trial counsel. court that sufficiently the trial Because we find that the trial inquired court did into not appellant's abuse its request discretion and by denying appellant's request, we overrule appellant's first assignment of error. {¶10} An counsel of indigent his defendant choosing, but is not rather, competent, effective representation. entitled only the to the right to See State v. Murphy (2001), 91 Ohio St.3d 516, 523, 747 N.E.2d 765; State v. Cowans (1999), 87 Ohio St.3d 68, 72, 717 N.E.2d 298; Thurston v. Maxwell (1965), 3 Ohio St.2d 92, 93, 209 N.E.2d 204. a The right to counsel does not guarantee the defendant meaningful Slappy relationship (1983), 461 U.S. with 1, counsel. 13-14, 103 See Morris v. S.Ct. 1610, 75 L.Ed.2d 610; State v. Pruitt (1984), 18 Ohio App.3d 50, 57, 480 N.E.2d discharge show a 499. a In order for court-appointed breakdown in the a criminal attorney, the attorney-client defendant defendant to must relationship of such magnitude as to jeopardize the defendant s right to the effective assistance of counsel. See State v. Coleman (1988), 37 Ohio St.3d 286, 525 N.E.2d 792, paragraph four of the syllabus. {¶11} Thus, an indigent defendant is entitled to new counsel conflict "only of upon a showing interest, a of good cause, complete such breakdown as a in communication, or an irreconcilable conflict which leads to an apparently unjust result." State v. Edsall (1996), 113 Ohio App.3d 337, 339, 680 N.E.2d 1256; see, also, State v. Blankenship (1995), 102 Ohio App.3d 534, 558, 657 N.E.2d 559; Pruitt, 18 Ohio App.3d at 57. Hostility, tension, or personal conflicts between an attorney and a client that do not interfere with the preparation or presentation of a competent defense are insufficient to justify a change in appointed counsel. See State v. Henness (1997), 79 Ohio St.3d 53, 65-66, 679 N.E.2d 686. Furthermore, "[m]erely because appointed counsel s trial tactics or approach may vary from that which appellant views as prudent is sufficient to warrant the substitution of counsel." not State v. Glasure (1999), 132 Ohio App.3d 227, 239, 724 N.E.2d 1165. {¶12} A that defendant substitute bears counsel is the burden warranted. of demonstrating State v. (1998), 128 Ohio App.3d 419, 423, 715 N.E.2d 223. indigent counsel defendant during complaint on questions trial, the the the court record. Id; adequacy must see, of inquire also State (1995), 104 Ohio App.3d 434, 437, 662 N.E.2d 389. to consider substitute motion; the in reviewing counsel a include: adequacy of the defendant's Carter Once an assigned into the v. King Factors request "'the timeliness court's inquiry for of the into the defendant's complaint; and whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense.'" State v. Jones (2001), 91 Ohio St.3d 335, 342, 744 N.E.2d 1163 (quoting United States v. Jennings (C.A.6, 1996), 83 F.3d 145, 148). Additionally, when the timing of a request for new counsel is an issue, a trial court may consider whether the defendant s request for new counsel was made in bad faith. See State v. Haberek (1988), 47 Ohio App.3d 35, 41, 546 N.E.2d 1361. A motion for new counsel made on the day of trial, "intimates such motion is made in bad faith for the purposes of delay." Id. {¶13} A trial court s decision regarding a request for substitute counsel is governed by an abuse of discretion standard. See Murphy, 91 Ohio St.3d at 523; Jones, 91 Ohio St.3d at 343; State v. Smith (Dec. 29, 1998), Lawrence App. No. 98CA12. trial Thus, an appellate court will not reverse the court s decision absent an abuse of discretion. Murphy. The term "abuse of discretion" implies that the court's decision unconscionable." was "unreasonable, arbitrary, or State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. Moreover, when applying the abuse of discretion standard, a reviewing court is not free merely to substitute its judgment for that of the trial court. See In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181. {¶14} In State v. Gordon (2002), 149 Ohio App.3d 237, 776 N.E.2d 1135, the appellate court determined that the trial court did not abuse its discretion by denying the defendant's request for substitute counsel. defendant requested defendant stated because (1) the harsher than new counsel that he plea bargain what his was prior unhappy the counsel to trial. with his state had In Gordon, the The counsel presented stated was could be negotiated, and (2) in the seven months before trial, the defendant had seen his counsel for a total of approximately four hours strategy. and at no point The defendant did counsel subsequently discuss decided to trial plead guilty. {¶15} Before the trial court under duress." pleading guilty, the defendant that offered his plea he informed "voluntarily, The defendant stated that he felt as if "his hands [were] really tied if I'm forced to go to trial with him * * * as my attorney." The defendant twice more advised the trial court that he did not want to go to trial with current counsel as his attorney. {¶16} On appeal, the defendant argued that the trial court abused its discretion by refusing his request for substitute counsel. concluding that the The record court did of not appeals disagreed, demonstrate a total breakdown in communication that jeopardized the defendant's right to effective assistance of counsel. {¶17} In the case at bar, appellant has failed to show that the trial court abused its discretion by denying his request, brought on the day of trial, to substitute counsel. Similar to the record in Gordon, the record here does not show a complete breakdown in the attorney-client relationship sufficient to implicate appellant's right to effective assistance of counsel. Rather, the record shows that appellant was unhappy with trial counsel because trial counsel was unable to secure a better "deal" for appellant. Appellant have apparently negotiated felonies than a believed better what the that sentence state trial for counsel two offered. should fifth degree However, a defendant s displeasure with a plea deal is not sufficient grounds for discharging substituting new counsel. court appointed counsel and See, generally, Gordon. {¶18} Appellant also claims that he did not understand the proceedings or how his attorney planned to present a defense. However, the trial court determined appellant did understand the proceedings. also concluded showing that appellant in light committing strategy was limited. of the the that The trial court videotape crimes, the evidence defense The court noted that appellant could not name any witnesses to support a defense. Moreover, appellant admits that he consulted at least a few times with his attorney, and appellant admitted that his trial counsel advised him of the state's plea offer. {¶19} Additionally, the trial court Cf. Gordon. reasonably could have decided that appellant's request, brought on the day of trial, was for purposes of delay. throughout the appellant. entire The The trial court sat proceedings trial and was court was able best familiar to with determine whether appellant's request was a delay tactic or a matter of just concern. 22, 2001), See Haberek, supra; State v. Cox (Mar. Franklin App. No. 00AP-565 (concluding that trial court did not abuse its discretion by denying the defendant's request for substitute counsel, brought on the day of trial). {¶20} We further disagree with appellant that the trial court erred by failing to sufficiently appellant's request for substitute counsel. advised the trial court that he was inquire into Once appellant unhappy with trial counsel's representation, the trial court inquired into the reasons for appellant's displeasure. The trial court afforded appellant ample opportunity to voice his concerns with trial counsel's representation. {¶21} In discretion sum, by counsel. the trial denying court appellant s Therefore, we did not request overrule abuse for its substitute appellant s first assignment of error. II {¶22} In argues that his second the assignment trial refusing to accept appellant s proffered guilty pleas. In statement shows that that it the contends was not trial its appellant by appellant abused error, discretion particular, court of that going court the to trial court s get jerked around abused its discretion. Appellant additionally claims that the trial court erred by denying his request without sufficiently inquiring and without sufficiently stating its reasons for denying the request. forego Because the record shows that appellant opted to pleading guilty and instead chose to proceed to trial, we disagree with appellant {¶23} "'Plea bargaining is a recognized fact of life in today's criminal approved State N.E.2d v. as a method Ridgeway 1123 justice of system. It disposing of (1990), (quoting Akron 66 v. Ohio accepted criminal App.3d Ragsdale App.2d 107, 109, 399 N.E.2d 119). is 270, (1978), and cases.'" 276, 583 61 Ohio "'[T]he final judgment on whether a plea bargain shall be accepted must rest with the trial judge.'" Id. (quoting Ragsdale) "'When a recommended plea bargain is rejected, the court ought to state reasons for [its] rejection.'" Id. (quoting Ragsdale). {¶24} In the case at bar, on the first day of trial, appellant twice informed the trial court that he wished to plead guilty. The trial court summarily denied appellant s first request, stating that it was not "going to get jerked around." the When appellant again requested to plead guilty, trial court inquired further. Upon further questioning, appellant then decided that he did want to have the case tried to a jury. Consequently, because appellant ultimately chose not to plead guilty, but instead chose to proceed to trial, we find no error. {¶25} Therefore, we overrule appellant's second assignment of error. III {¶26} In his third assignment of error, appellant argues that the trial court erred by ordering him to pay restitution without determining the amount to be paid. state concurs. amount of The Because the trial court did not specify the restitution, assignment of error. we sustain appellant's third {¶27} R.C. 2929.18(A)(1) requires the sentencing court to "determine the amount of restitution to be made by the offender." court A review of the record shows that the trial did not Accordingly, we specify conclude an that amount the of trial restitution. court erred by failing to determine the exact amount of restitution as R.C. 2929.18(A)(1) requires. See, generally, State v. Day, Lucas App. No. L-02-1013, 2003-Ohio-1863. {¶28} Therefore, assignment of we error sustain and remand appellant's the matter to third the trial court. IV {¶29} In his fourth assignment of error, appellant asserts that he did not receive effective assistance of counsel. Appellant complains that trial counsel rendered ineffective assistance by (1) failing to conduct adequate pretrial advice preparation, regarding (2) the failing provide plea state s to offer, sufficient and (3) incorrectly advising him that his prior time in jail would not count toward any current sentence. {¶30} Generally, ineffective that his reasonably in assistance counsel's order of and prove counsel performance competent, to a was that a claim of defendant must show deficient, i.e., not counsel's deficiencies prejudiced the defense. See Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. In order to show that trial counsel and performed deficiently that trial counsel s deficient performance prejudiced the defendant s defense, the defendant attorneys must overcome licensed to the strong practice in presumption Ohio are that presumed See Bradley, 42 Ohio St.3d at 142; State v. competent. Hamblin (1988), 37 Ohio St.3d 153, 155-56, 524 N.E.2d 476. If one component of the Strickland test disposes of an ineffective assistance of counsel claim, a court need not address both components. See State v. Bishop, Vinton App. No. 02CA573, 2003-Ohio-1385. {¶31} Upon our review of the record, we do not believe that appellant has demonstrated performance was deficient. that trial counsel's First, nothing in the record substantiates appellant's claims of ineffective assistance of counsel. conclusory Instead, appellant allegations. relies Second, appellant would need to refer record. "'For such cases, to to the on prove matters General self-serving, his claims, outside the Assembly has provided a procedure whereby appellant can present evidence of his counsel's ineffectiveness. This procedure is through the post-conviction remedies of R.C. 2953.21.'" State v. Jacobson, Adams App. No. 01CA730, 2003-Ohio-1201, at ¶14 (quoting State v. Cooperrider (1983), 4 Ohio St.3d 226, 228, 448 N.E.2d 452). {¶32} Therefore, we overrule appellant's fourth assignment of error. JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED and that the Appellant and Appellee split costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas 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 Ohio Supreme Court 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 Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court 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. Exceptions. Abele, J. & Kline, 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.
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