[Cite as State v. Ogle, 2013-Ohio-3420.]


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

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case Nos. 11CA29
                               :           11CA32
                               :           12CA2
                               :           12CA11
     vs.                       :           12CA12
                               :           12CA19
                               :
                               : DECISION AND JUDGMENT
MELANIE A. OGLE,               : ENTRY
                               :
    Defendant-Appellant.       : Released: 07/26/13
_____________________________________________________________
                         APPEARANCES:

Dennis P. Evans, Connor, Evans, & Hafenstein, Columbus, Ohio, for
Appellant on Case No. 11CA29

Laina Fetheroff, Hocking County Prosecutor, and William Archer, Assistant
Hocking County Prosecutor, Logan, Ohio, Case Nos. 11CA29 and 12CA12.

Melanie A. Ogle, Pro Se, Rockbridge, Ohio, for Appellant, as to Case Nos.
11CA32, 12CA2, and 12CA19.

Benjamin E. Fickel, Logan, Ohio, for Appellant on Case Nos. 12CA11 and
12CA12.

Timothy P. Gleeson, Special Prosecuting Attorney, Logan, Ohio, for
Appellee, on Case Nos. 11CA32, 12CA2, 12CA11, and 12CA19
_____________________________________________________________
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                                       2


McFarland, P.J.

         {¶1} In this consolidated appeal, Defendant-Appellant Melanie A.

Ogle appeals various judgment entries of the Hocking County Common

Pleas Court in criminal case numbers 09CR0125 and 12CR0038. In case

number 09CR0125, Appellant was convicted by a jury of assault of a peace

officer, a violation of R.C. 2903.13(A)/2903.13(C)(3), and a felony of the

fourth degree. 1 As to case number 12CR0038, Appellant entered an Alford

plea upon a reduced charge of criminal damaging, a violation of R.C.

2909.06(A)(1), and a misdemeanor of the second degree. Having reviewed

the record and the pertinent law, we find as follows:

                  1) Case No. 11CA29, all assignments of error are
                  overruled and the judgment of the trial court is affirmed;

                  2) Case No. 11CA32, having affirmed the trial court’s
                  judgment in case number 11CA29, we conclude all
                  assignments of error in case number 11CA32 are moot
                  and appeal is dismissed;

                  3) Case No. 12CA2, the assignment of error is overruled
                  and the judgment of the trial court is affirmed;

                  4) Case No. 12CA11, the assignment of error is
                  overruled and the judgment of the trial court is affirmed;

                  5) Case No. 12CA12, the assignments of error are

1
 The trial court’s judgment entry contains a clerical error in two places. The entry states Ogle was “found
guilty of and has been convicted of Assault on a Peace Officer, in violation of R.C.
2903.13(A)/2903.13(C)(4), as a fourth degree felony.” Ogle was charged and convicted of R.C.
2903.13(A)/2903.13(C)(3). Ogle has not raised an issue with regard to the clerical errors in the judgment
entry in this appeal.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                                3


                overruled and the judgment of the trial court is affirmed;

                6) Case No. 12CA19, both assignments of error are
                overruled and the judgment of the trial court is affirmed.

                                             FACTS

        {¶2} Ogle and Ohio Power Company have been engaged in civil

litigation over the last several years. The disputes began with Ohio Power’s

desire to construct a telecommunications tower and obtain an easement

through the Ogles’ property. 2

        {¶3} Very generally, the facts relating to Appellant Melanie Ogle’s

conviction for assault on a peace officer are set forth as follows. On

September 9, 2009, after work, Appellant and her husband returned to their

residence on Donaldson Road around 5:20 p.m. to find Pike Electric and

American Electric Power, (hereinafter “AEP”) vehicles parked on

Donaldson Road. AEP’s contractors were constructing an electric line. The

access to the Ogles’ driveway was blocked by three trucks. Appellant and

her husband began honking the horn and yelling at the workers.

        {¶4} At the same time and place, Hocking County Sheriff’s Deputy

Trent Woodgeard (hereinafter, “Woodgeard”) was working a special
        2
           The details of the continuing litigation are set forth in the following cases: Ogle v.
Ohio Power Co., 180 Ohio App. 3d 44, 2008-Ohio-7042, 903 N.E. 2d 1284; Ohio Power Co. v. Ogle, 4th
Dist. Nos. 09CA1 & 09AP1, 2009-Ohio-5953; Ohio Power v Ogle, 4th Dist. Nos. 10CA143, 10AP13,
2011-Ohio-3903; Citizens of Hocking County v. Ohio Power Company, 4th Dist. No. 11CA24, 2012-Ohio-
4985; Ogle v. Hocking Cty. Sheriff, 4th Dist. No. 11AP13, 2012-Ohio-1768; and Ogle v. Ohio Power Co.,
4th Dist. No. 11CA27, 2012-Ohio-4986.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                                         4


assignment on behalf of AEP to keep peace and order at the job site.

Because of the commotion Appellant and her husband were making,

Woodgeard decided to initiate contact. When he attempted to do so,

Appellant and her husband failed to comply with requests he testified he

made. Instead, when able, the Ogles evaded Woodgeard and drove into

their driveway. They testified they drove away because the officer was

trying to get into their vehicle and they had done nothing wrong. Woodgeard

pursued the Ogles and a physical confrontation ensued outside their

residence between Woodgeard and Appellant.

         {¶5} As a result of the events which transpired on September 9th,

2009, Appellant was indicted by the Hocking County Grand Jury on one

count of assault of a peace officer. The case proceeded to jury trial and on

August 11, 2011, the jury returned a verdict of guilty. Appellant was

sentenced to six months in a county jail,3 a fine and restitution. Various

appeals have followed Appellant’s felony conviction. For purposes of

brevity, the facts relevant to each case number on appeal will be set forth

more fully where applicable below.

         Appellate case number 11CA 29


3
  Appellant was sentenced to “a county jail.” The transcript of the sentencing hearing stated: “[a]county jail
that is not run or enforced by our local sheriff,” presumably due to the strained nature of the relationship
between Appellant and county officials indicated in this case and Ogle v. Hocking County Sheriff, Hocking
County Prosecuting Attorney, 4th Dist. No. 11AP13, 2012- Ohio-1768.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19              5


                        ASSIGNMENTS OF ERROR

I.      THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT
        AGAINST THE APPELLANT WHEN THE EVIDENCE WAS
        INSUFFICIENT TO SUSTAIN A CONVICTION.

II.     THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
        MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE
        29.

III.    THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT
        AGAINST THE APPELLANT WHEN THE CONVICTION AND
        WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE
        EVIDENCE (Sic.).

        Supplemental facts

        {¶6} At trial, the State of Ohio presented testimony from Jason Stacy,

Sheriff Lanny North, Trent Woodgeard, and Sgt. Kevin Groves. Jason

Stacy, a supervisor for AEP, testified AEP was slightly behind in their work

on September 9, 2009. The workers had just set a pole and were trying to

connect the line. Three trucks in fact were blocking the Ogles’ driveway.

The job site was loud due to the diesel trucks and the drilling that was being

done.

        {¶7} Stacy testified he was talking with Woodgeard when he heard

aggressive and repetitive honking. He could see someone in a black truck

acting in a threatening manner and cursing. At this point, he felt

uncomfortable in turning his back. He saw Woodgeard go from one side of

the truck to the other trying to get the situation calmed down. Specifically,
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19               6


he observed Woodgeard say to the female passenger “Calm down, knock it

off.” The truck sped away and Woodgeard followed in his vehicle. At this

point, Stacy could not see what happened on the Ogles’ property. Stacy

testified it was the most threatening incident he had seen on the job.

      {¶8} Sheriff Lanny North testified Woodgeard was employed by the

Hocking County Sheriff’s Department on the date of the incident. AEP had

previously contacted the sheriff’s office in order to obtain an officer to keep

the peace at the job site on Donaldson Road. He acknowledged there was no

written contract between AEP and the sheriff’s department.

      {¶9} Woodgeard also testified he was a full-time deputy with the

Hocking County Sheriff’s Office, working special duty on behalf of AEP

when the altercation occurred. Woodgeard was wearing his deputy’s

uniform and driving a sheriff’s cruiser. He had been authorized by the

sheriff’s department to do so.

       {¶10} Woodgeard’s version of the events leading to his assault began

as he watched the Pike Electric and AEP workers on Donaldson Road. When

Woodgeard heard honking and yelling, he also noticed the Ogles’ truck

parked in front of an AEP truck. He saw the passenger in the truck throw

up her hands, moving around inside and yelling. He first decided to let her
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                                    7


vent. An AEP employee went to move the AEP truck, but Mrs. Ogle

continued to scream.

        {¶11} Woodgeard decided to address the situation with Appellant so

he walked to the passenger side of the truck, made direct eye contact with

her, and asked her to step outside. 4 She did not comply and continued to

yell. Woodgeard placed his hand on the passenger side door and the Ogles

drove away at a high rate of speed. Woodgeard radioed for assistance and

followed the Ogles into their driveway in his cruiser.

        {¶12} According to Woodgeard’s testimony, once on the Ogle’s

property, Appellant came charging at Woodgeard, irate and belligerent. She

actually made contact with Woodgeard’s face with papers5 in her hand.

Woodgeard asked Appellant to “calm down” repeatedly, but Appellant was

trying to kick Woodgeard while her husband was trying to hold her back.

Woodgeard advised Mr. Ogle to step back, that Appellant was under arrest

for disorderly conduct. Woodgeard testified Mr. Ogle stepped back, but

again, Appellant would not comply. Woodgeard took Appellant’s right arm

and attempted to handcuff her. Appellant continued kicking Woodgeard’s




4
  Woodgeard knew Melanie Ogle as he graduated from high school with her son.
5
  These papers, Appellant testified, consisted of a copy of an Ohio Attorney General’s opinion regarding
the township’s authority to issue permits and supported her belief AEP was “breaking the law by blocking
their driveway.”
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           8


shins and she kicked his genitals once. Woodgeard then used pepper spray to

subdue Appellant.

      {¶13} At this point, Mr. Ogle came towards Woodgeard and was

advised to stay back. When Mr. Ogle refused to comply, Woodgeard

deployed pepper spray at him. When the spray took effect, Appellant

buckled and fell to the ground. Appellant and Woodgeard continued to

struggle in the yard. Woodgeard was eventually able to handcuff her and

place her in a cruiser.

      {¶14} Sergeant Kevin Groves also testified Woodgeard was working

special detail on September 9th. Sgt. Groves was present in the sheriff’s

office when Woodgeard radioed for backup. Groves responded to the scene

and saw Woodgeard in distress. Groves ordered photographs be taken and

he took a recorded statement from Mr. Ogle.

      {¶15} After Groves’ testimony, the State offered its exhibits and

rested. The defense made a Crim. R. 29 motion, specifically arguing the

State had not presented sufficient evidence Woodgeard was a law

enforcement officer acting in an official capacity at the time and further,

there was no sufficient evidence as to the remaining elements of the offense.

The motion was denied. The defense proceeded with its case and witnesses

Jesse Ward, Randall Thompson, Charles Ogle, and Melanie Ogle.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            9


      {¶16} Jesse Ward testified he was working for Pike Electric on the

incident date. He saw a black pickup arrive on Donaldson Road as he

worked nearby. Mr. Ward heard screaming, but denied hearing curse words

or feeling threatened.

      {¶17} Randall Thompson also testified he worked for Pike Electric

and was present that day. He acknowledged the job site was loud and it was

“difficult to hear.” He testified the voices that were yelling did not interrupt

his work.

      {¶18} The Ogles’ collective version of the events unfolding on

Donaldson Road and on their property differs somewhat from that presented

by the State’s witnesses. Charles Ogle testified when he and his wife reached

home and found their driveway blocked, they stopped the truck and waited

for “close to a minute” before he began honking and the couple began

screaming. He testified Appellant yelled “you bastards have no right to be

blocking the road!” His own words were “move your fucking trucks.”

      {¶19} After the commotion began, the workers dispersed and the

deputy came at the Ogle’s truck quickly and aggressively. The officer said

something Mr. Ogle could not hear. The officer tried the doors. As soon as

the road was clear, Ogle turned into his driveway towards his house. He and

his wife began to unload groceries and other items from their truck when
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           10


they heard and saw a vehicle proceeding up their driveway. Soon

Woodgeard was walking towards them with handcuffs, while Appellant was

walking towards Woodgeard, waving papers in his face. The officer told

Appellant to “put her hands out.” The Ogles began backing away from the

officer. Woodgeard attempted to handcuff Appellant. When the Ogles

reached their sidewalk, Woodgeard pepper- sprayed Appellant, then her

husband. Appellant and Woodgeard struggled. Appellant was slammed to

the ground. Mr. Ogle was pepper-sprayed a second time. Woodgeard was

walking towards Appellant, and she kicked out. Mr. Ogle testified “I believe

she made contact.”

      {¶20} On cross-examination, Appellee played Mr. Ogle’s recorded

statement to Sergeant Groves for the jury. This was allowed after the trial

court listened to the CD and determined there were several significant

inconsistencies between the statement and Ogle’s testimony. On the CD, Mr.

Ogle states Woodgeard told Appellant to get out of the vehicle, which

contradicts his testimony that he could not hear what the officer said. On the

CD, the jury also heard Mr. Ogle say: “Okay. She didn’t want to be

handcuffed because she didn’t do anything wrong. Okay. And so, you

know, he grabs hold of her and she kicks at him a couple of times and then,

you know, this happens.” Mr. Ogle informed there were a lot of things left
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           11


out of the oral statement. He admitted the audio tape was correct as a whole.

On redirect, Mr. Ogle clarified Woodgeard “pepper-sprayed my wife before

there was ever any kick.”

      {¶21} Appellant’s testimony mirrored her husband’s. She testified

the officer was trying to get in their truck, so when able, they drove up their

driveway. Outside their home and truck, Appellant began walking towards

Woodgeard, intending to show him the papers. She was wearing a shoulder

bag which contained her lunch pails and Kroger bags. In her words, the

“next thing she knew, Woodgeard swung her around and maced” her.

Appellant denied kicking Woodgeard before he maced her. After she was

maced, she ran into the yard, in pain and screaming, trying to get her

bearings and get into the house. She testified she made a “conscious

decision” to drop her shoulder bag, so she could get away from Woodgeard.

She was bent over looking at the ground, saw tan pants, and thought

Woodgeard was coming at her again. Appellant testified she believed “he

was going to tase [her]and [she] would die.” Appellant testified she kicked

in Woodgeard’s direction and ran. She didn’t know if she made contact with

him. She testified she kicked out as reflex action, to protect herself.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           12


      {¶22} On cross-examination, Appellant testified she never heard

Woodgeard give directions or make commands. She believed Woodgeard

wanted to arrest her and her life was in danger. He assaulted her.

                           A. STANDARD OF REVIEW

      {¶23} An appellate court’s function when reviewing the sufficiency

of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable

doubt. State v. Dennison, 4th Dist. No. 06CA48, 2007-Ohio-4623, 2007 WL

2570736, ¶ 9. See, e.g. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. Id., citing Jackson v. Virginia, 443 U.S.

307, 99 S. Ct. 2781 (1979).

      {¶24} A sufficiency of the evidence challenge tests whether the

state’s case is legally adequate to satisfy the requirement that it contain

prima facie evidence of all elements of the charged offense. See State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983), and Carter v.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             13


Estell (CA 5, 1982), 691 F.2d 777,778. It is a test of legal adequacy, rather

than a test of rational persuasiveness. Dennison, supra at ¶ 10.

      {¶25} The standard of review for a Crim.R. 29(A) motion is generally

the same as a challenge to the sufficiency of the evidence. State v. Hollis,

4th Dist. No. 09CA9, 2002-Ohio-3945, 2010 WL 3294327, ¶ 19; State v.

Hairston, 4th Dist. No. 06CA3081, 2007-Ohio-3880, 2007 WL 2181535, at

¶ 16; State v. Brooker, 170 Ohio App.3d 570, 2007-Ohio-588, 868 N.E.2d

683, at ¶ 8. Appellate courts must determine whether the evidence adduced

at trial, if believed, supports a finding of guilt beyond a reasonable doubt.

State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541(1997); State v.

Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). In other words,

when reviewing a case to determine if the record contains sufficient

evidence to support a criminal conviction, we must “examine the evidence

admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable

doubt. The relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt. “

Hollis, ¶ 20, citing State v. Smith, 4th Dist. No. 06CA7, 2007-Ohio-502,

2007 WL 3557274, at ¶ 33, quoting State v. Jenks at paragraph two of the
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19              14


syllabus. See, also, Jackson v. Virginia, 443 U.S. 307, 319 99 S. Ct. 2781

(1979).

      {¶26} The sufficiency of the evidence test “raises a question of law

and does not allow us to weigh the evidence,” Hollis, at ¶ 21; Smith, at ¶ 34,

citing State v. Martin, 20 Ohio App.3d 172, 175, 484 N.E.2d 717 (1983).

Instead, the sufficiency of the evidence test “gives full play to the

responsibility of the trier of fact [to fairly] resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.’” Smith, at ¶ 34, citing State v. Thomas, 70 Ohio St. 2d 79,

79-80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus.

      {¶27} In determining whether a criminal conviction is against the

manifest weight of the evidence, an appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts in the

evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed. Dennison, supra

at ¶ 11; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

citing State v. Martin, supra, at 175. A reviewing court will not reverse a

conviction where there is substantial evidence upon which the court could
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                                     15


reasonably conclude that all the elements of an offense have been proven

beyond a reasonable doubt. State v. Johnson, 58 Ohio St. 3d 40, 41, 567,

N.E.2d 266 (1991); State v. Eskridge, 38 Ohio St. 3d 56, 526 N.E.2d 304

(1988), paragraph two of the syllabus. We realize that the evidence may

pass a sufficiency analysis and yet fail under a manifest weight of the

evidence test. Dennison, supra at ¶ 15. See, State v. Brooker, 170 Ohio

App.3d 570, 868 N.E.2d 683, 2007-Ohio-588, ¶ 16, citing Thompkins, supra.

                                    B. LEGAL ANALYSIS

        {¶28} Appellant was convicted of assault on a peace officer, a

violation of R.C. 2903.13(A)(C)(3) 6which stated:

                 (A) No person shall knowingly cause or attempt to cause
                 physical harm to another…

                 (C) Whoever violates this section is guilty of assault, and
                 the court shall sentence the offender as provided in this
                 division and divisions (C)(1), (2), (3), (4), (5), and (6) of
                 this section. Except as otherwise provided in division
                 (C)(1), (2), (3), (4), or (5) of this section, assault is a
                 misdemeanor of the first degree…

                 (3) If the victim of the offense is a peace officer or an
                 investigator of the bureau of criminal identification and
                 investigation, a firefighter, or a person performing
                 emergency medical service, while in the performance of
                 their official duties, assault is a felony of the fourth
                 degree.


6
 The language quoted above is from the former version of R.C. 2903.13(A)(C), in effect at the time of
Ogle’s August 2011 trial. The statute has since been rewritten.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           16


      {¶29} Appellant’s contention that there was insufficient evidence to

convict her of assaulting a peace officer is two-fold: she argues (1) there was

no evidence that she “knowingly” attempted to cause physical harm to

Woodgeard; and (2) Woodgeard did not meet the definition of “peace

officer” as required by the statute. Upon examination of the evidence

admitted at trial, we disagree with Appellant and find that any rational trier

of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.

      Was there sufficient evidence that Woodgeard acted as a “peace
      officer in performance of official duties” at the time of the alleged
      assault?

      {¶30} We address Appellant’s second argument under this

assignment of error first, that Woodgeard did not meet the definition of

“peace officer in performance of official duties” as required by statute. A

“peace officer” includes a deputy sheriff. R.C. 2935.01(B). In State v.

Ford, 12th Dist. No. CA2009-01-039, 2009-Ohio-6046, 2009 WL

3808374,¶ 53, the appellate court noted that “Ohio courts have held that

peace officers have a continuing obligation to observe and enforce the laws

of this state, even when they are off-duty and employed as private security

detail. See, e.g., State v. Glover, 52 Ohio App.2d 35, 367 N.E.2d 1202 (10th

Dist.1976); State v. Underwood, 132 Ohio Misc. 2d 1, 830 N.E.2d 1266,
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            17


2005-Ohio-2996; State v. Hurley, 4th Dist. No. 1292, 1986 WL 12397 (Oct.

29, 1986). Appellant cites State v. Duvall, 11th Dist. No. 95-P-0140, 1997

WL 360695, for the proposition that the absence of a written contract

between AEP and the Hocking County Sheriff’s Department distinguishes

this case.

      {¶31} In Duvall, the appellant was indicted for one count of felonious

assault and one count of assault of a peace officer after allegedly assaulting

police officers at a high school football game. The case indicated the

officers contracted with the Brimfield School System to provide security.

The officers were paid by the school system. Duvall’s sole assignment of

error was that the trial court erred in finding the officers were performing

“official duties” as mandated by R.C. 2903.13(C)(3). The trial court

previously held a peace officer was in performance of official duties when

he is was performing duties of security or other law enforcement within his

jurisdiction “regardless of who pays [him].” The appellant in Duvall urged

the statute regarding assault on a peace officer applied only when the peace

officer was “on duty” or “on the clock.” The appellate court in Duvall held

to determine what comprises a peace officer’s “official duties” the court

must look to the activities the peace officer was engaged in at the time he

was assaulted. If the peace officer was engaged in a duty imposed upon him
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                                      18


by statute, rule, regulation, ordinance or usage, regardless of his duty status,

that officer is “in the performance of [his]official duties for purposes of R.C.

2903.13(C)(3).” The appellate court noted the sergeant involved was off-

duty, being compensated for his monitoring services by the school system.

The court also noted the officer was in uniform, in his territorial jurisdiction,

and performing a “peace-keeping” function as required of him by R. C.

737.11. 7

         {¶32} Although the Duvall court used the term “contracted,” in its

description of the relationship between the officer assaulted and the school

system, we do not find the case’s outcome hinged on this fact. In the case

sub judice, Woodgeard and Sheriff North both testified Woodgeard was

employed full-time by the Hocking County Sheriff’s Department and he was

working on Donaldson Road on the incident date at AEP’s request to help

keep the peace. Woodgeard and others testified Woodgeard was wearing an

official uniform and using a sheriff’s cruiser. We do not find the parties

failure to have a written contract in place to be outcome determinative. We

find from the testimony presented at trial any rational trier of fact could have




7
 R.C. 737.11 provides, generally, the duties of police and fire departments, are to preserve the peace,
protect persons and property, and obey and enforce all ordinances of the legislative authority of the
municipal corporation, all criminal laws of the state and the United States, and all court orders issued ,
consent agreements, and protection orders issued pursuant to the Revised Code and courts of other states.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19               19


found the State presented sufficient evidence Woodgeard met the definition

of peace officer.

      {¶33} We must next consider whether there was sufficient evidence

to find beyond a reasonable doubt whether or not Woodgeard was in the

performance of official duties. At trial, the court instructed the jurors as to

the definition of what comprise a peace officer’s official duties. The court

also instructed deputy sheriffs are permitted under state law to work special

duties and make arrests for crimes they believe to have occurred in their

presence. We must consider the events which transpired on Donaldson

Road, and then the ones which evolved on the Ogles’ property.

      {¶34} The Ogles’ version of what happened on Donaldson Road is

that they were honking, yelling, even cursing, but breaking no laws. They

drove off because they felt Woodgeard was improperly trying to get into

their vehicle. They denied hearing any commands or directives from

Woodgeard. Woodgeard had no reason to follow them onto private property.

      {¶35} Woodgeard’s version of the scene at Donaldson Road is

because of the Ogles’ noisy display, he decided to investigate the situation.

He directed Appellant to calm down and she refused. He requested she step

out of the vehicle and she did not comply. At that point, Woodgeard placed

his hand on the truck door and the Ogles drove off at a high rate of speed.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           20


Jason Stacy corroborated this testimony, adding that Woodgeard repeatedly

tried to calm Appellant and Stacy felt it was a threatening situation.

      {¶36} On the Ogles’ property, Appellant continued to be belligerent

and charged at Woodgeard. Woodgeard testified just before Appellant

kicked him, making contact, he informed her she was going to be arrested

for disorderly conduct. R.C. 2917.11(A) disorderly conduct reads as

follows, in pertinent part:

             (A) No person shall recklessly cause inconvenience,
             annoyance, or alarm to another by doing any of the
             following:

             (1) engage in fighting, in threatening harm to persons or
             property, or in violent or turbulent behavior;

             (2) Making unreasonable noise or an offensively coarse
             utterance, gesture or display or communicating
             unwarranted and grossly abusive language to any person;

             (3) Insulting, taunting, or challenging another, under
             circumstances in which that conduct is likely to provoke
             a violent response;

             (5) Creating a condition that is physically offensive to
              person or that presents a risk of physical harm to person
              or property, by any act that serves no lawful and
             reasonable purpose of the offender.”

      {¶37} The 2nd District Court of Appeals considered whether an

officer had a reasonable basis to believe that a defendant had committed the

offense of disorderly conduct in State v. Ellis, 2nd Dist. No. 24003, 2011-
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19               21


Ohio-2967, 2011 WL 2436939. There two defendants were arrested and

tried together on charges of obstruction of official business, resisting arrest,

and disorderly conduct. The confrontation between Ellis, another defendant

Robinson-Williams, and Dayton police officers stemmed from Ellis’s son’s

stop for a traffic violation and the officers’ intent to tow the vehicle. Ellis

and Robinson-Williams arrived at the scene to prevent the car from being

towed. Robinson-Williams began yelling, screaming, and cussing so an

officer asked her to calm down. She began flailing her harms, continuing to

yell and scream. The officer’s testimony was corroborated by a second

officer. The appellate court noted at ¶ 47:

      “[A] ‘lawful arrest’ for disorderly conduct occurs regardless of
      whether the alleged offender is ultimately convicted if the
      officer had reasonable grounds to believe that the accused was
      recklessly causing inconvenience, annoyance or alarm to him
      by abusive language, and that the individual’s language and
      conduct was likely to provoke a violent response.***[T]he test
      is object and [the officer] need not in fact be inconvenienced,
      annoyed, or alarmed, or personally provoked to a violent
      response.” State v. Sansalone, 71 Ohio App. 3d 284, 286, 593
      N.E.2d 39, 1st Dist.1991); R.C. 2917.11 (disorderly conduct
      statute.) The question instead, focuses on whether, under the
      circumstances, it is probable that a reasonable police officer
      would find the accused’s language and conduct annoying or
      alarming and would be provoked to want to respond violently.”
      Sansalone, at 286(Citation omitted.).

      In deciding Ellis, the court held at ¶ 49:

             “[t]he jury reasonably could have believed the officers’
      testimony and found they had a reasonable basis to believe that
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           22


      Robinson-Williams was committing the offense of disorderly
      conduct. The jury could have found that a reasonable officer
      woud find that the noise she was making and her offensive and
      coarse language were annoying, at the very least. Moreover,
      given Robins-Willians’ vocal opposition to the car being towed,
      the jury could have found that a reasonable officer would have
      been alarmed about what action she might take to stop it.”

      {¶38} The “reasonable basis” language was also utilized in State v.

Glenn, 2004-Ohio-1489, 2004 WL 595644, at ¶ 26, wherein the First

District Court of Appeals considered whether the evidence was sufficient to

support defendant’s conviction for assault on a peace officer, and ultimately

concluded that it did. In Glenn, an altercation occurred between Glenn and a

Hamilton County deputy sheriff at the Hamilton County Courthouse. Glenn

was present in order to testify as a witness in his brother’s trial. Glen and a

woman, another witness in the trial, clashed. A police officer intervened and

sent Glenn and the woman separate ways. Shortly thereafter, the sheriff’s

deputy responded to another disturbance. The woman told the deputy that

Glenn had verbally and physically assaulted her. The deputy approached

Glenn to speak to him about the problem and Glenn became agitated and

loudly complained about the woman. The deputy determined to let Glenn

vent. Then the deputy told Glenn to avoid contact with the woman. Glenn

told the deputy, “My taxpayer money paid for this courthouse. I can do and

say whatever I want.” The deputy testified Glenn was loud and angry. The
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            23


deputy then decided to ask Glenn’s name. Glenn complied but the deputy

next asked for a social security number or an identification card. Glen

refused and would not cooperate. The deputy then asked Glenn why he was

at the courthouse. From that point on, Glenn became further verbally

abusive and ultimately threw his coat and hat on the floor, stepped close to

the deputy and said “[Y]ou need to go ahead and arrest me, punk.” The

deputy began to arrest and handcuff Glenn. A scuffle ensued wherein Glenn

kicked the deputy twice in the groin and bit his hand.

      {¶39} We conclude a jury could reasonably find Woodgeard was in

the performance of official duties when he approached the Ogles’ truck and

tried to calm the situation. At least one witness testified to feeling,

essentially, the Ogles’ had created a threatening situation. After having been

allowed to vent, Appellant refused to calm down. She refused to step out of

the truck so Woodgeard could address the matter. After refusing to obey

Woodgeard’s command, the truck took off at a high rate of speed. These

actions were observed by Woodgeard and others on Donaldson Road.

Although Appellee and Appellant presented contrasting versions of the facts,

it was the jury’s determination as to which of the witnesses were more

credible. Furthermore, the jury heard the CD evidence that Mr. Ogle admit

Woodgeard directed Appellant to step out of the truck, although both Mr.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           24


and Mrs. Ogle denied hearing any orders and claimed Woodgeard was trying

to get into their truck for no reason.

      {¶40} We are mindful the weight of evidence and credibility of

witnesses are issues to be decided by the trier of fact. State v. Dye, 82 Ohio

St. 3d 323, 329, 695 N.E.2d 763 (1998); State v. Frazier, 73 Ohio St. 3d

323,339, 652 N.E.2d 1000 (1995); State v. Williams, 73 Ohio St. 3d 153,

165, 652 N.E.2d 721 (1995); State v. Vance, 4th Dist. No. 03CA27, 2004-

Ohio-5370, 2004 WL 2260498, ¶ 9. As such, the trier of fact is free to

believe all, part or none of the testimony of each witness who appears before

it. See State v. Long, 127 Ohio app.3d 328, 335, 713 N.E.2d 1 (4th Dist.

1998); State v. Nichols, 85 Ohio App.3d 65, 76, 619 N.E.2d 80 (4th Dist.

1993); State v. Harriston, 63 Ohio app.3d 58, 63 577 N.E.2d 1144 (8th Dist.

1989); Vance, ¶ 9. We also acknowledge that the trier of fact is in a much

better position than an appellate court to view witnesses and observe their

demeanor, gestures, and voice inflections, and to use those observations to

weigh the credibility of the testimony. See Myers v. Garson, 66 Ohio St. 3d

610, 615, 614 N.E.2d 742 (1993); Seasons Coal. Co. v. Cleveland, 10 Ohio

St. 3d 77, 80, 461 N.E.2d 1273 (1984); Vance, ¶ 9. Here, the trial court

properly instructed the jurors as to direct and circumstantial evidence,

credibility of the witnesses, and reasonable doubt.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19          25


      {¶41} We conclude a jury reasonably could have found Woodgeard

had observed criminal activity on Donaldson road and therefore, was in the

performance of his official duties when he followed the Ogles onto their

property to continue attempting to calm the situation. As in the cited cases,

given Appellant’s refusal to calm down and obey the officer’s direct

command, it was reasonable for Woodgeard to believe Appellant might be

rushing away to commence further threatening or violent action. As such, we

believe sufficient evidence was presented at trial from which a reasonable

jury could determine that Woodgeard was acting as a peace officer in

performance of official duties at the time of his assault.

      Was there sufficient evidence that Appellant acted “knowingly”
      when she allegedly assaulted Woodgeard?

      {¶42} We next address Appellant’s argument that there was not

sufficient evidence to convict her of “knowingly” committing an assault

upon a peace officer. Appellant submits the State’s case rested entire upon a

claim by Woodgeard, a “rookie” officer on probationary status. Appellant

points out that of the three people present during the altercation, only

Woodgeard’s version of the events differed. The Ogles put forth testimony

at trial that, for no reason, Woodgeard followed them onto their property and

pepper-sprayed first Appellant, as she was trying to go in her house and then

her husband, as he tried to aid her. Mr. Ogle recalled that Appellant did
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19         26


“brush” Woodgeard’s face with the papers. The Ogles’ denied Appellant

kicked at Woodgeard until after he pepper-sprayed them. However, the CD

evidence indicated the kick happened before the pepper-spraying and

ensuing physical struggle. According to Woodgeard, he deployed the pepper

spray only after she refused to calm down and kicked him in the genital area.

      {¶43} It is apparent the jury believed Woodgeard’s version of the

events. We find the record contained sufficient evidence beyond a

reasonable doubt the jury could have found Appellant acted “knowingly.”

      {¶44} The trial court instructed the jury as to the definition of

“knowingly.” “Knowingly” is defined in R.C. 2901.22 (B) as: “A person

acts knowingly, regardless of his purpose, when he is aware that his conduct

will probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such

circumstances probably exist.” The trial court also instructed that knowledge

is determined from all the facts and circumstances in evidence.

      {¶45} At trial, Appellant testified that after Woodgeard’s

unwarranted deploying of the pepper spray a first time, she stumbled around

her yard, trying to get to the house. She testified she made a “conscious

decision” to drop her purse, so that she could move away from him faster.

She further testified she stumbled, and while she was looking down, saw
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             27


Woodgeard’s tan pants, knew it was him coming at her, and kicked out in

order to protect herself. Appellant characterized the kick as a “reflex” action.

Furthermore, Appellant testified she believed Woodgeard was going to tase

her or “kill her.”

         {¶46} Again, the credibility of the witnesses is a determination for

the jury. The jury may have found it self-serving to believe that Appellant

made a conscious decision to drop her purse, but somehow the decision to

kick at a uniformed police officer was not a conscious one. The jury may

have found it incredible that Appellant could seriously believe she was

risking imminent death. The jury apparently did not find Appellant’s

testimony persuasive. We find that a rational trier of fact could have found

Appellant acted “knowingly” beyond a reasonable doubt. As such, we

overrule assignment of error number one and affirm the judgment of the trial

court.

         {¶47} Additionally, because we review a denial of a motion for

acquittal under Criminal Rule 29 under a “sufficiency of the evidence

standard, we find the trial court did not err in overruling the motion made in

this case. Appellant acknowledges she relies on the same arguments set

forth in her first assignment of error in claiming the trial court erred in

denying her motion made at the conclusion of the State’s case. Having
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             28


considered the evidence under the “sufficiency” standard and finding no

merit to Appellant’s first assignment of error, we further find the trial court

did not err with regard to its denial of her Crim. Rule 29 motion. As such,

the second assignment of error is overruled and the judgment of the trial

court is hereby affirmed.

      {¶48} Finally, Appellant relies on the same contentions regarding

Woodgeard’s status as a peace officer, the alleged absence of criminal

activity, and the characterization of her acts as self-defense in arguing her

third assignment of error that the conviction is against the manifest weight of

the evidence. Despite her assertions, we find Appellant’s assignment of

error as to “manifest weight” also fails. In making this finding, we have had

to consider the same evidence previously discussed in resolution of

Appellant’s first and second assignments of error. Admittedly, the trial

testimony boiled down to a “he said/she said” consideration. Appellant’s

testimony indicated she kicked at Woodgeard in self-defense after he

followed her onto her property for no reason, chased her around the yard,

and pepper-sprayed her for no reason. Woodgeard’s testimony indicated

Appellant was pepper-sprayed only after she refused to calm down, obey his

orders, and kicked his genital area. It is obvious the jury did not find

Appellant’s version of the facts credible and instead relied on the evidence
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           29


presented by the State’s witnesses. For the jury to have done so is well

within its province as trier of fact. And in doing so, we cannot find a

manifest miscarriage of justice has occurred or the jury clearly lost its way.

As such, we overrule Appellant’s third assignment of error under this

appellate case number and affirm the judgment of the trial court.

      Appellate case number 11CA32

      Supplemental Facts

      {¶49} Ogle appeals a November 22, 2011 order which stated her

recognizance bond with electronic monitoring was to be revoked as of

November 28, 2011. As a backdrop to the trial court’s decision, Appellant

had been released on a $5,000.00 recognizance bond prior to her August

2011assault trial. At the conclusion of trial, the court continued her bond

with an added condition that Appellant have no contact with jurors or

witnesses in her trial as she awaited sentencing. Prior to sentencing, the

State filed a motion to revoke her recognizance bond based upon the

allegation Appellant made contact with a juror. The trial court conducted a

hearing on the motion, continued the bond, but added a condition that

Appellant be placed on electronically monitored house arrest.

      {¶50} On September 27, 2011 at Appellant’s sentencing, the court

denied appellant’s motion to reinstate the original recognizance bond. She
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             30


was sentenced to a six-month jail term, with execution stayed until October

27, 2011. On September 30, 2011, Appellant filed notice of appeal of her

conviction. This was assigned appellate case number 11CA29. On October

5, 2011, the trial court granted Appellant’s request to stay execution of her

sentence pending appeal. The conditions of her bond, including

electronically monitored house arrest, were continued.

      {¶51} Appellant subsequently file written notice to the trial court

announcing as of November 27, 2011, she would no longer pay for the

electronically monitored house arrest. A hearing on her notice was held on

November 22, 2011. The trial court ordered as of November 28, 2011, the

recognizance bond with electronic monitoring would be revoked. It was

ordered that Appellant be taken into custody and held pending appeal.

Appellant immediately filed notice of appeal of the trial court’s order

revoking her recognizance bond. This was assigned appellate case number

11CA32, the instant appeal. On November 25, 2011, Appellant filed a

motion to stay execution of judgment and sentencing ex parte temporary stay

and expedited request for review. On November 28, 2011, this court denied

Appellant’s motion for stay and expedited review.

      {¶52} On November 29, 2011, this Court further denied Appellant’s

request to reinstate the original recognizance bond. On December 16, 2011,
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19          31


this Court also issued an entry denying Appellant’s motion for stay in her

first appeal.

       {¶53} In her reply brief, Appellant indicates she was released from

incarceration on May 25, 2012. She has served her six-month jail sentence

imposed pursuant to her assault conviction.

       ASSIGNMENTS OF ERROR

       I. THE TRIAL COURT ERRED AS A MATTER OF LAW TO
       COMMENCE SENTENCING FOR WHICH IT HAD NO
       JURISDICTION.

       II. THE TRIAL COURT ERRED AS A MATTER OF LAW TO
       COMMENCE SENTENCING IN VIOLATION OF APPELLANT’S
       6TH AND 14TH AMENDMENT RIGHTS AND CRIMINAL RULE
       44.


       III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
       REVOKING APPELLANT’S BOND IN VIOLATION OF
       APPELLANT’S 6TH AND 14TH AMENDMENT RIGHTS AND
        CRIMINAL RULE 44.

       IV. THE TRIAL COURT ERRED IN REVOKING APPELLANT’S
       BOND IN ADVANCE OF ANY VIOLATION OF BOND,
       SHOWING OF GOOD CAUSE OR CONFRONTATION.

       V. THE TRIAL COURT ERRED IN ORDERING A BENCH
       WARRANT IN ITS NOVEMBER 28, 2011 JOURNAL ENTRY
       PURSUANT TO THE NOVEMBER 22, 2011 ORDER AND
       NOTICE.

       {¶54} The substance of Appellant’s arguments appears to relate to the

restraint of her freedom pursuant to the trial court’s bond orders. She argues
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                 32


(1) the trial court was without jurisdiction to make bond orders pending her

first appeal; (2) the trial court failed to conduct a hearing as to her inability

to obtain counsel; (3) the trial court had no evidence a violation of her bond

occurred; and (4) the trial court had no reason to believe Appellant would

fail to appear at hearing.

      A. STANDARD OF REVIEW

      {¶55} The release of an accused on bail after conviction and pending

appeal is not a matter of right but a question to be resolved by an exercise of

the sound discretion of the court. Only if there is a patent abuse of such

discretion should the decision of the court denying bail be disturbed.

Christopher v. McFaul, 18 Ohio St. 3d 233, 480 N.E.2d 484 (1985), at *234,

quoting Coleman v. McGettrick, 2 Ohio St. 2d 177, 180, 207 N.E.2d 552

(1965). See, also, State v. Miller, 77 Ohio App. 3d 305, 602 N.E.2d 296

(Sept. 1991); State v. Tillimon, 6th Dist. No. L-93-334, 1994 WL 385180

(July 22, 1994). “An abuse of discretion implies that a court’s ruling is

unreasonable, arbitrary, or unconscionable; it is more than an error in

judgment.” State v. Leeth, 4th Dist. No. 05CA745, 2006-Ohio-3575, 2006

WL 1901010, at ¶ 6, citing State ex rel. Richard v. Seidner, 76 Ohio St. 3d

149, 151, 666 N.E.2d 1134 (1996). Ordinarily, we would proceed to
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           33


consideration of the issues raised by Appellant. However, because we find

Appellant’s arguments to be moot, we decline to reach the merits.

      B. LEGAL ANALYSIS

      {¶56} Appellant’s assignments of error under this case number

essentially relate to the bond orders which (1) restrained her freedom on

September 16, 2011, when she was placed on electronically monitored house

arrest, and (2) further placed restraint when she was taken into custody on

November 28, 2011. Appellant was ordered held until she served her

sentence. We also note Appellant has served her six-month term of

incarceration.

      {¶57} An appeal challenging a felony conviction is justiciable,

i.e., not moot, even if the defendant has served sentence because the

defendant “has a substantial stake in the judgment of conviction which

survives the satisfaction of the judgment imposed upon him or her.”

State v. Popov, 4th Dist. No. 10CA26, 2011-Ohio-372, 2011 WL

322475, at ¶ 5, citing State v. Adams, 8th Dist. No. 85267, 2005-Ohio-

3837, at ¶ 5; see also, State v. Howard, 4th Dist. No. 89CA1840, 1991

WL 28326 (Feb. 26, 1991), at *3. This is because when the defendant

has served his punishment, “there is no collateral disability or loss of

civil rights that can be remedied by a modification of the rights of the
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            34


sentence in the absence of a reversal of the underlying conviction. * *

*[A]nd no relief can be granted* * * subsequent to the completion of

the sentence if the conviction itself is not at issue.” State v. Bostic, 8th

Dist. No. 84842, 2005-Ohio-2184, at ¶ 22, quoting State v. Beamon,

11th Dist. No. 2000-L-160, 2001-Ohio-8712, 2001 WL 1602656, at *1.

       {¶58} In this matter, we have affirmed Appellant’s conviction in

her first appeal, appellate case number 11CA29. Since the underlying

conviction is not at issue by our disposition of the appeal set forth

under case number 11CA29, no relief can be granted Appellant. The

bond orders restrained her freedom beginning September 16, 2011.

She has served the incarceration portion of her sentence and remains on

community control. We find any issues with regard to the trial court’s

bail decisions which restrained her freedom after September 16, 2011

are now moot. As such, we overrule Appellant’s five assignments of

error under this appellate case number and affirm the judgment of the

trial court.

       Appellate case number 12CA2

       ASSIGNMENT OF ERROR

       I. THE TRIAL COURT ABUSED ITS DISCRETION IN
       OVERRULING APPELLANT’S MOTION FOR NEW TRIAL.

       Supplemental facts
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                                   35



        {¶59} During Appellant’s September 27, 2011 sentencing hearing,

the trial court referenced a 2010 letter from Dr. Margaret Sawyer. Appellant

contends (1) neither she nor her attorneys were provided discovery of the

letter prior to trial, and the letter contained information material to the

preparation of a defense; (2) the prosecutor engaged in misconduct during

trial by eliciting testimony from Woodgeard about his surgery and

“presenting it as fact” to the jury; and, (3) the prosecutor misstated the

Ogles’ testimony in his closing argument. Appellant argues these alleged

errors prejudiced her and affected the outcome of the trial.

        {¶60} With this appeal, Ogle contests the January 9, 2012 entry

which overruled her November 28, 2011 motion for new trial. The entry

from which she appeals stated she had previously filed a motion for new

trial, and the November 2011 motion raised no new issues. 8 Upon review,

we note the November 2011 motion for new trial did raise a new issue with

respect to Dr. Sawyer’s letter.

        A. STANDARD OF REVIEW

        {¶61} “Generally, a decision on a motion for a new trial is within the

discretion of the trial court.” State v. Lusher, 4th Dist. No. 11CA1, 2012-


8
 Appellant filed a motion for acquittal and new trial on August 25, 2011. It was denied by entry of
September 21, 2011.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19              36


Ohio-5526, 2012 WL 5984932, ¶ 25, citing State v. Ward, 4th Dist. No.

05CA13, 2007-Ohio-2531, 2007 WL 1518611, ¶ 41, citing State v. Schiebel,

55 Ohio St. 3d 71, 564 N.E. 2d 54 (1990), paragraph one of the syllabus.

Accordingly, we will not reverse a trial court’s decision on a motion for a

new trial absent an abuse of discretion. State v. Nichols, 4th Dist. No.

11CA912, 2012-Ohio-1608, 2012 WL 1204015, ¶ 61.

      {¶62} However, when evidence available to the prosecution is

withheld from the defense, the issue on review is different than if the

evidence had been discovered from a neutral source. When material,

exculpatory evidence is withheld by the prosecution in a criminal

proceeding, a defendant’s due process right to a fair trial under the

Fourteenth Amendment is violated. The usual standard of review for a new

trial is not applicable regardless of the good or bad faith of the prosecution.

State v. Phillips, 4th Dist. Nos. 89-CA-32, 89-CA-33, 1992 WL 42790,

(Mar. 5, 1992); State v. Johnston, 39 Ohio St. 3d 48, 60, 592 N.E.2d 898

(1988), quoting Brady v. Maryland, 373 U.S. 87, 83 S. Ct. 1194 (1963).

      {¶63} The standard used to determine whether defendant should

receive a new trial due to a prosecutor’s failure to disclose evidence is that

the defendant must have been deprived of his right to a fair trial due to the

prosecutor’s omission. Phillips, supra at *3. Absent a constitutional
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             37


violation, the prosecution’s constitutional duty to disclose is not breached.

Id, citing United States v. Bagley, 473 U.S. 667, 675-676, 105 S. Ct. 3375

(1985); United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392 (1976).

      “The Ohio Supreme Court has held that:

      ‘The suppression by the prosecution of evidence favorable to an
      accused violates due process where the evidence is material
      either to guilt or to punishment, irrespective of the good faith or
      bad faith of the prosecution. (Internal citation omitted). In
      determining whether the prosecution improperly suppressed
      evidence favorable to an accused, such evidence shall be
      deemed material only if there is a reasonable probability that,
      had the evidence been disclosed to the defense, the result of the
      proceeding would have been different.’” Phillips, supra, citing
      Bagley, 473 U.S. 667 (1984). The issue in a case where
      exculpatory evidence is alleged to have been withheld is
      whether the evidence is material. Phillips, supra at *3.

      B. LEGAL ANALYSIS

      Dr. Sawyer’s Letter

      {¶64} Appellant argues she is entitled to a new trial pursuant to

Crim.R. 33(A)(6) because the State failed to disclose the letter. Crim R.

33(A)(6) provides for the granting of a new trial when new evidence

material to the defense is discovered, and which the defendant could not

with reasonable diligence have discovered and produced at trial. For the

reasons which follow, we are not persuaded.

      {¶65} Dr. Sawyer’s letter advised Woodgeard underwent a perianal

abscess drainage procedure in the weeks subsequent to the altercation with
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19              38


Appellant. The letter informed “this type of abscess can occur because of an

infected hair follicle, a cut, abrasion, sweat gland, or by direct trauma.”

Appellant argues the letter was material to her defense in that it provided

“conclusive medical fact” Woodgeard’s procedure was not for an injury to

his genitals. Woodgeard testified to being kicked one time in his genital

area. The State emphasizes the letter was not used at trial and therefore, Ogle

was not prejudiced.

      Crim.R. 16(B)(1)(f) provides:

      Disclosure of evidence favorable to defendant. Upon motion of
      the defendant before trial the court shall order the prosecuting
      attorney to disclose to counsel for the defendant all evidence
      known or which may become known to the prosecuting
      attorney, favorable to the defendant and material either to guilty
      or punishment.***

      {¶66} In this matter, we do not believe the letter from Dr. Sawyer is

so helpful that its disclosure to Appellant prior to trial would have aided in

Appellant’s defense and affected the outcome of her trial. The mere

possibility that an undisclosed statement might have helped his defense is

not sufficient to establish “materiality” in the Constitutional sense. Id.,

citing Agurs, supra, at 109-110.

      {¶67} Appellant does not explain how the letter would have helped

her defend her case, other than repeated references to Woodgeard’s

testimony that he was kicked in the “genitals” and to a lack of testimony that
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            39


he was kicked in the “perianal” area. Appellant is not a medical expert and

neither are we. Without more to substantiate her allegation that the letter

provides “conclusive medical fact,” we cannot find a reasonable probability

that Appellant would have been acquitted if this letter had been available to

her prior to trial. The information contained in the letter is peripheral to the

issues before the jury, whether or not Woodgeard was assaulted and, if so,

did Appellant act in self-defense. We find no reasonable probability the

result of Appellant’s trial would have been different had she possessed the

letter, especially in light of Mr. Ogle’s admission on the CD that he heard

Woodgeard’s directive to his wife to step outside their vehicle and

Appellant’s admission at trial she saw Woodgeard’s tan pants and kicked in

his direction.

      Prosecutorial Misconduct

      {¶68} Appellant also argues she is entitled to a new trial pursuant to

Crim.R. 33(A)(2) which provides a new trial may be granted on motion of

the defendant for misconduct of the jury, prosecuting attorney, or the

witnesses for the state. “The test for prosecutorial misconduct is whether the

conduct was improper and, if so, whether the rights of the accused were

materially prejudiced.” State v. Jackson, 4th Dist. No. 11CA20, 2012-Ohio-

6276, 2012 WL 6761891, ¶ 35, quoting State v. Leonard, 4th Dist. No.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            40


08CA24, 2009-Ohio-6191, 2009 WL 4050254, ¶ 36, citing State v. Smith, 97

Ohio St. 3d 367, 780 N.E.2d 221 (2002), ¶ 45, in turn citing State v. Smith,

14 Ohio St. 3d 13, 14, 470 N.E.2d 883 (1984). “The ‘conduct of a

prosecuting attorney during trial cannot be grounds for error unless the

conduct deprives the defendant of a fair trial.’” State v. Givens, 4th Dist.

No. 07CA19, 2008-Ohio-1202, 2008 WL 699044,¶ 28, quoting State v.

Gest, 108 Ohio App.3d 248, 257, 670 N.E.2d 536 (8th Dist.1995). Accord

State v. Apanovitch, 33 Ohio St. 3d 19, 24, 514, N.E.2d 394 (1987).

“Prosecutorial misconduct constitutes reversible error only in rare

instances.” State v. Edgington, 4th Dist. No. 05CA2866, 2006-Ohio-3712,

2006 WL 2023554, ¶ 18, citing State v. Keenan, 66 Ohio St. 3d 402, 406,

613 N.E.2d 203 (1993). The “touchstone of analysis* * * is the fairness of

the trial, not the culpability of the prosecutor.* * *The Constitution does not

guarantee an ‘error free, perfect trial.’” Leonard at ¶ 36, quoting Gest at

257, 670 N.E.2d 536.

      {¶69} Appellant complains the prosecutor submitted Woodgeard’s

testimony of surgery to his genitals to the jury as fact. The prosecutor

questioned Woodgeard as follows:

      Q:            Did you need medical attention at a later time?
      A:            Yes, I did.
      Q:            What type of attention did you need?
      Counsel:      Objection, Your Honor.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19          41


      The Court: Overruled.
      Q:         You can answer that.
      A:         About two weeks later I was having issues down there.
                 I was admitted in the hospital for two nights and had
                 surgery and was off work for about a month.
      Q:         When you say down there, you mean your genital
                 region?
      A.         Yes sir.

      {¶70} On cross-examination, Appellant’s counsel further explored

the topic of surgery. Counsel elicited the following testimony from

Woodgeard:

      Q:            …Let’s talk a little bit about the surgery. What exactly
                    did they have to do?
      A:            They actually determined it was some sort of abscess
                    which can be caused by trauma.
      Q:            Okay. And when did you first schedule the appointment
                    with the doctor, was it prior to the incident?
      A:            There was no scheduling. It was straight to the ER.
      Q:            Okay. So you go to the ER and they admit you.
      A:            Yes.
      Q:            And it was just an abscess?
      A:            Yes.
      Q:            Okay. And it’s just an abscess, is that what you’re
                    saying?
      A:            Yes.
      Q:            Now are you indicating to this jury that the injury that
                    you supposedly received from Melanie was the cause of
                    it?
      A:            I can’t sit here and say. I’m not a licensed physician, but
                    I can tell you want my doctor said that it could b--
      Q:            Well, that’s--we can’t--
      A:            --caused from trauma.

      {¶71} We do not find Appellant was materially prejudiced or denied

a fair trial by the testimony elicited by the prosecutor regarding
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            42


Woodgeard’s surgery. Again, the issue at trial was whether Appellant’ s

kick was an assault or an act of self-defense. Any treatment Woodgeard had

for his alleged injury was an extraneous issue, not material to Appellant’s

guilt.

         {¶72} Appellant also complains the prosecutor’s statement to the jury

in closing that “[t]he position that the Ogle’s were taking that Trent came out

of the SUV and maced her up by the cruiser” was a fabrication of their

testimony. However, Appellant did not object at trial. Failure to object to

an alleged error waives all but plain error. State v. Keeley, 4th Dist. No.

11CA5, 2012-Ohio-3564, 2012 WL 3194355, ¶ 28. Notice of Crim.R.

52(B) plain error must be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice. State v.

Rohrbaugh, 126 Ohio St. 3d 421, 934 N.E.2d 920 (2010), at ¶ 6; State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three of the

syllabus. To find plain error, the outcome of the trial clearly would have

been otherwise. State v. McCausland, 124 Ohio St.3d 8, 918 N.E.2d 507

(2009), at ¶ 15; State v. Braden, 98 Ohio St.3d 354, 785 N.E.2d 439 (2003),

at ¶ 50. “Prosecutorial misconduct rises to plain error only if it is clear that a

defendant would not have been convicted in the absence of the improper

comments.” State v. Purdin, 4th Dist. No. 12CA944, 2013-Ohio-22, 2013,
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             43


WL 84897, ¶39; Keeley, supra, citing State v. Conley, 4th Dist. No.

08CA784, 2009-Ohio-1848, ¶ 27; State v. Olvera-Guillen, 12th Dist. No.

CA2007-05-118, 2008 Ohio-5416, ¶ 36. Here, we review the alleged error

under a “plain error” analysis.

         {¶73} “Generally, prosecutors are entitled to considerable latitude in

opening and closing arguments.” Jackson, supra at ¶ 42, quoting State v.

Whitfield, 2nd Dist. No. 22432, 2009-Ohio-293, 2009 WL 161336, ¶ 12.

Appellant argues at no time did she or her husband testify or suggest that the

“macing” took place by the cruiser. She argues it was Woodgeard’s

testimony only that he pepper-sprayed them between his SUV and their

truck.

         {¶74} In this case, trial court properly instructed that opening and

closing statements of counsel are not evidence. “A presumption exists that

the jury has followed the instructions given to it by the trial court.” State v.

Jones, 2012-Ohio-5677, 2012 WL 6553401, ¶ 194, citing State v. Murphy,

65 Ohio St. 3d 554, 605 N.E.2d 884 (1992). Moreover, in this matter, both

parties acknowledged Woodgeard deployed pepper-spray at Appellant and

her husband. The jury heard the testimony of both sides as to where the

events before and after the pepper-spraying transpired. Even if the

prosecuting attorney did mischaracterize, intentionally or not, the exact
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           44


location of where the pepper-spraying occurred, again, it is hardly a material

fact to these proceedings and as such, does not rise to the level of plain error.

In other words, we do not find that Appellant was convicted solely on the

prosecutor’s characterization or mischaracterization as to where the macing

took place.

      {¶75} We find the trial court did not abuse its discretion in overruling

the Appellant’s motion for a new trial on the bases of the prosecution’s

failure to disclose Dr. Sawyer’s letter or the alleged instances of

prosecutorial misconduct. We therefore overrule this assignment of error.

      Appellate case numbers 12CA11 and 12CA12

      ASSIGNMENT OF ERROR -12CA11

      I. THE TRIAL COURT ERRED BY FINDING APPELLANT
      GUILTY OF A COMMUNITY CONTROL VIOLATION FOR
      AN INCIDENT THAT OCCURRED PRIOR TO APPELLANT
      BEING SUBJECT TO THE COMMUNITY CONTROL
      SUPERVISION.

      ASSIGNMENTS OF ERROR- 12CA12

      I. THE TRIAL COURT ERRED IN ACCEPTING OGLE’S
      ALFORD PLEA WHEN THERE WAS NO EVIDENCE THAT
       THE ALLEGED VICTIM DID NOT CONSENT TO
      DEFENDANT’S ACTIONS.

      II. THE TRIAL COURT ABUSED ITS DISCRETION BY
      FAILING TO CONDUCT AN EVIDENTIARY HEARING
      ON OGLE’S CRIM.R. 32.1 MOTION TO WITHDRAW
      GUILTY PLEA.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            45


      Supplemental facts

      {¶76} After Appellant was sentenced for her assault conviction on

September 27, 2011, her sentence was initially stayed for a period of time

and she was required to wear an ankle monitor as a condition of bond. On

September 16, 2011, Appellant contracted with Greco’s Electronic

Monitoring Service (hereinafter, “Greco”) for ankle monitoring equipment

and service. She was required to sign an instruction and rules sheet. On or

about November 25, 2011, Appellant allegedly damaged the ankle monitor

by submerging it in her bathtub. As a result of this incident, the Hocking

County Grand Jury returned an indictment for one count of vandalism, a

violation of R.C. 2909.05(B)(1)(b), and a felony of the fifth degree. Due to

the new charge, the State of Ohio filed a motion to impose prison term on

Appellant’s assault conviction.

      {¶77} On May 11, 2012, Appellant’s case came on for hearing. The

record reflects the parties presented for a change of plea hearing in trial court

case number 12CR0038, the vandalism case. Appellant was present and

represented by counsel. Upon advice of counsel, she entered an Alford plea

to a reduced charge of criminal damaging, a violation of R.C.

2909.06(A)(1), a second degree misdemeanor. Appellant was found guilty

of criminal damaging and sentenced to thirty days in jail ( all suspended),
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                              46


eighteen months of non-reporting probation, restitution to Greco in the

amount of $1,300.00, and court costs. The judgment entry of sentence was

filed May 14, 2012. On May 25, 2012, the trial court filed a nunc pro tunc

judgment entry of sentence. 9 Appellant filed a pro se motion to set aside

judgment entry of sentence and dismiss indictment on July 3, 2012. The

motion was denied on August 22, 2012.

         {¶78} The record also reflects on the same date as the change of plea

hearing, May 11, 2012, the States’s motion to impose prison term in the

assault case came on for hearing and was treated as a motion to revoke

community control. At this hearing, the court discussed the evidence

surrounding Appellant’s alleged violation. The court also discussed

Appellant’s previous Alford plea to criminal damaging. The State’s attorney

orally withdrew the motion to impose a prison term at the hearing, prior to a

finding of guilty. The court then sentenced Appellant to an additional two

years of community control, an extension of the initial sentence of three

years of community control on her assault conviction, to a total of five years.

        {¶79} In appellate case number 12CA11, Ogle appeals the June 12,

2012 order that extended her term of community control. In appellate case



9
 The nunc pro tunc judgment entry clarified that the Adult Parole Authority (APA) would not be
supervising Appellant.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           47


number 12CA12, Ogle appeals the nunc pro tunc judgment entry of sentence

dated May 25, 2012.

      A. STANDARD OF REVIEW

      {¶80} Appellant’s arguments in appellate case number 12CA11 and

12CA12 are interrelated. As such, we set forth the appropriate standards of

review in both cases in this subsection. Under appellate case

number,12CA12, Appellant argues the trial court erred in accepting her

guilty plea. The decision to accept or refuse a guilty plea is within the sound

discretion of the trial court. State v. Byrd, 4th Dist. No. 2008-Ohio-3909,

2008 WL 2955447, ¶ 4; State v. Bronaka, 11th Dist. No. 2007-L-095, 2008-

Ohio-1334, at ¶ 6. As such, an appellate court will not overrule a trial

court’s judgment absent an abuse of discretion. Byrd, at ¶ 4. The standard of

review has been set forth more fully above under appellate case number

11CA32.

      {¶81} Appellant also argues under appellate case number 12CA12,

the trial court abused its discretion in failing to conduct an evidentiary

hearing as to Appellant’s motion to set aside judgment entry of sentence and

dismiss indictment. Under Crim.R. 32.1, a trial court may grant a post-

sentence motion to withdraw a guilty plea only to correct a manifest

injustice. State v. Dotson, 4th Dist. No. 03CA53, 2004-Ohio-2768, 2004 WL
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            48


1188988, ¶ 5. The Supreme Court of Ohio has defined “manifest injustice”

as a clear or openly unjust act. Id., citing State ex rel. Schneider v. Kreiner,

83 Ohio St. 3d 203, 208, 699 N.E.2d 83 (1998). This standard permits a

defendant to withdraw his guilty plea only in extraordinary cases. Dotson,

supra; State v. Smith, 49 Ohio St. 2d 261, 264, 361 N.E.2d 1234 (1977). The

decision to grant or deny a post-sentence motion to withdraw a guilty plea is

committed to the sound discretion of the trial court. Smith, 49 Ohio St. 2d

261, 361 N.E.2d 1324, paragraph two of the syllabus. An appellate court,

therefore, will not reverse the trial court’s decision absent an abuse of

discretion. State v. Xie, 62 Ohio St. 3d 521, 526, 584 N.E.2d 715 (1992).

      {¶82} Under appellate case number 12CA11, Appellant argues the

trial court erred in extending the term of her community control in her

assault conviction. This argument is interrelated to her conviction for

criminal damaging. “‘The right to continue on community control depends

on compliance with community control conditions and is a matter resting

within the sound discretion of the court.’ (Citation omitted). State v.

Jackson, 2nd Dist. Nos. 23457 and 23458, 2010-Ohio-2836, 2010-WL

2499945, ¶ 56. Accordingly, we review the trial court’s decision to revoke a

defendant’s community control for an abuse of discretion.” (Citation
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           49


omitted). Id; State v. Eversole, 2nd Dist. No. 23444, 2010-Ohio-1614, 2001

WL 1410727, ¶ 33-34.

      {¶83} However, to the extent that we must interpret and apply

statutes, our review is de novo. State v. Knowlton, 4th Dist. No. 10CA31,

971 N.E.2d 295, 2012-Ohio-2350, ¶ 28. See Roberts v. Bolin, 4th Dist. No.

09CA44, 2010-Ohio-3783, 2010 WL 31949411, at ¶ 20, quoting State v.

Sufronko, 105 Ohio App. 3d 504, 506, 664 N.E.2d 596 (4th Dist. 1995), (“

‘When interpreting statutes and their application, an appellate court conducts

a de novo review, without deference to the trial court’s determination.’”).

      B. LEGAL ANALYSIS

      {¶84} Although chronologically, appellate case number 12CA11 is

first, we discuss the assignments of error set forth in 12CA12 first for ease of

understanding. The first assignment of error in 12CA12 is Appellant’s

assertion the trial court erred in accepting her Alford plea because she asserts

there was no factual basis for the plea. Appellant contends Greco consented

to her action of submerging the ankle monitor in her bathtub. We begin by

reviewing the purposes of the Alford plea.

      {¶85} North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970),

provides a method by which a defendant is able to maintain his factual

innocence yet enter a plea of guilty. State v. Byrd, 4th Dist. No. 07CA29,
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           50


2008-Ohio-3909, 2008 WL 2955447. “A defendant who believes himself to

be innocent of the charges against him may rationally conclude that the

evidence against him is so incriminating that there is a significant likelihood

that a jury would find him guilty of the offense. (Citation omitted.)

Consequently, the defendant may rationally conclude that accepting a plea

bargain is in his best interests, since he will avoid the risk of greater

punishment if found guilty by a jury. (Citation omitted.) When a defendant

so chooses to enter this plea, it is known as an Alford plea of guilty.” Byrd,

supra at ¶ 16, quoting State v. Banjoko, 2nd Dist. No. 21978, 2008-Ohio-

492, 2008 WL 308456, at ¶ 12.

      {¶86} An Alford plea is “merely a species of a guilty plea, having the

effect of waiving [a defendant’s] right to appeal.” State v. Darks, 10th Dist.

Nos. 05AP-982, 05AP-983, 05AP-984, 2006-Ohio-3144, 2006 WL1703731,

14, citing State v. Carter, 124 Ohio App.3d 423, 706 N.E.2d 409, (2nd

Dist.1997), at 429. The standard for determining the validity of an Alford

plea is the same as a regular plea: whether the plea represents a voluntary

and intelligent choice among the alternative courses of action available to a

defendant. Id; State v. Post, 32 Ohio St. 3d 380, 513 N.E.2d 754 (1987).

      {¶87} The Supreme Court of Ohio has held that, in the context of an

Alford plea, the plea is voluntarily and intelligently made “[w]here the
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             51


record affirmatively discloses that : (1) defendant’s guilty plea was not the

result of coercion, deception, or intimidation; (2) counsel was present at the

time of the plea; (3) counsel’s advice was competent in light of the

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

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

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

jury trial, or both* * *.” Byrd, ¶ 17, quoting State v. Piacella, v. 27 Ohio St.

2d 92, 271 N.E.2d 852 (1971), at the syllabus.

      {¶88} Conspicuously absent from Appellant’s recitation of the facts

in her brief is the additional fact that Appellant’s decision to enter an Alford

plea was pursuant to plea negotiations. Plea agreements are contracts

between the state and criminal defendants and are subject to contract-law

principles. State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577, 829 N.E.

2d 729, ¶ 7; State v. Butts, 112 Ohio App. 3d 683, 685-686, 679 N.E.2d

1170, (8th Dist. 1996). (Additional citations omitted.). By entering a plea

agreement, Appellant effectively waived her right to appeal, except as to

issues with knowledge and voluntariness of the plea. Notably, the record

herein reveals Appellant’s background, experience, age, and education and,

along with the transcript, supports an interpretation that Appellant’s plea was

intelligent and voluntary. As to the specific Alford requirements set forth,
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           52


infra, we also note these issues were discussed with Appellant and her

counsel at the May 11th hearing on her change of plea. The plea

arrangement was described as follows:

      Mr. Archer:         Your Honor, we had agreed that we would amend
      the vandalism charge to criminal damaging, a vilation of Section
      2909.06(A)(1), a misdemeanor of the second degree. It is my
      understanding that the defendant was going to then enter an Alford
      plea of guilty. We are requesting restitution in the amount of
      $1,300.00 to Greco Electronic Monitoring Company, and we have
       no objection to probation in the matter.

      The Court:         All right, and Mr. Edwards, is that your
      understanding of the arrangement, sir?

      Mr. Edwards:       Yes, it is, Your Honor, yes.

      The Court:         All right. And Ms. Ogle, is that your understanding
      of the arrangement also”

      Defendant:         Yes, Your Honor.

      {¶89} The trial court further advised before he could accept

Appellant’s plea, he must inquire as to whether the plea was freely,

voluntarily, knowingly, and intelligently made. The following exchange

took place:

      The Court:         First, do you fully understand your constitutional
      rights?

      Defendant:         Yes, sir.

      The Court:         And were they explained to you by your attorney?

      Defendant:         Yes, sir.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19         53


      ***

      The Court:        And were you threatened in any way to have
      you change your plea today?

      Defendant:         No sir.

      The Court:         Were you promised anything besides the plea
      arrangement that we put on the record here a moment ago in order
      for you to change your plea?

      Defendant:         No sir.

      The Court:        And have you had enough time with you attorney,
      Mr. Edwards, in order to review any defenses that you may have?

      Defendant:         Yes, sir.

      The Court:         And is there anything unusual about your present
      mental or physical condition?

      Defendant:         No, sir.

      The Court:        And are you presently under the influence of
      alcohol or drugs?

      Defendant:         No, sir.

      The Court:         Do you have any difficulty in reading or writing
      the English language?

      Defendant:         No, sir.

      The Court:         And what is your present age?

      Defendant:         Forty-nine.

      The Court:         And how far did you go in school?

      Defendant:         I did a year and a half of college.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             54



The trial court went on to discuss the allegations against Appellant.

      The Court:           Do you understand the allegations contained
      originally in the indictment, but now on the - - on the amended
      charge? Do you understand the elements that the state would have
       to prove?

      Defendant:          Yes, sir.

      The Court:         And do you have any questions about any of the
      elements of the offense?

      Defendant:           No, sir.
              ***
      The Court:           All right. Well, actually you are pleading guilty,
      but it is going to be an Alford plea.

      Defendant:          Correct.

      {¶90} The trial court then reviewed Appellant’s constitutional right to

speedy trial, trial by jury, the right to confront and cross examine witnesses,

and the right to subpoena witnesses. The court asked specifically:

      The Court:         You have the right to force the state or prove each
      and every element of its case against you beyond a reasonable doubt,
      but by entering your plea of guilty, this will not occur. Do you
      understand that?

      Defendant:          By entering an Alford plea, yes.

      {¶91} The trial court further inquired as to Appellant’s satisfaction

with her legal representation and the penalties for a second degree

misdemeanor. Specifically, the court engaged in the following colloquy

with Appellant:
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            55


      The Court:            All right. Okay. Now as to the Alford plea, do you
      understand that although you are maintaining your innocence, if you
      plead guilty, I still can find you guilty of this offense?

      Defendant:          Yes, sir.

      The Court:        And have you consulted with your attorney, Mr.
      Edwards, about this decision?

      Defendant:          Yes, sir.

      The Court:         And what reasons to you have for entering a plea
      of guilty even though you are claiming meaning you are innocent?

      Defendant:          The Alford plea? What?

      The Court:         Yes. The thing is the normal reasons are that - -
      you know, you’ve been offered a plea arrangement that you believe
      is advantageous to take and at this point, you know, you want to take
      advantage of that.

      Defendant:          Primarily because there is this probation issue in
      the other case- -

      The Court:          Okay.

      Defendant:        - - that would cause me- - it would be detrimental
      to myself and my family.

      The Court:          I understand. And, Mr. Edwards, I’m sure you
      have discussed all that with her.

      Mr. Edwards:         Oh, Your Honor, yes, and I think this really is a
      classic Alford plea where she fully understands the defenses, that she
      is entering this plea based on avoid the consequences of going to trial
      on the felony offense, yes.

      The Court:          And do you understand that if you still want to
      plead guilty under these circumstances that the Court will require that
      a statement of facts be read into the record to insure that there is a
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           56


       factual basis to accept you change of plea. Do you understand that?

       Defendant:           Yes, sir.

       The Court:          And is your decision based in whole or in part
       upon the fear of consequences of a jury trial and or your desire to seek
       a lesser penalty by entering a plea at this time- - and essentially the
       probation matter also?

       Defendant:           Yes, sir.

       {¶92} Later in the hearing, the State of Ohio recited the underlying

facts of the case which Appellant pled to as follows:

      Through the course of the prior case, Mrs. Ogle was required to wear
an ankle monitor that was provided by Greco Electronic Monitoring
Company. During the course of the introduction and instructions, Mrs. Ogle
was advised she could not submerge the ankle bracelet in water without
causing damage to it. On or about November 25th of last year, the ankle
bracelet was submerged in the bathtub to the point that it was no longer
functioning and that’s the basis for this charge.

       The Court:           All right. And Mr. Edwards, any comment on the
facts at this point, sir?

       Mr. Edwards:        Your Honor, I think that for the purpose of the
       Alford plea, we’ll make no comment on the facts. Thank you.

       {¶93} In this matter, we find the trial court did not abuse its

discretion in accepting Appellant’s Alford plea. Appellant entered her plea

pursuant to a negotiated agreement. As such, Appellant essentially waived

any arguments regarding her Alford plea, but for knowledge and

voluntariness. We note, however, the State read the factual basis into the

record, and Appellant did not object to the recitation of facts. Appellant was
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19            57


questioned at length as to her understanding of the plea, her constitutional

rights, and the process. Specifically, she was asked if she had discussed any

defenses with her counsel. She was also asked about her reasons for

entering her plea. The trial court also asked numerous questions of which

Appellant’s responses indicated her knowledge and voluntariness. We find

the trial court did not abuse its discretion in accepting her plea and overrule

this assignment of error.

      {¶94} Under the second assignment of error in case number 12CA12,

Appellant argues the trial court abused its discretion in failing to conduct an

evidentiary hearing on the pleading she entitled “motion to set aside

judgment entry of sentence and dismiss indictment.”

      App.R. 3(D) provides in pertinent part as follows:

      The notice of appeal shall specify the party or parties taking the
      appeal; shall designate the judgment, order or part thereof
      appealed from; and shall name the court to which the appeal is
      taken.

      {¶95} An appellate court need not review the merits of the

judgment or order unless it is designated or otherwise referenced in

the notice of appeal. State v. Browning,5th Dist. No. CTS2004-0036,

2004-Ohio-6992, 2004 WL 2955180, ¶ 20; Schloss v. McGinness, 16

Ohio App.3d 96, 97-98, 474 N.E.2d 666 (1984); State v. Perez, 5th

Dist. No. 03CA-107, 2004-Ohio-3646, at ¶ 22. Here Appellant has
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           58


not filed notice of appeal from the August 22, 2012 judgment entry

denying her motion to set aside sentence and dismiss indictment.

Under appellate case number 12CA12, Appellant only appealed the

May 25, 2012 nunc pro tunc order. This Court court could easily find

it is without jurisdiction to address the merits of Appellant’s

argument. However, in the interests of justice, we will proceed

further.

      {¶96} Generally, when a defendant files a Crim.R. 32.1 motion to

withdraw a guilty plea, trial courts will conduct an evidentiary hearing;

however, trial courts are not always required to do so. Dotson, at ¶ 6; State

v. Moore, 4th Dist. No. 01CA674, 2002-Ohio-5748, at ¶ 17. Here,

Appellant did not name her motion a “motion to withdraw plea” and

Appellee has not conceded that it was.

      {¶97} Trial courts need only conduct an evidentiary hearing where

the facts, as alleged by the defendant, indicate a manifest injustice would

occur if the plea was allowed to stand. Id. Moreover, an evidentiary hearing

is not required if the defendant’s allegations are “conclusively and

irrefutably contradicted by the record.” Id. at 18. We also note Appellant

never requested a hearing on her motion, and as such, she waives this
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             59


argument on appeal. See State v. Rodgers,8th Dist. No. 95560, 2011-Ohio-

2535, 2011 WL 211723, ¶ 34.

      {¶98} Based on our resolution of Appellant’s assignment of error that

the trial court did not err in accepting the Alford plea, above, we also find no

manifest justice will occur by allowing Appellant’s plea to stand.

Furthermore, the trial court did not abuse its discretion in failing to conduct

an evidentiary hearing in this matter. Appellant’s second assignment of error

in appellate case number 12CA12 is also overruled.

      {¶99} Finally, we turn to Appellant’s sole assignment of error in case

number 12CA11, that the trial court erred in extending her term of

community control an additional two years. Appellant pled to criminal

damaging on May 11, 2012. The motion to impose prison term, which was

filed as a result of the vandalism indictment, also came on for hearing on

May 11, 2012. Appellant resolved issues in the two cases on the same day.

       {¶100} “Community control sanction” means a sanction that is not a

prison term and that is described in section 2929.15, 2929.16, 2929.17, or

2929.19 of the Revised Code or a sanction that is not a jail term and that is

described in section 2929.26, 2929.27, or 2929.28 of the Revised Code.

“W]hen a trial court seeks to extend a community control sanction, ** *it

must provide the minimum due process rights of notice, hearing and right to
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           60


counsel.” State v. Fairbank, 6th Dist. Nos. WD-06-015, WD-06-016, 2006-

ohio-6180, 2006 WL 3378338, ¶16, quoting State v. Stollings, 2d Dist. No.

2000-CA-86, 2001 WL 501981, (May 11, 2001), *3. “However, also like

revocation hearings, the hearing need not have all the formalities of a

criminal trial. The hearing must be sufficient to verity the allegations of

violation of community control sanctions.” Id; Jackson, supra at 55.

      {¶101} Appellant contends the community control sanction of her

sentence had not yet commenced. She urges a characterization of the May

11, 2012 as an unconstitutional resentencing of which she was afforded no

notice or opportunity to be heard. However, the record properly reflects the

extension of Appellant’s community control was pursuant to plea

negotiations Appellant voluntarily entered, aided by legal counsel. Appellant

pled to criminal damaging on May 11, 2012. The motion to impose prison

term, which was filed as a result of the vandalism indictment, also came on

for hearing on May 11, 2012. Appellant resolved issues in two cases on the

same day. The transcript of the hearing on the State’s motion reveals the

following exchange took place:

             THE COURT:          All right, I’ve had an opportunity to
             hear the prior proceedings. I also have had conversations
             with counsel with respect to this matter and it’s my
             understanding that the defendant has entered a plea—an
             Alford plea, to an M3, I believe.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19           61



            Mr. Edwards:        M2, Your Honor.

            THE COURT:          M2?

            Mr. Edwards:        Yes, sir.

            THE COURT:          And the Judge has imposed probation.
            Clearly that’s a violation of her probation, but I have
            advised counsel that I don’t plan on doing anything
            further with respect to that other than I believe we’ve
            reached an agreement that the probation should be
            extended from the present three year period of time to
            five years, and there will be no other sanction with
            respect to this matter. Is that your understanding, Mr.
             Edwards?

            Mr. Edwards:        That is my understanding, yes, sir.

            THE COURT:          Is that your understanding, Ms. Ogle?

            DEFENDANT:          Yes, sir.

            THE COURT:          All right.

            Mr. Gleeson:        Yes, I agree.

            THE COURT:        The State’s understanding. Okay.
            Anything further on this matter?

            Mr. Gleeson:       Only for formality sake on the record,
            I would formally withdraw the motion to impose a prison
            sanction that was previously filed.

      {¶102} The transcript makes abundantly clear Appellant entered a

plea agreement in which she resolved two cases and received a substantial

benefit. The transcript reflects the vandalism charge had been reduced to a
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19          62


misdemeanor. Appellant had been sentenced on the misdemeanor charge, a

jailable offense, and had essentially received probation. Appellant agreed to

a two-year extension of her community control and her verbal

acknowledgement of the terms of her plea bargain and the extension is noted

in the transcript. The State’s motion to impose prison term on the assault

conviction was withdrawn. Importantly, Appellant was represented by

counsel. The record reflects the court verified the understanding of the

agreement with Appellant’s counsel and the State’s attorney.

      {¶103} Furthermore, R.C. 2953.08, appeal as a matter of right-

grounds, provides in pertinent part:

             (A) In addition to any other right to appeal and except as
      provided in division (D) of this section, a defendant who is
      convicted of or pleads guilty to a felony may appeal as a matter
      of right the sentence imposed upon the defendant on one of the
      following grounds:

             (4) The sentence is contrary to law.

            (D)(1) 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.

      {¶104} Community control was imposed as part of Appellant’s

sentence for felony assault. It was imposed pursuant to plea negotiations

which also resolved a misdemeanor charge. Community control as part of a

felony sentence may not exceed five years. R.C. 2929.15(A)(1). Similarly,
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19         63


community control as part of a misdemeanor sentence may not exceed five

years. R.C. 2929.25(2). The record reflects this was an agreed sentence and

our review indicates it is not contrary to law. We agree Appellant waived her

right to appeal. As such, we affirm the judgment of the trial court and

overrule this assignment of error.

      Appellate case number 12CA19

      ASSIGNMENTS OF ERROR

      I. THE TRIAL COURT ERRED TO THE PREJUDICE OF
      DEFENDANT-APPELLANT AS A MATTER OF LAW IN
      DENYING HER A TRIAL BY WAY OF ITS AUGUST 6, 2012
      ENTRY.

      II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
      DEFENDANT-APPELLANT AS A MATTER OF LAW IN
      DENYING HER MOTION FOR LEAVE TO FILE A MOTION FOR
      NEW TRIAL BY WAY OF ITS AUGUST 30, 2012 ENTRY.

      Supplemental facts

       {¶105} Appellant filed a Crim. R. 33(B) motion for leave to file a

motion for new trial on August 2, 2012. In her memorandum of support,

Appellant argued a new affidavit presented by Trent Woodgeard, contained

testimony which differed dramatically from the testimony Woodgeard gave
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                                        64


at the assault trial. 10 She further argued she was unavoidably prevented

from discovering the affidavit in order to file a timely motion for new trial.

         {¶106} The trial court filed an entry on August 6, 2012 denying the

motion for the reason that Appellant did not provide “proof of differing

testimony.” The trial court’s entry also indicated if differing testimony was

provided, the court would reconsider the request. Upon receipt of the

August 6, 2012 entry, Appellant filed a motion for an entry clarifying the

August 6th entry. On August 27, 2012, the trial court filed a decision

clarifying the August 6th Entry.

         {¶107} On August 29, 2012, Appellant filed a second motion for

leave, again utilizing the newer affidavit of Trent Woodgeard. On August

30, 2012, the trial court denied Appellant’s motion for leave a second time.

Under this appellate case number, Ogle appeals the August 6, 2012 and

August 30, 2012 entries denying her motions for leave.

         A. STANDARD OF REVIEW

         {¶108} The 10th District Court of Appeals has held an abuse of

discretion standard is to be applied in reviewing a court’s denial of a motion

for leave to file a motion for new trial. State v. Anderson, 10th Dist. No.

12AP-133, 2012-Ohio-4733, 2012 WL 4848949, at ¶ 9, citing State v.
10
  Appellants have filed a civil lawsuit in the United States District Court for the Southern District of Ohio.
Woodgeard’s affidavit containing alleged “dramatically differing testimony” was filed in the federal court
case.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19             65


Townsend, 10th Dist. No. 08AP-371, 2008-Ohio-6518, 2008 WL 5196493, ¶

8. In addition, “[I]t is not sufficient for an appellate court to determine that a

trial court abused its discretion simply because the appellate court might not

have reached the same conclusion or is, itself, less persuaded by the trial

court’s reasoning process than by the countervailing arguments.” Anderson,

supra, quoting State v. Morris, 132 Ohio St. 3d 337, 972 N.E.2d 528 (2012),

at ¶ 14. We will consider Appellant’s two assignments of error under this

case number jointly.

      B. LEGAL ANALYSIS

      {¶109} Appellant argues that in her August 2, 2012 and August 29,

2012 Crim. R. 33(B) motions, she was requesting leave pursuant to the rule

and the trial court erred by failing to follow a two-step process. She asserts

the only decision before the trial court upon filing of her motions was to

determine whether or not she had demonstrated she was unavoidably

prevented from timely filing a motion for new trial and discovering the

allegedly new evidence, i.e., the affidavit of Woodgeard filed in the federal

court case. She concludes the trial court erred since it made no finding that

she was unavoidably prevented from discovering Woodgeard’s affidavit

within the 120-day period prescribed by Crim.R. 33(B). Appellant has

misinterpreted the rule.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19     66


      {¶110} Crim.R. 33(B) imposes the following requirements for the

filing of a motion for new trial as follows:

      Motion for new trial; form time. Application for a new trial
      shall be made by motion which, except for the cause of newly
      discovered evidence, shall be filed within fourteen days after
      the verdict was rendered, or the decision of the court where ha
      trial by jury has been waived, unless it is made to appear by
      clear and convincing proof that the defendant was unavoidably
      prevented from filing his motion for a new trial, in which case
      the motion shall be filed within seven days from the order of
      the court finding that the defendant was unavoidably prevented
      from filing such motion within the time provided herein.

      Motions for new trial on account of newly discovered evidence
      shall be filed within one hundred twenty days after the day
      upon which the verdict was rendered, or the decision of the
      court where trial by jury has been waived. If it is made to
      appear by clear and convincing proof that the defendant was
      unavoidably prevented from the discovery of the evidence upon
      which he must rely, such motion shall be filed within seven
      days from an order of the court finding that he was unavoidably
      prevented from discovering the evidence within the one
      hundred twenty day period.

      {¶111} In State v. Valentine, 11th Dist. No. 2002-P-0052,

2003-Ohio-2838, 2003 WL 21267813, the trial court summarily

overruled appellant’s delayed motion for new trial. Valentine failed

to offer any explanation as to why he was unavoidably delayed from

discovering the proffered evidence. On appeal, Valentine argued the

trial court had a duty to first determine if he was unavoidably

prevented from discovering the new evidence within the 120-day time
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19         67


frame. The appellate court concluded it would have been better

practice to clearly state the basis for overruling the motion, but under

the facts, the trial court did not abuse its discretion.

       {¶112} In Anderson, supra, the trial court denied appellant’s

motion for leave for the reasons that (1) the evidence was not “newly

discovered” and, (2) the motion was not timely. The trial court did

not issue an order stating that appellant had been unavoidably

prevented from timely filing a motion for new trial. The appellate

court, as in Valentine, concluded under the facts of the case, the trial

court did not abuse its discretion by its implicit findings and, further,

did not abuse its discretion in refusing to issue an order recognizing

appellant had been unavoidably prevented from discovering the

evidence at issue within the 120-day time period of Crim.R.33(B).

       {¶113} In the case sub judice, the trial court denied the motion

the first time it was presented. The trial court stated:

       Defendant has requested this Court to grant her a new trial
       pursuant to Crim. R. 33(B). Defendant asserts that the “victim”
       witness has provided testimony in an unrelated case that
       substantially differs from the testimony he gave a Defendant’s
       trail. (sic.) The Defendant has not provided this Court with any
       proof of the differing testimony. The request is denied.
       However, if the Defendant provides this Court with the
       transcripts of the differing testimony the Court will consider the
       request.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19        68


       {¶114} In Appellant’s second motion, she attached

Woodgeard’s affidavit but failed to attach the trial transcripts. The

trial court had nothing to compare to the affidavit of Woodgeard. In

denying the second motion for leave, the trial court stated:

      The Court on two previous occasions advised the defendant it
      will not consider her motion for leave without all evidentiary
      matter supporting her motion being attached to the Motion for
      Leave. The Defendant has provided the affidavit off (sic.)
      Officer Woodgeard but has not provided a transcript of the trial
      testimony that she believes differs from the affidavit. The
      Motion is denied.

       {¶115} Standing alone, with no further explanation as

presumably would be demonstrated by the trial transcripts, the trial

court had no basis on which to conclude that the affidavit was, in fact,

newly discovered evidence. Further, Appellant put forth no clear and

convincing proof that she was unavoidably prevented from the

discovery of the alleged new evidence. Without clear and convincing

proof, the trial court is unable to make a specific finding or order.

      {¶116} It appears by the attempts to give guidance as to the

filing of the motions for leave, the trial court was not completely

unsympathetic to Appellant’s cause. We can find no abuse of

discretion in the denial of Appellant’s motions for leave. These
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19   69


assignments of error are also overruled. The judgment of the trial

court under this appellate case number is also affirmed.

                                                JUDGMENT AFFIRMED.
Hocking App. Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19                         70


                                   JUDGMENT ENTRY


       It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Hocking
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 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.
Exceptions.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.


                                                       For the Court,

                                               BY:     _____________________________
                                                       Matthew W. McFarland
                                                       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.
