[Cite as Bradley v. Hooks, 2017-Ohio-4105.]


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

LARRY WAYNE BRADLEY,             :
                                 :   Case No. 16CA3576
     Petitioner-Appellant,       :
                                 :
     vs.                         :   DECISION AND JUDGMENT
                                 :   ENTRY
MARK HOOKS, WARDEN,              :
                                 :
     Respondent-Appellee.        :   Released: 05/26/17
_____________________________________________________________
                           APPEARANCES:

Larry Wayne Bradley, Chillicothe, Ohio, Pro Se Appellant.

Michael DeWine, Attorney General of Ohio, and Stephanie Watson,
Principal Assistant Attorney General of Ohio, Columbus, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from a Ross County Court of Common Pleas

judgment entry granting Appellee, Mark Hooks, Warden's, motion to

dismiss Appellant, Larry Wayne Bradley's, petition for habeas corpus. On

appeal, Appellant challenges the trial court's grant of Appellee’s Civ.R.

12(B)(6) motion to dismiss and thus the denial of his petition. Because

Appellant’s petition for habeas corpus fails on both procedural and

substantive grounds, we cannot conclude that the trial court erred in granting

Appellee’s Civ.R. 12(B)(6) motion for dismissal for failure to state a claim.
Ross App. No. 16CA3576                                                                                       2

As such, the arguments raised by Appellant on appeal are without merit.

Accordingly, the judgment of the trial court is affirmed.

                                                  FACTS

         {¶2} On June 27, 2016, Appellant, Larry Wayne Bradley, filed a

petition for a writ of habeas corpus in the Ross County Court of Common

Pleas alleging that he was being illegally confined and restrained by Mark

Hooks, Warden of the Ross Correctional Institution, in connection with

convictions and sentences entered by the Jackson County Court of Common

Pleas and the Scioto County Court of Common Pleas. He further alleged in

his petition that his imprisonment and detention was without legal authority

as his plea agreements which resulted in his convictions were not within the

subject matter jurisdictions of either court. He argued he was entitled to

immediate release as a result. Although Appellant attached a sworn affidavit

verifying the truth of the statement contained in his petition, he failed to

attach copies of his commitment papers from the Jackson and Scioto County

Courts.1 Thus, we have very limited information regarding Appellant’s

procedural history and the convictions of which he is complaining.

         {¶3} Because the information accompanying Appellant’s petition is

severely lacking, we take judicial notice of the information provided on the
1
 He also failed to attach an affidavit describing each civil action or appeal filed within the previous five
years. He likewise failed to attach a certified statement from his prison cashier setting forth the balance in
his private account for each of the preceding six months.
Ross App. No. 16CA3576                                                                                       3

Ohio Department of Corrections webpage, which indicates that Appellant is

currently incarcerated for a first degree felony aggravated robbery

conviction that occurred in Scioto County, as well as a fourth degree felony

receiving stolen property conviction that occurred in Jackson County, and

that his scheduled date of release from prison is not until November 25,

2018.2 We further take judicial notice of a prior decision issued by this

Court with respect to a previous petition for habeas corpus filed by

Appellant in the Scioto County Court of Common Pleas, which set forth the

facts regarding Appellant’s Scioto county conviction and incarceration

history as follows:

         “In December 2009, Bradley was indicted by the Scioto County
         Grand Jury on charges of Aggravated Robbery, Robbery,
         Conspiracy to Commit Aggravated Robbery and/or Robbery,
         Kidnapping (two counts), and Tampering with Evidence. The
         indictment included a firearm specification and a vehicle
         forfeiture specification. Eventually, the State dismissed the
         Conspiracy charge, and Bradley pleaded not guilty to all counts
         of the indictment. However, on January 5, 2010, Bradley
         changed his plea, and entered a plea of guilty to the Aggravated
         Robbery charge and forfeiture specification. The remaining
         counts of the indictment were dismissed. Bradley was
         ultimately sentenced to serve nine years in prison, with three of
         those years being mandatory. The sentencing entry, filed on
         January 6, 2010, indicates that ‘[t]his [was] an agreed sentence
         pursuant to Ohio Revised Code Section 2953.08(D).’

2
  Both trial courts and appellate courts can take judicial notice of filings readily accessible from a court's
website. State v. Wright, 4th Dist. Scioto Nos. 15CA3705, 15CA3706, 2016-Ohio-7795, FN. 3; citing In re
Helfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio-1933, ¶ 35; State ex rel. Everhart v. McIntosh, 115
Ohio St.3d 195, 2007-Ohio-4798, 974 N.E.2d 516, ¶ 8, 10 (court can take judicial notice of judicial
opinions and public records accessible from the internet).
Ross App. No. 16CA3576                                                         4

      Bradley did not file a direct appeal of his conviction and
      sentence. However, in the six plus years since his guilty plea
      and imposition of sentence, Bradley has caused a deluge of
      post-conviction motions and other documents to be filed with
      the trial court. His most recent filings include, inter alia, a
      motion for judicial release filed on December 12, 2014, and a
      pro se petition to discharge filed on September 17, 2015. The
      trial court denied the motion for judicial release on April 8,
      2015. Bradley appealed the denial of his motion for judicial
      release to this Court; and we dismissed his appeal for lack of
      jurisdiction concluding that a trial court's denial of a motion for
      judicial release is not a final appealable order. See State v.
      Bradley, 4th Dist. Scioto No. 15CA3698 (Decision and
      Judgment Entry filed on August 18, 2015).” State v. Bradley,
      4th Dist. Scioto No. 15CA3721, 2016-Ohio-3245, ¶ 2-3.

In that decision, we construed Appellant’s petition for discharge as a petition

for habeas corpus and dismissed it for lack of jurisdiction, based upon the

fact that the petition was filed in a county other than where Appellant was

incarcerated. Id. at ¶ 1; citing R.C. 2725.03; Brown v. Hall, 123 Ohio St.3d

381, 2009-Ohio-5592, 916 N.E.2d 807, ¶ 1. However, before doing so, we

noted that Appellant argued “that his now deceased twin brother, named

Larry W. Bradley, was the actual perpetrator of the crimes.” Id. at ¶ 6. We

further noted Appellant’s argument “that his identity has been mistaken and

that his petition should have been granted because his conviction is unlawful

due to insufficient evidence, and because he was denied effective assistance

of counsel throughout the pre-trial process.” Id.
Ross App. No. 16CA3576                                                          5

      {¶4} A review of Appellant’s filings in the Ross County Court of

Common Pleas and now on appeal indicates Appellant filed the underlying

petition for habeas corpus in Ross County in response to our decision that

the Scioto County Court of Common Pleas did not have jurisdiction to

consider his petition, as he was incarcerated in Ross County. In response,

Appellee, Warden Mark Hooks, filed a motion to dismiss Appellant’s

petition, citing procedural as well as substantive deficiencies, and noting

Appellant’s maximum sentence had not yet expired. Appellant filed a pro se

response to Appellee’s motion to dismiss, expanding his arguments to

include a reference to a twin brother who he claims was actually the

individual who committed the crimes to which Appellant was convicted and

sentenced. Appellant also filed a separate pleading entitled “Plaintiff’s Pro

Se Motion to Dismiss Indictment,” which again made allegations regarding

his twin brother, as well as ineffective assistance of counsel and corruption

by Scioto County government officials.

      {¶5} On October 17, 2016, the Ross County Court of Common Pleas

granted Appellee’s motion to dismiss, thereby dismissing Appellant’s

petition for habeas corpus. The trial court cited Appellant’s failure to attach

his commitment papers, as well as the fact that his maximum sentence had

not expired in support of its decision, and in doing so rejected Appellant’s
Ross App. No. 16CA3576                                                          6

assertion that the Scioto County Court of Common Pleas lacked subject

matter jurisdiction over the underlying matter. With respect to Appellant’s

remaining pro se motion to dismiss indictment, finding it had no jurisdiction

to dismiss a Scioto County indictment not properly before it, the trial court

denied Appellant’s motion to dismiss. It is from this decision and entry

Appellant now brings his appeal, setting forth the following assignments of

error for our review.

                        ASSIGNMENTS OF ERROR

      {¶6} Appellant's brief is difficult, at best, to decipher. However, it

appears Appellant sets forth the following "Proposition of Law #1" as an

assignment of error:

      "THE TRAIL COURTS ERRED BY NOT ALLOWING THE
      INTRODUCTION OF LARRY W BRADLEY THE
      INTRODUCTION TO QUESTION AND RESOLVES THE
      ISSUES OF AND ABOUT POLICE ARRESTING THE
      WRONG PERSON AS TO LARRY W. BRADLEY ABOUT
      CASE#09-CR-0170 OUT OF JACKSON OHIO COURT OF
      COMMON PLEAS.OR CASE # 09CR1174 OF A ROBBERY IN
      VIOLATION OF THE OHIO REVISED CODE AND THE
      FEDERAL AND OHIO CONSTITUTION PROTCTION OF DUE
      PROCESS OF LAW AND FUNDMENTALS FAIRNESS EQUAL
      PROTECTION OF THE RIGHTS TO {A} COMPLETE DEFENSE
      AT A PRETRAIL OR TRAIL ON EACH CASE #S." [SIC]

Appellant's brief contains another section entitled "Designation Setting For

Assignment Errors To Re= 16-CI-297= Now Appeal# 16-CA-003576"

which appears to list additional assignments of error. They are as follows:
Ross App. No. 16CA3576                                                            7

      "1. IM NOT LARRY W. BRADLEY.
      2 THAT A DIED PERSON NAME.
      3 THAT A DIED PERSON SIGNER ON EACH CASE # 09 CR
         0170 AND 09 CR 1174 TO = # 619-185 PRISON #.
      4 THE 4TH APPEALS JUDGE TOLD ME =LARRY WAYNE
         BRADLEY TO GO TO ROSS COUNTY COURTS FOR THIS
         CASE #16-CI-297 THAT NOW = 16-CA003576 ON APPEAL.
         BECAUSE OF THE TRUE FACTS IS THE OFFICER MR.
         MARK HOOKS IS BY WHOM LARRY WAYNE BRADLEY IS
         BEANING RESTRAINED AND CONFINED BY.
      5 I'M A LIVING PERSON AND NOT THE PERSON THAT BEEN
         DIED OVER 5YRS NOW BY LAW
      6 LARRY W BRADLEY DIED IN THE YEAR 2011 NOVBER, 13
      7 I LARRY WAYNE BRADLEY HAVE THE RIGHTS TO RULE
         44A.
      8 HOW CAN A DIED PERSON BE STILL IN ROSS PRISON IF
         HE DIED OVER 5 YR. AGO ITS 2016 YRS." [SIC]

                              LEGAL ANALYSIS

      {¶7} As set forth above, the purported assignments of error raised by

Appellant are difficult to decipher. The arguments contained in Appellant's

brief are not only difficult to decipher, but they are somewhat unintelligible.

However, taking Appellant's brief as a whole, in conjunction with a review

of his original petition for habeas corpus filed in the trial court, it appears

Appellant believes he is entitled to immediate release from prison based

upon his claims that the Jackson and Scioto County trial courts did not have

subject matter jurisdiction over his criminal cases. He also seems to allege

that he had a twin brother, "Larry W. Bradley," who is allegedly now

deceased, who Appellant claims is the person actually guilty of the crimes
Ross App. No. 16CA3576                                                          8

for which he was convicted and for which he is now currently imprisoned.

Appellant repeatedly refers to himself as "Larry Wayne Bradley" as opposed

to "Larry W. Bradley," which he claims was his now deceased twin brother's

name. That being said, we construe Appellants' arguments as a general

challenge to the trial court's decision granting Appellee's motion to dismiss

Appellant's petition for habeas corpus.

                           MOTION TO DISMISS

      {¶8} “A motion to dismiss for failure to state a claim upon which

relief can be granted tests the sufficiency of the complaint.” Volbers–Klarich

v. Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d

434, ¶ 11. In order for a court to dismiss a complaint under Civ.R. 12(B)(6)

for failure to state a claim upon which relief can be granted, it must appear

beyond doubt that the plaintiff can prove no set of facts in support of the

claim that would entitle the plaintiff to the relief sought. Ohio Bur. Of

Workers' Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956

N.E.2d 814, ¶ 12; Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-

Ohio-1729, ¶ 10. When a trial court considers a Civ.R. 12(B)(6) motion to

dismiss, it must review only the complaint, accepting all factual allegations

contained in the complaint as true and making all reasonable inferences in

favor of the nonmoving party. State ex rel. Talwar v. State Med. Bd. of Ohio,
Ross App. No. 16CA3576                                                          9

104 Ohio St.3d 290, 2004-Ohio-6410, 819 N.E.2d 654, ¶ 5; Perez v.

Cleveland, 66 Ohio St.3d 397, 399, 613 N.E.2d 199 (1993); Estate of

Sherman v. Millhon, 104 Ohio App.3d 614, 617, 662 N.E.2d 1098 (10th

Dist.1995). Furthermore, the trial court “cannot rely on evidence or

allegations outside the complaint to determine a Civ.R. 12(B)(6) motion.”

State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985

(1997).

      {¶9} This same standard applies in cases involving claims for

extraordinary relief, including habeas corpus. Boles v. Knab, 130 Ohio St.3d

339, 2011-Ohio-5049, 958 N.E.2d 554, ¶ 2 (“Dismissal under Civ.R.

12(B)(6) for failure to state a claim was warranted because after all factual

allegations of Boles's petition were presumed to be true and all reasonable

inferences therefrom were made in his favor, it appeared beyond doubt that

he was not entitled to the requested extraordinary relief in habeas corpus”).

“Appellate courts review de novo a dismissal for the failure to state a claim.”

Hammond v. Perry, 4th Dist. Hocking No. 12CA27, 2013-Ohio-3683, ¶ 11;

citing Allen v. Bryan, 4th Dist. Hocking No. 12CA15, 2013-Ohio-1917, ¶ 7;

Bartley v. Hearth & Care of Greenfield, L.L.C., 4th Dist. Highland No.

12CA13, 2013-Ohio-279, ¶ 11. “In other words, an appellate court affords

no deference to a trial court's decision and, instead, applies its own,
Ross App. No. 16CA3576                                                         10

independent review to determine if the Civ.R. 12(B)(6) requirements were

satisfied.” Hammond at ¶ 11; citing McDill v. Sunbridge Care Ents., Inc.,

4th Dist. Pickaway No. 12CA8, 2013-Ohio-1618. ¶ 10; Estep v. State, 4th

Dist. Ross No. 09CA3088, 2009-Ohio-4349, ¶ 5.

                             HABEAS CORPUS

      {¶10} Habeas corpus petitions are governed by R.C. 2725. They are

available to a person who is “unlawfully restrained of his liberty * * * to

inquire into the cause of such imprisonment, restraint, or deprivation.” R.C.

2725.01. An individual may petition for a writ of habeas corpus if his

maximum sentence has expired and he is being held unlawfully. State v.

Wilburn, 4th Dist. Lawrence No. 98CA47, 1999 WL 1281507 (Dec. 22,

1999); Frazier v. Strickrath, 42 Ohio App.3d 114, 115-116, 536 N.E.2d

1193 (4th Dist.1988).

      {¶11} A habeas corpus petition must conform to certain statutory

requirements. It must be signed and verified, and it must specify: (A) that

the petitioner is imprisoned or restrained of his liberty; (B) the name of the

person restraining the petitioner, if known; (C) the place the petitioner is

imprisoned or restrained, if known; and (D) it must include a copy of the

commitment papers, if the commitment papers can be obtained without

impairing the efficiency of the remedy. R.C. 2725.04. A petitioner's failure
Ross App. No. 16CA3576                                                       11

to attach all pertinent commitment papers renders the petition fatally

defective. See Tucker v. McAninch, 82 Ohio St.3d 423, 696 N.E.2d 595

(affirming this court's dismissal of a habeas corpus petition where petitioner

did not attach all the relevant commitment papers); Workman v. Shiplevy, 80

Ohio St.3d 174, 685 N.E.2d 231; Bloss v. Rogers, 65 Ohio St.3d 145, 146,

602 N.E.2d 602 (1992). Because Appellant failed to include a copy of his

commitment papers, his habeas corpus petition is fatally flawed and must be

dismissed.

      {¶12} Additionally, the failure to comply with the provisions of R.C.

2969.25 requires the dismissal of the action. Fuqua v. Williams, 100 Ohio

St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982. R.C. 2969.25(A)(1)-(4)

requires that an inmate who files a civil action or appeal against a

government entity or employee must file an affidavit that contains a

description of each civil action or appeal the inmate has filed in the previous

five years. This Court is aware Appellant has filed at least one prior habeas

corpus action, as evidenced by our decision in State v. Bradley, supra, as

referenced above; however, Appellant has not filed such an affidavit. As a

result, his petition is procedurally defective on this ground as well and must

be dismissed. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 493, 2006-
Ross App. No. 16CA3576                                                          12

Ohio-1507, 844 N.E.2d 842; Nedea v. Cook, 4th Dist. Hocking No. 15CA12,

2015-Ohio-3668, ¶ 10.

      {¶13} R.C. 2969.25(C)(1) further requires inmates who file civil

actions or appeals against a government entity or employee, and who seek

waivers of the prepayment of the full filing fees assessed by the court, shall

file with the complaint or notice of appeal an affidavit that the inmate is

seeking a waiver of the prepayment of the court's full filing fees as well as

an affidavit of indigency. Washington v. Morgan, 4th Dist. Scioto No.

14CA3664, 2014-Ohio-5834, ¶ 9. These affidavits must include a statement

that sets forth the balance in the inmate's account for each of the preceding

six months, and must be certified by the institutional cashier. Id.; citing

Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-2859, 951 N.E.2d 389 (court

of appeals did not err in dismissing inmate's petition for a writ of habeas

corpus because inmate must include a statement setting forth the balance in

his inmate account for each of the preceding six months, as certified by the

institutional cashier); State ex rel. McGrath v. McDonnell, 126 Ohio St.3d

511, 2010-Ohio-4726, 935 N.E.2d 830; State ex rel. Thacker v. Evans, 4th

Dist. Gallia No. 05CA4, 2005-Ohio-933. Here, Appellant filed an affidavit

of indigency averring he was without sufficient funds to pay the required

costs and fees of the habeas action; however, he did not file a certified
Ross App. No. 16CA3576                                                        13

statement setting forth a six month history of his inmate account. This

failure also constitutes sufficient reason to deny the petition for habeas

corpus. State v. Pinkney, 8th Dist. Cuyahoga No. 104845, 2016-Ohio-7619,

¶ 4.

       {¶14} In addition to the procedural defects, Appellant's petition must

be dismissed on substantive grounds. First, to the extent he claims that he

was wrongly convicted instead of his twin brother in both Jackson and

Scioto Common Pleas courts, or that his convictions were supported by

insufficient evidence, these claims could have been raised on direct appeal.

Because he had an adequate remedy at law, habeas corpus is not an available

remedy. Lynch v. Wilson, 114 Ohio St.3d 118, 119, 2007-Ohio-3254, 868

N.E.2d 982, 983, ¶¶ 5-6 (2007)(“Lynch's claim that there was insufficient

evidence to support his conviction and sentence for engaging in a pattern of

corrupt activity is not cognizable in habeas corpus.”). “[H]abeas corpus is

not available to remedy claims concerning * * * the sufficiency of the

evidence.” State ex rel. Tarr v. Williams, 112 Ohio St.3d 51, 2006-Ohio-

6368, 857 N.E.2d 1225, ¶ 4. See also Caudill v. Brigano, 100 Ohio St.3d 37,

2003–Ohio–4777, 795 N.E.2d 674, ¶ 3 (applying general rule to habeas

corpus petition challenging convictions and sentence for several crimes,

including engaging in a pattern of corrupt activity). Further, because it
Ross App. No. 16CA3576                                                            14

appears from the record that Appellant actually pleaded guilty to the charges

against him in both Jackson and Scioto counties, he stipulated to the

sufficiency of the evidence that it was he, not his twin brother, who

committed the crimes. Thus, Appellant's petition must be dismissed

because he is not entitled to seek the extraordinary remedy of a writ of

habeas corpus to address what he claims is essentially an insufficiency of

evidence to support the trial court's finding of guilt on the charges at issue.

      {¶15} Second, Appellant seems to argue, although not clearly, that the

trial courts in Jackson and Scioto counties were without subject-matter

jurisdiction over him and these matters. Aside from stating such in his

underlying petition Appellant makes no real argument as to why he believes

these trial courts lacked subject-matter jurisdiction. He further argues he is

entitled to immediate release from prison. As stated previously, Appellant

has failed to file his commitment papers, which is a requirement when

pursuing a habeas corpus action. Thus, we have a limited picture of

Appellant's procedural history. However, taking judicial notice of a prior

decision by this Court, as well as the Ohio Department of Corrections

webpage, it appears that Appellant is currently incarcerated for a first degree

felony aggravated robbery conviction that occurred in Scioto County, as well

as a fourth degree felony receiving stolen property conviction that occurred
Ross App. No. 16CA3576                                                        15

in Jackson County. According to the Ohio Department of Corrections

webpage, Appellant's scheduled date of release from prison is not until

November 25, 2018. "It is well established that a prisoner has no

constitutional or statutory right to be conditionally released from prison prior

to the expiration of his sentence." Johnson v. Robinson, 4th Dist. Ross No.

14CA3460, 2016-Ohio-3366, ¶ 25; citing Corrin v. Huffman, 4th Dist.

Scioto No. 00CA2700, 2000 WL 1234068, *4 (Aug. 25, 2000).

      {¶16} Likewise, " '[i]t is well-established that a common pleas court

has original jurisdiction in felony cases and its jurisdiction in invoked by the

return of an indictment.' " State v. Bradford, 4th Dist. Ross No. 08CA3053,

2009-Ohio-1864, ¶ 18; quoting State v. Hillman, 10th Dist. Franklin Nos.

06AP-1230, 07AP-728, 2008-Ohio-2341, ¶ 41; citing Click v. Eckle, 174

Ohio St. 88, 89, 186 N.E.2d 731 (1962); see also R.C. 2931.03. There is

simply no credible evidence in the record to suggest that Appellant was not

the actual defendant named in the indictments, or for that matter, the actual

defendant who pleaded guilty to the charges at issue. As such, because

Appellant was the individual named in the indictments, he was subject to the

jurisdiction of both the Jackson and Scioto County Courts of Common Pleas.

      {¶17} Thus, because Appellant's petition for habeas corpus failed on

both procedural and substantive grounds, we find no merit to the arguments
Ross App. No. 16CA3576                                                       16

raised on appeal and we further conclude the trial court did not err in

granting Appellee's motion to dismiss the petition. Accordingly, the trial

court’s judgment is affirmed.

                                                JUDGMENT AFFIRMED.
Ross App. No. 16CA3576                                                       17

                           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 Ross County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, 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.
