[Cite as State v. Seal, 2014-Ohio-5415.]


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

STATE OF OHIO,                                           :

        Plaintiff-Appellee,                              :
                                                                          Case No. 13CA15
        v.                                               :
                                                                          DECISION AND
ARTHUR SEAL,                                             :                JUDGMENT ENTRY

        Defendant-Appellant.                             :                RELEASED 12/4/2014


                                           APPEARANCES:

Arthur Seal, Chillicothe, Ohio, pro se Appellant.

Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for Appellee.



Hoover, J.


        {¶ 1} This is an appeal from a Highland County Common Pleas Court decision and

judgment entry denying appellant, Arthur Seal’s, pro se petition for post-conviction relief

without an evidentiary hearing. Because the arguments raised in support of Seal’s petition and

appeal are barred by the doctrine of res judicata, we overrule his assignments of error one

through four. We also conclude that Seal did not present sufficient credible evidence to warrant

an evidentiary hearing, and thus, overrule his fifth assignment of error. Accordingly, we affirm

the trial court's denial of Seal's petition for post-conviction relief.

        {¶ 2} On December 3, 2012, a jury found Seal guilty of: 1) the illegal manufacture of

drugs, with the additional finding that the offense occurred in the vicinity of a juvenile; 2) the

illegal assembly or possession of chemicals for the manufacture of drugs, with the additional

finding that the offense occurred in the vicinity of a juvenile; and 3) endangering children. On
Highland App. No. 13CA15                                                                                           2


December 10, 2012, the trial court sentenced Seal to an aggregate prison term of 14 years. On

January 2, 2013, Seal filed a notice of appeal, indicating his intent to directly appeal his

convictions.

         {¶ 3} On April 12, 2013, Seal filed a “motion for exculpatory evidence” wherein Seal

sought the release of a 911 recording for use in a post-conviction proceeding. Seal argued that

the 911 recording was necessary to prove in a post-conviction proceeding that law enforcement

unlawfully searched the property at which he had been staying.1 The trial court denied the

motion and the denial is the subject of a separate appeal. See State v. Seal, 4th Dist. Highland No.

13CA10, 2014-Ohio-4168.

         {¶ 4} Seal’s appellate brief in support of his direct appeal was filed on April 22, 2013.

Seal, through court-appointed counsel2, presented two assignments of error in support of his

direct appeal. Seal’s assignments of error included arguments that the evidence presented at trial

was insufficient to convict him of the endangering children charge; that the trial court gave an

erroneous jury instruction on the elements needed to prove the endangering children charge; that

trial counsel was ineffective for failing to object to the improper instruction and for not raising

the sufficiency of the evidence argument in his Crim.R. 29 motion; and that his convictions for

the illegal manufacture of drugs and the illegal assembly or possession of chemicals for the

manufacture of drugs were against the manifest weight of the evidence. See State v. Seal, 4th

Dist. Highland No. 13CA1, 2014-Ohio-4167.




1
  At trial, Deputy Craig Seaman of the Highland County Sheriff’s Office testified that on June 4, 2012, he was
dispatched to answer a 911 call indicating possible assistance needed at 5094 US Route 50, in Highland County,
Ohio. Seaman testified further that an investigation of the 911 call led to the procurement of a search warrant for a
house and a camper that were located at the address. Upon execution of the search warrant, authorities located an
active methamphetamine lab in the camper. See State v. Seal, 4th Dist. Highland No. 13CA1, 2014-Ohio-4167 (for a
full recitation of the facts).
2
  Seal was appointed new counsel for purposes of his direct appeal.
Highland App. No. 13CA15                                                                                3


        {¶ 5} On June 14, 2013, while his direct appeal remained pending, Seal filed his pro se

petition for post-conviction relief that is at issue in the instant appeal. Seal’s petition sought an

evidentiary hearing and alleged that his convictions were void or voidable due to alleged

constitutional violations. Attached to Seal’s petition was the affidavit of Deputy Craig Seaman

used for obtaining a search warrant in the case; a portion of the Highland County Sheriff’s Office

dispatch log of June 4, 2012; the affidavit of Virginia Miller, Seal’s mother; three

evidence/inventory and receipt forms from the sheriff’s office; two sheriff incident reports; and

an affidavit of veracity signed by Seal indicating that the petition and documentary evidence is

true, whole, and correct. His petition set forth four claims for relief. First, Seal claimed that the

State committed prosecutorial misconduct by withholding exculpatory evidence, specifically the

alleged 911 recording. Second, Seal claimed that the State committed prosecutorial misconduct

by presenting known false testimony to the grand and petit jury, i.e. the existence of the alleged

911 call. In his third claim for relief, Seal claimed that he was deprived of effective assistance of

trial counsel because his trial counsel failed to seek suppression of evidence obtained as a result

of an illegal search. Finally, Seal’s fourth claim for relief alleged that his trial counsel was

ineffective for failing to investigate the case, for failing to subpoena witnesses, and for failing to

set forth a meaningful and adequate defense.

        {¶ 6} Seal’s first three claims for relief were brought under the theory that law

enforcement was at the property found to have the active methamphetamine lab under false

pretenses. Particularly, Seal contends that law enforcement was out to get him; was on a fishing

expedition; and lied about the existence of a 911 call as an excuse to enter the property. Seal

further contends that law enforcement included this alleged falsehood about the 911 call in an

affidavit used to secure a search warrant of the property. Seal also posits that the county
Highland App. No. 13CA15                                                                                4


prosecutor knew that no 911 call had ever been made, failed to disclose this fact to Seal during

pre-trial discovery, and allowed law enforcement officers to testify at trial about the existence of

a 911 call. Coming full circle, Seal asserts that his own trial lawyer knew the 911 call was non-

existent, was complicit with law enforcement, the prosecutor, and the trial judge, and thus did

not challenge the constitutionality of the search. In support of his fourth claim for relief, Seal

contends that his trial lawyer was also ineffective for failing to fully investigate the case and for

failing to subpoena witnesses who were present at the property on the day of the search.

       {¶ 7} After the State filed its memorandum in opposition, the trial court denied Seal’s

petition for post-conviction relief without evidentiary hearing on June 24, 2013. This appeal

followed.

       {¶ 8} Seal sets forth the following assignments of error for review:

First Assignment of Error:

       JUDGE ROCKY COSS ABUSED HIS DISCRETION AND COMMITTED
       PLAIN ERROR WHEN HE DENIED THE APPELLANT’S 1ST CLAIM OF
       RELIEF PERTAINING TO THE STATE COMMITTING PROSECUTORIAL
       MISCONDUCT BY WITHOLDING EXCULPATORY EVIDENCE OF THE
       ALLEGED 911 CALL RECORDING, WITHOUT ORDERING AND
       HOLDING AN EVIDENTIARY HEARING TO DETERMINE THE VALIDITY
       OF THE CLAIM AND ORDER THE ALLEGED 911 RECORDING TO BE
       PRESENTED TO THE RECORD TO DETERMINE THE FOURTH
       AMENDMENT VIOLATION.
Second Assignment of Error:

       TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN
       ERROR WHEN COSS MADE AN ERRONEOUS RULINGS AGAINST THE
       APPELLANT’S 2ND CLAIM OF RELEIF OF HIS PETITION. COSS (TRIAL
       COURT) CONTINUELY ADVOCATES FOR THE STATE AND POLICE
       AND WAS PREJUDICE AND BIASED THROUGHOUT THE TRIAL
       PROCESS AND DECISION OF PETITION, THUS VIOLATING THE
       APPELLANT’S 1ST, 4TH, 5TH, 6TH, 8TH & 14TH U.S. CONSTITUTIONAL
       AMENDMENTS AND ARTICLE I, SEC.S 1, 9, 10, 14 & 16 OF THE OHIO
       CONSTITUTION.
Third Assignment of Error:
Highland App. No. 13CA15                                                                                           5


         TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN
         ERROR BY ERRONEOUS RULING AGAINST THE APPELLANT’S
         FOURTH ADMENDMENT CONSTITUTIONAL RIGHT AGAINST ILLEGAL
         SEARCH AND SEIZURE. FURTHERMORE, COO [SIC] ERRONEOUSLY
         MISTAKES THE WELL ESTABLISHED LAW FOR STANDING AND
         CHALLENGING, AS A GUEST, ILLEGAL SEARCH AND SEIZURES, THUS
         VIOLATING THE APPELLANT’S 4TH, 6TH & 14TH U.S.
         CONSTITUTIONAL ADMENDMENTS AND ARTICLE I, SEC. 10 & 14 OF
         THE OHIO CONSTITUTION.
Fourth Assignment of Error:

         THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PALIN
         [SIC] ERROR BY NOT ORDERING AN EVIDENTIARY HEARING IN THE
         4TH CLAIM OF RELIEF OF THE APPELLANT’S RELIEF PETITION
         RELATING TO THE TRIAL COUNSEL’S INEFFECTIVE ASSISTANCE FOR
         COUNSEL’S FAILURE TO INVESTIGATE THE APPELALNT’S [SIC] CASE,
         PUTTING THE STATES CASE THROUGH A MEANINGFUL
         ADVERSARIAL TESTING PROCESS AND SUBPEONING WITNESSES IN
         THE APEPLLANT’S [SIC] DEFENSE.
Fifth Assignment of Error:

         TRIAL COURT FAILED TO ORDER AN EVIDENTIARY HEARING AS THE
         R.C. 2953.21 AND CASE LAWS MANDATE, AS DID THE ARGUMENTS,
         CLAIMS OF RELIEF, EVIDENCE AND U.S. & OHIO CONSTITUTION
         MANDATES.
         {¶ 9} “Generally, a ruling on a post-conviction relief motion should not be reversed

absent an abuse of a trial court's discretion.”3 State v. Crum, 4th Dist. Lawrence No. 13CA13,

2014-Ohio-2361, ¶ 9, citing State v. Williams, 4th Dist. Lawrence No. 12CA22, 2013–Ohio–

2989, ¶ 16; State v. Fisk, 4th Dist. Washington No. 11CA4, 2011–Ohio–6116, ¶ 6; State v. Hicks,

4th Dist. Highland No. 09CA15, 2010–Ohio–89, ¶ 11. “A trial court abuses its discretion when

its decision is unreasonable, arbitrary, or unconscionable.” State v. Knauff, 4th Dist. Adams No.

13CA976, 2014-Ohio-308, ¶ 19, citing Cullen v. State Farm Mut. Auto Ins. Co., 137 Ohio St.3d


3
  This Court has previously applied varying standards when reviewing a trial court's decision to dismiss a petition
for post-conviction relief without an evidentiary hearing. See State v. Hicks, 4th Dist. Highland No. 09CA15, 2010–
Ohio–89, ¶ 9 (discussing the standards previously applied). “However, after surveying other Ohio courts, we believe
that abuse of discretion is the most prevalent standard for reviewing the dismissal of a petition for post-conviction
relief without a hearing.” Id. at ¶ 10.
Highland App. No. 13CA15                                                                            6


373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 19.

       {¶ 10} A petition for post-conviction relief brought pursuant to R.C. 2953.21 provides

convicted individuals with a means to collaterally attack their convictions. In re B.C.S., 4th Dist.

Washington No. 07CA60, 2008-Ohio-5771, ¶ 10. “It is a civil proceeding designed to determine

whether ‘there was such a denial or infringement of the person's rights as to render the judgment

void or voidable under the Ohio Constitution or the Constitution of the United States.’ R.C.

2953.21(A). Thus, a petitioner must demonstrate errors of a constitutional magnitude and

resulting prejudice before being entitled to relief under the statute.” Id. R.C. 2953.21 specifically

provides:

       (A)(1)(a) Any person who has been convicted of a criminal offense or adjudicated

       a delinquent child and who claims that there was such a denial or infringement of

       the person's rights as to render the judgment void or voidable under the Ohio

       Constitution or the Constitution of the United States * * * may file a petition in

       the court that imposed sentence, stating the grounds for relief relied upon, and

       asking the court to vacate or set aside the judgment or sentence or to grant other

       appropriate relief. The petitioner may file a supporting affidavit and other

       documentary evidence in support of the claim for relief.

       ***

       (C) * * * Before granting a hearing on a petition filed under division (A) of this

       section, the court shall determine whether there are substantive grounds for relief.

       In making such a determination, the court shall consider, in addition to the

       petition, the supporting affidavits, and the documentary evidence, all the files and

       records pertaining to the proceedings against the petitioner, including, but not
Highland App. No. 13CA15                                                                               7


       limited to, the indictment, the court's journal entries, the journalized record of the

       clerk of the court, and the court reporter's transcript. The court reporter's

       transcript, if ordered and certified by the court, shall be taxed as court costs. If the

       court dismisses the petition, it shall make and file findings of fact and conclusions

       of law with respect to such dismissal.

       (D) Within ten days after the docketing of the petition, or within any further time

       that the court may affix for good cause shown, the prosecuting attorney shall

       respond by answer or motion. Within twenty days from the date the issues are

       raised, either party may move for summary judgment. The right to summary

       judgment shall appear on the face of the record.

       (E) Unless the petition and the files and records of the case show the petitioner is

       not entitled to relief, the court shall proceed to a prompt hearing on the issues

       even if a direct appeal of the case is pending.

       ***

       {¶ 11} A petitioner seeking post-conviction relief is not automatically entitled to an

evidentiary hearing. State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999); State v.

Slagle, 4th Dist. Highland No. 11CA22, 2012-Ohio-1936, ¶ 13. This is so because before

granting a hearing on a petition, the trial court must first determine that substantive grounds for

relief exist. R.C. 2953.21(C). “Substantive grounds for relief exist and a hearing is warranted if

the petitioner produces sufficient credible evidence that demonstrates the petitioner suffered a

violation of the petitioner's constitutional rights.” In re B.C.S. at ¶ 11. Furthermore, in order to

merit a hearing, the petitioner must show that the claimed “errors resulted in prejudice.” Id.,

quoting Calhoun at 283.
Highland App. No. 13CA15                                                                             8


        {¶ 12} Additionally, res judicata applies to proceedings involving post-conviction relief.

State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996). “Under the doctrine of res

judicata, a final judgment of conviction bars a convicted defendant who was represented by

counsel from raising and litigating in any proceeding except an appeal from that judgment, any

defense or any claimed lack of due process that was raised or could have been raised by the

defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that

judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the

syllabus. “Therefore, ‘any issue that could have been raised on direct appeal and was not is res

judicata and not subject to review in subsequent proceedings.’ ” State v. Segines, 8th Dist.

Cuyahoga No. 99789, 2013-Ohio-5259, ¶ 8, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-

Ohio-1245, 846 N.E.2d 824, ¶ 16.

        {¶ 13} Moreover, the fact that Seal’s petition is supported by evidence outside the trial

record does not automatically bar application of res judicata. In Slagle, supra at ¶ 16, we noted

that:

        The presentation of competent, relevant, and material evidence dehors the record

        may defeat the application of res judicata. See State v. Smith (1985), 17 Ohio

        St.3d 98, 101, 17 OBR 219, 221, 477 N.E.2d 1128, 1131–1132, fn. 1. However, a

        petition for postconviction relief is not the proper vehicle to raise issues that were

        or could have been determined on direct appeal. State v. Perry, supra, 10 Ohio

        St.2d at 182, 39 O.O.2d at 193, 226 N.E.2d at 109. “[E]vidence presented outside

        the record must meet some threshold standard of cogency; otherwise it would be

        too easy to defeat the holding of Perry by simply attaching as exhibits evidence

        which is only marginally significant and does not advance the petitioner's claim
Highland App. No. 13CA15                                                                               9


       beyond mere hypothesis and a desire for further discovery.” Coleman, supra,

       Hamilton App. No. C–900811, at 7. To overcome the res judicata bar, evidence

       offered dehors the record must demonstrate that the petitioner could not have

       appealed the constitutional claim based upon information in the original record.

       [Ohio v. Franklin, 1st Dist. No. C–930760, 1995 WL 26281 (Jan. 25, 1995), *7.]

       State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362 (12th Dist.1995).

       {¶ 14} With the foregoing principles in mind, we jointly consider Seal’s assignments of

error one through four, which are essentially re-arguments of the four claims of relief set forth in

his petition. Because these assignments of error raise issues that could have, and should have,

been raised in a direct appeal of Seal’s conviction, we conclude that they are now barred by the

doctrine of res judicata.

       {¶ 15} Although the trial court did not rely on res judicata as a reason to deny Seal’s

petition, we believe that the doctrine is applicable. Seal admits in his petition for post-conviction

relief, in his appellate brief in support of this appeal, and in his motion for exculpatory evidence

that both he and his trial counsel knew of the non-existence of the alleged 911 call and the

State’s failure to produce the 911 recording well before his jury trial. See Appellate Brief at 6,

20; Petition at 9, 24; Motion for Exculpatory Evidence at 2. Thus, Seal’s claims of prosecutorial

misconduct could have and should have been raised either during pre-trial discovery or at trial.

At the very least, they should have been raised in Seal’s direct appeal. We also do not believe

that Seal’s presentation of evidence dehors the record defeats the application of res judicata. The

only piece of evidence that arguably supports Seal’s claim that no 911 call was made, outside of

his self-serving recitation of the facts, is the sheriff dispatch log. But even that piece of evidence

is inconclusive, as it explicitly documents a received call indicating sheriff assistance requested
Highland App. No. 13CA15                                                                              10


at the residence, but does not indicate whether the call originated from the 911 line or not. This

evidence is only marginally significant and does not advance Seal’s claims beyond mere

hypothesis.

        {¶ 16} Seal’s claims of ineffective assistance of counsel are also barred by the doctrine of

res judicata. Seal was present during the trial court proceedings and was well aware of the

actions, and inactions of his counsel. In fact, Seal claims that he instructed his trial counsel to file

a motion to suppress and to contact witnesses on his behalf. See Appellate Brief at 22; Petition at

8, 9, 10, 37. Certainly, Seal was cognizant of these claims and could have included them in his

direct appeal. Furthermore, Seal was appointed new counsel for his direct appeal, presumably so

he could pursue such a claim.

        {¶ 17} We also note that the present case is distinguishable from our previous decision

in State v. Keeley, 2013-Ohio-474, 989 N.E.2d 80 (4th Dist.). In Keeley, we held that a trial court

could not rely on the doctrine of res judicata to bar consideration of post-conviction claims while

a first appeal of right remained pending. Id. at ¶ 10. In that case, the trial court denied the petition

on the basis of res judicata approximately six months prior to our decision in the petitioner’s first

appeal of right. Id. at ¶ 6. We reasoned that res judicata may be invoked to bar post-conviction

claims only after the first appeal of right has been determined, or when no appeal is taken. Id. at

¶ 7. We also noted that invoking the doctrine of res judicata while a first appeal of right is

pending would render R.C. 2953.21(C) meaningless, because a trial court could always avoid

ruling on the petition’s merits as long as no decision had been rendered on the appeal. Id. at ¶ 8.

        {¶ 18} In the case at hand, the trial court did not rely on the doctrine of res judicata in

denying Seal’s petition. Rather, the trial court determined that Seal had not presented sufficient

operative facts that would entitle him to post-conviction relief. The trial court’s decision and
Highland App. No. 13CA15                                                                                            11


judgment entry was also supported by findings of fact and conclusions of law. Thus, it cannot be

said that the trial court avoided ruling on the petition’s merits. We also note that we recently

released our decision and judgment entry in Seal’s direct appeal. See State v. Seal, 4th Dist.

Highland No. 13CA1, 2014-Ohio-4167. Consequently, Seal’s direct appeal has effectively

concluded, and he can no longer seek to include additional arguments in his direct appeal. Put

simply, the scenario in the present case differs from the scenario in Keeley. Accordingly, we are

not precluded from invoking the doctrine of res judicata in the present case, and Seal’s first,

second, third, and fourth assignments of error are overruled.

         {¶ 19} In his fifth assignment of error, Seal contends that the trial erred in denying his

petition without first conducting an evidentiary hearing.

         {¶ 20} As noted above, a petitioner seeking post-conviction relief is not automatically

entitled to an evidentiary hearing. “The court may dismiss a petition for post-conviction relief

without a hearing when the petitioner fails to submit evidentiary material setting forth sufficient

operative facts to demonstrate substantive grounds for relief.” State v. Bradford, 4th Dist. Ross

No. 08CA3053, 2009-Ohio-1864, ¶ 10, citing State v. Jackson, 64 Ohio St.2d 107, 111, 413

N.E.2d 819 (1980).

         {¶ 21} Here, in its decision and judgment entry denying the petition, the trial court noted

that other than the affidavit of his mother, Seal did not attach any other affidavits relating to the

allegations in the petition. The trial court specifically noted the absence of any evidence of the

supposed other witnesses who Seal alleged could attest to his innocence. The trial court also

noted Seal’s failure to attach the actual search warrant that was issued in the case.4 Furthermore,

the trial court noted that the sheriff dispatch log actually corroborated the State’s testimony that a

4
 A copy of the search warrant was attached to Seal’s appellate brief, but it does not appear attached to the petition.
Seal alleges that the trial judge intentionally detached the search warrant from the petition so that it would not
become a part of the appellate record.
Highland App. No. 13CA15                                                                          12


call was received from an unknown individual requesting assistance at the residence. We believe

the trial court’s reasoning to be sound and not arbitrary, unreasonable, or unconscionable.

Therefore, we cannot conclude that the trial court abused its discretion by dismissing Seal’s

petition for post-conviction relief without an evidentiary hearing. Seal’s fifth assignment of error

is overruled.

       {¶ 22} Based on the foregoing, the decision and judgment entry of the trial court denying

Seal’s petition for post-conviction relief is affirmed.

                                                                        JUDGMENT AFFIRMED.
Highland App. No. 13CA15                                                                             13


Harsha, J., concurring in judgment only:

       {¶ 23} I agree the trial court properly summarily dismissed the petition. The first three

claims in the petition fail to establish substantive grounds for relief because Seal’s own exhibit

indicates that the call requesting help actually occurred. The fact that it may not have come in as

a formal 911 call is only marginally relevant. In other words, he cannot prove he suffered any

actual prejudice because his own evidence proves the deputy responded to a call for assistance,

rather than “inventing” a call to illegally search the premises as Seal alleges. If a

mischaracterization of the nature of the call occurred, it did not result in a constitutional

violation.

       {¶ 24} Seals fourth claim for relief, which alleges ineffective assistance of counsel,

amounts to “open-ended assertions” and mere hypothesis. Therefore, it did not establish

substantive grounds for relief. See, Katz and Gianelli, Baldwin’s Ohio Practice, Criminal Law

(3rd ed) § 81.10.

       {¶ 25} In the absence of substantive grounds for relief, the petition was fatally defective

on its face. Therefore, the trial court properly dismissed the petition without conducting a

hearing. Thus, there is no merit to the fifth assignment of error. Furthermore, there is no need to

address the doctrine of res judicata.
Highland App. No. 13CA15                                                                         14


                                      JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Highland 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 the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest 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 the 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.: Concurs in Judgment Only with Concurring Opinion.
McFarland, J.: Concurs in Judgment Only and Concurs with Concurring Opinion.


                                                             For the Court

                                                             By:
                                                                   Marie Hoover, 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.
