[Cite as State v. Dick, 2018-Ohio-2207.]


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

STATE OF OHIO,                                :    Case No. 17CA1049

        Plaintiff-Appellee,                   :

        v.                                    :    DECISION AND
                                                   JUDGMENT ENTRY
KAYLEE DICK,                                  :
                                                   RELEASED: 05/30/2018
        Defendant-Appellant.                   :
                                           APPEARANCES:

Tyler E. Cantrell, Office of Young & Caldwell, L.L.C., West Union, Ohio, for appellant.

David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams County
Assistant Prosecuting Attorney, West Union, Ohio, for appellee.
Harsha, J.
        {¶1}     Kaylee Dick appeared at her arraignment without counsel and pleaded

guilty to a charge of operating a motor vehicle while under the influence of alcohol/drug

of abuse (“OVI”). Dick subsequently secured counsel and before sentencing moved to

withdraw her plea. After a hearing the Adams County Court denied the motion and

ultimately sentenced her. Dick asserts that the trial court abused its discretion by

denying her presentence motion to withdraw her plea.

        {¶2}     When the court arraigned Dick, who appeared without counsel, it failed to

advise her of her rights under Traf.R. 8(D), misrepresented her maximum penalties, and

did not obtain a waiver of counsel on the record. Because we agree that the trial court

erred by denying her motion, we sustain her sole assignment of error.

                                             I. FACTS

        {¶3}     Very early on a Sunday morning an Ohio State Highway Patrol trooper

issued citations charging Kaylee Dick with one first-degree misdemeanor count of
Adams App. No. 17CA1049                                                                  2


operating a motor vehicle while under the influence (“OVI”), and three minor

misdemeanors. The complaint charging Dick with OVI alleged that she had violated

R.C. 4511.19(A)(1)(a), by operating the car while under the influence of alcohol/drug of

abuse, and that she had a prohibited blood-alcohol concentration of .02.

       {¶4}   On Monday afternoon the Adams County Court arraigned several

defendants, including Dick. Initially the court informed every defendant waiting for their

individual arraignment about the four different ways they could plead: not guilty by

reason of insanity, not guilty, guilty, and no contest. Regarding the not guilty plea, the

trial court stated: “[a]nd if you can’t afford an attorney and you[’]r[e] faced with the

possibility of going to jail, we’ll appoint one for ya.” The trial court noted that a guilty

plea “is your affirmative admission that yeah [sic] I broke the law, whatever law it is that

I happen to read of to you. And you’re going to be found guilty, you admit you did it.”

       {¶5}   The court then noted the constitutional rights they would be giving up if

they pleaded guilty or no contest, including “your right to a lawyer” and “your right to

confront * * * or have your lawyer question, anyone who has * * * evidence against you.”

       {¶6}   When the trial judge arraigned Dick, he asked her how old she was; after

she responded that she was 20 years old, he advised her on each charge and the

general penalties she faced. Addressing the OVI charge, the court informed her that

she could receive “3 days in jail, up to six months, a $375 fine, and a mandatory six

months driver’s license suspension,”. However, the judge did not tell her that the

maximum penalties for the crime actually include a $1,075 fine, three-year driver’s

license suspension, driver intervention program, restricted license plates, and increased

penalties for future OVI charges.
Adams App. No. 17CA1049                                                             3


       {¶7}   The trial court then asked whether Dick understood all the charges, and

after she answered affirmatively, the court accepted her guilty plea to the charges,

including the OVI:

       COURT: On, do you understand all the charges?

       KAYLEE DICK: Yes. Sir.

       ***

       COURT: DUI, how do you wish to plead?

       KAYLEE DICK: Guilty.

       {¶8}   The trial court then imposed fines on the three minor misdemeanors, but

ordered a presentence investigation and set a date for sentencing on the OVI

conviction. The court also instructed Dick to complete the drivers’ intervention program

before sentencing.

       {¶9}   Three days before the scheduled sentencing hearing, Dick’s recently

retained legal counsel filed a motion to withdraw her prior plea of guilty to the OVI

charge. The motion claimed that Dick did not have sufficient time to consult an attorney

before her scheduled arraignment, was not informed of all the collateral consequences

of her guilty plea to the OVI charge, and had available defenses to the OVI charge. She

claimed innocence and that she did not knowingly make the plea because she did not

have the advice of an attorney at that time.

       {¶10} At the evidentiary hearing on her motion, Dick testified that: (1) she was

20 years old and had never made a plea before; (2) she was unable to seek the advice

of counsel and had not spoken to one because of the abbreviated time between her

citation and her arraignment; (3) she did not know what she was doing at the
Adams App. No. 17CA1049                                                              4


arraignment; (4) she decided to seek the advice of counsel after she completed the

drivers’ intervention program; (5) after speaking to counsel, she believed she had

defenses available to her; (6) she had graduated high school and taken a year and a

half of college business courses; (7) the day of the arraignment, her mother told her to

just plead guilty to everything; and (8) she pled guilty to the OVI charge because that’s

what her mom told her to do. After hearing the evidence and arguments, the trial court

denied Dick’s motion, finding “that she was properly advised of all of the rights, she was

waiving. That she acknowledged the same, and that she chose to follow her mother’s

advice.” In its entry denying the motion the trial court reiterated its findings: “THE

DEFENDANT WAS PROPERLY ADVISED OF ALL THE RIGHTS SHE WAS WAIVING;

THAT SHE ACKNOWLEDGED THE SAME AND THAT SHE CHOSE TO FOLLOW

HER MOTHER[’]S ADVICE.”

       {¶11} The trial court sentenced her to 60 days in jail, with 40 days suspended

and one year of community control, credited her for the remaining 20 days of her jail

sentence because she had completed the drivers’ intervention program, fined her $375,

and suspended her driver’s license for 180 days, retroactive to March 2017.

                              II. ASSIGNMENT OF ERROR

       {¶12} Dick assigns the following error for our review:

       THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
       DEFENDANT’S MOTION TO WITHDRAW HER FORMER PLEA OF
       GUILTY.


                               III. STANDARD OF REVIEW


       {¶13} Because a trial court possesses discretion to grant or deny a presentence

motion to withdraw a plea, we must not reverse the court’s decision absent an abuse of
Adams App. No. 17CA1049                                                               5

that discretion. see State v. Ross, 2017-Ohio-9400, __ N.E.3d __, ¶ 42 (4th Dist.), citing

State v. Fry, 4th Dist. Scioto No. 14CA3604, 2014-Ohio-5016, ¶ 13; State v. Xie, 62

Ohio St.3d 521, 584 N.E.2d 715 (1992), paragraph two of the syllabus (“The decision to

grant or deny a presentence motion to withdraw a guilty plea is within the sound

discretion of the trial court”).

       {¶14} An “abuse of discretion” implies that a court's attitude is

unreasonable, arbitrary or unconscionable. State v. Herring, 94 Ohio St.3d 246,

255, 762 N.E.2d 940 (2002); State v. Adams, 60 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980). In reviewing for an abuse of discretion, it is not our task to

simply substitute our judgment for that of the trial court. State ex rel. Duncan v.

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re

Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).

                               IV. LAW AND ANALYSIS

       {¶15} Claiming the trial court failed to comply with Crim.R. 11, Dick

asserts that the court abused its discretion by denying her presentence motion to

withdraw her guilty plea. The state counters that the trial court accorded Dick a

full Crim.R. 11 hearing before she entered her guilty plea. However, both parties

focus on the wrong rule, which does not directly apply to the OVI charge here.

See Traf.R. 1(A) and 2(A), describing the scope of the Ohio Traffic Rules to

include traffic cases and defining traffic cases to include any misdemeanor

proceeding “that involves one or more violations of a law, ordinance, or

regulation governing the operation and use of vehicles”; Crim.R. 1(C) (“These

rules, to the extent that they would by their nature be clearly inapplicable, shall
Adams App. No. 17CA1049                                                                6


not apply to procedure * * * (3) in cases covered by the Uniform Traffic Rules”);

see also State v. Everson, 6th Dist. Lucas No. L-17-1138, 2018-Ohio-323, ¶ 8

(traffic rules apply in lieu of criminal rules in cases involving the violation of a

traffic law).

        {¶16} Although this is a traffic case primarily governed by the Ohio Traffic Rules,

Crim.R. 32.1 is applicable to her pre-sentence motion to withdraw her guilty plea

because “[i]f no procedure is specifically prescribed by [the Ohio Traffic Rules], the

Rules of Criminal Procedure and the applicable law apply.” Traf.R. 20; see also State v.

Brown, 11th Dist. Lake No. 2017-L-038, 2017-Ohio-038 (applying Crim.R. 32.1 to a

post-sentence motion to withdraw a no contest plea).

        {¶17} Crim.R. 32.1 provides that “[a] motion to withdraw a guilty plea may

be made only before sentence is imposed; but to correct manifest injustice the

court after sentence may set aside the judgment of conviction and permit the

defendant to withdraw his or her plea.” “ ‘[A] presentence motion to withdraw a

guilty plea should be freely and liberally granted.’ ” State v. Ketterer, 126 Ohio

St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 57, quoting Xie, 62 Ohio St.3d 521,

527, 584 N.E.2d 715. But “[a] defendant does not have an absolute right to

withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to

determine whether there is a reasonable and legitimate basis for the withdrawal

of the plea.” Xie at paragraph one of the syllabus. “A mere change of heart is

not a legitimate and reasonable basis for the withdrawal of the plea.” State v.

Howard, 2017-Ohio-9392, __ N.E.3d __, ¶ 24 (4th Dist.).
Adams App. No. 17CA1049                                                               7


       {¶18} We have previously identified a nonexclusive list of nine factors that

appellate courts should consider when reviewing a trial court’s decision on a

presentence motion to withdraw a guilty plea: (1) whether highly competent

counsel represented the defendant; (2) whether the trial court afforded the

defendant a full Crim.R. 11 hearing before entering the plea; (3) whether the trial

court held a full hearing on the defendant’s motion to withdraw; (4) whether the

trial court gave full and fair consideration to the motion; (5) whether the

defendant filed the motion within a reasonable time; (6) whether the defendant’s

motion gave specific reasons for the withdrawal; (7) whether the defendant

understood the nature of the charges, the possible penalties, and the

consequences of the plea; (8) whether the defendant is not guilty or has a

complete defense to the charges; and (9) whether permitting the defendant to

withdraw the plea will prejudice the state. See Howard at ¶ 24, and cases cited.

No one factor is conclusive, and the ultimate question is whether there exists a

reasonable and legitimate basis for the withdrawal of the plea. Id.

       {¶19} In analyzing these factors it is apparent that Dick did not have the

benefit of counsel before she pleaded guilty at her arraignment the day after she

had been charged with OVI. This factor weighs in her favor.

       {¶20} Next, Dick claims that the trial court did not give her a full hearing

because it advised her of just “some of her penalties, not all, [did] not fully

describe[] the rights * * * which she would be giving up and if she was in fact

giving up those rights[, and she] was not notified that she could have counsel
Adams App. No. 17CA1049                                                                 8


appointed for her or that she would be entitled to a reasonable continuance to

retain counsel.”

       {¶21} As noted, the pertinent traffic rules here are Traf.R. 8(D), which

governs the trial court’s explanation of rights before calling a defendant to plead

at arraignment, and Traf.R. 10(D), which provides the trial court’s duty in

misdemeanor cases involving petty offenses, like Dick’s first-time OVI charge.

       {¶22} Dick claims that she was not notified she could have counsel

appointed for her or she would be entitled to a reasonable continuance to retain

counsel before pleading. Traf.R. 8(D) states:

       Before calling upon a defendant to plead at arraignment the judge
       shall cause him to be informed and shall determine that defendant
       knows and understands:

       (1) That he has a right to counsel and the right to a reasonable
       continuance in the proceedings to secure counsel, and, pursuant to
       Criminal Rule 44, the right to have counsel assigned without cost to
       himself if he is unable to employ counsel;

       (2) That he has a right to bail as provided in Rule 4;

       (3) That he need make no statement at any point in the proceeding;
       but any statement made may be used against him;

       (4) That he has, where such right exists, a right to jury trial and that
       he must, in petty offense cases, make a demand for a jury pursuant
       to Criminal Rule 23;

       (5) That if he is convicted a record of the conviction will be sent to
       the Bureau of Motor Vehicles and become part of his driving record.

       {¶23} The trial court did not inform Dick of most of her rights under Traf.R.

8(D), which is similar to Crim.R. 10(C). That is, the trial court did not inform Dick

at her arraignment before she was asked to plead that: (1) she had the right to

counsel and the right to a reasonable continuance in the proceedings to secure
Adams App. No. 17CA1049                                                                9


counsel; (2) she had a right to bail; (3) she need make no statement at any point

in the proceeding, but any statement made may be used against her; (4) that she

had, where the right existed, a right to jury trial and that she must, in petty

offense cases, make a demand for a jury pursuant to Crim.R. 23; and (5) that if

she was convicted a record of conviction would be sent to the Bureau of Motor

Vehicles and become part of her driving record. The trial court did mention that

upon entering a not guilty plea, she and the other defendants could be appointed

an attorney if they could not afford one and they faced the possibility of jail. But

the defendants initially had a right to counsel and a reasonable continuance to

obtain one to determine if they should plead guilty or no contest. However, the

court did not mention this right. Nor did the court obtain a waiver of counsel on

the record.

       {¶24} Traf.R. 8(D) requires the court to do more than just inform the

defendant of her rights. The court can satisfy that duty with a general

announcement. “If there are multiple defendants to be arraigned, the judge may

advise, or cause them to be advised, of their rights by general announcement.”

Traf.R. 8(E). But the court also must determine the defendant knows and

understands those rights. That duty requires an individualized colloquy between

each defendant and the court. Here the trial court did not “determine that” Dick

“knows and understands” all of the rights in Traf.R. 8(D) before calling upon her

to enter her plea to the OVI charge. See State v. Herman, 6th Dist. Williams No.

WM-15-006, 2016-Ohio-2871, ¶ 13, citing State v. Donkers, 170 Ohio App.3d

509, 2007-Ohio-1557, 867 N.E.2d 903, ¶ 42 (11th Dist.) (Traf.R. 8(D) requires an
Adams App. No. 17CA1049                                                                 10


individualized inquiry or meaningful dialogue between the court and the

defendant concerning the rights being waived, including the right to counsel).

       {¶25} Under these circumstances other courts have either invalidated the

plea and reversed the conviction, Herman, or reversed the denial of a motion to

withdraw the plea. See State v. Gearig, 6th Dist. Williams No. WM-09-012,

2010-Ohio-939, ¶ 29-31. That is, the “[f]ailure to comply with Crim.R. 10(C)

constitutes ‘prejudicial error.’ ” Id. at ¶ 16, quoting State v. Orr, 26 Ohio App.3d

24, 24, 498 N.E.2d 181 (11th Dist.1985); Cuyahoga Falls v. Simich, 5 Ohio

App.3d 10, 448 N.E.2d 839 (9th Dist.1982) (prior to acceptance of a guilty plea to

an OVI charge, the judge must determine that the defendant knows and

understands the rights set forth in Traf.R. 8(D) and must inform the defendant of

the effects of his plea pursuant to Traf.R. 10(D)”).

       {¶26} This court is no different. In State v. Paul, 4th Dist. Adams No.

CA-980, 1980 WL 350963 (Jan. 24, 1980), we reversed the denial of a motion to

withdraw a guilty plea in a non-traffic petty misdemeanor case involving the

similarly worded Crim.R. 10(C). In Judge Stephenson’s concurring opinion, he

noted that the failure of the trial court to comply with the mandatory rule

requirements, coupled with the promptness of the post-sentence motion,

warranted a finding that the court erred in failing to allow withdrawal of the guilty

plea. Id. at *3 (Stephenson, J., concurring) (”Even if it is concluded that a

defendant fully understands his right to counsel, further inquiry, even in petty

offense cases, of his desire and ability to retain counsel must be made”); State v.
Adams App. No. 17CA1049                                                                  11

Alexander, 4th Dist. Ross No. 15CA3492, 2016-Ohio-5015, ¶ 14 (citing the

concurring opinion in Paul with approval).

       {¶27} Similarly, in State v. Jordan, 4th Dist. Gallia No. 00CA16, 2001 WL

1346129, *3 (Oct. 30, 2001), we held that a trial court erred when it denied a

post-sentence motion to withdraw a guilty plea where, among other reasons, the

trial court failed to comply with Traf.R. 8:

        Appellant also argues that the court failed to comply with Crim.R. 5,
       Crim.R. 10, and Traf.R. 8. We agree that the court did not fully comply
       with these rules in that appellant was not informed that he was entitled to
       a continuance to obtain counsel, could have counsel appointed if
       necessary, was not required to make any statements and any statements
       made could be used against him, and that a record of his conviction would
       be sent to the Bureau of Motor Vehicles and become part of his driving
       record. This information should have been provided to appellant before
       the court allowed him to proceed with a guilty plea, especially given his
       pro se status.

       {¶28} In addition, Traf.R. 10(D), which is the misdemeanor petty-offense

analogue to Crim.R. 11(E), provides “[i]n misdemeanor offenses involving petty

offenses, except those processed in a traffic violations bureau, the court may

refuse to accept a plea of guilty or no contest, and shall not accept such pleas

without first informing the defendant of the effect of the plea of guilty, no contest,

and not guilty.”

       {¶29} “A trial court’s obligations in accepting a plea depend upon the level

of offense to which the defendant is pleading.” State v. Jones, 116 Ohio St.3d

211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 6, citing State v. Watkins, 99 Ohio St.3d

12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 25. “In accepting a plea to a

misdemeanor involving a petty offense, a trial court is required to inform the

defendant only of the effect of the specific plea being entered.” Jones at
Adams App. No. 17CA1049                                                              12


paragraph one of the syllabus. “To satisfy the requirement of informing a

defendant of the effect of a plea, a trial court must inform the defendant of the

appropriate language under Crim.R. 11(B).” Jones at paragraph two of the

syllabus. The appropriate language here was in the similarly worded Traf.R.

10(B)(1), which states that [t]he plea of guilty is a complete admission of the

defendant’s guilt.” In its general announcement the trial court complied with this

provision.

       {¶30} We also reject Dick’s claim that the trial court erred because it did

not advise her of the maximum penalties for OVI. See, e.g., State v. Hilderbrand,

4th Dist. Adams No. 08CA864, 2008-Ohio-6526, ¶ 21 (“for misdemeanor petty

offenses, there is no requirement that a trial court advise a defendant of the

maximum penalty involved”). See also State v. Klingsbergs, 9th District, Wayne

No. 10CA44, 2011-Ohio-6509, ¶9.

       {¶31} Nevertheless, although the trial court had no duty under Traf.R.

10(D) to advise Dick of the maximum penalties for OVI, it did have a duty to

provide her with accurate information concerning the maximum penalties once it

decided to advise her of them. See State v. Betts, 4th Dist. Vinton No. 17CA706,

2017-Ohio-8595, ¶ 25 (“once a trial court chooses to provide an expanded

explanation of the law, the information it provides must be accurate”). The trial

court misinformed Dick that the maximum fine was $375 instead of $1,075, and

that the mandatory driver’s license suspension was six months instead of three

years. See R.C. 4511.19(G)(1)(a)(iii) and (iv).
Adams App. No. 17CA1049                                                                  13


         {¶32} Therefore, the court’s noncompliance with the applicable rules in

arraigning Dick and accepting her guilty plea, weighs heavily in Dick’s favor.

         {¶33} On the next factor Dick concedes that the trial court held a full

hearing on her motion to withdraw her guilty plea; this weighs in the state’s favor.

         {¶34} We also find that the trial court gave full and fair consideration to

Dick’s motion. After holding a hearing the court stated on the record the basis for

its denial of the motion. But the trial court erred in finding that Dick “was properly

advised of all of the rights” that she was waiving; the court did not comply with

Traf.R. 8(D). This factor thus weighs only minimally in the state’s favor.

         {¶35} Next the state admits Dick’s motion, which she filed three days

before sentencing, was filed within a reasonable time. This factor weighs in her

favor.

         {¶36} And Dick’s motion did set forth specific reasons for the withdrawal

of her guilty plea—she lacked time to consult an attorney between the issuance

of the traffic citation charging her with OVI and her arraignment, she was not

experienced in court proceedings and was not made aware of all the

consequences of her plea, and she had available defenses to the charge. So

this also weighs in her favor.

         {¶37} At her arraignment the trial court did make an effort to explain the

consequences of a guilty plea and asked Dick if she understood the charges.

But the trial court did not inform her at the arraignment of her rights as required

under Traf.R. 8(D) and misrepresented the maximum penalties for the OVI

charge. This factor weighs in favor of Dick.
Adams App. No. 17CA1049                                                                      14


       {¶38} Next, Dick claims she was not guilty and had a complete defense to

the OVI charge because her blood-alcohol test result was exactly .02 of one

gram by weight of alcohol per 210 liters of the person's breath, which just met the

required alcohol content for a per se OVI violation based on blood-alcohol

content. R.C. 4511.19(B)(3). She claims that because her test result was just at

the threshold level and “any scientific tests ha[ve] a degree of uncertainty it is not

unquestionable that [she] perhaps was not over the legal limit and therefore not

guilty of the OVI charge.”

       {¶39} The state disputes this claim because the OVI charge was also

premised on her test result of more than 200 nanograms per milliliter of her urine,

which exceeded the legal limit of less than 35 ng/ml by more than five times. But

the state cites no evidence in the record to support its claim. In fact, Dick was

charged under R.C. 4511.19(A)(1)(a), and although there is a reference to a

urine test, in addition to a breath test, in the traffic ticket, there is no indication of

a result on the ticket or in the record. Therefore, under the state of the record

before us, Dick may have a complete defense to the OVI charge. This factor

weighs in her favor.

       {¶40} Finally, the state identifies no prejudice that would result from

permitting Dick to withdraw her guilty plea. This factor weighs in Dick’s favor.

       {¶41} In sum, seven factors weighed heavily in favor of allowing the

withdrawal and two factors weighed minimally in favor of denying it. In the post-

sentence context the failure to comply with rules like Traf.R. 8(D) warrants

reversal of a trial court’s denial of a post-sentence motion to withdraw guilty and
Adams App. No. 17CA1049                                                               15


no contest pleas, even though a stricter manifest-injustice standard applies there.

See Paul, 1980 WL 350963, and Jordan, 2001 WL 1346129; see also State v.

Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, ¶ 25 (presentence

motion entitled to much more liberal treatment than post-sentence motion).

Logically, it follows that under the more liberal standard for presentence motions,

Dick has established reversible error. This is not a case where the defendant

had a mere change of heart; instead, Dick had a reasonable and legitimate basis

for withdrawing her guilty plea. We sustain her assignment of error.

                                V. CONCLUSION

       {¶42} Having sustained her sole assignment of error, we reverse the

judgment of the trial court, and remand the cause to that court for further

proceedings consistent with this opinion.

                                                         JUDGMENT REVERSED

                                                        AND CAUSE REMANDED.
Adams App. No. 17CA1049                                                                 16



                                    JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Adams
County Court to carry this judgment into execution.

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

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

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
