[Cite as State v. Brown, 2017-Ohio-2647.]


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

STATE OF OHIO,                 :
                               :    Case No. 16CA3544
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
DAVID E. BROWN, II,            :
                               :
    Defendant-Appellant.       :    Released: 04/28/17
_____________________________________________________________
                         APPEARANCES:

Chase B. Bunstine, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C.
Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} David E. Brown, II, appeals the judgment entry of sentence

dated April 6, 2016 in the Ross County Court of Common Pleas, in which he

entered guilty pleas to kidnapping, R.C. 2905.01, a felony of the first degree,

and felonious assault, R.C. 2903.12, a felony of the second degree. Here,

Appellant asserts that the trial court erred and abused its discretion when it

denied his timely motion to withdraw guilty plea. Upon review, we find no

merit to Appellant’s argument. The trial court did not abuse its discretion in

overruling Appellant’s pre-sentence motion to withdraw plea. Accordingly,
Ross App. No. 16CA3544                                                         2

we overrule Appellant’s sole assignment of error and affirm the judgment of

the trial court.

                                    FACTS

       {¶2} On August 28, 2015, Appellant was indicted on two counts:

Count One, kidnapping, a violation of R.C. 2905.01, a first degree felony,

and Count Two, felonious assault, R.C. 2903.12, a second degree felony.

Count One contained a specification that, pursuant to R.C. 2929.01,

Appellant was a repeat violent offender. The indictment arose from

activities which occurred on July 22 and 23, 2015 in Ross County when

Appellant and other individuals allegedly kidnapped and inflicted serious

physical harm on Arthur Hamlin, Jr.

       {¶3} Appellant was arraigned on September 2, 2015 and pleaded not

guilty. A status conference was held on October 7, 2015, at which time the

parties advised the trial court that the State was planning to again present the

matter to the grand jury for the purpose of adding another repeat violent

offender specification. On October 23, 2015, a second indictment was filed

which set forth the same allegations as in the original indictment and

contained the additional repeat violent offender specification as to Count

Two.
Ross App. No. 16CA3544                                                                                    3

         {¶4} Appellant was arraigned a second time on October 28, 2015.

On November 16, 2015, Appellant changed his plea pursuant to a plea

agreement and negotiated recommended sentence. Appellant pleaded guilty

to both counts and the State agreed to dismiss both specifications on the

condition that Appellant would testify against his co-defendants in the case.1

The State further agreed to recommend an eight-year sentence on each

count, to be served concurrently.

         {¶5} At the change of plea hearing, Appellant’s counsel stated:

“There is some concern here, obviously about Mr. Brown testifying against

Codefendants, for his safety and for his family’s safety.” However, after

further discussion of the parties, the trial court engaged in the required

Crim.R. 11(C) colloquy with Appellant. The trial court found Appellant’s

decision to enter a plea of guilty on the two counts as knowing, intelligent,

and voluntary. The matter was set for disposition.

         {¶6} However, on December 2, 2015, Appellant pro se forwarded a

handwritten “Motion to Withdraw Plea of Guilty.” On December 9, 2015,

the trial court held a status conference. Appellant’s counsel advised he



1
 Appellant also agreed to provide a statement with respect to an October 2015 offense of rape and felonious
assault that occurred in the Ross County jail, and to testify against any codefendants in that particular
matter. The plea agreement further provided that should Appellant face charges out of the jail incident, the
State would agree to recommend that any sentence for those charges be served concurrently to the eight-
year prison sentence.
Ross App. No. 16CA3544                                                               4

would file a motion on his client’s behalf and the trial court set the matter for

hearing on the motion to withdraw.2

           {¶7} On March 23, 2016, the trial court held a hearing on Appellant’s

motion to withdraw his guilty plea. When given the opportunity to address

the court, Appellant began:

           Appellant:          Just that, you know, I mean, I was planning
           on going through with the deal but there’s been threats made
           against my family and stuff and I just don’t feel comfortable
           putting my children at risk, you know over, over something that
           involves me and has nothing to do with them. I would rather,
           you now, just take what I have to do and not have them under
           any kind of threat.

           The Court:                 Okay, I mean, who is making the threats?

           Appellant:           Um, I mean, I really don’t know. There’s
           just been threats, there’s been knocks at my house, there’s been
           things done to vehicles, so-

           The Court:      Well what are the things that have been
           done? How are you relating those to your case?

           Appellant:          I mean because nothing was going on before
           I took the plea deal and my family is, you know, have had
           windows knocked out, have had car tires slashed. There’s been
           things, um, you know, just threats made, people knocking on
           the door all hours of the night.

           The Court:         Alright, is there anything else that you wish
           for me to consider?

           Appellant:                 No, that’d be it, Your Honor.


2
    The trial court advised Appellant that Ohio did not allow dual representation.
Ross App. No. 16CA3544                                                         5

      {¶8} Appellant’s counsel also spoke on his behalf. At this point, the

State offered the testimony of Detective Shawn Rourke, an officer for the

City of Chillicothe Police Department, who testified in regards to

Appellant’s previous claim of fear for his girlfriend and himself. The State

also offered as an exhibit a message from jail, from Appellant addressed to

Detective Rourke, that he was “ready to take a plea deal.” At the close of

the hearing, defense counsel argued that Appellant’s desire to withdraw his

plea was based on a credible belief of legitimate threat to his immediate

family. In overruling Appellant’s motion, the trial court noted that there was

no specific proof that the threats attached to the case at bar.

      {¶9} Appellant’s sentencing occurred on March 31, 2016. When

given the opportunity to speak, Appellant stated:

      “* * * Just that you should know I’m sorry about what
      happened. I done the best I could for that man, you know,
      without putting myself in the same position he was in and um,
      you know, I just feel that this guilty plea is not something that I
      should be held to because I believe that pressure was put on me
      by those other charges by the police department to get me to
      take a deal and I was talked to somebody and they told me that
      because I was under the influence of depression drugs and I was
      under the influence of street drugs when I took that deal that I
      should not be held to it and I just want that to go on record that
      I’m not comfortable with this guilty plea that I had to take. I
      feel I was forced to take it by the prosecutor and the detectives
      from the Chillicothe police department and the sheriff’s
      department putting that pressure on me, trying to trump up
      charges on me and they just tried to do it again, the same kind
      of charges.
Ross App. No. 16CA3544                                                        6

      ***

      I don’t believe I did anything; I did not felonious assault that
      guy or did I kidnap him. I was there, and you know if I would
      of done anything like I did when the people was around I would
      have been down there with him.”

      {¶10} The trial court imposed the previously negotiated and

recommended sentence. This timely appeal followed. Where relevant,

additional facts will be set forth below.

                         ASSIGNMENT OF ERROR

      “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN
      IT DENIED APPELLANT’S MOTION TO WITHDRAW HIS
      GUILTY PLEA.”

                       A. STANDARD OF REVIEW

      {¶11} Crim.R. 32.1 states: “A motion to withdraw a plea of guilty or

no contest 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. Hoke, 4th Dist. Lawrence No. 10CA32, 2011-Ohio-1221,

¶ 12, quoting State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935

N.E.2d 9, at ¶ 57, quoting State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d

715(1992). However, a defendant does not have an absolute right to

withdraw a guilty or no contest plea prior to sentencing. Xie at paragraph
Ross App. No. 16CA3544                                                         7

one of the syllabus; State v. Spivey, 81 Ohio St.3d 405, 415, 1998-Ohio-437,

692 N.E.2d 151. Thus, the trial court possesses broad discretion to grant or

deny a presentence motion to withdraw a plea, and we will not reverse the

court's decision absent an abuse of that discretion. Xie at paragraph two of

the syllabus; Spivey, 81 Ohio St.3d at 415, 692 N.E.2d 151. The term

“abuse of discretion” implies that the court's attitude is unreasonable,

unconscionable, or arbitrary. See, e.g., State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144 (1980). Furthermore, “[w]hen applying the abuse of

discretion standard, a reviewing court is not free to merely substitute its

judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135,

137-138, 566 N.E.2d 1181 (1991).

                           B. LEGAL ANALYSIS

      {¶12} In our prior decisions, we have set forth a list of factors that we

consider when determining whether a trial court abused its discretion by

denying a presentence motion to withdraw a plea: “ ‘(1) whether the accused

was represented by highly competent counsel; (2) whether the accused was

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

hearing was held on the withdrawal motion; and (4) whether the trial court

gave full and fair consideration to the motion.’ ” Hoke, supra, at 13, quoting

State v. Campbell, 4th Dist. Athens No. 08CA31, 2009-Ohio-4992, at ¶ 7,
Ross App. No. 16CA3544                                                         8

quoting State v. McNeil, 146 Ohio App.3d 173, 176, 765 N.E.2d 884 (1st

Dist.2001); see also State v. Gibbs, 4th Dist. Ross Nos. 10CA3137 and

10CA3138, 2010-Ohio-2246, at ¶ 9. Other considerations include: “ ‘(1)

whether the motion was made within a reasonable time; (2) whether the

motion set out specific reasons for the withdrawal; (3) whether the accused

understood the nature of the charges and the possible penalties; and (4)

whether the accused was perhaps not guilty or had a complete defense to the

charges.’ ” Campbell at ¶ 7, quoting McNeil, 146 Ohio App.3d at 176, 765

N.E.2d 884. A change of heart or mistaken belief about the plea is not a

reasonable basis requiring a trial court to permit the defendant to withdraw

the plea. Campbell at ¶ 7, citing State v. Lambros, 44 Ohio App.3d 102, 103,

541 N.E.2d 632 (8th Dist.1988).

      {¶13} On appeal, Appellant argues his motion pursuant to Crim.R.

32.1 was filed within a reasonable time, set forth specific reasons for his

request, including the grounds of innocence, fear for his family, and pressure

by counsel and law enforcement, and that withdrawal of his plea would have

resulted in no prejudice to the State. Appellant cites the correct legal

standard for consideration of his pre-sentence motion, set forth in State v.

Jones, 4th Dist. Scioto No. 13CA3548, 2013-Ohio-5416. However,

Appellant urges his case is more factually similar to one in the Seventh
Ross App. No. 16CA3544                                                           9

Appellate District, State v. Cuthbertson, 139 Ohio App.3d. 895, 746 N.E.2d

197 (7th Dist.2000). In response, the State maintains the trial court did not

abuse its discretion when it overruled Appellant’s motion. The State points

out Appellant was represented by highly competent counsel, that he was

given a full Crim.R. 11 hearing before entering his plea, that he was given a

full hearing on his motion to withdraw, and that the record reflects the trial

court gave full and fair consideration of the motion. The State characterizes

the reason for Appellant’s motion as simply a change of heart.

      {¶14} In Cuthbertson, the defendant mailed the court a pre-sentence

request to withdraw his plea to murder with a firearm specification. At the

hearing conducted on the motion, Cuthbertson elaborated:

      “Basically, I changed my mind because, first of all, I'm
      innocent. Second, I thought about the entire situation with my
      attorney, with my mom and everybody that is involved in this
      case, and I felt that it was my life that was at stake and wanted
      to determine what would happen for the rest of my life. My
      mom encouraged me a lot to take this plea bargain. She really
      knows nothing about the law, and I guess I considered her life a
      lot and that made me decide and think about my son, and I
      guess I felt that also I wouldn't even get a fair trial. I discussed
      it with my attorney for 14 months. I never wanted to take a plea
      bargain, and I had no plans to take a plea bargain and come
      time for trial that's all I ever heard was plea bargain, plea
      bargain, and it was like the only thing for me to do. That's not
      what I wanted to do.

      ***
Ross App. No. 16CA3544                                                          10

           Basically because, I guess, first of all, I'm human. I'm entitled
           to make a mistake on my decisions. I think the prosecution
           should, or whoever is going to determine what is going to
           happen with this situation, needs to prove me guilty on the
           charges they charged me with. I don't want to spend the rest of
           my life in prison because of what somebody else did or I was
           with somebody that did something.”

           {¶15} On cross-examination, Cuthbertson repeated that he was

pressured to plead guilty. The appellate court noted the appropriate standard

of review for pre-sentence motions and addressed the additional factors to be

used in consideration of such motions, noting that no one factor was

conclusive.3 However, the Seventh District Appellate Court disagreed with

the trial court’s conclusion that Cuthbertson’s motion was based on a

“change of mind.” The appellate court observed:

           “First, there is no allegation that the state's case would be
           prejudiced upon withdrawal of the plea.

           ***

            Admittedly, the required hearing on the motion to withdraw
           occurred, and appellant was able to attempt to explain his
           position. Nonetheless, the transcript leaves one with the
           impression that appellant's attorney was preoccupied with
           making a record to establish that he did not coerce the plea
           rather than attempt to assist appellant in a successful plea
           withdrawal. It is also worth noting that appellant took it upon
           himself to seek plea withdrawal by means of a letter to the
           court. The letter stated specific reasons for his desire to
           withdraw his plea, and these reasons were repeated at the
           hearing.

3
    State v. Fish, 104 Ohio App.3d at 240, 661 N.E.2d at 790 (1st Dist.1995).
Ross App. No. 16CA3544                                                      11

      ***

      [T]he timing of the motion was surely reasonable. Lastly,
      appellant has set forth the possibility of a defense to the charge
      by maintaining his claims that he was not the perpetrator of the
      murder yet implying that he was present. In conclusion, when a
      defendant claims he is innocent and wishes to withdraw his plea
      of guilt prior to sentencing, a comparison of the interests and
      potential prejudice to the respective parties weigh heavily in the
      interests of the accused.

      ***

      Absent any showing of some other real prejudice to the state
      which occurred solely as a result of entering into a plea bargain,
      as here, the potential harm to the state in vacating the plea is
      slight, whereas the potential harm to the defendant in refusing
      to vacate the plea is great. Accordingly, we hold that the failure
      of the lower court to allow appellant to withdraw his plea was
      unreasonable.”

      {¶16} Here, we are not persuaded Cuthbertson is completely on

point. Upon review of the relevant facts, we find the trial court did not

abuse its discretion in denying Appellant’s pre-sentence motion to withdraw

his plea. We have considered the applicable factors and we agree that

Appellant’s motion was made within a reasonable time. Appellant changed

his plea on November 16, 2015 and his sentencing was expected to be in late

January 2016. He requested to withdraw his plea, approximately 2 weeks

after changing his plea, on December 2, 2015.

      {¶17} We next observe that the record reflects Appellant was given a

full Crim.R. 11 hearing before entering his plea. Appellant verified that he
Ross App. No. 16CA3544                                                                                     12

was not under the influence of any drugs, medication, or alcohol. Appellant

further advised that he had not been threatened or been promised anything in

order to change his plea. He acknowledged reading, executing, and

understanding the written plea agreement. He further stated, when

questioned about whether or not he was satisfied with his trial counsel, that

he was “very satisfied.” Along these lines, we also find Appellant expressed

full understanding of the nature of the charges and the possible penalties he

was facing. We find the record clearly reflects Appellant had a full Crim.R.

11 hearing.

         {¶18} We further find no indications in the record that Appellant was

not represented by highly competent counsel. It is reasonable to assume that

Appellant’s counsel negotiated the very favorable plea agreement and

recommended sentence on Appellant’s behalf. During the change of plea

hearing, Appellant acknowledged he was “very satisfied” with his counsel.4

         {¶19} However, we cannot find that either Appellant’s pro se request

or the motion filed on his behalf set out specific reasons for the withdrawal.

His stated reason at the motion hearing was the threats and fear for his

family. At the motion hearing, Appellant did not voice any allegations that

the police department, the prosecutor, and the detectives were pressuring
4
  And, after forwarding his pro se request to withdraw his plea, at the status conference, he again relied on
his trial counsel to pursue the matter. The trial court also commented on the record that Appellant was
represented by highly competent counsel.
Ross App. No. 16CA3544                                                        13

him to enter the plea agreement. These allegations first surfaced at

Appellant’s sentencing, a week after the hearing on his motion had taken

place. Nor did Appellant advise he was under the influence of drugs when

he “took the deal.”

      {¶20} We further find Appellant’s request was given full and fair

consideration. Although his handwritten request and the written motion did

not set out specific reasons, both Appellant and his counsel were given time

to explain his stated reason. Yet, at the hearing, the State presented evidence

that Appellant had voiced concerns for his and his girlfriend’s safety when

initially interviewed, and long before his request to change his plea.

Detective Rourke testified he interviewed Appellant twice, on the date when

he was arrested, and that he had “voiced concerns for his safety and the

safety of a girlfriend.” On cross-examination, Detective Rourke reiterated

that Appellant did not identify a specific source who had threatened him and

did not identify specific acts, as mentioned at the hearing. Further,

Appellant did not mention his children or other immediate family had been

threatened. The State urged that Appellant was well aware of possible

ramifications of testifying against his codefendants. In overruling

Appellant’s motion, the trial court noted that Appellant was not able to

identify specific persons making the threats or that the threats were, in fact,
Ross App. No. 16CA3544                                                         14

relating to his particular case. We cannot conclude Appellant’s request was

not given full and fair consideration.

      {¶21} The Cuthbertson court relied heavily on the fact that there was

no allegation that the State’s case would be prejudiced upon withdrawal of

the plea and further cited lack of prejudice to the State as one of the most

important factors. However, the appellate court also questioned the

effectiveness of Cuthbertson’s counsel in arguing for grant of the motion,

commenting that counsel seemed more preoccupied with “making a record”

than attempting to assist Cuthbertson in a successful plea withdrawal.

      {¶22} Importantly, we observe that Cuthbertson proclaimed first and

foremost that he was innocent. And the appellate court commented that

Cuthbertson had set forth the “possibility of a defense to the charge by

maintaining his claims that he was not the perpetrator yet implying that he

was present.” The Cuthbertson court noted the potential harm to

Cuthbertson in refusing to vacate his plea was great. Id. at 900.

      {¶23} By contrast, in the case at bar, at the motion hearing Appellant

did not stoutly proclaim innocence. It was only after his motion was denied

that Appellant acknowledged a lesser measure of involvement and

culpability, stating: “I don’t believe I did anything; I did not felonious

assault that guy or did I kidnap him. I was there * * *.” In State v. Powers,
Ross App. No. 16CA3544                                                          15

4th Dist. Pickaway No. 03CA21, 2004-Ohio-2720, this court pointed out a

defendant's claims of innocence are not sufficient to warrant withdrawal of a

plea knowingly entered. Id. at ¶ 18; State v. Kandiko (Feb. 9, 1995),

Cuyahoga App. No. 66888, State v. Frank (April 29, 1993), Cuyahoga App.

No. 62201. We observed that all defendants who request a withdrawal of

their plea base their request upon some claim of innocence. State v.

McGowan (Oct. 3, 1996) Cuyahoga App. No. 68971. We further observed

Powers made only an unsubstantiated claim of innocence, and that the trial

court could reasonably have concluded that Powers’ profession of innocence

was nothing more than a change of heart, which is an insufficient basis for

withdrawing a guilty plea. Lambros, supra, 44 Ohio App.3d 102 at 103. It

would appear that when Appellant realized his safety concerns were not

persuasive to the trial court at the motion hearing, that he subsequently

proffered a “laundry list” of reasons for his motion at sentencing, i.e., the

alleged and unsubstantiated influence of drugs and alleged coercion by law

enforcement and the prosecutor’s office, along with a weak profession of

innocence.

      {¶24} For the foregoing reasons, we find no merit to Appellant’s

argument and further find the trial court did not abuse its discretion in

overruling Appellant’s pre-sentence motion to withdraw his plea. As such,
Ross App. No. 16CA3544                                                     16

we overrule the sole assignment of error and affirm the judgment of the trial

court.

                                                JUDGMENT AFFIRMED.
Ross App. No. 16CA3544                                                           17

Hoover, J., concurring in judgment only:

       {¶ 25} I respectfully concur in judgment only with the majority

opinion.

       {¶ 26} I start with the premise that “ ‘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

State v. Xie at 527. Brown’s motion to withdraw his guilty plea was made

prior to his sentencing. Brown filed the motion at issue in December 2015.

At the motion hearing, Brown stated, “I was planning on going through with

the deal but there’s been threats made against my family and stuff and I just

don’t feel comfortable putting my children at risk, you know over, over

something that involves me and has nothing to do with them.” March 23,

2016 Hrg., p. 3-4. He went on to explain that his family’s home and personal

property had been vandalized. He added that he did not know who was

making the threats but “nothing was going on before [he] took the plea

deal.” Id. at p. 4. After considering the factors in State v. Xie, the trial court

denied Brown’s motion.

       {¶ 27} A few days later, at Brown’s sentencing hearing, but prior to

the actual sentencing of Brown, the trial court gave Brown the opportunity to

address the court. Brown again indicated that he wanted to withdraw his
Ross App. No. 16CA3544                                                        18

plea. This time, however, he gave completely different reasons for

withdrawing his plea. Brown stated that he should not be “held to” his guilty

plea because (1) he felt pressured into taking a plea deal; and (2) he talked to

someone and they told him that because he was under the influence of drugs

when he took the deal he should not be held to it. March 31, 2016 Hrg., p. 4.

He also proclaimed his innocence. The trial court did not address Brown’s

claims and proceeded immediately to sentencing.

      {¶ 28} I believe that the statements Brown made could be construed as

a second motion to withdraw his plea. Brown once again indicated to the

trial court that he wanted to withdraw his plea. Brown did not base his

second request on the same reasons that he stated in his first motion to

withdraw his plea; and there is no requirement in Crim.R. 32.1 that a motion

to withdraw guilty plea be in writing. See State v. Elkins, 4th Dist. Lawrence

No. 16CA15, 2016-Ohio-8579 (trial court erred in failing to conduct any

inquiry into defendant’s oral, presentence request to withdraw guilty plea

that defendant made at the beginning of his sentencing hearing).

      {¶ 29} Therefore, pursuant to State v. Xie, I believe that the trial court

should have conducted a hearing “to determine whether there [was] a

reasonable and legitimate basis for the withdrawal of the plea” rather than

proceeding immediately to sentencing. 62 Ohio St. 3d 521, 527, 584 N.E.2d
Ross App. No. 16CA3544                                                         19

715 (1992). Of particular concern to me is the fact that Brown states that he

was under the influence of drugs at the time that the guilty plea was entered.

I am mindful, however, of the fact that Brown had originally stated that he

was not under the influence of any drugs.

      {¶ 30} That being said, Brown does not argue on appeal that the trial

court erred in failing to hold a hearing on his second motion to withdraw his

guilty plea. I refuse to make Brown’s argument for him. His appeal presents

the issue whether the trial court erred in denying his first motion to withdraw

his guilty plea; and I do not believe that the trial court erred with respect to

that decision. Therefore, I concur in judgment only with the majority

opinion.
Ross App. No. 16CA3544                                                       20

                           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.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only with Concurring 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.
