[Cite as State v. Delong, 2016-Ohio-1412.]


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

STATE OF OHIO                                   :

        Plaintiff-Appellee,                     :             Case No. 15CA3482

        v.                                      :             DECISION AND
                                                              JUDGMENT ENTRY
REGINA K. DELONG,                               :

        Defendant-Appellant.                    :             RELEASED: 03/30/2016


                                             APPEARANCES:

Timothy Young, Ohio Public Defender, and Eric M. Hedrick, Assistant Ohio Public Defender,
Columbus, Ohio, for appellant.

Sherri K. Rutherford, Chillicothe Law Director and Michele R. Rout, Assistant Law Director,
Chillicothe, Ohio, for appellee.


Piper, J.

        {¶ 1} Defendant-appellant, Regina K. Delong (“Delong”) appeals her convictions and

sentence in the Chillicothe Municipal Court after pleading no contest to driving under an OVI

suspension and operating a vehicle with an invalid license plate.

        {¶ 2} On appeal, Delong presents one assignment of error, alleging that her convictions

should be reversed because the state violated her right to a speedy-trial when it failed to bring her

to trial within 90 days. The state argues that it complied with the applicable speedy-trial

timeframe.

        {¶ 3} We find that the state brought Delong to trial within the applicable speedy-trial

timeframe, and therefore affirm Delong’s convictions and sentence.

                                    I. Facts and Procedural Posture
Ross App. No. 15CA3482                                                                             2


       {¶ 4} Delong was arrested and charged with several offenses, including receiving stolen

property, a fifth degree felony, driving under an OVI suspension, a first degree misdemeanor,

having illegal plates, a fourth degree misdemeanor, and four other minor misdemeanors. Delong

was arraigned on the misdemeanor charges and waived the preliminary hearing for the felony

charge. During the arraignment, the state and Delong agreed that all of the charges arose out of

the same act or transaction. Due to the felony receiving stolen property charge, the trial court

bound over all charges to the Ross County Court of Common Pleas.

       {¶ 5} After the case was transferred to the common pleas court, the state presented its

case against Delong to the Ross County Grand Jury. The grand jury chose not to indict Delong

on the felony charge of receiving stolen property. Instead, the grand jury returned the indictment

on only the two misdemeanor charges of driving under an OVI suspension and having illegal

plates. Delong, now charged with two misdemeanor offenses, had her case returned to the

Chillicothe Municipal Court for further proceedings.

       {¶ 6} Delong was arraigned on the two misdemeanor charges, and filed a demand for

discovery on October 7, 2014. The record indicates that the state provided discovery; and Delong

filed a response to the state’s request for reciprocal discovery on October 30, 2014. On

December 9, 2014, Delong filed a motion to discharge, arguing that the state failed to bring her

to trial within 90 days. The trial court denied Delong’s motion, finding the 90 days did not begin

to run from the date of her arrest, but rather, began to run on the day that Delong was served with

a summons on the grand jury’s indictment, September 24, 2014. As 90 days had not yet passed

from that date, the trial court found that Delong’s speedy-trial rights had not been violated.

       {¶ 7} After her motion to dismiss was denied, Delong pled no contest to the two

misdemeanor charges. The trial court found Delong guilty, and sentenced her to time already
Ross App. No. 15CA3482                                                                              3


served, one year of community control, and a fine of $300. The trial court also suspended

Delong’s driver’s license for one year. Delong now appeals the trial court’s decision to deny her

motion to dismiss.

                                     II. Assignment of Error

       {¶ 8} On appeal, Delong asserts the following assignment of error for our review:

               The trial court erred when it denied Ms. Delong’s motion to

               discharge for violating her speedy-trial rights pursuant to R.C.

               2945.73(B). * * *

        III. Standard of Review for Motions to Dismiss for a Speedy-Trial Violation

       {¶ 9} Appellate review of a trial court’s decision on a motion to dismiss for a speedy-

trial violation involves a mixed question of law and fact. State v. James, 4th Dist. Ross No.

13CA3393, 2014-Ohio-1702. We will defer to a trial court’s factual findings if some competent

and credible evidence supports them, but we review de novo the trial court’s application of the

law to those facts. State v. Carr, 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312, ¶ 12. Also,

“[t]he interpretation of a statute * * * is a question of law, which we review de novo.” State v.

Frey, 166 Ohio App.3d 819, 2006-Ohio-2452, 853 N.E.2d 684, ¶ 9 (4th Dist.).

                                      IV. Law and Analysis

       {¶ 10} In her sole assignment of error, Delong argues that she was entitled to discharge

pursuant to R.C. 2945.73(B) because she was not brought to trial within the required speedy-trial

time limit of 90 days for first degree misdemeanor charges.

       {¶ 11} The Sixth Amendment to the United States Constitution and Section 10, Article I

of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial. The Ohio

Legislature incorporated this guarantee within R.C. 2945.71, which provides specific time limits
Ross App. No. 15CA3482                                                                               4


within which a defendant must be brought to trial. According to R.C. 2945.71(B)(2), a defendant

charged with a first or second degree misdemeanor must be brought to trial within 90 days after

the arrest or service of summons. R.C. 2945.71(C)(2) requires a defendant charged with a felony

to be brought to trial within 270 days after arrest.

       {¶ 12} According to Crim.R. 5(B), “except upon good cause shown, any misdemeanor,

other than a minor misdemeanor, arising from the same act or transaction involving a felony

shall be bound over or transferred with the felony case.” R.C. 2945.71(D) further provides that

when one or more charges of different degrees are brought that arise out of the same act or

transaction, the speedy-trial timeframe will be determined by the highest degree of offense

charged. As such, the speedy-trial timeframe applied to misdemeanor cases bound over with a

felony charge is 270 days.

       {¶ 13} Ohio law is clear that “when an original charge is later reduced to a lesser offense

based upon the same conduct, the speedy trial limitations of R.C. 2945.71 begin to run anew on

the date the defendant is served with the charge on the lesser offense.” State v. Smith, 4th Dist.

Athens No. 99CA31, 2000 WL 41723, *2 (Jan. 12, 2000). Given this well-settled law in Ohio,

and applying the same rationale to the case at bar, we find that Delong’s speedy-trial timeframe

for purposes of the misdemeanor charge began to run anew once the grand jury returned a no

true bill on the felony charge.

       {¶ 14} It is undisputed from the record that the misdemeanor and felony charges all arose

from the same act or transaction, and were pending simultaneously. Delong argues that once the

felony charge was not indicted, the highest remaining offense was a misdemeanor, thus requiring

a 90-day speedy-trial timeframe. However, when the grand jury decided to return the indictment
Ross App. No. 15CA3482                                                                               5


on only the misdemeanor charges, the speedy-trial date began to run anew similar to as if the

charge had been reduced to a lesser-included offense.

       {¶ 15} The record clearly indicates that both parties initially proceeded as if the speedy-

trial timeframe was determined by the felony charge. The grand jury significantly changed the

state’s charges, which also changed the way in which the speedy-trial calculation should take

place. When there exists both a charged felony and misdemeanor, “[t]o hold that [a] defendant

must be tried within a time that remains from the lesser misdemeanor period would place an

unduly severe burden on the prosecution, and would require the prosecution to treat all persons

suspected of conduct which could constitute either a felony or a misdemeanor as though they

will be tried for the misdemeanor.” State v. Phillips, 19 Ohio App.3d 85, 86-87, 482 N.E.2d 1337

(10th Dist.1984). While Phillips was specific to new misdemeanor charges brought after a felony

charge had been dismissed, the same reasoning is applicable to the case at bar.

       {¶ 16} A retroactive application of the 90-day period of time where the timeframe for

trial has already expired does not create an even playing field for the state. The state had no way

of knowing that the grand jury would not indict Delong on the felony charge, and therefore,

could not have anticipated a need to sever the misdemeanor charges and bring Delong to trial

within 90 days from her arrest. The Ohio Legislature anticipated that the state could bring

differing degrees of charges against a defendant when those charges arise out of the same

occurrence or transaction. As referenced above, both Crim.R. 5(B) and R.C. 2945.71(D)

specifically require that differing degrees of crimes be brought together against a defendant, and

all charges tried at the common pleas level within 270 days.

       {¶ 17} Discovering later that the grand jury did not indict on the felony charge, however,

does nothing to change the fact that the state was obligated to present all charges against Delong
Ross App. No. 15CA3482                                                                              6


to the grand jury. The Legislature enacted R.C. 2945.71(D) knowing the grand jury process takes

considerable time to implement.1 Citizens must be called in to appear before the presiding grand

jury common pleas judge in order to be selected, sworn in, and instructed as to the nature of the

proceedings. A grand jury hearing date must be scheduled and subpoenas issued and served.

After testimony and the production of evidence, a report is issued and indictments subsequently

served. The various steps in this process can consume considerable time even when charges are

pursued diligently. As such, Crim.R. 5(B) and R.C. 2945.71(D) interface not only to serve the

efficient administration of justice, but also to serve judicial economy.2

       {¶ 18} This is not a case where the state learned that the grand jury would not indict on a

felony charge and then subsequently brought misdemeanor charges. Instead, the state pursued the

felony and misdemeanor charges together from the start, and proceeded as if the charges would

efficiently be tried together in the court of common pleas. The felony and misdemeanor charges

were always simultaneously pending until the moment the grand jury returned its indictment. At

that point, for the first time, the state was informed that only misdemeanor charges were to be

pursued. Only then did the state become aware of the need to bring Delong to trial within 90

days to abide by the speedy-trial timeframe for misdemeanors. It is uncontested that before the

indictment was pronounced, 270 days remained the controlling timeframe in order for the grand

jury process to fairly and routinely proceed.




1
  Many smaller counties only have grand jury proceedings scheduled one or two days per month.
If we hold as Delong suggests, it would place some counties in the difficult position of
scrambling to seek special grand jury proceedings, which are otherwise not routine and can be
burdensome to coordinate.
2
  The retroactive application of the 90-day timeframe encourages the state to seek a severance of
the charges contrary to the express requirements of Crim.R. 5(B) and would significantly congest
the dockets of municipal and area courts. In essence, it would encourage the state to act contrary
to Crim.R. 5(B) and violate the rule.
Ross App. No. 15CA3482                                                                              7


       {¶ 19} Some courts have recognized that the state does not have the ability to use the

original felony timeframe when charging a felony first and then subsequently bringing

misdemeanor charges once the felony case was terminated. For example, in State v. Large, 2d

Dist. Montgomery No. 23947, 2015-Ohio-33, the court recognized that the appellant’s felony

case terminated once the grand jury returned a no true bill. The appellant was not released from

jail, however, because the state chose to bring new misdemeanor charges based on the same

conduct for which the felony charge arose. The court determined that “because the misdemeanor

charges were instituted after the felony case terminated, R.C. 2945.71(D) did not operate to

apply the 270-day speedy-trial time for the original aggravated burglary charge to the two new

misdemeanor charges. Id. at ¶ 17.

       {¶ 20} Unlike Large, however, in Delong’s situation, the state combined Delong’s

misdemeanor and felony charges together from the beginning and did not bring new or different

charges once the grand jury returned the no true bill on the felony charge. Therefore, we find that

R.C. 2945.71(D) is still applicable, with the operating principle that a different set of charges

handed down by the grand jury begins the speedy-trial timeframe anew.

       {¶ 21} Adhering to this interpretation of the rules and Ohio law gives fair and adequate

notice to both parties regarding what time parameters control the actual charges set forth by the

grand jury. In fact, in a dissent, Judge Hall of the Second District Court of Appeals anticipated in

Large the possibility of an occurrence similar to what occurred in the case at bar. Judge Hall

noted that if the appellant in Large had been “charged with the felony and the misdemeanor

charges at arrest, and he had remained in custody, and the felony later had been dismissed, the

time for trial of the misdemeanor charges would have been the earlier of ninety days from arrest

or thirty days from dismissal of the felony, whichever was earlier.” Id. at ¶ 27. (Emphasis sic).
Ross App. No. 15CA3482                                                                                8


       {¶ 22} Judge Hall based his conclusion on a rule set forth in State v. Gasnik, 132 Ohio

App.3d 612, 725 N.E.2d 1162 (1st Dist.1998), in which the First District set forth the rule that

when an original charge is reduced to a lesser included charge that carries a shorter speedy-trial

time limit, the speedy-trial timeframe will be the earlier of either the speedy-trial timeframe for

the original charge (as applied from the date of the original charge) or the speedy-trial timeframe

for the lesser charge (as applied from the date that the original charge was reduced to the lesser

charge).

       {¶ 23} There is no practical difference between when a grand jury reduces a charge or

when a grand jury dismisses a charge. When a charge is subsequently reduced by the grand jury,

the state and defendant began the case under the assumption that the felony (or higher degree

charge) would control the speedy-trial timeframe. When the degree of the highest charge is later

reduced to something lesser, the speedy-trial timeframe for that lesser charge does not

automatically rise up to subsume the fact that a higher degree charge originally designated the

timeframe to be applied. Instead, the rule is that the charging of the lesser included crime begins

anew the speedy-trial timeframe, and that new degree will control the time frame to be applied.

       {¶ 24} Similarly, when misdemeanor charges are brought with a felony charge, the

parties begin the case under the assumption that the felony charge will control the speedy-trial

time frame, and that the case will go to the common pleas court according to Crim.R. 5(B).

When the grand jury decides not to include the felony charge in its indictment, the process

should be the same with the new time frame beginning anew and controlled by the highest

degree charge the grand injury did include in its indictment.

       {¶ 25} Moreover, the Ohio Supreme Court specifically held that an original speedy-trial

timeframe is applied to subsequent indictments. State v. Baker, 78 Ohio St.3d 108, 676 N.E.2d
Ross App. No. 15CA3482                                                                                 9


883 (1997). The Baker court addressed cases involving multiple indictments, and determined that

“subsequent charges made against an accused would be subject to the same speedy-trial

constraints as the original charges, if the additional charges arose from the same facts as the first

indictment.” Id. at 110. This rule of law encourages the state to bring all charges at the same time

that arise from the same facts, and has the practical result of requiring the state to proceed as if

all charges were brought on the same date.

       {¶ 26} If this court were to adopt Delong’s arguments, it would essentially cause the state

to file felony charges in the common pleas court, while pursuing misdemeanor charges

separately in municipal or area courts to avoid the danger of having the misdemeanor charge

dismissed on speedy-trial grounds. However, and according Crim.R. 5(B), the state does not

have this option because “any misdemeanor, other than a minor misdemeanor, arising from the

same act or transaction involving a felony shall be bound over or transferred with the felony

case.” (Emphasis added.)

       {¶ 27} Our determination today is consistent with the spirit of the speedy-trial rights

inherent in the federal and state constitutions, as well as Ohio’s statutory scheme, “which is

primarily intended to minimize the restrictions on freedom and the general disruption of life

caused by pending and unresolved criminal charges.” Phillips, 19 Ohio App.3d at 86, 482 N.E.2d

1337 (10th Dist.1984). From the inception of the charges against Delong, she was on notice the

state had 270 days to bring its case against her. When the grand jury did not indict on the felony,

the state then had 270 days from the date of arrest or 90 days from the date of service of the new

indictment that dismissed the felony—whichever occurred earlier. This would not have added

any additional burden or restriction of freedom on Delong, as the 90 days would expire before

the 270 days everyone had originally considered applicable. The state brought its case against
Ross App. No. 15CA3482                                                                        10


Delong within the original 270-day time frame, and within 90 days of the grand jury’s

indictment. As such, Delong’s speedy-trial rights were not violated.

                                         V. Conclusion

       {¶ 28} Having found that Delong’s speedy-trial rights were not violated, we overrule

Delong’s sole assignment of error and affirm the judgment of the trial court.

                                                                       JUDGMENT AFFIRMED.
Ross App. No. 15CA3482                                                                                  11



Hoover, J.: Dissents with Dissenting Opinion.

       {¶ 29} I respectfully dissent from the principal opinion. I would find that the state

violated Delong’s right to speedy trial. Therefore, I would sustain Delong’s first assignment of

error; and I would remand this proceeding to the trial court so it may vacate Delong’s conviction.

       {¶ 30} Here, both parties cited the rule in State v. Smith, 4th Dist. Athens No. 99CA31

2000 WL 41723 (Jan. 12, 2000) and both parties argued its application under the facts of this

case. Delong asserts that the rule in Smith does not apply here, because her case does not involve

a reduction of charges to a lesser degree. As such, Delong asserts that the speedy trial deadline of

90 days began to run one day after her arrest.

       {¶ 31} On the other hand, the state argues that when applying the rule in Smith to the case

at bar, it had 270 days from June 28, 2014 or 90 days from September 24, 2014. Since the 90-day

deadline is the earlier of the two, the state contends (1) that the latter time limit applied and (2)

that Delong’s plea of no contest was within that speedy trial time requirement.

       {¶ 32} I find that Smith is clearly distinguishable from the case at bar, however. In Smith,

the defendant was charged originally with a felony failure to comply with the order of a police

officer. Id. at *1. Defendant was also charged with several misdemeanors, including driving

under the influence, driving under suspension, speeding, and displaying fictitious tags. Id. Unlike

the case sub judice, Smith appeared in the municipal court and pled no contest to an amended

misdemeanor charge. Id. The municipal court dismissed the remaining misdemeanors upon the

state’s motion. Id. After disposition of the misdemeanors, the state then decided not to pursue the

felony failure to comply and dismissed the felony. Id. The state instead filed a misdemeanor

complaint for failure to comply. Id. Between arraignment on the misdemeanor charge and his set
Ross App. No. 15CA3482                                                                               12


trial date, Smith filed a motion to dismiss pursuant to R.C. 2945.71. Id. The trial court denied

Smith’s motion to dismiss. Id.

       {¶ 33} During Smith’s appeal of the trial court’s decision, he argued that the trial court

erred because the state failed to bring him to trial within 90 days of his arrest. Id. In deciding

Smith, this court relied on the rule previous articulated in State v. Cattee, 14 Ohio App.3d 239,

470 N.E.2d 421 (4th Dist.1983). Id. at *2. Applying that rule, as stated above, this court

determined that the state complied with the speedy trial guidelines. Id. at *3. This court stated

that the state brought Smith to trial within 270 days of his felony arrest, and within 90 days of the

reduction in charges. Id.

        {¶ 34} Smith’s circumstances were much different from Delong’s circumstances in that

the felony receiving stolen property charge against Delong did not result in a misdemeanor

charge. No charge arose from the receiving stolen property charge at all in the case before us.

Furthermore, in Smith, the state resolved the misdemeanor charges against Smith before pursuing

the felony charge. Id. at *1, *3. Here, the misdemeanor charges against Delong remained

pending from the date of his arrest until she entered a plea of no contest to the indicted charges.

       {¶ 35} In deciding Smith, this court had relied upon Cattee. However, Cattee is also

distinguishable from the case sub judice. In Cattee, the defendant Cattee was initially charged

with felonious assault, a second degree felony. Id. at 240. The case was then bound over to the

Scioto County Common Pleas Court. Id. After being considered by the Scioto County Grand

Jury, Cattee was indicted only upon a misdemeanor assault charge. Id. Cattee then filed a motion

to dismiss claiming that his right to a speedy trial had been violated. Id. The trial court denied

Cattee’s motion to dismiss. Id.
Ross App. No. 15CA3482                                                                              13


        {¶ 36} In affirming the trial court’s decision to deny Cattee’s motion to dismiss, this

court held that “where a felony complaint is filed, the accused is bound to the grand jury and an

indictment charging a misdemeanor is returned, the statutory time limitations respecting the

misdemeanor shall apply subject to the requirement that the time for trial shall not exceed the

statutory period for the trial of the felony.” (Emphasis sic.) Id. at 242. “In other words, to

compute speedy trial time we compare the deadlines of the original charge versus the reduced

charge, and then use the earlier of the two deadlines.” Smith at *2. Therefore, while a new

speedy trial time may commence when a felony charge is reduced to a misdemeanor, the state

must still bring the accused to trial within the original 270-day time limit.

        {¶ 37} I agree that this reasoning applies when a felony charge is reduced to a

misdemeanor charge as in Cattee and Smith; however, in the case sub judice, the felony charge

was not reduced to a misdemeanor charge. The Ross County Grand Jury simply chose not to

indict on the felony charge of receiving stolen property. In fact, the two misdemeanors upon

which Delong was indicted were based on the same two misdemeanors that she was originally

charged with on June 28, 2014 and upon which she was arraigned twice.

        {¶ 38} We must be cognizant of the premise that an accused has a valid interest in, and

an independent constitutional right to, a speedy trial. Cattee at 242 quoting State v. Bonarrigo,

62 Ohio St.2d 7, 11, 402 N.E.2d 530 (1980). “A court interpreting a statute must look to the

language of the statute to determine legislative intent.” State v. Clemons, 4th Dist. Highland No.

12CA9, 2013–Ohio–3415, ¶ 7. Courts should give effect to the words of the statute and should

not modify an unambiguous statute by deleting or inserting words; that is, we have no authority

to ignore the plain and unambiguous language of a statute under the guise of statutory

interpretation. Id. In interpreting a criminal statute, courts must construe the statute strictly
Ross App. No. 15CA3482                                                                             14


against the state and liberally in favor of the accused. Id. citing R.C. 2901.04(A); State v. Gray,

62 Ohio St.3d 514, 515, 584 N.E.2d 710 (1992). “The interpretation of a statute or ordinance is a

question of law, which we review de novo.” State v. Frey, 166 Ohio App.3d 819, 2006–Ohio–

2452, 853 N.E.2d 684, ¶ 9.

       {¶ 39} In applying R.C. 2945.71, I would examine the facts of this case as follows. Here,

the felony charge of receiving stolen property was not reduced to a lesser charge. No felony or

misdemeanor charge resulted from the facts associated with the receiving stolen property charge.

Instead, Delong was indicted upon a charge of driving under OVI suspension—a misdemeanor

of the first degree. This charge was the exact same charge as the original charge. Since Delong’s

arraignment on the original charges, Delong had been under a recognizance bond for the charge

of driving under OVI suspension.

       {¶ 40} As for the other misdemeanor charge of operating a motor vehicle bearing an

invalid license plate—a misdemeanor of the fourth degree—although it was not the exact same

charge as the original charge of having illegal places, it did arise from the same facts as the

original charge. I, therefore, consider that the Ohio Supreme Court has determined that, “[w]hen

new and additional charges arise from the same facts as did the original charge and the state

knew of such facts at the time of the initial indictment, the time within which trial is to begin on

the additional charge is subject to the same statutory limitations period that is applied to the

original charge.” State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989) quoting State v.

Clay, 9 Ohio App.3d 216, 218, 459 N.E.2d 609 (11th Dist.1983). Thus, according to Adams and

Clay, even if we consider the charge of operating a motor vehicle bearing an invalid license plate

as a new charge, the time within which trial is to begin on the new charge is subject to the same

statutory limitations that was applied to the original charge of having illegal plates.
Ross App. No. 15CA3482                                                                             15


       {¶ 41} I am mindful that we must construe the speedy trial statutes strictly against the

state and in favor of the accused. State v. Carr, 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312,

¶ 11, citing Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996). Accordingly, I

would find that, under the circumstances in this case, the speedy trial time requirement as set

forth in R.C. 2945.71(B)(2) was not enlarged because of the grand jury’s decision to indict

Delong on the misdemeanor charges only and not the felony charge. In other words, I would find

that the state did not continue to have the time period of 270 days in which to bring Delong to

trial once the felony receiving stolen property charge was no billed. Consequently, R.C.

2945.71(B)(2) applied; and Delong had to be brought to trial on the misdemeanors within 90

days after her arrest. Even counting the tolling periods, I find that more than 90 days elapsed

which violated the speedy trial statute.

       {¶ 42} Thus, I would conclude that the state failed to bring Delong to trial within 90 days

from June 29, 2014, in violation of Delong’s right to speedy trial. I would sustain Delong’s

assignment of error, reverse the judgment of the trial court, and remand the matter to the trial

court in order to vacate the conviction and discharge Delong.
Ross App. No. 15CA3482                                                                          16


                                      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 Chillicothe
Municipal Court to carry this judgment into execution.

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

Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Dissents with dissenting opinion.

                                              For the Court


                                              BY:
                                                     Robert N. Piper*, 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.


*Judge Robert N. Piper III from the Twelfth Appellate District, sitting by assignment of the
Supreme Court of Ohio in the Fourth Appellate District.
