STATE OF OHIO, Plаintiff-Appellee, vs. JIMMIE E. JACOBS, Defendant-Appellant.
Case No. 11CA26
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
RELEASED: 03/28/13
[Cite as State v. Jacobs, 2013-Ohio-1502.]
McFarland, P.J.
APPEARANCES:
William R. Gallagher, Arenstein and Gallagher, Cincinnati, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee.
McFarland, P.J.
{¶1} Appellant, Jimmie Jacobs, appeals the conviction and sentence entered against him by the Highland County Court of Common Pleas after a jury found him guilty of aggravated burglary and felonious assault, along with two firearm specifications. On appeal, Appellant contends that 1) the trial court erred in admitting into evidence his statements made after he had invoked his right to counsel; 2) the trial court erred in limiting his cross examination of the complaining witness thereby denying him his constitutional right of confrontation; 3) the trial court erred in refusing to
{¶2} With regard to Appellant‘s first assignment of error, we conclude Appellant knowingly and intelligently waived his rights when he re-initiated conversation with law enforcement. As such, the trial court did not err in denying Appellant‘s motion to suppress, nor did it err in admitting his statements into evidence at trial. Thus, Appellant‘s first assignment of error is overruled.
{¶3}As to Appellant‘s second and fourth assignments of error, because we find no abuse of discretion on the part of the trial court in excluding the evidence at issue, we find no merit to these assignments of error and they are both overruled. Likewise, as to Appellant‘s third
{¶4} With regard to Appellant‘s fifth assignment of error, we have concluded that aggravated burglary and felonious assault are allied offenses of similar import which should have merged for purposes of sentencing. As such, this matter is remanded for resentencing, at which the State must elect which offense it wishеs to proceed upon for sentencing and conviction. Therefore, Appellant‘s fifth assignment of error is sustained. Finally, in light of our finding that aggravated burglary and felonious assault are allied offenses of similar import, and as such that Appellant could only be convicted for one of the offenses, the trial court erred in imposing consecutive three year sentences for each of Appellant‘s firearm specifications, under
FACTS
{¶6} On December 15, 2010, Appellant, Jimmie Jacobs, was arrested in connection with the shooting of victim, Jonathan Harris, at Harris’ apartment located in the back of J&J Automotive in Highland County, Ohio. Upon being questioned by Patrolman Jeff Murphy and Detective Ron Priest with the Hillsboro Police Department while in an interview room at the Highland County Justice Center, Appellant confessed to having entered the victim‘s residence and shooting him with a .357 chrome revolver.1
{¶7}As a result, on March 1, 2011, Appellant was indicted on attempted murder, in violation of
{¶9} The matter was tried to a jury on August 31, and September 1, 2011. The State presented multiple witnesses in support of its case. Of importance, the victim, Jonathan Harris, testified that Appellant, a neighbor of Harris‘, entered Harris’ residence located in the back of J&J Automotive on the evening of December 15, 2010. Harris testified that Appеllant had a gun in his hand, stated he was going to kill Harris, put the gun to his head and then pulled the trigger. Mark Puckett, a neighbor who knows both Harris and Appellant, testified that he was on the phone with Harris when Appellant entered the residence and that he heard Harris call Appellant by
{¶10}Patrolman Jeff Murphy and Detective Ron Priest, both with the Hillsboro Police Department, testified regarding their interview of Appellant at the Highland County Justice Center on the night of the shooting. Both men essentially testified that Appellant stated that he had an issue with the victim over money he had loaned him. They further testified that Appellant stated that he went to the victim‘s apartment and shot him with a .357 chrome revolver.
{¶11}Finally, the State presented the testimony of Heather Williams and Max Larijani, employed at BCI&I. Larijani., who was qualified as an expert in gunshot residue analysis, testified that there was gunshot primer residue identified on samples taken from Appellant‘s left back hand and the palm of his right hand. Williams, who was qualified as an expert in bullet/projectile analysis, testified that the evidence she tested indicated the bullet fired had come from a .380 auto caliber or greater. She further testified that a .357 caliber is greater than a .380 caliber.
{¶13} After hearing the evidence, the jury found Appellant guilty of aggravated burglary and felonious assault. As such, the attempted murder charge was nolled and dismissed, and the trial court sentenced Appellant to eight years on each count, as well as three years on each firearm specification, all to be served consecutively for a total prison term of twenty-
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE STATEMENTS OF JACOBS AFTER HE HAD INVOKED HIS RIGHT TO COUNSEL WHICH VIOLATES HIS RIGHTS GUARANTEED HIM BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED IN LIMITING DEFENDANT‘S CROSS EXAMINATION OF THE COMPLAINING WITNESS THEREBY DENYING HIM HIS CONSTITUTIONAL RIGHT OF CONFRONTATION AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS.
III. THE TRIAL COURT ERRED IN REFUSING TO PERMIT A WITNESS TO TESTIFY TO HIS OPINION AS TO TRUTHFULNESS OF A GOVERNMENT WITNESS THUS DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND COMPULSORY PROCESS AS GUARANTEED BY THE OHIO AND FEDERAL CONSTITUTIONS.
IV. TRIAL COURT ERRED BY REFUSING TO ADMIT EVIDENCE OF A WITNESS‘S DRUG USE AND MENTAL ILLNESS THUS DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR [SIC] AND A COMPULSORY PROCESS AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS.
V. THE TRIAL COURT ERRED IN ENTERING JUDGEMENTS [SIC] OF CONVICTION AND SENTENCES ON BOTH FELONIOUS ASSAULT AND AGGRAVATED BURGLARY IN THIS CASE AS THEY ARE ALLIED OFFENSES IN VIOLATION OF
ASSIGNMENT OF ERROR I
{¶14}In his first assignment of error, Appellant contends that the trial court erred in admitting into evidence statements that he made after he had invoked his right to counsel. Appellant essentially argues that the trial court erred in denying his pre-trial motion to suppress, and as such, allowing his confession to be admitted at trial. Appellant further contends that the issue presented is whether the police must stop asking questions beyond booking questions once an arrestee requests counsel. The State responds by arguing that Appellant initiated the discussion which led to his cоnfession, thereby waiving his previously invoked right to counsel and right to remain silent.
{¶15} “Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). “Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence.” Id., citing Statev. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Burnside at ¶ 8; citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist. 1997). See, also, State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. Preliminarily, “[w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record.”
{¶16}Prior to initiating a custodial interrogation, law enforcement must “inform an accused ‘that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.‘” State v. Ulery, 4th Dist. No. 07CA28, 2008-Ohio-2452, ¶ 7; quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602 (1966). Neither party in this case argues that Appellant was not subject to a custodial interrogation or that there was no need to have given him the Miranda warnings. Thus, no further analysis is required on this issue.
{¶17} To use a statement made by the accused during a custodial interrogation, the prosecution must show: “(1) the accused, prior to any
{¶18} When dealing with a claim that law enforcement continued to interrogate the accused after he invoked his right to counsel, the first question is “whether the accused actually invoked his right to counsel.”
{¶19}Second, if we find that the accused did invoke his right to counsel, we “may admit his responses to further questioning only on finding
{¶20}Here, the trial court found and it is clear from the record that Appellant was advised of his Miranda rights. This issue is not in dispute. Further, the fact that Appellant made an unequivocal request for counsel
{¶21}In the case sub judice, the trial court made explicit findings of fact when it denied Appellant‘s motion to suppress. Specifically, the trial court found that Appellant, while in custody and while being read his Miranda rights, stated that he wanted the right to have an attorney present during questioning. The trial court further found that upon being asked by law enforcement for the name and contact information of his attorney, as well as the name of anyone that might be available to care for the dogs that were left at his residence, Appellant twice mentioned the “neighbors across the street,” despite being told that they were not discussing the neighbors across the street or the incident. The trial court also found that Appellant then stated that the officers could ask him questions but he just might not answer them, and that when asked if he wanted to answer questions, he nodded his head affirmatively.
{¶22}Based upon these facts, the trial court determined that “there was no interrogation of the Defendant after he invoked his right to counsel until the Defendant himself stated they could ask him questions and he
{¶23}After careful review, we conclude that the trial court‘s findings are supported by the reсord. After Appellant‘s unequivocal invocation of the right to counsel, Appellant re-initiated the interrogation by stating that the officers could ask him questions, though he might not answer them, and by nodding in the affirmative when he was then asked if he wanted to answer questions. Thus, we conclude that the interrogation was free to continue at that point, which it did, resulting in Appellant confessing to entering the victim‘s residence with a gun in order to confront him about a loan that had not been repaid, and ultimately shooting the victim. This leads to the conclusion that Appellant knowingly and intelligently waived his rights when he spoke with law enforcement. Thus, the trial court was correct to deny Appellant‘s motion to suppress, and we therefore overrule Appellant‘s first assignment of error.
{¶24} We address Appellant‘s second and fourth assignments of error in conjunction with one another as they are intеrrelated. In his second assignment of error, Appellant contends that the trial court erred in limiting his cross examination of the victim, which he asserts denied him his constitutional right of confrontation as guaranteed by the Ohio and United States Constitutions. Specifically, Appellant questions whether a cross examiner is entitled to challenge a negative response with contradicting evidence when a witness denies mental illness or drug abuse. In his fourth assignment of error, Appellant contends that the trial court erred by refusing to admit evidence of the victim‘s drug use and mental illness, thus depriving Appellant of his right to a fair trial and compulsory process. Under this assignment of error, Appellant questions whether it is error to prevent the introduction of evidence contradicting a witness‘s denial of drug use and mental illness.
{¶25}In response to Appellant‘s second and fourth assignments of error, the Statе contends that the trial court was correct in adhering to its earlier ruling on a motion in limine and in limiting the cross examination of the victim to those things which were relevant to the crime. Further, the State argues that Appellant‘s trial counsel did not possess, nor actually
{¶26} “A trial court has broad discretion in the admission or exclusion of evidence, and so long as such discretion is exercised in line with the rules of procedure and evidence, its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice to defendant.” State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.); citing State v. Powell, 177 Ohio App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212, ¶ 33 (4th Dist).
{¶27} Abuse of discretion is more than an error of law or judgment; rather, it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796, 762 N.E.2d 940; State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When an appellate court applies this standard, it can not substitute its judgment for that of the trial court. State v. Jeffers, 4th Dist. No. 08CA7, 2009-Ohio-1672, ¶ 12; In re Jane Doe I, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991); citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).
{¶29} Appellant submits that the admission of such extrinsic evidence was propеr under
{¶31}Additionally,
{¶32} ” ‘Furthermore, the answers given in response to questions about specific instances of conduct on cross-examination must be accepted by the examiner with no further attempt to establish the conduct through extrinsic evidence.’ ” State v. Reed, 110 Ohio App.3d 749, 754, 675 N.E.2d 77 (4th Dist. 1996); citing State v. Gardner, 59 Ohio St.2d 14, 19, 391 N.E.2d 337 (1979). Thus, we conclude that attempting attack the victim‘s character by pointing to specific prior conduct through the use of extrinsic evidence in the form of medical records would be a prohibited method under
{¶33} Finally,
{¶34} In light of the foregoing, we find no abuse of discretion on the part of the trial court in excluding the evidence at issue. As such, we cannot conclude that Appellant was denied his constitutional rights of confrontation, to compulsory proсess, and to a fair trial. Thus, we find no merit to Appellants’ second and fourth assignments of error and therefore, they are both overruled.
ASSIGNMENT OF ERROR III
{¶35} In his third assignment of error, Appellant contends that the trial court erred in refusing to permit a witness to testify regarding his opinion as to truthfulness of the victim, which Appellant claims deprived him of his right to a fair trial and compulsory process as guaranteed by the Ohio and Federal Constitutions. Specifically, Appellant questions whether a witness should have been barred from testifying regarding his opinion as to the truthfulness of the victim because of the witness‘s status as a police
{¶36} As this assignment of error alsо deals with the trial court‘s exclusion of certain evidence at trial, we refer to the standard of review set forth under our analysis of Appellant‘s second and fourth assignments, with a simple reminder that a trial court has broad discretion in the admission or exclusion of evidence and a trial court‘s judgment will not be reversed absent a clear showing of an abuse of that discretion, as well as material prejudice to the defendant. See, State v. Green and State v. Powell, supra.
{¶37} A review of the record reveals that the testimony of Xenia police officer, Chris Stutes, was the subject of a pre-trial motion in limine filed by the State, which motion was granted by the trial court. During the hearing on the motion in limine, defense counsel explained that it sought to introduce the officer‘s testimony “solely for the purpose of expressing an opinion as to whether or not Mr. Harris is an honest person.” Defense counsel аrgued that such testimony was permitted under
{¶38} Defense counsel again attempted to introduce Officer Stutes as a witness at trial, arguing at that time that his testimony was permissible under
{¶39}
(A) Character evidence generally. Evidence of a person‘s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, subject to the following exceptions: * * *
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor is admissible; however, in prosecutions for rape, gross sexual imposition, and prostitution, the exceptions provided by statute enacted by the General Assembly are applicable.
Further,
(A) Reputation or opinion
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an оpinion. On cross-
examination, inquiry is allowable into relevant specific instances of conduct. (B) Specific instances of conduct
In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.
{¶40} Thus,
“(A) Opinion and reputation evidence of character
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(B) Specific instances of conduct
Specific instances of the сonduct of a witness, for the purpose of attacking or supporting the witness‘s character for truthfulness, other than conviction of crime as provided in
Evid. R. 609 , may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness‘s character for truthfulness or untruthfulness, or (2) concerningthe character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. * * *”
The trial court concluded, and rightfully so, that the officer‘s proffered “opinion testimony” was essentially based upon a specific instance of conduct of the victim that occurred several years prior, an incident for which Appellant was never convicted. The trial court further concluded that the officer‘s testimоny would have constituted “extrinsic evidence,” which, except for evidence of actual convictions, is barred by
{¶42} After reviewing the record, we agree with the trial court‘s conclusions and therefore find no abuse of discretion in the exclusion of this evidence. Further, and as set forth above, we must be mindful that
ASSIGNMENT OF ERROR V
{¶43} In his fifth assignment of error, Appellant contends that the trial court erred in entering judgments of conviction and sentences on both felonious assault and aggravated burglary in violation of
{¶44} When determining whether multiple offenses should have merged under
“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. “(B) Where the defendant‘s conduct сonstitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶45} As the Supreme Court recently explained in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, under
{¶46} “Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶47} Here, Appellant was convicted of aggravated burglary, a first degree felony in violation of
“(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured
or separately occupied portion of the structure any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another;”
“(A) No person shall knowingly do either of the following:
* * *
(2) Cause or attempt to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.”
{¶48} Ohio cases have consistently held that aggravated burglary and felonious assault are not allied offenses of similar import. State v. Barker, 183 Ohio App.3d 414, 2009-Ohio-3511, 917 N.E.2d 324, ¶ 18 (2nd Dist); citing State v. Johnson, 5th Dist. No. 06CAA070050, 2006-Ohio-4994; State v. Jackson, 21 Ohio App.3d 157, 487 N.E.2d 585 (8th Dist. 1985); State v. Feathers, 11th Dist. No. 2005-P-0039, 2007-Ohio-3024; see also, State v. Carter, 8th Dist. No. 61502, 1993 WL 7700 (January 14, 1993). However, these cases and the reasoning applied therein pre-date the Supreme Court of Ohio‘s test recently announced in State v. Johnson, supra.
{¶50} Based upon the record before us, it appears that the aggravated burglary was committed with the same animus as the felonious assault. Appellant was convicted of breaking into the victim‘s residence and inflicting physical harm on him by shooting him in the face two times, thus completing the aggravated burglаry. State v. Lacavera, 8th Dist. No. 96242, 2012-Ohio-800, ¶ 46. A review of the record before us reveals that these events all occurred as part of the same transaction, and thus were committed with the same animus. Id. See also, State v. Ragland, 5th Dist. No. 2010CA00023, 2011-Ohio-2245, ¶ 80 (implicitly finding without expressly
{¶51} As such, we conclude that the crimes of aggravated burglary and felonious assault are allied offenses of similar import. Thus, Appellant may be found guilty of both, but only convicted and sentenced for one. State v. Swiergosz, 6th Dist. App. No. L-10-1013, L-10-1052, 2012-Ohio-830, (“The statutory mandate that only one ‘conviction’ result from allied offenses is a restriction ‘against sentencing a defendant for more than one allied offense.’ (Emphasis added) State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 29“);
{¶52} In his sixth assignment of error, Appellant contends that the trial court erred in entering consecutive sentences on the firearm specifications from a single transaction. The State counters by arguing that the trial court was correct in sentencing Appellant to consecutive firearm specifications, which it contends was required under
{¶53} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Supreme Court of Ohio announced the standard for appellate review of felony sentences. We must employ a two-step analysis. First, we must “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If the sentence is not clearly and convincingly contrary to law, we review it for an abuse of discretion. Id.
{¶54} Appellant complains that the trial court‘s imposition of consecutive sentences for the two firearm specifications was contrary to law.
“If an offender is convicted of or pleads guilty to two or mоre felonies, if one or more of those felonies is aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (D)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (D)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.” (Emphasis added).
The specifications described in
{¶55} Here, although Appellant was found guilty of two felony offenses, one of which was felonious assault, we have determined that those offenses were allied offenses of similar import. As such, Appellant can only be “convicted” of one of the offenses. “Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.”
JUDGMENT REVERSED AND REMANDED.
{¶56} I concur in judgment and opinion on the first and sixth assignments of error. However, I concur in judgment only on the remaining assignments of error.
{¶57} On the second assignment of error I conclude both the trial court and our opinion mischaracterizes the nature of the impeachment evidence offered by the appellant. I agree with Jacobs’ assertion that evidence of the victim‘s drug use and mental illness are probative of the victim‘s capacity to observe, remember or relate in events. Thus, they should have been admitted under
{¶58} It was also error under the fourth assignment of error to prohibit the appellant from attacking the victim‘s character for truthfulness under
{¶59} Likewise, I conclude under the third and fourth assignments of error that the trial court erred in refusing to admit the opinion testimony
{¶60} However, based upon the admission of the appellant‘s confession and the evidence that corroborates the victim‘s testimony, I find the errors in assignments of error two, three, and four to be harmless beyond a reasonable doubt. See, Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.
{¶61} Moving to the fifth assignment of error, I agree the offenses are “of similar import.” But, I would remand to the trial court to determine if they were “committed by the same conduct“, i.e. a single act, committed with a single state of mind. See State v. Williams, Scioto App. No. 10CA3381, 2012-Ohio-6083, ¶¶ 45-46.
It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED and that the Appellant recover of Appellee 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 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.
Exceptions.
Abele, J: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment and Opinion as to Assignments of Error I & VI; Concurs in Judgment Only with Opinion as to Assignments of Error II, III, IV, & V.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding 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.