STATE OF OHIO, Plaintiff-Appellee, vs. JASON RICHARDS, Defendant-Appellant.
Case No. 14CA1
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
DATE JOURNALIZED: 2-18-15
2015-Ohio-669
APPEARANCES:
COUNSEL FOR APPELLANT: Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier, Ohio Assistant Public Defender 250 East Broad Street, Suite 1400, Columbus, Ohio 43215
COUNSEL FOR APPELLEE: Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, 1 South Court Street, 1st Floor, Athens, Ohio 45701
CRIMINAL CASE FROM COMMON PLEAS COURT
{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment of conviction and sentence. The trial court found Jason Richards, defendant below and appellant herein, guilty of aggravated vehicular assault in violation of
“BECAUSE THERE WAS NOT SUFFICIENT PROBABLE CAUSE TO ARREST MR. RICHARDS, AND BECAUSE THE ALCOHOL TEST PERFORMED ON HIS URINE SAMPLE DID NOT SUBSTANTIALLY COMPLY WITH STATE LAW REQUIREMENTS FOR THAT TEST, THE TRIAL COURT ERRED WHEN IT DENIED MR. RICHARD’S MOTION TO SUPPRESS THE RESULTS OF THE URINE TEST.”
{¶ 2} On June 4, 2011, at approximately 9:30 p.m., Lawrence Kamody heard what he believed to be an automobile accident. He and his companion, Dave Halupka, went to investigate and, upon their arrival at the scene, they noticed the occupants of a vehicle “frantically trying to push the car back onto the road.” Kamody noted that the vehicle had “obviously crashed,” as the vehicle had a bent wheel and smoke emanating from the hood area. Kamody and Halupka asked the occupants if they were okay. The occupants indicated that they were, then “took off.”
{¶ 3} As the vehicle left the scene, Kamody and Halupka also observed another vehicle with a female occupant standing nearby. She appeared “very distraught” and was “bleeding profusely out of her nose.”
{¶ 4} Ohio State Highway Patrol Sergeant Virgil Conley arrived at the scene at 10:01 p.m. After he spoke with Kamody and Halupka, he notified the patrol post that a “hit-skip” had occurred. Soon, law enforcement officers located the vehicle that had fled the scene. Sergeant Conley drove to the vehicle’s location and found the vehicle “up a very dark driveway, up in an
{¶ 5} As Sergeant Conley approached the “heavily damaged” vehicle and the four occupants, he noticed that the vehicle “sustained damage to the right fender, hood, right headlight assembly, front bumper, scratch marks and dents down the right side of the vehicle, and a dented right front quarter panel, along with a right front flat tire.” When Sergeant Conley approached appellant and the other passengers, “[i]t was obvious that they had all been drinking just from, one, the odor, the way they were acting, and red, bloodshot, glassy eyes. The typical indicators were all there. And they all admitted to drinking.” Sergeant Conley stated that he had “no doubt” that appellant had been drinking alcohol.
{¶ 6} Ohio State Highway Patrol Trooper Melanie Provenzano arrived at the scene shortly after Sergeant Conley. When she and Conley initially spoke with the occupants, appellant’s wife informed them that she had been driving. Appellant, however, later admitted that he had been driving. The officers also learned that appellant’s wife had been ejected from the vehicle during the accident. When Trooper Provenzano spoke with appellant, she also “noticed a strong odor of alcoholic beverage” emanating from appellant’s breath. She further observed that appellant’s eyes were red, bloodshot, and glassy. Trooper Provenzano asked appellant how much alcohol he consumed before the crash, and he admitted that he had consumed eight to twelve beers. After Trooper Provenzano performed the Horizontal Gaze Nystagmus (HGN) test (appellant exhibited four out of six clues) and a portable breath test (appellant tested .073), she arrested appellant for operating a motor vehicle while under the influence and transported him to the patrol post.
{¶ 8} Subsequently, the Athens County Grand Jury returned an indictment that charged appellant with aggravated vehicular assault in violation of
{¶ 9} Appellant filed a motion to suppress evidence and asserted that (1) law enforcement officers lacked probable cause to arrest him for driving while under the influence; and (2) the urine test results should be suppressed because the state failed to substantially comply with applicable Ohio Department of Health (ODH) rules and regulations. Appellant further asserted that his “test results were not over the legal limit.” He noted that he tested .114, which is .004 over the legal limit, and because this .004 difference amounted to the rate of error inherent in the test, his test could not have been over the legal limit.
{¶ 10} The trial court held a hearing to consider appellant’s motion to suppress. At the hearing, Trooper Provenzano testified that she arrested appellant for driving while under the influence of alcohol based upon the following circumstances: (1) appellant had a “strong odor” of alcohol; (2) appellant had red, bloodshot, and glassy eyes; (3) appellant exhibited four clues on the HGN test; (4) appellant fled the scene of an accident; and (5) appellant admitted that he drove the vehicle that was involved in the accident.
{¶ 11} Trooper Provenzano also testified that she helped administer the urine test at the patrol post. She explained that she removed the urine test container from a box and handed it to Auxiliary Officer (AO) Daniel Norris. She stated that, although she did not recall the kit‘s
{¶ 12} BCI analyst Emily Adelman testified that she examined appellant’s urine specimen. Adelman explained that an evidence technician noted that the urine sample arrived at the lab in a sealed biological kit, but the container inside the kit was leaking. Adelman explained that “sometimes the lids just aren’t fully screwed down tight when they are put on.” Adelman stated that the leaking may have resulted if the lid became loose during transit.
{¶ 13} Adelman further testified that even though the container had leaked, the label remained intact and she found no indication that a foreign substance had entered the container or that the sample had been otherwise contaminated. Adelman explained:
“The seal was still intact[] when both the evidence technician received it as well as I received it. There wasn’t any kind of indication to say that * * * there was anything the matter with the outer container itself to indicate that anything would have penetrated that barrier to then later get inside to penetrate the second barrier to then contaminate the sample itself.”
{¶ 14} Adelman stated that she performed two tests on appellant’s urine specimen. One
{¶ 15} Lab director Dana Nielson testified that the BCI lab used head space gas chromatography to examine appellant’s urine specimen. Nielson stated that she reviewed Adelman’s work and ensured that the machine had been properly calibrated. Defense counsel questioned Nielson whether the testing procedure carried any margin of error, and Nielson stated that she “calculated [a four percent] uncertainty of the measurement.” She explained: “So in this particular case the value of .114 gram percent * * * can be plus or minus .004 gram percent.” The state then asked Nielson if the result reported, .114, had “some built in error.” Nielson responded:
“The analytical result * * * showed * * * [appellant’s] urine sample to contain ethanol at a level of .114 and .115 in duplicate and we reported the .114 gram percent. This uncertainty of measurement is something that we are required to have by our accrediting body that just takes into account * * * every step of our procedure and any * * * uncertainty of measurement that could be introduced at each step of the procedure and again * * * at a ninety-five percent confidence level * * * shows a four percent uncertainty of measurement.”
{¶ 16} The state then asked Nielson whether the uncertainty of measurement is “not to be blanketedly (sic) applied to the result * * * that a technician researches as far as the urine test analysis.” Nielson responded: “Correct. The result that appears on the report was what was analytically determined on that day of analysis.”
{¶ 17} After considering the evidence, the trial court denied appellant’s motion to suppress evidence. The court determined that Trooper Provenzano possessed probable cause to arrest
{¶ 18} The trial court additionally found that the urine test procedure substantially complied with the ODH regulations: (1) “the collection of the urine specimen * ** was witnessed”; (2) the urine was deposited “into a clean glass or plastic screw top container that was capped and collected according to BCI’s laboratory protocol”; and (3) “the urine container was sealed in a manner so that tampering could be detected and with a label contain[ing] the name of the suspect, date and time of collection, name/initials of the person collecting the sample and the name or initials of the person sealing the sample.”
{¶ 19} The trial court also found that appellant‘s test exceeded the statutory limit. The court noted that BCI analyst Adelman testified that appellant’s urine specimen contained 0.114 grams by weight of alcohol per one hundred milliliters of urine. The court also credited the testimony that any supposed margin of error did not render the test result invalid or inaccurate, and
{¶ 20} Appellant eventually entered a no contest plea to the crime of aggravated vehicular assault, in violation of
{¶ 21} In his sole assignment of error, appellant asserts that the trial court erred by denying his motion to suppress all evidence obtained following his arrest for driving while under the influence of alcohol (DUI). Appellant contends that because the trooper lacked probable cause to arrest, the evidence obtained after his arrest must be suppressed.
{¶ 22} Appellant additionally asserts that even if the trooper possessed probable cause to arrest him for DUI, the state failed to substantially comply with the ODH urine test regulations and, thus, the trial court should have suppressed the urine test results.
{¶ 23} Finally, appellant contends that the state failed to show that the amount of alcohol in his urine exceeded the legal limit. In particular, appellant asserts that his test results revealed that the amount of alcohol detected in his urine exceeded the legal limit by only .004 gram percent, which, appellant claims, falls within the test’s margin of error. As such, appellant argues that “the results of the test do not even establish clearly and convincingly that [appellant]’s urine alcohol content was over the legal limit.”
I
STANDARD OF REVIEW
{¶ 24} In general, appellate review of a trial court’s ruling on a motion to suppress presents
“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. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. 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 (citations omitted).
II
PROBABLE CAUSE TO ARREST
{¶ 25} The Fourth and Fourteenth Amendments to the United States Constitution, as well as
{¶ 27} We note that probable cause deals “with probabilities-the factual and practical nontechnical considerations of everyday life on which reasonable and prudent men act-and is a
{¶ 28} Whether the historical facts demonstrate that an officer possessed probable cause to arrest is a question of law. Ornelas, 517 U.S. at 696. Thus, an officer’s subjective motivations, intentions, or beliefs “hold little sway.” State v. McDonald, 4th Dist. Washington No. 04CA7, 2004–Ohio–5395, ¶31; State v. Deters, 128 Ohio App.3d 329, 333, 714 N.E.2d 972 (1st Dist.1998). Instead, “the correct test is whether there was objective justification for the detention and arrest.” Id.
{¶ 29} Law enforcement officers may possess probable cause to arrest an individual for DUI even if officers do not personally observe impaired driving. Id., quoting Mentor v. Giordano, 9 Ohio St.2d 140, 146, 244 N.E.2d 343 (1967) (“‘Although a charge of operating a motor vehicle while under the influence of intoxicating liquor may apply where a stationary vehicle is involved,
{¶ 31} In Belmonte, the court also determined that the officer possessed probable cause to arrest the defendant for DUI, even though the officer did not witness the defendant operate a motor vehicle. The court found that the following circumstances showed that the defendant had operated a motor vehicle while under the influence of alcohol: (1) the defendant had been in an automobile accident; (2) the defendant carried a slight to moderate alcoholic odor of alcohol; (3) the defendant admitted that he had consumed a couple of beers; and (4) the defendant admitted that he may have traveled left of center. The court further noted that even though the defendant did not have slurred speech, red eyes, or difficulty walking, the remaining facts nonetheless constituted sufficient information to cause a prudent person to believe appellant had driven while under the influence of alcohol. Id. at ¶14.
{¶ 32} In State v. Heiney, 11th Dist. Portage No. 2006-P-0073, 2007-Ohio-1199, the court likewise determined that the law enforcement officer possessed probable cause to believe that the
{¶ 33} Likewise, in State v. Hummel, 154 Ohio App.3d 123, 2003-Ohio-4602, 796 N.E.2d 558 (11th Dist.), the court determined that the officer possessed probable cause to believe that the defendant had driven while under the influence of alcohol, even though the officer did not witness the defendant driving a vehicle. The court found that the following facts established probable cause to believe that the defendant had driven while under the influence of alcohol: (1) the defendant smelled of alcohol (2) his eyes were glassy; (3) he exhibited slurred speech; and (4) an unexplained motor vehicle accident had occurred. Accord State v. Martin, 5th Dist. Licking No. 14CA5, 2014-Ohio-2948, ¶15 (concluding that officer possessed probable cause to arrest defendant when defendant had glassy eyes and odor of alcohol, defendant admitted that he had been drinking, and defendant crashed his vehicle).
{¶ 34} In the case sub judice, we believe that the trial court correctly determined that the totality of the circumstances provided the officer with probable cause to arrest appellant. Just as in all of the foregoing cases, in the case at bar an accident occurred. Appellant failed to stop at a stop sign and struck another vehicle. Appellant’s wife was ejected from the vehicle as a result of the collision, and appellant’s vehicle was “heavily damaged.” Appellant pushed his car back onto the road and fled the scene. Law enforcement officers later found appellant and his vehicle “off
{¶ 35} Thus, the facts adduced in the case sub judice show that (1) appellant failed to stop at a stop sign; (2) appellant caused an accident; (3) appellant fled the accident scene; (4) appellant parked his damaged vehicle in a “suspicious” location; (5) appellant and his companions appeared “obvious[ly]” drunk; (6) appellant’s eyes were red, bloodshot, and glassy; (7) appellant’s wife initially claimed to have been driving but appellant later admitted he had been driving; (8) appellant admitted that he drank eight to twelve beers before the accident; (9) appellant emanated a strong alcoholic odor; and (10) he exhibited four out of six clues on the HGN test. We agree with the trial court that the foregoing circumstances gave the trooper probable cause to arrest appellant.
{¶ 37} Consequently, we disagree with appellant that the trooper lacked probable cause to arrest and we conclude that the trial court did not err by overruling appellant’s motion to suppress evidence.
III
ALCOHOL TEST RESULT
“shall determine, or cause to be determined, techniques or methods for chemically analyzing a person’s whole blood, blood serum or plasma, urine, breath, or other bodily substance in order to ascertain the amount of alcohol * * * in the person’s whole blood, blood serum or plasma, urine, breath, or other bodily substance. The director shall approve satisfactory techniques or methods, ascertain the qualifications of individuals to conduct such analyses, and issue permits to qualified persons authorizing them to perform such analyses.”
{¶ 39} Pursuant to this authority, ODH promulgated
{¶ 40}
(A) All samples shall be collected in accordance with section 4511.19, or section 1547.11 of the Revised Code, as applicable.
* * * *
(D) The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. Urine shall be deposited into a clean glass or plastic screw top container which shall be capped, or collected according to the laboratory protocol as written in the laboratory procedure manual.
(E) Blood and urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following
(1) Name of suspect;
(2) Date and time of collection;
(3) Name or initials of person collecting the sample; and
(4) Name or initials of person sealing the sample.
(F) While not in transit or under examination, all blood and urine specimens shall be refrigerated.
{¶ 41} A defendant who wants to challenge the validity of an alcohol test result must first file a motion to suppress. State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797 N.E.2d 71, ¶24. If the defendant challenges the validity of an alcohol-test, the state bears the burden to establish that the testing procedures substantially complied with ODH regulations. Id. The substantial compliance standard is limited “to excusing only errors that are clearly de minimis,” i.e., irregularities amounting to “‘minor procedural deviations.’” Id. at ¶34, quoting Homan, 89 Ohio St.3d at 426. Once the state shows substantial compliance with the regulations, the test result is presumptively admissible. Burnside at ¶24. The burden then shifts to the defendant to show prejudice resulting from “anything less than strict compliance.” Id.
{¶ 42} In the case at bar, appellant contends that the state failed to demonstrate substantial compliance with the urine testing regulations. In particular, appellant asserts that because the container leaked, it was not “capped” or “sealed” and AO Norris did not recall whether he washed his hands or whether he wore gloves.
{¶ 43} First, we disagree with appellant’s argument that AO Norris’s inability to recall
{¶ 44} We also reject appellant’s argument that the leaking container necessarily demonstrates lack of substantial compliance. In State v. Rajchel, 2nd Dist. Montgomery No. 19633, 2003-Ohio-3975, the court rejected the defendant’s similar argument that a leaking urine container requires a trial court to suppress the urine test results. In Rajchel, the defendant asserted that the court should suppress the urine test result because the state failed to establish the chain of custody. The defendant asserted, in part, that if the urine had leaked from the container, the urine specimen may have been contaminated. The appellate court flatly rejected this argument and explained:
“[T]he container still had the seal on it that would have prevented tampering. The mere fact that the container leaked does not indicate that it was tampered with or contaminated. The intact seal on the container combined with the container’s proper labeling and the initials of the detective who transported the sample is sufficient evidence for the State to meet its burden of showing that it is reasonably certain that substitution, alteration, or tampering did not occur.”
{¶ 45} In the case at bar, we believe that the evidence shows that the state substantially–if not strictly–complied with ODH regulations, even though the urine container leaked. Auxiliary Officer Norris witnessed appellant urinate into the collection container, Auxiliary Officer Norris then sealed the container and gave the container to Trooper Provenzano. Trooper Provenzano placed a label on the container in a manner to allow law enforcement officials to determine whether someone tampered with the urine sample. Auxiliary Officer Norris thus complied with
{¶ 46} After Trooper Provenzano sealed the container, she placed the container in a plastic bag and then inside a box. Trooper Provenzano then sealed the box with evidence tape and sent it via ordinary mail to the BCI lab for analysis.
{¶ 47} When appellant’s box arrived at the BCI lab, a technician opened the box and observed the leaking container. The lab analyst noted that appellant’s urine container had leaked, but also noted that the seal remained intact. The lab analyst also did not detect any signs of tampering or any signs that the sample had otherwise been contaminated. Moreover, the lab analyst stated that all proper identifying information (outlined in (E)(1)-(4)) appeared on the label affixed to the container. We believe that the foregoing evidence adequately demonstrates that the state substantially–if not strictly-complied with the ODH regulations. Simply because the container leaked does not necessarily mean that the state failed to substantially comply with ODH regulations.
{¶ 48} Moreover, in the case at bar appellant did not demonstrate prejudice. Appellant speculates that the leaking container could have been contaminated, or that evaporation may have occurred and caused the test result to be unreliable. See, generally, State v. Thompson, 4th Dist. Washington No. 13CA41, 2014-Ohio-4665, 40 (stating that “speculation cannot support a finding of actual prejudice”). Appellant, however, offered no evidence during the motion to suppress hearing that the leaking container affected the outcome of the test. Instead, the state’s witnesses testified that the leaking container did not affect the validity of appellant’s test.
IV
MARGIN OF ERROR
{¶ 50} Appellant next argues that the trial court should have suppressed his urine test result because the result fell within a supposed margin of error, and thus failed to indicate that his urine alcohol content exceeded the legal limit.
{¶ 51} Before we review the merits of appellant’s margin-of-error argument, we first consider whether the issue is properly before us, or whether appellant’s no contest plea waived the issue. “[A] plea of no contest * * * is an admission of the truth of the facts alleged in the indictment.” State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 423, 662 N.E.2d 370 (1996); accord
{¶ 52} A no contest plea generally precludes a defendant from appealing evidentiary rulings. State v. Felts, 4th Dist. Ross No. 13CA3407, 2014-Ohio-2378, ¶16; State v. House, 2nd Dist. Montgomery No. 25457, 2014-Ohio-138, ¶6. A no contest plea does not, however, preclude a defendant from appealing a trial court’s ruling on a motion to suppress evidence on the ground
“A ‘motion to suppress’ is defined as a ‘[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation etc.), of U.S. Constitution.’ Black’s Law Dictionary (6 Ed.1990) 1014. Thus, a motion to suppress is the proper vehicle for raising constitutional challenges based on the exclusionary rule first enunciated by the United States Supreme Court in Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and made applicable to the states in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.”
State v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995).
{¶ 53} Conversely, a motion that seeks to suppress evidence that was not illegally obtained in violation of the Fourth, Fifth, or Sixth Amendment ordinarily is improper. See id. However, the Ohio Supreme Court created “a narrow departure” from this general rule. Hilliard, 77 Ohio St.3d at 158. A challenge to an alcohol test on the basis that the test did not comply with ODH regulations is a challenge that the evidence was illegally obtained, i.e., it was obtained in contravention of ODH “rules governing the maintenance and operation of testing devices.” State v. Edwards, 107 Ohio St.3d 169, 173, 2005-Ohio-6180, 837 N.E.2d 752, ¶11, citing French. Accordingly, a defendant who challenges the admission of an alcohol test on the basis that the test did not comply with ODH regulations must do so by filing a motion to suppress evidence. Edwards at ¶13; French, 72 Ohio St.3d at 449. Thus, “‘[a] plea of no contest does not waive a defendant’s appeal from an adverse ruling’” on a motion to suppress evidence based on the state’s failure to substantially comply with ODH regulations. Edwards at ¶11, quoting Defiance v. Kretz,
{¶ 54} “Evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of [an alcohol] test” typically do not relate to an accused’s constitutional rights against unreasonable search and seizure, the privilege against self incrimination, the right to assistance of counsel, or the right of confrontation under the Fourth, Fifth, or Sixth Amendments. They also do not relate to an alcohol test’s compliance with ODH regulations. “Evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of [an alcohol] test,” therefore, are not properly raised in a motion to suppress evidence. See Edwards at ¶19; French, 72 Ohio St.3d at 452; Wellston v. Brown, 4th Dist. Jackson No. 03CA25, 2005-Ohio-532, ¶13. Instead, “a defendant at trial may challenge [alcohol]-test results on grounds other than that the results were illegally obtained because they were obtained in noncompliance with the director’s rules. For example, a defendant may argue at trial that the particular device failed to operate properly at the time of testing.” Edwards at ¶19.
{¶ 55} In State v. Estep, 73 Ohio App.3d 609, 613, 14, 598 N.E.2d 96, 98, 99 (10th Dist.1991), for instance, the court determined that if the alcohol testing procedure substantially complied with ODH regulations, then a defendant who pled no contest could not appeal issues relating to the reliability of the alcohol testing procedure. In Estep, the defendant pled no contest to driving with a prohibited urine-alcohol concentration. On appeal, the defendant asserted that
{¶ 56} In the case sub judice, appellant’s margin of error argument is not an argument that the testing procedure failed to substantially comply with ODH regulations. Instead, his margin of error argument challenges the reliability of his test result. The Ohio Supreme Court has yet to create an exception to permit a defendant to challenge the reliability of his specific alcohol test result via a motion to suppress evidence. Instead, the court has recognized that evidentiary challenges to a defendant’s specific test result may be raised at trial. Cincinnati v. Ilg, supra, ¶29 (explaining that defendant may challenge “the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific test results at issue in a pending case”); Edwards at ¶¶16-17 (noting difference between pretrial motion in limine to determine admissibility of evidence under the Rules of Evidence and pretrial motion to suppress to determine whether alcohol test complied
{¶ 57} Accordingly, based upon the foregoing reasons, we overrule appellant’s sole assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant 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 Athens 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, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & McFarland, A.J.: Concur in Judgment & Opinion
BY:
Peter B. Abele, 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.