STATE OF OHIO v. JARRON TABOR
Case No. 16CA9
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY
DATE JOURNALIZED: 11-16-17
2017-Ohio-8656
ABELE, J.
DECISION AND JUDGMENT ENTRY
Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Public Defender, Columbus, Ohio, for appellant.
Justin Lovett, Jackson County Prosecuting Attorney, and Nick Wille, Jackson County Assistant Prosecuting Attorney, Jackson, Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
ABELE, J.
{1} This is an appeal from a Jackson County Common Pleas Court judgment of conviction and sentence. The trial court found Jarron Tabor, defendant below and appellant herein, guilty of possession of cocaine in violation of
FIRST ASSIGNMENT OF ERROR:
“THE JACKSON COUNTY COURT OF COMMON PLEAS UNCONSTITUTIONALLY EXCLUDED A PORTION OF THE PUBLIC FROM JARRON TABOR‘S PLEA AND SENTENCING HEARINGS.”
“TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE UNCONSTITUTIONAL CLOSURE OF JARRON TABOR‘S PLEA AND SENTENCING HEARINGS.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ASSESSED, AND THE CLERK OF COURTS COLLECTED, UNAUTHORIZED COURT COSTS.”
{2} On December 4, 2014, the grand jury returned an indictment that charged appellant with first-degree-felony possession of cocaine in violation of
{3} The trial court subsequently set the matter for trial. A notice, signed by the court‘s assignment commissioner, advised the parties of the trial date and further stated:
Appropriate attire is required: No pajamas, shorts, tank tops, hats miniskirts, or halter tops. No children shall be brought to the Courthouse for your hearing. Our staff are “NOT BABYSITTERS.” All cell phones are to be turned off before entering the Courtroom.
Appellant did not object to any of the provisions contained in the notice.
{4} On the day set for trial, the parties advised the court that they had reached a plea agreement. The state agreed to dismiss the major drug offender specification and appellant agreed to plead guilty to first-degree-felony possession of cocaine. The parties did not agree upon a sentencing recommendation, but instead, they agreed that each would be free to argue any lawful sentence.
{5} After appellant entered his guilty plea, the court set the matter for a sentencing hearing. The notice that advised the parties of the sentencing hearing date repeated the same
Appropriate attire is required: No pajamas, shorts, tank tops, hats miniskirts, or halter tops. No children shall be brought to the Courthouse for your hearing. Our staff are “NOT BABYSITTERS.” All cell phones are to be turned off before entering the Courtroom.
Again, appellant did not object to any of the provisions.
{6} After considering the arguments of counsel, the trial court sentenced appellant to serve nine years in prison and ordered him to pay court costs. This appeal followed.
I
{7} Appellant‘s first and second assignments of error both involve the same constitutional issue-appellant‘s right to a public trial. For ease of discussion, we combine our discussion of the assignments of error.
{8} In his first assignment of error, appellant asserts that the trial court‘s exclusion of children from his plea and sentencing hearings violated his right to a public trial and constitutes a structural error that mandates reversal. Appellant alternatively argues that the court plainly erred by excluding children from the hearings.
{9} The state argues that the trial court did not issue an order that excluded anyone from attending appellant‘s plea or sentencing hearings, but instead the notice that excluded children from the courtroom contained the court‘s assignment commissioner‘s signature. The state thus asserts that appellant cannot show that the trial court issued an order that excluded anyone from appellant‘s plea or sentencing hearing. Alternatively, the state contends that the court‘s exclusion of children from the hearings constitutes neither plain nor structural error because any exclusion of children from the courtroom is, at most, a trivial closure that does not
{10} In his second assignment of error, appellant argues that trial counsel rendered ineffective assistance of counsel by failing to object to the notice that prohibited children from attending his hearings. He asserts that counsel‘s failure to object constitutes deficient performance that prejudiced the outcome. Appellant claims that if counsel had objected, the trial court would have been required to state its reason on the record for excluding children. Appellant argues that the record fails to establish any reason for excluding children from the courtroom. He thus asserts that an objection would have caused the court to allow children to attend his hearings.
{11} The state also contends that even if trial counsel performed deficiently, appellant cannot establish that the outcome of the proceedings would have been different if the trial court had permitted children to attend the hearings.
A
RIGHT TO PUBLIC TRIAL
{12} “The right to a public trial is an important, fundamental constitutional guarantee of both the United States and Ohio Constitutions.”1 State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger, 28 Ohio St.3d 418, 420, 504 N.E.2d 37 (1986), quoting State v. Lane, 60 Ohio St.2d 112, 119, 397 N.E.2d 1338 (1979), and citing State v. Hensley, 75 Ohio St. 255, 264, 79 N.E. 462 (1906). “[O]pen trials ensure respect for the justice system and allow the press and the public to judge the proceedings that occur in our Nation‘s courts.” Weaver v. Massachusetts, — U.S. —, 137 S.Ct. 1899, 1913, 198 L.Ed.2d 420 (2017). “[T]he
{13} Before a court may circumvent a defendant‘s public-trial right by closing the courtroom, the party requesting closure “must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Waller, 467 U.S. at 48.
{14} Additionally, we observe that
[a] trial judge has authority to exercise control over the proceedings and
the discretion to impose control over the proceedings. Nonetheless, the abridgement of a defendant‘s right to a public trial may occur only when necessary, and any closure must be narrowly drawn and applied sparingly.
State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 51. Thus, although the right to a public trial is not absolute, exceptions are rare. Weaver, 137 S.Ct. at 1909 (explaining that although exceptions to the public-trial right “should be rare, a judge may deprive a defendant of his right to an open courtroom by making proper factual findings in support of the decision to do so“).
B
PUBLIC-TRIAL VIOLATION IS STRUCTURAL ERROR
{15} A violation of a defendant‘s public-trial right constitutes a structural error. Weaver, 137 S.Ct. at 1908; Drummond at ¶ 50, citing Waller, 467 U.S. at 49-50, fn.9. A structural error “‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.‘” Weaver at 1907, quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Thus, a structural error that a defendant objects to at trial ordinarily mandates “automatic reversal,” “regardless of the error‘s ‘actual effect on the outcome.‘” Id. at 1910, quoting Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 14 L.Ed.2d 35 (1999). The structural-error-automatic-reversal rule exists “to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial.” Id. at 1907.
{16} Moreover, “a structural error ‘def[ies] analysis by harmless error standards.‘” Id. at 1908, quoting Fulminante, 499 U.S. at 309. Structural errors are not easily evaluated for harmless error for three primary reasons: (1) “the right at issue is not designed to protect the
{17} A public-trial violation constitutes structural error “because of the ‘difficulty of assessing the effect of the error,‘” and because it “furthers interests other than protecting the defendant against unjust conviction.” Id. at 1910, quoting Gonzalez-Lopez, 548 U.S. at 149, fn.4. The reason for classifying a public-trial violation as structural error is not, however, because it always result in fundamental unfairness. Id. at 1909-1910. Instead, “in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant‘s standpoint.” Id. at 1910.
{18} A defendant who fails to object at trial to a structural error ordinarily is not entitled to an automatic reversal. Id. (pointing out that the automatic-reversal rule ordinarily applies when the defendant objects at trial to structural error). Rather, a defendant who fails to timely object to structural error ordinarily will be limited to plain-error review. See Drummond at ¶ 59 (explaining that “counsel‘s failure to object to the closing of the courtroom constitutes a waiver of the right to a public trial * * * “); State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 103 (noting that defendant‘s failure to raise public-trial issue during guilt-phase “waived” the issue); see also United States v. Marcus, 560 U.S. 258, 266, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (internal quotation omitted) (explaining that the plain-error
{19} The rationale for requiring defendants to timely object to even structural error, or else forfeit all but plain error, is to prevent defendants from “remaining silent at trial only later to raise the error on appeal where the conviction would be automatically reversed.” Perry at ¶ 23. Stated otherwise: “An expansion of
{20} Thus, requiring a party to raise objections at trial
serves to induce the timely raising of claims and objections, which gives the [trial] court the opportunity to consider and resolve them. That court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute. In the case of an actual or invited procedural error, the [trial] court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome. And of course the contemporaneous-objection rule prevents a litigant from “sandbagging” the court-remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor. Cf. Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); see also United States v. Vonn, 535 U.S. 55, 72, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).
{22} In the case sub judice, if we assume, arguendo, that the trial court‘s notice that prohibited children from entering the courtroom constitutes a public-trial violation, and hence, a structural error, we believe that appellant, by failing to object to the notice, forfeited his right to challenge even this alleged structural error on appeal. However, although appellant‘s failure to raise the issue during the trial court proceedings means that he cannot now obtain relief under the structural-error-automatic-reversal rule, we may choose to recognize the error under the plain-error doctrine.
PLAIN ERROR
{23} The Ohio Supreme Court recently reiterated the well-established rules regarding the plain-error doctrine in State v. Morgan, supra:
Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” “By its very terms, the rule places three limitations on a reviewing court‘s decision to correct an error” that was not preserved at trial. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). First, an error, “i.e. a deviation from a legal rule,” must have occurred. Id., citing State v. Hill, 92 Ohio St.3d 191, 200, 749 N.E.2d 274 (2001), citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Second, the error complained of must be plain, that is, it must be “an ‘obvious’ defect in the trial proceedings.” Id., citing State v. Sanders, 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001), citing State v. Keith, 79 Ohio St.3d 514, 518, 684 N.E.2d 47 (1997). “Third, the error must have affected ‘substantial rights.’ We have interpreted this * * * to mean that the trial court‘s error must have affected the outcome of the trial.” Id.Even when a defendant demonstrates that the factors under
Crim.R. 52 exist, “we have ‘admonish[ed] courts to notice plain error “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.“‘” (Emphasis and brackets in Rogers.) State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23, quoting Barnes at 27, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
Id. at ¶¶ 35-36.
{24} Ohio courts may not presume prejudice in the plain-error context. Id. at ¶ 50, quoting Rogers at ¶ 24 (noting that court has “‘never recognized the hybrid type of plain error * * * that is presumptively prejudicial and is reversible error per se‘“) Id. at ¶ 50. Consequently, “showing that an error occurred is not enough” in the plain-error context. Id. at ¶ 51. Instead, the defendant “also has the burden to prove that the error affected the outcome of the proceeding.” Id. (explaining that error in failing to appoint guardian ad litem at amenability
{25} In the case at bar, if we assume, arguendo, that the trial court‘s notice to exclude children from the courtroom obviously violated appellant‘s public-trial right, we do not agree with appellant that the alleged public-trial violation affected the outcome of the proceedings. Appellant claims that he need not show that the alleged error affected his decision to plead guilty or that he would have received a lesser sentence in order to demonstrate that the alleged error affected the outcome of the proceedings. Instead, he asserts that he need only show that but for the alleged error, “he would have received a public proceeding in which to enter a plea and receive a sentence.” We, however, do not agree with appellant‘s interpretation of the phrase “affected the outcome of the proceeding.”
{26} In Morgan, the court did not examine the prejudice component by considering whether, but for the failure to appoint a GAL at the amenability hearing, the juvenile would have received an amenability hearing with a GAL. Rather, the court looked to whether the absence of a GAL (the plain error) affected the outcome of the amenability proceeding, meaning whether the juvenile would not have been bound over if the court had appointed a GAL to represent him at the amenability hearing. Id. at ¶ 51 (stating that under plain-error review, defendant bore “burden to prove that the error affected the outcome of the proceeding, that is, that he would not have been bound over to the adult court“). Morgan thus refutes appellant‘s assertion that an error may affect the outcome of the proceeding simply because but for the error, the proceeding would have occurred in a different manner. Instead, Morgan indicates that an error affects the
{27} In the case sub judice, appellant has not raised any argument that the ultimate outcome of the proceedings would have been different if the court had engaged in an analysis to determine whether closing the courtroom to children violated appellant‘s right to a public trial, or that the ultimate outcome of the proceedings would have been different if the court had allowed children to attend the proceedings. Furthermore, we point out that the record contains no evidence that anyone who wished to attend the proceedings was actually denied entrance to the courtroom. Even though appellant has children, nothing in the record indicates that they attempted to attend the proceedings and were denied entrance. Additionally, appellant does not contend that he would have not entered a guilty plea and been sentenced to nine years in prison if
{28} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
D
INEFFECTIVE ASSISTANCE OF COUNSEL
{29} In his second assignment of error, appellant argues that trial counsel‘s failure to object to the alleged public-trial violation constitutes ineffective assistance counsel.
1
Ineffective Assistance of Counsel Standard
{30} The
{31} To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. E.g., Strickland, 466 U.S. at 687; State v. Obermiller, 147 Ohio St.3d 175, 2016–Ohio–1594, 63 N.E.3d 93, ¶ 83; State v. Powell, 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶ 85. “Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant‘s failure to satisfy one of the elements “negates a court‘s need to consider the other“).
{32} The deficient performance part of an ineffectiveness claim “is necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.‘” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at 688; accord Hinton, 134 S.Ct. at 1088. “Prevailing professional norms dictate that with regard to decisions pertaining to legal proceedings, ‘a lawyer must have “full authority to manage
{33} Moreover, when considering whether trial counsel‘s representation amounts to deficient performance, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. Additionally, “[a] properly licensed attorney is presumed to execute his duties in an ethical and competent manner.” State v. Taylor, 4th Dist. Washington No. 07CA11, 2008–Ohio–482, ¶ 10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show ineffectiveness by demonstrating that counsel‘s errors were “so serious” that counsel failed to function “as the ‘counsel’ guaranteed * * * by the
Ineffective Assistance in Public-trial Context
{35} In Weaver, the court directly addressed a defendant‘s assertion that trial counsel rendered ineffective assistance of counsel by failing to object at trial to an alleged public-trial violation. The Weaver court rejected the assertion that an ineffective-assistance claim involving a public-trial violation, i.e., structural error, mandates automatic reversal. Weaver at 1911 (“when a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically“). Instead, the court held that the general rules regarding ineffective-assistance claims apply to public-trial violations raised for the first time as an ineffective-assistance claim. Id. (stating that “the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the Court has assumed for these purposes * * * to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair“).
{36} In analyzing the defendant‘s ineffective-assistance claim, the court presumed that trial counsel performed deficiently by failing to object to the closure. The Weaver court concluded, however, that the defendant could not establish the second component of an ineffective-assistance claim. The court determined that the defendant did not establish “a reasonable probability that the jury would not have convicted him if his attorney had objected to the closure.” Id. at 1912. The court explained:
It is of course possible that potential jurors might have behaved differently if petitioner‘s family had been present. And it is true that the presence of the public might have had some bearing on juror reaction. But here petitioner offered no “evidence or legal argument establishing prejudice” in the sense of a reasonable probability of a different outcome but for counsel‘s failure to object.
{37} The court additionally rejected any argument that trial counsel‘s failure to object rendered the trial fundamentally unfair. The court noted that the defendant‘s mother and her minister were excluded from the courtroom for two days during jury selection, but further pointed out that the “trial was not conducted in secret or in a remote place.” Id. at 1913. The court further observed that
[t]he closure was limited to voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were many members of the venire who did not become jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself.
The court also determined that none of
the potential harms flowing from a courtroom closure came to pass in this case. For example, there is no suggestion that any juror lied during voir dire; no suggestion of misbehavior by the prosecutor, judge, or any other party; and no suggestion that any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands.
Id. The court ultimately concluded that the public-trial violation “did not pervade the whole trial or lead to basic unfairness.” Id.
{38} In the case at bar, even if we presume that trial counsel performed deficiently, appellant has failed to show a reasonable probability that the result of the proceedings would have been different if counsel had objected to the closure. We again note that appellant did not argue that the ultimate result (guilty plea and ensuring sentence) might have been different if
{39} In the case sub judice, appellant did not argue that if trial counsel had objected to the alleged public-trial violation, he would not have entered his guilty plea or been sentenced to nine years in prison. Thus, he cannot show prejudice “in the ordinary sense.” Id. Furthermore, assuming, as the Weaver court did, that a defendant may satisfy the prejudice component of an ineffective-assistance claim by demonstrating that the trial was fundamentally unfair, id. at 1913, in the case sub judice appellant cannot show that counsel‘s failure to object rendered the trial fundamentally unfair. Appellant did not suggest that anyone actually was prevented from entering the courtroom. The alleged closure did not exclude the entire
{40} Furthermore, a review of the record fails to suggest that any of “the potential harms flowing from a courtroom closure came to pass in this case.” Id. at 1914. Nothing in the record shows that the prosecutor, judge, defense counsel, or any other party engaged in misbehavior or that “any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands.” Id. at 1913.
{41} Consequently, after our review of the record in the case sub judice we do not believe that any public-trial violation that might have occurred “prevade[d] the whole trial or [led] to basic unfairness.” Id. Appellant cannot, therefore, demonstrate that any alleged deficient performance affected the outcome of the proceedings or rendered the trial fundamentally unfair (again, presuming as the Weaver court did that fundamental unfairness is sufficient to satisfy the prejudice component of an ineffective-assistance claim).
{42} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error.
II
{43} In his third assignment of error, appellant asserts that the trial court erred by imposing unauthorized court costs. In particular, appellant asserts that the court wrongly
{44} Initially, we point out that appellant did not object to the imposition of these court costs during the trial court proceedings. Consequently, he forfeited the error. State v. Johnson, 3rd Dist. Allen No. 1-16-41, 2017-Ohio-6930, 2017 WL 3129378, ¶ 24 (concluding that defendant‘s failure to object to costs during trial court proceedings forfeited the error); see State v. Thomas, 8th Dist. Cuyahoga No. 104567, 2017-Ohio-4436, 2017 WL 2687805, ¶ 5 (failure to object at sentencing to restitution order forfeits all but plain error on appeal); State v. Perry, 4th Dist. Pike No. 16CA863, 2017-Ohio-69, 2017 WL 105959, ¶ 14 (failure to object to during trial court proceedings forfeits sentencing issues absent plain error). We may, however, review it using a plain-error analysis.
{45} Generally, we recognize plain error “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. For plain error to apply, the trial court must have deviated from a legal rule, the error must have been an obvious defect in the proceeding, and the error must have affected a substantial right. E.g., State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{46} In the case at bar, appellant did not suggest that we review his assignment of error
{47} In any event, we find it questionable whether any incorrect mileage charges would affect appellant‘s “substantial rights” and require us to reverse in order to correct a manifest miscarriage of justice. See State v. Taylor, 4th Dist. Adams No. 16CA1028 2017-Ohio-4395, 2017 WL 2655848, ¶ 17 (finding it “uncertain whether any difference that might exist between the two [court cost] figures would affect ‘substantial rights‘“); see also State v. Allen, 8th Dist. Cuyahoga No. 96952, 2012-Ohio-1193, 2012 WL 986206, ¶ 11 (pointing out that defendant‘s agreement to “pay more than $20,000 as restitution” indicated “that the imposition of $774.00 for court costs and a fine is not promoting a manifest miscarriage of justice“).
{48} Accordingly, based upon the foregoing reasons, we overrule appellant‘s third assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
{49} Initially, I conclude it would indeed be risky for the trial court to assume that anything in our disposition of the first two assignment of error would support the trial court‘s closure rule in the event of a proper objection during a trial or sentencing hearing.
{50} And although I concur in judgment and opinion on the first two assignments of error, I concur in judgment only on the third. I limit my concurrence to our discretion not address plain errors in this factual scenario.
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 Jackson 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.
Harsha, J.: Concurs in Judgment & Opinion as to Assignments of Error I & II & Concurs in Judgment Only as to Assignment of Error III
Hoover, J.: Concurs in Judgment Only
For the Court
BY: Peter B. Abele, Judge
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.