State v. Vore

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[Cite as State v. Vore, 2021-Ohio-185.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 19CA06 : vs. : : DECISION AND JUDGMENT PATRICIA VORE, : ENTRY : 1 : Defendant-Appellant. _____________________________________________________________ APPEARANCES: Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant. Keller J. Blackburn, Athens County Prosecuting Attorney, Merry M. Saunders, Assistant Prosecuting Attorney, Athens, Ohio, for Appellee. _____________________________________________________________ Smith, P.J. {¶1} Patricia Vore appeals the Judgment Entry of the Athens County Court of Common Pleas entered February 4, 2019. Ms. Vore, “Appellant,” challenges the voluntariness of her guilty pleas entered in several 2018 Athens County felony indictments. For the reasons which follow, we find no merit to Appellant’s argument that her pleas were not knowingly and 1 Appellant’s name appears on filings as “Patricia Nicole Vore.” The appealed-from judgment entry indicates her name as “Patricia Nichole Vore.” Appellant’s brief simply identifies her as “Patricia Vore.” Athens App. No. 19CA06 2 voluntarily made. Accordingly, we overrule the single assignment of error and affirm the judgment of the trial court. FACTUAL AND PROCEDURAL BACKGROUND {¶2} In June 2015, Appellant was indicted on multiple drug-related felony offenses in Athens County in Case No. 15CR0210, including Count One, engaging in a pattern of corrupt activity. In August 2015, Appellant entered a guilty plea to Count One and was sentenced to a three-year prison term. Appellant also entered guilty pleas to eleven other counts contained in the 2015 indictment. To these, Appellant was also sentenced to five years of community control. Appellant was eventually granted judicial release. {¶3} In January 2018, the State of Ohio filed a notice of violation of community control/judicial release in Case Number 15CR0210, and also sought to impose Appellant’s remaining sentence. Thereafter, Appellant was also indicted in additional Athens County felony cases as follows: 18CR0035, possessing criminal tools; 18CR0129, escape; and 18CR0382, three counts of aggravated trafficking in drugs and one count of possessing criminal tools. In January 2019, Appellant stipulated to her judicial release and community control violations. {¶4} On February 1, 2019, Appellant also entered pleas to the subsequent indictments as follows: (1) Case No.18CR0035, an amended Athens App. No. 19CA06 3 count of misdemeanor possession of criminal tools, R.C. 2923.24(A); (2) Case No. 18CR0129, escape, R.C. 2921.34(A)(1), a felony of the second degree; and (3) Case No. 18CR0382, three counts of aggravated trafficking in drugs, R.C. 2925.03(A)(1), and one count of possessing criminal tools, R.C. 2923.24(A). The trial court imposed an 8-year prison sentence for the escape count, Case No. 18CR0129. The trial court further imposed 12month consecutive sentences for the 4 counts contained in Case No. 18CR0382. The Athens County trial court granted Appellant jail time credit of 965 days to be credited at the front end of her sentence, and indicated Appellant would be eligible for judicial release as of December 9, 2021. Appellant’s total sentence was 12 years of imprisonment. {¶5} In April 2019, the Union County Court of Common Pleas filed a notice of community control violations. See docket information for Union County case number 14CR0178 at the Union County Clerk of Court’s website, https://www.unioncountyohio.gov/public-records-search.2 The docket indicates Appellant admitted the Union County community control violations. The docket further indicates the Union County trial court continued Appellant’s community control. 2 In Union County, Appellant was convicted of illegal conveyance/drugs of abuse into detention facility in April 2016. We take judicial notice of the Union County Clerk of Court’s website. See State v. Curtis, 4th Dist. Meigs No. 18CA19, 2019-Ohio-5472, at fn.1. Athens App. No. 19CA06 4 {¶6} Appellant comes before us here upon permission to file a delayed appeal. On April 4, 2019, Appellant requested leave to file a delayed appeal. In the same filing, she also requested preparation of a complete transcript of the proceedings at State expense and appointment of legal counsel. We granted Appellant’s motion for delayed appeal because she demonstrated a valid reason, but we denied her motions for preparation of a transcript and appointment of appellate counsel because she failed to attach either an affidavit of indigency or a financial disclosure form. {¶7} Appellant filed an appellate brief, pro se, on November 18, 2019. The State of Ohio filed a responsive brief on December 23, 2019. Appellant also filed the required financial disclosure/indigency forms and renewed her request for court appointed counsel. She did not renew her request for a transcript of the proceedings. Appellant’s appellate counsel filed a Supplemental Brief of Defendant-Appellant on September 8, 2020. The State of Ohio filed its responsive brief on October 15, 2020. {¶8} Appellant’s sole argument on appeal is that she would not have entered guilty pleas to the 2018 Athens County cases if she had known that she would receive additional sanctions from Union County. Appellant contends that the Union County trial court indicated it would impose a 30month sentence consecutive to Appellant’s Athens county cases if she Athens App. No. 19CA06 5 violated community control. Thus, Appellant concludes her guilty pleas were not knowingly and voluntarily entered. ASSIGNMENT OF ERROR I. “THE DEFENDANT-APPELLANT’S PLEA WAS INVOLUNTARY AND MUST BE VACATED.” A. STANDARD OF REVIEW {¶9} “ ‘ “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” ’ ” State v. Keene, 2017-Ohio-7058, 95 N.E.3d 597, (4th Dist.), at ¶ 16, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7; quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). To be voluntary, a guilty plea must be the expression of the defendant's own free will and must not be induced by misrepresentations, or improper promises. See City of Grove City v. Sample, 10th Dist. Franklin No. 18AP30, 2018Ohio-4619, at ¶13, citing, Brady v. United States, 397 U.S. 742, 755 (1970). “ ‘ “An appellate court determining whether a guilty plea was entered knowingly, intelligently, and voluntarily conducts a de novo review of the record to ensure that the trial court complied with the constitutional and Athens App. No. 19CA06 6 procedural safeguards.” ’ ” Keene, supra, quoting State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, at ¶ 36; quoting State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, at ¶ 13. B. LEGAL ANALYSIS {¶10} Appellant contends her guilty pleas were not knowingly and voluntarily entered because “Ms. Vore understood that she would receive no additional sanction because of her Union County case.” (Appellant's Supplemental Brief at 2.) For the reasons which follow, we disagree with this contention. {¶11} “ ‘Crim.R. 11(C) governs the process that a trial court must use before accepting a felony plea of guilty or no contest.’ ” Keene, supra, at ¶ 17, quoting Veney at ¶ 8. Before accepting a guilty plea in a felony case, a trial court must address the defendant personally and determine that “the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.” Crim.R. 11(C)(2)(a). The court must also inform the defendant of other matters under Crim.R. 11(C)(2)(b) and (c). Athens App. No. 19CA06 7 {¶12} Strict compliance with Crim.R. 11(C)(2)(c) is required when constitutional rights are involved. State v. Smith, 4th Dist. Ross No. 19CA3680, at ¶ 10. However, here, Appellant does not argue that her constitutional rights were violated. Appellant’s case involves the trial court's notification of nonconstitutional rights under Crim.R. 11(C)(2)(a), for which substantial compliance is sufficient; this means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. See Veney at ¶ 15; citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “A defendant who challenges [her] guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must generally prove prejudice, which in this context means that the plea would otherwise have not been entered.” Keene, supra ¶ 19; Veney at ¶ 15. {¶13} Here, Appellant asserts as part of the consideration for her admissions to community control/judicial release violations in her 2015 Athens case and guilty pleas in the 2018 Athens cases, Appellant understood that her pending Union County case would be sentenced concurrently to her Athens County cases. Appellant argues that at the sentencing hearing, her counsel stated on the record: And it’s our understanding Union County will not be seeking any additional prison as a result of the convictions. And while Athens App. No. 19CA06 8 that’s not within the Court’s purview, we wanted you to be aware of it and also know that was a critical part of Ms. Vore’s decision to proceed with the recommended sentence today. {¶14} In response, the State of Ohio asserts that the trial court strictly complied with Crim. R. 11(C)(2) and also complied with Crim.R. 11(F). The State asserts that the parties discussed the negotiated plea that had been reached, and that Appellant signed each page of a Change of Plea to Guilty form, which is contained in the court’s record. The State also points out that Appellant has not provided a transcript of the sentencing hearing as part of the appellate record. Based upon our de novo review of the record, we find the State’s assertions are supported. {¶15} We are unable to determine from the record provided the specific discussions that ensued at Appellant’s change of plea and sentencing because Appellant failed to provide this Court with a certified transcript of the sentencing hearing. App.R. 9(B) states, in relevant part, “At the time of filing the notice of appeal the appellant, in writing, shall order from the reporter a complete transcript or a transcript of the parts of the proceedings not already on file as the appellant considers necessary for inclusion in the record and file a copy of the order with the clerk.” {¶16} The record on appeal indicates that although Appellant initially requested preparation of a copy of the transcript of the proceedings at State Athens App. No. 19CA06 9 expense, we denied that motion. While we granted her motion to file a delayed appeal, we observed that she had not filed an affidavit of indigency or a financial disclosure form. Thus, we denied the motion for preparation of a complete transcript of the proceedings at State expense. In our entry dated June 11, 2019, we indicated we would reconsider Appellant’s request if the required documents were filed. An entry in our records thereafter dated August 14, 2019, indicated the record was transmitted without transcripts. By Magistrate’s Order dated June 5, 2020, this court appointed appellate counsel. However, Appellant did not renew her request for a certified transcript to be prepared at State expense. Thus, no certified transcript of the plea or sentencing proceedings has since been provided. {¶17} Because an appellant bears the burden of demonstrating error by reference to matters in the record, she has a duty to provide a transcript of the proceedings. See Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). In Knapp, the Ohio Supreme Court held: “When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm.” Id; In re TG, 4th Dist. Athens No. 15CA24, 2015-Ohio-5330, at ¶ 7. Athens App. No. 19CA06 10 {¶18} The only documentation regarding the discussions surrounding Appellant’s change of plea and sentencing which is properly before us as part of the record on appeal is Appellant’s Plea of Guilty form in Case Nos. 18CR0035, 18CR0129, and 18CR0382. The Plea of Guilty document contains the PLEA AGREEMENT set forth explicitly as follows: I understand the nature of these charges and the possible defenses I might have. I am satisfied with my attorney’s advice regarding any defenses I might have. I am satisfied with my attorney’s advice, counsel and competence. I am not now under the influence of drugs or alcohol. No threats have been made to me. No promises have been made to me, except as part of this plea agreement, stated entirely as follows: Plead to the charges as indicted in 18CR0035, 18CR0129 and 18CR0382. State will move to amend Count 1 of 18CR0035 to a misdemeanor of the first-degree Possession of Criminal Tools and ask that the 6 months jail to run concurrent to the time imposed in 18CR0129 and 18CR0382. Joint recommendation Defendant to be sentenced to eight (8) years on 18CR0129 consecutive to 4 years on 18CR0382. (1 year on each count consecutive to one another) for an aggregate sentence of 12 years. State agrees not to oppose judicial release as to all cases as of December 9, 2021, pending a favorable ISR. Upon release, Defendant is to be released into a residential treatment program and must successfully complete the Athens County Prosecutor’s Office Vivitrol Program with the added condition of a transitional treatment program like Any Length Recovery in South Carolina. Defendant is terminated from judicial release on Count 1 of 15CR0210 with all time left imposed to run concurrent to remaining counts. Defendant is to be terminated from community control in 15CR0210 and four (4) years (1 year on Count 30, 1 year on Count 31. 1 year on County 35. And 1 year on Count 37- all consecutive to each other concurrent to remaining counts) is to be imposed but run concurrent to 18CR0129 and 18CR0382. Defendant Athens App. No. 19CA06 11 shall be given jail credit of 965 days jail credit as to case numbers 15CR0210, 18CR0129, and 18CR0382 as of 2/1/19 and that jail credit is to be taken off the front end of her sentence which makes her eligible for judicial release as of December 9, 2021. As may be seen, nothing in the plea agreement set forth in the Plea of Guilty form signed and apparently dated by Appellant on each page of the form indicates any facts regarding any agreement with Union County as part of the plea agreement. {¶19} The Plea of Guilty form also contains an acknowledgement of Appellant’s waiver of constitutional rights as set forth therein, by pleading guilty. The last page of the Plea of Guilty form states in bold-face type: “I understand that the State’s recommended sentence in this agreement is not binding on the Court.” Following this language, “By signing below I agree I have read this document, any questions I had have been answered, and I ask that the Court accept this plea.” Appellant signed directly beneath this language. {¶20} Appellant cites her counsel’s statement at sentencing, set forth fully above, regarding their “general understanding” that Union County would not be seeking any additional prison as a result of the new convictions. Our review of the record has demonstrated that an unofficial transcript of the plea and sentencing hearing appears to be attached to Athens App. No. 19CA06 12 Appellant’s initial pro se brief. This uncertified transcript reflects Appellant’s counsel’s statement set forth above regarding the Union County criminal matter. However, this unofficial document may not be considered on appeal. {¶21} The document Appellant cites was not transmitted as part of the official appellate record. The document is captioned “TRANSCRIPT OF CHANGE OF PLEA AND SENTENCING HEARING” and indicates the hearing date as February 1, 2019. However, the transcript does not contain the date it was transcribed, the court reporter’s name, or the reporter’s qualifications. App.R. 9(B) (2) specifies that any reporter selected by the trial court to record the proceedings may also serve as the official transcriber of the proceedings or the court may appoint a transcriber so long as the trial court has a reasonable basis for determining that the transcriber has the necessary qualifications and training to produce a reliable transcript that conforms to the requirements of App.R. 9(B)(6). See State v. Mix, 4th Dist. Gallia No. 18CA9, 2019-Ohio-3315, at ¶ 21. App.R. 9(B)(6)(j) further provides that the transcriber shall certify the transcript of the proceedings as correct. Mix, supra. The transcript cited here does not contain any certification. While Appellant was given the opportunity to file a second request for preparation of the transcript at court expense, she did not. Athens App. No. 19CA06 13 Unfortunately, we must conclude we have no official transcript of the plea/sentencing hearing properly before us in the appellate record.3 “ ‘[A] bedrock principle of appellate practice in Ohio is that an appeals court is limited to the record of the proceedings at trial.’ ” State v. Fisher, 8th Dist. Cuyahoga No. 108494, 2020-Ohio-670, at ¶ 31, quoting Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13. {¶22} In State v. Sarver, Washington Nos. 17CA27, 17CA28, 17CA29, 2018-Ohio-2796, the defendant argued on direct appeal that he did not knowingly and intelligently enter his guilty pleas because he apparently mistakenly believed that the trial court would sentence him to complete a drug rehabilitation program rather than prison. We observed that a plea agreement generally should be rescinded “ ‘ “if the parties and the trial court have made a mutual mistake regarding the terms of a plea agreement.” ’ ” Id. at ¶ 21, quoting State v. Moore, 4th Dist. Adams No. 13CA965, 2014Ohio-3024, ¶ 16, quoting State v. Johnson, 182 Ohio App.3d 628, 2009Ohio-1871, 914 N.E.2d 429, ¶ 14 (4th Dist.). In State v. Nevels, 8th Dist. 3 The record also demonstrates, attached to Appellant’s pro se Brief in Response filed January 17, 2020) unauthenticated email correspondence between Appellant’s defense counsel and the Athens County Prosecutor’s office regarding the criminal matter pending in Union County. However, we may not consider these emails as we would be relying on information outside the record which we are not permitted to do. “[A] claim requiring such proof that exists outside of the trial record cannot appropriately be considered on a direct appeal.” State v. Croom, 7th Dist. Mahoning No. 12 MA 54, 2014-Ohio-1945, ¶ 11. Instead, matters relating to evidence outside the record should be raised in postconviction relief proceedings. State v. McNeal, 8th Dist. Cuyahoga No. 77977, 2002-Ohio-4764, ¶ 12. Athens App. No. 19CA06 14 Cuyahoga No. 108395, 2020-Ohio-915, the Ohio Supreme Court has noted that there is “ ‘no easy or exact way to determine what someone subjectively understands,’ but where the defendant receives the proper information, ‘we can ordinarily assume that she understands that information.’ ” Id. at ¶ 22, quoting State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979); State v. Nelson, 8th Dist. Cuyahoga No. 107823, 2019-Ohio-3365, at ¶ 19. In deciding whether the defendant had the required information, we look at the facts and circumstances surrounding the case. Carter, supra. See State v. Harris, Cuyahoga No. 108529, 2020-Ohio-805, at ¶ 14. {¶23} In Sarver, we observed that defendant signed three separate written plea agreements that detailed the maximum penalties for each offense and that recited the state's recommended sentence for each offense. We concluded that Sarver’s unspoken, subjective belief as to the sentence that the court would impose did not render his plea unknowing or unintelligent. See also State v. Johnson, 11th Dist. Geauga No. 2016-G0093, 2017-Ohio-293, at ¶ 10 (rejecting defendant's claim that “he was misled or confused as to the potential penalties he faced” when defendant's “written guilty plea set[ ] forth the potential penalty range for each of the offenses,” “state[d] that no promises were made to him that are not in the written plea agreement,” and advised defendant that the maximum prison Athens App. No. 19CA06 15 term was twenty-six years). Sarver’s unspoken, subjective belief that the court would only require him to complete a drug rehabilitation program was not reflected in the record. Consequently, we had no basis to conclude that Sarver’s guilty plea was unknowing or unintelligent on the basis that he failed to comprehend the penalties he faced. {¶24} In this case, Appellant’s belief that if she entered her pleas in Athens County she would not receive additional sanctions from Union County may be properly characterized as an unspoken subjective mistaken belief. Based on the evidence contained in the written record, i.e., the Plea of Guilty form, it appears that Appellant received the proper information. Nothing in the record indicates any agreement or discussion regarding the Union County matter. And given the absence of evidence in the record indicating otherwise, we have no choice but to presume the regularity of the record. Appellant’s mistaken belief is simply irrelevant to whether her plea deal was entered appropriately. See generally, State v. Weaver, 5th Dist. Holmes No. 11CA023, 2012-Ohio-2788, (Appellee failed to demonstrate manifest injustice where sole reason presented by appellee for request for withdrawal of plea was that she did not understand consequences of plea because her employment was jeopardized 13 years later). Furthermore, given Appellant’s inability to demonstrate prejudice, a “change of heart” does not Athens App. No. 19CA06 16 entitle Appellant to withdraw a guilty plea validly entered. See generally Sarver, at ¶ 44. {¶25} Based on the foregoing, we find the record supports the conclusion that Appellant’s guilty pleas were entered knowingly and voluntarily. We find no merit to the assignment of error. Accordingly, it is hereby overruled. JUDGMENT AFFIRMED Athens App. No. 19CA06 17 NELSON, J., concurring in judgment. {¶26} I concur in the judgment of the court, but write separately to emphasize the relatively narrow scope of our ruling. As the lead opinion says, Ms. Vore here challenges her conviction and sentence as set forth in the trial court’s Judgment Entry of February 4, 2019 reflecting proceedings of February 1, 2019. See April 4, 2019 Notice of Appeal (“from the judgment entry of conviction”); see also September 8, 2020 Supplemental Brief of Defendant-Appellant at v (“The present appeals followed” from plea and sentencing and after Union County continuation of community control). Significantly, this appeal does not involve any ruling on or evaluation of her October 15, 2019 common pleas court petition to vacate her Athens County guilty pleas, nor do we read it as constituting a petition for postconviction relief. {¶27} The context of this appeal means, as the lead opinion further recites, that our review is confined to whatever record we are presented from that February 1 plea and sentencing hearing and the resulting entry. So Ms. Vore’s current claims about her own subjective understandings (claims that in any event have not been proffered to us through affidavit or other evidentiary quality material) and any other materials outside of the trial court’s record through February 4, 2019 (such as proffered communications Athens App. No. 19CA06 18 to Ms. Vore from her lawyer, or the later records from the Union County Court of Common Pleas that restored her to community control under the previously prevailing directives) would in my view not properly be before us for assessment in this particular determination. See, e.g., State v. Madrigal, 87 Ohio St.3d 378, 390-91 (2000) noting that resolving the issue of ineffective assistance of counsel in the appellant’s favor “would be purely speculative” since “establishing [the alleged ineffective assistance] would require proof outside the record” and “[s]uch a claim is not appropriately considered on a direct appeal”); compare State v. Betts, 4th Dist. No. 18CA710, 2018-Ohio-2720, ¶ 11 (motions for postconviction relief “are a means to resolve constitutional claims [of ineffective assistance of counsel] that cannot be addressed on direct appeal because the evidence supporting the claims is not contained in the record”). {¶28} I do believe that with both Ms. Vore and the State agreeing as to the substance of a statement from defense counsel at the plea colloquy, we are entitled to consider that statement as a stipulated part of the record. The state has confirmed that “[t]here was a discussion on the record as to the terms and conditions of the agreement in both Athens County and Union County,” see December 23, 2019 Appellee’s Brief at 2, and both the state Athens App. No. 19CA06 19 and Ms. Vore specify that defense counsel David H. Thomas said at the point: And it’s our understanding Union County will not be seeking any additional prison as a result of the convictions. And while that’s not within the Court’s purview, we wanted you to be aware of it and also know that was a critical part of Ms. Vore’s decision to proceed with the recommended sentence today. Compare id. at 2-3 (emphasis omitted) with September 8, 2020 Appellant’s Brief at 2. {¶29} But I do not believe that Mr. Thomas’s statement there, standing alone or simply as part of the record appropriately before us, or even in the context of Union County’s later reimposition of community control under the previous conditions and contingencies, provides reason to overturn the conviction on direct appeal. And again, unlike the case Ms. Vore cites of State v. Diol, 1st Dist. No. C-180249, 2019-Ohio-2197, this matter is before us on direct appeal from the conviction and not on appeal from a denial of a “Motion to Vacate Guilty Plea” with evidence of counsel error and an affidavit from defendant saying that “had [defendant] been correctly advised, [defendant] would not have pleaded guilty.” Compare id. at ¶ 12. Similarly to Diol, but not to this case as currently postured, the case of State v. Florence, 4th Dist. No. 1-03-60, 2004-Ohio-1956, as also cited by Ms. Vore, see September 8, 2020 Supplemental Brief at 2-3, involved an Athens App. No. 19CA06 20 appeal from the denial of a (2003) motion to withdraw a (2001) guilty plea. 2004-Ohio-1956, at ¶2, 4. {¶30} Granted, the unauthenticated postconviction letter of February 11, 2019 purporting to be from lawyer Thomas to Ms. Vore and specifying that the Athens County Prosecutor’s Office had agreed that there was “an agreement from the Union County Prosecutor’s Office that no further action would be taken against you” could for sake of argument in another context be construed to reflect something perhaps different from the statements the parties agree were made at the plea hearing. But that letter, for whatever weight if any it might be given in a different context, is not part of the record on the direct appeal from the events of February 1, 2019 and consequently is not before us for evaluation at this juncture. {¶31} I concur in the judgment of this court affirming the conviction on direct appeal. ________________ Athens App. No. 19CA06 21 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the 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 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. Nelson, J. concurs with concurring opinion. Bergeron, J. concurs in judgment and opinion. For the Court, _____________________________ Jason P. Smith 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.

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