State v. McClendon

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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. McClendon, Slip Opinion No. 2011-Ohio-954.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2011-OHIO-954 THE STATE OF OHIO, APPELLEE AND CROSS-APPELLANT, v. MCCLENDON, APPELLANT AND CROSS-APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. McClendon, Slip Opinion No. 2011-Ohio-954.] Discretionary appeal not accepted, cross-appeal accepted, judgment of the court of appeals vacated in part, and cause remanded to the court of appeals for application of State v. Johnson. (No. 2010-1950 Submitted February 15, 2011 Decided March 8, 2011.) APPEAL from the Court of Appeals for Montgomery County, No. 23558, 2010-Ohio-4757. __________________ {¶ 1} The discretionary appeal is not accepted. {¶ 2} The discretionary cross-appeal is accepted. {¶ 3} The portion of the judgment of the court of appeals addressing appellant s second assignment of error below is vacated on the authority of State v. Johnson, ___ Ohio St.3d ___, 2010-Ohio-6314, ___ N.E.2d ___, and the cause SUPREME COURT OF OHIO is remanded to the court of appeals for application of our decision in State v. Johnson. O CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O DONNELL, and CUPP, JJ., concur. LANZINGER and MCGEE BROWN, JJ., dissent and would not accept the cross-appeal. __________________ Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Carley J. Ingram, Assistant Prosecuting Attorney, for appellee and crossappellant. Kyle McClendon, pro se. ______________________ 2

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