[Cite as State v. Blevins,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : Case No. 10CA3353 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : ALONZO BLEVINS, : : RELEASED 04/18/11

Defendant-Appellant. :

______________________________________________________________________ APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for appellant.

Mark E. Kuhn, SCIOTO COUNTY PROSECUTOR, and Julie Cooke Hutchinson, SCIOTO COUNTY ASSISTANT PROSECUTOR, Portsmouth, Ohio, for appellee. ______________________________________________________________________ Harsha, P.J.

{¶1} Alonzo Blevins was one of four back seat passengers in a vehicle stopped

by law enforcement for a cracked windshield. The driver, front seat passenger, and

Blevins had outstanding warrants. Upon their arrest, a search of the vehicle resulted in

the discovery of a trace amount of methamphetamine and numerous materials that

could be used to make the drug. Based upon this incident, a jury found Blevins guilty of

possession of chemicals for the manufacture of methamphetamine and possession of

methamphetamine.

{¶2} In this appeal, Blevins contends that his conviction for possession of

methamphetamine was against the manifest weight of the evidence. We agree. Law

enforcement only found a trace amount of the drug on a piece of a plastic baggie

located on the front passenger seat after that passenger exited the vehicle. No Scioto App. No. 10CA3353 2

evidence supports a finding that Blevins would have been conscious of this object from

his position in the vehicle, let alone that it contained a trace amount of a controlled

substance. Moreover, aside from Blevins’ proximity to the plastic, there is no evidence

that he could exercise dominion or control over it, i.e. that he had constructive

possession of it. Accordingly, we reverse Blevins’ possession of methamphetamine

conviction.

{¶3} In addition, Blevins contends that his conviction for the possession of

chemicals charge was against the manifest weight of the evidence. However, the State

presented evidence from which the jury could conclude that Blevins had constructive

possession of ether (in starting fluid), lithium (in batteries), and pseudoephedrine, i.e.

chemicals that may be used to manufacture methamphetamine, with the intent to

manufacture the drug. And because the jury could reasonably return a guilty verdict

based on the State’s version of the events, we cannot say that the jury clearly lost its

way and created a manifest miscarriage of justice. Thus, we reject that argument.

{¶4} Next, Blevins contends that trial counsel rendered ineffective assistance

by failing to make a Crim.R. 29(A) motion for acquittal on the possession of chemicals

charge, i.e. counsel failed to challenge the sufficiency of the evidence supporting the

conviction. However, the failure to raise a sufficiency argument at trial does not waive

that argument on appeal. Moreover, in concluding that Blevins’ conviction for this

charge was not against the manifest weight of the evidence, we necessarily concluded

that sufficient evidence supported the conviction. Thus such a motion would have been

futile and Blevins cannot establish a deficient performance or prejudice.

{¶5} Finally, Blevins contends that the trial court erred by admitting unfairly Scioto App. No. 10CA3353 3

prejudicial evidence. The court permitted an Ohio State Highway Patrol lieutenant to

testify that sometime in August 2009 (the month following the traffic stop) Blevins told

him that he was a “small time meth dealer user” while lodging a complaint about a

trooper’s behavior after a separate traffic stop. However, the court did not abuse its

discretion in concluding that the statement was probative of guilt as Blevins’ status as a

drug dealer and user supports the State’s theory that he was not merely an innocent

occupant of a vehicle laden with materials used to manufacture methamphetamine.

Moreover, we find that the probative value of this testimony was not substantially

outweighed by the danger of unfair prejudice. Therefore, we also reject this argument.

I. Facts

{¶6} The Scioto County grand jury indicted Blevins on: 1.) one count of

possession of chemicals for the manufacture of methamphetamine, in violation of R.C.

2925.041(A), a third-degree felony; and 2.) one count of possession of

methamphetamine, in violation of R.C. 2925.11(A) and (C)(1)(a), a fifth-degree felony.

After Blevins pleaded not guilty to the charges, the matter proceeded to a jury trial,

which produced the following evidence.

{¶7} On July 3, 2009 at approximately 9:00 p.m., Deputy David Fairchild and

Detective Matt Spencer with the Scioto County Sheriff’s Office and Trooper Nick Lewis

with the Ohio State Highway Patrol were patrolling U.S. 23 in Scioto County when they

observed a vehicle with a cracked windshield. Fairchild initiated a traffic stop, and

Spencer and Lewis assisted him. The vehicle contained six occupants. The driver,

Jason Craft, and the front seat passenger, Jillian Newman, had outstanding warrants for

their arrest. Craft’s father owned the vehicle but was not present. The following people Scioto App. No. 10CA3353 4

were seated in the back seat from left (i.e. behind the driver’s seat) to right: Blevins,

Beth Vest, Anthony Blevins (“Anthony”), and Billy Stapleton. Blevins also had an

outstanding warrant out for his arrest. Law enforcement arrested Craft, Newman, and

Blevins based on the warrants.

{¶8} Law enforcement found the following items in the passenger compartment

of the vehicle: one can of Preston starting fluid, four cans of Johnson starting fluid,

crushed pseudoephedrine, uncrushed tablets containing pseudoephedrine, two four-

packs of lithium batteries, two rolls of black electrical tape, one siphon pump, three

copper fittings, and an empty box of CVS cold medicine (pseudoephedrine). They

found the uncrushed tablets between the driver’s seat and center console and the

crushed pseudoephedrine “very well hidden” stuffed under the center console. They

found the tape, batteries, and one can of Johnson starting fluid in a Walmart bag on the

floor behind the driver’s seat. In addition, they found the empty CVS box on the

“passenger rear floorboard” and “underneath some stuff.” The copper fittings were on

the floor behind the driver’s seat. The siphon pump was found in a Big Lots bag,

presumably in the back seat of the vehicle.

{¶9} Spencer and Detective Adam Giles of the Scioto County Sheriff’s Office

explained the role the items found in the vehicle play in the production of

methamphetamine. Giles testified that pseudoephedrine is a “precursor chemical”

found in common cold medicines, and it or ephedrine is needed to produce

methamphetamine. Giles also testified that a solvent, like starting fluid is added to the

crushed up cold pills to draw out the pseudoephedrine and lithium or sodium metal is

also added to the mixture later. Spencer testified that the ether in starting fluid is a key Scioto App. No. 10CA3353 5

ingredient in the manufacturing process. In addition, Giles testified that a siphon pump

could be used in two steps of the manufacturing process – to either help extract the

pseudoephedrine or to create a gas generator needed later in the process. Spencer

testified that electrical tape is used to hold the siphon hose in place and that copper

fittings can be used to seal off anhydrous tanks used in the manufacturing process.

{¶10} A CVS receipt in the vehicle showed a purchase of a CVS brand

decongestant, i.e. a pseudoephedrine purchase, at 7:49 p.m. that day. CVS records

revealed that Stapleton made that purchase. And Spencer testified that through his

investigation, he learned that Anthony was with Stapleton at the time. Walmart records

revealed that Craft, Stapleton, and Newman purchased drugs containing

pseudoephedrine that day. Newman made her purchase at 7:54 p.m., Craft made his

purchase at 7:57 p.m., and Stapleton made his purchase at 8:10 p.m. A Walmart

receipt found in the vehicle revealed a cash purchase of various items at 8:15 p.m.,

including one can of starting fluid, batteries, two rolls of tape, and one container of tic

tacs. According to Spencer, Blevins and Vest (his girlfriend) were depicted on Walmart

surveillance footage of this transaction, and Vest appeared to pay for the items. Lisa

Payton, a Walmart Asset Protection Coordinator, testified that the Universal Product

Code for the starting fluid matched the code on the can of Preston starting fluid found in

the vehicle. Spencer also testified that the Big Lots receipt from the vehicle indicated

someone purchased a siphon pump at 8:47 p.m. To Spencer’s knowledge Blevins did

not make that purchase or go into Big Lots.

{¶11} Blevins had tic tacs and two syringes on his person when law enforcement

arrested him. One syringe was still in a package, but the other had been opened and Scioto App. No. 10CA3353 6

loaded with a substance. The Sheriff’s Office did not test the substance. Instead, it

destroyed the syringes according to an office policy.

{¶12} Spencer and Lewis testified that when they instructed Newman to exit the

vehicle, she kept her legs together as she did so. Lewis testified that her actions made

him believe she was trying to conceal something between her legs, and after she stood,

he saw the corner of a clear plastic baggie on the seat, i.e. Newman had been sitting on

it. Lewis testified that people who possess drugs commonly put their stash into a

baggie, filter the drugs into one corner of the bag, cut that corner off, and twist the open

part of the corner to secure the drugs inside. He testified that this particular “corner

piece” contained white residue. Michelle Anderson, a forensic scientist for the Ohio

Bureau of Criminal Identification and Investigations identified the residue as a trace

amount of methamphetamine.

{¶13} Lieutenant Edward Crispen, the post commander at the Ohio State

Highway Patrol’s Portsmouth post testified that sometime in August 2009, Blevins came

to the post to complain about Lewis’ conduct during a different traffic stop. Blevins was

angry and complained that Lewis violated his constitutional rights on multiple occasions.

According to Crispen, Blevins felt he was “getting stopped more than he should have

been stopped.” In addition, Blevins told Crispen that he was “just a small time meth

dealer user,” and Lewis should focus on more serious criminals. Crispen advised

Blevins that what he was doing was still illegal. Blevins said, “I realize that but it[’]s still

small time stuff.”

{¶14} The jury found Blevins guilty on both counts of the indictment. After

sentencing, Blevins filed this appeal. Scioto App. No. 10CA3353 7

II. Assignments of Error

{¶15} Blevins assigns three errors for our review:

The Defendant-Appellant was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution as a result of Trial Counsel’s failure to move for a Criminal Rule 29 motion of acquittal at the close of the Plaintiff-Appellee’s case in chief.

The trial court abused its discretion and erred to the prejudice of the Defendant-Appellant by allowing prejudicial testimony in violation of Evid.R. 403(A).

The verdict and conviction is against the manifest weight of the evidence presented at trial.

For ease of analysis, we will address these assignments of error out of order.

III. Manifest Weight of the Evidence

{¶16} In his third assignment of error, Blevins contends that his convictions were

against the manifest weight of the evidence. “In determining whether a criminal

conviction is against the manifest weight of the evidence, an appellate court must

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses and determine whether, in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed.” State v. Brown, Athens App. No. 09CA3, 2009-Ohio-

5390, at ¶24, citing State v. Thompkins,

, 387,

,

. A reviewing court “may not reverse a conviction when there is substantial

evidence upon which the trial court could reasonably conclude that all elements of the

offense have been proven beyond a reasonable doubt.” State v. Johnson (1991),

,

, citing State v. Eskridge (1988),

,

, at paragraph two of the syllabus. Scioto App. No. 10CA3353 8

{¶17} Even in acting as a thirteenth juror we must still remember that the weight

to be given evidence and the credibility to be afforded testimony are issues to be

determined by the trier of fact. State v. Frazier,

,

,

, citing State v. Grant,

,

,

. The fact finder “is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland (1984),

,

(per curiam). Thus, we will only interfere if the fact finder

clearly lost its way and created a manifest miscarriage of justice. Moreover, “[t]o

reverse a judgment of a trial court on the weight of the evidence, when the judgment

results from a trial by jury, a unanimous concurrence of all three judges on the court of

appeals panel reviewing the case is required.” Thompkins, supra, at paragraph four of

the syllabus, construing and applying Section 3(B)(3), Article IV of the Ohio Constitution.

A. Possession of Drugs

{¶18} The jury found Blevins guilty of possession of drugs, i.e.

methamphetamine, in violation of R.C. 2925.11(A), which states: “No person shall

knowingly obtain, possess, or use a controlled substance.” Blevins contends that the

evidence does not support his conviction. We agree.

{¶19} Possession may be actual or constructive. “Actual possession exists

when the circumstances indicate that an individual has or had an item within his

immediate physical possession. Constructive possession exists when an individual is

able to exercise dominion or control of an item, even if the individual does not have the

item within his immediate physical possession.” State v. Fry, Jackson App. No. Scioto App. No. 10CA3353 9

03CA26,

, citing State v. Hankerson (1982),

,

, at syllabus and State v. Wolery (1976),

,

. For constructive possession to exist, “[i]t must also be shown that the

person was conscious of the presence of the object.”

. “Dominion and

control, as well as whether a person was conscious of the presence of an item of

contraband, may be established by circumstantial evidence.” State v. Matteson, Vinton

App. No. 06CA642,

, citing State v. Jenks (1991),

,

.

{¶20} A defendant’s mere proximity to contraband is in itself insufficient to

establish constructive possession, but proximity to contraband may constitute some

evidence of constructive possession. Fry at ¶40. Therefore, presence in the vicinity of

contraband, coupled with another factor or factors probative of dominion or control over

the contraband, may establish constructive possession. State v. Riggs (Sept. 13,

1999), Washington App. No. 98CA39,

, at *5. Moreover, two or more

persons may have joint constructive possession of the same object. Id. at *4.

{¶21} Although Blevins had a loaded syringe on his person at the time of his

arrest, the Sheriff’s Office destroyed the syringe without testing it, and none of the

State’s witnesses testified about any characteristics of the substance that could lead the

jury to conclude it constituted methamphetamine. The “corner piece” law enforcement

found on the front passenger seat contained the only controlled substance seized

during the traffic stop. However, Blevins did not have actual possession of the piece,

and the evidence does not support a finding that he had constructive possession of it.

The piece only had trace amounts of methamphetamine on it and was small enough Scioto App. No. 10CA3353 10

that Newman made an effort to conceal it between her legs when she exited the vehicle.

Moreover, law enforcement did not see the piece on the seat until after Newman stood

up, i.e. she successfully concealed it from view until forced to exit the vehicle. No

evidence supports a finding that Blevins would have been conscious of the presence of

the corner piece from his position behind the driver, let alone that the piece contained

trace amounts of a controlled substance. Likewise, no evidence supports a finding that

Blevins had dominion or control over the piece aside from his proximity to it. And

because no evidence supports a finding that Blevins knowingly obtained, possessed, or

used a controlled substance, we find that his conviction for possession of

methamphetamine was against the manifest weight of the evidence. We reverse

Blevins’ conviction for possession of methamphetamine and remand so that the trial

court can discharge Blevins on this charge.

B. Possession of Chemicals for the Manufacture of Methamphetamine

{¶22} The jury also found Blevins guilty of possession of chemicals for the

manufacture of a controlled substance, i.e. methamphetamine, in violation of R.C.

2925.041(A), which states: “No person shall knowingly assemble or possess one or

more chemicals that may be used to manufacture a controlled substance in schedule I

or II with the intent to manufacture a controlled substance in schedule I or II in violation

of section 2925.04 of the Revised Code.” Methamphetamine is a Schedule II controlled

substance. R.C. 3719.41, Schedule II(C)(2).

{¶23} Blevins apparently concedes that the chemicals found in the vehicle –

pseudoephedrine, ether in the starting fluid, and lithium in the batteries – may be used

to manufacture methamphetamine. He focuses instead, on the argument that the State Scioto App. No. 10CA3353 11

failed to put forth evidence that he possessed these chemicals or did so with the intent

to manufacture methamphetamine. We disagree.

{¶24} The State presented evidence from which a jury could conclude that

Blevins possessed chemicals used in the manufacture of methamphetamine with intent

to make the drug. Although he did not pay for the starting fluid and batteries, Blevins

was present when Vest paid for the items at Walmart, had actual possession of one

other item from this transaction during his arrest (tic tacs), and had the starting fluid and

batteries sitting on the floor by him in the backseat. Blevins also sat within reach of the

crushed and uncrushed pseudoephedrine in the vehicle and within reach of non-

chemical items that play a role in the manufacture of methamphetamine, such as the

electrical tape and copper fittings.

{¶25} The State’s evidence of the timeline of events suggests that Blevins

participated in a carefully orchestrated plan with the other occupants of the vehicle to

acquire these items to make methamphetamine and to avoid suspicion by dividing up

the purchases. 1 Between 7:49 p.m. and 8:10 p.m., three of the vehicle occupants

purchased medicine containing pseudoephedrine and a fourth occupant was present

during at least one of those purchases. Three of the four purchases were made at

Walmart between 7:54 p.m. and 8:10 p.m. Blevins and Vest went through the checkout

line at the same Walmart store at 8:15 p.m. to purchase the starting fluid, batteries, and

tape. The jury could infer that once the Walmart purchases (which occurred within

1 The State argues that Blevins is guilty of complicity to possession of methamphetamine and complicity to possession of chemicals for the manufacture of methamphetamine even if he is not the principal offender of those crimes. However, the jury was not instructed on the elements of complicity at trial, see R.C. 2923.03, nor did the jury find Blevins guilty of complicity. Therefore, we do not address this argument. Scioto App. No. 10CA3353 12

minutes of each other) were finished at 8:15 p.m., the group of six converged at Craft’s

father’s vehicle, went to Big Lots so someone could make the 8:47 p.m. siphon pump

purchase, and was stopped minutes later by law enforcement.

{¶26} The evidence reasonably supports the conclusion that Blevins had

constructive possession of chemicals used in the manufacture of methamphetamine –

lithium (in the batteries), ether (in the starting fluid), and pseudoephedrine – and that he

intended to manufacture methamphetamine along with the other vehicle occupants.

The jury chose to believe the State’s version of events, and we will not substitute our

judgment for that of the jury under these circumstances. After reviewing the entire

record, we cannot say that the jury lost its way or created a manifest miscarriage of

justice when it found Blevins guilty of possession of chemicals for the manufacture of a

controlled substance.

IV. Ineffective Assistance of Counsel

{¶27} In his first assignment of error, Blevins contends that trial counsel

rendered ineffective assistance. To prevail on an ineffective assistance of counsel

claim, an appellant must show that: 1.) his counsel’s performance was deficient and, 2.)

the deficient performance prejudiced his defense so as to deprive him of a fair trial.

State v. Drummond,

,

,

, at ¶205,

citing Strickland v. Washington (1984),

,

,

. To establish deficient performance, an appellant must show that trial counsel’s

performance fell below an objective level of reasonable representation. State v.

Conway,

,

,

. To establish

prejudice, an appellant must show a reasonable probability exists that, but for the Scioto App. No. 10CA3353 13

alleged errors, the result of the proceeding would have been different.

The

appellant has the burden of proof on the issue of counsel’s ineffectiveness because a

properly licensed attorney is presumed competent. State v. Gondor,

,

,

.

{¶28} Blevins contends that trial counsel rendered ineffective assistance by not

moving for a Crim.R. 29(A) motion for acquittal on the possession of chemicals for the

manufacture of methamphetamine charge.2 A Crim.R. 29(A) motion for acquittal tests

the sufficiency of the evidence presented at trial. State v. Umphries, Ross App. No.

02CA2662,

, at ¶6, citing State v. Williams,

,

,

and State v. Miley (1996),

,

. The trial court must enter a judgment of acquittal when the state’s

evidence is insufficient as a matter of law to sustain a conviction. Crim.R. 29(A).

{¶29} However, the failure to raise a sufficiency argument at trial does not waive

that argument on appeal. State v. Cooper,

,

,

. Moreover, “[w]hen an appellate court concludes that the weight of

the evidence supports a defendant’s conviction, this conclusion necessarily includes a

finding that sufficient evidence supports the conviction.” State v. Puckett, Ross App.

No. 10CA3153,

, citing State v. Pollitt, Scioto App. No.

08CA3263,

, at ¶14. “Thus, a determination that [a] conviction is

supported by the weight of the evidence will also be dispositive of the issue of

sufficiency.”

quoting State v. Lombardi, Summit App. No. 22435,

, in turn, quoting State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462,

. 2 Blevins does not raise a similar claim for the possession of methamphetamine charge. Scioto App. No. 10CA3353 14

{¶30} In resolving Blevins’ third assignment of error, we already determined that

his conviction for possession of chemicals for the manufacture of methamphetamine

was not against the manifest weight of the evidence. Therefore, a Crim.R. 29(A) motion

would have been futile. Because the law does not require counsel to take a futile act,

the failure to make the Crim.R. 29(A) motion was not deficient. We overrule Blevins’

first assignment of error.

V. Prejudicial Testimony

{¶31} In his second assignment of error, Blevins contends that the trial court

erred under Evid.R. 403(A) when it permitted Crispen to testify about a statement

Blevins allegedly made to him. Blevins complains that Crispen testified that he told

Crispen that he “cooked meth.” However, from our review of the transcript, Crispen

actually testified that Blevins stated that he was “a small time meth dealer user.”

Evid.R. 403(A) prohibits the introduction of relevant evidence if its “probative value is

substantially outweighed by the danger of unfair prejudice * * *.” Relevant evidence is

“evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be

without the evidence.” Evid.R. 401. “The admission or exclusion of relevant evidence

rests within the sound discretion of the trial court[.]” State v. Haines,

,

,

. Absent an abuse of that discretion, an

appellate court will not disturb a trial court’s ruling on the admissibility of evidence.

State v. Martin (1985),

,

(per curiam). The

term “abuse of discretion” implies that the court’s attitude was unreasonable, arbitrary,

or unconscionable. State v. Adams (1980),

,

. Scioto App. No. 10CA3353 15

{¶32} Blevins contends that the probative value of Crispen’s testimony was

substantially outweighed by the danger of unfair prejudice. However, “[o]nly in rare

cases are an accused’s own actions or language unfairly prejudicial.” State v. Lee,

Franklin App. No. 06AP226,

, citing State v. Bailey, Franklin App.

No. 04AP-553,

. Clearly Blevins’ alleged statement was

relevant to establishing his guilt. Blevins’ status as a user and dealer of

methamphetamine would make it more probable that he understood the ingredients and

process for the manufacture of the drug and in fact intended to manufacture the drug to

both sell and use it.

{¶33} Blevins primarily complains that his alleged statement was “prejudicial”

because Crispen’s testimony lacked credibility. Specifically, he complains that Crispen

could not recall exactly when Blevins made the statement and did not follow up on the

statement even though Blevins had presumably admitted to being a criminal. Blevins

also complains that the statement was not explicitly related to the traffic stop in this

case. However, Crispen’s testimony was not inherently unreliable. The jury was

capable of determining what weight, if any, Blevins’ alleged statement deserved in light

of the other evidence in the case. Admission of the testimony, harmful as it may have

been to Blevins’ case, was not unfairly prejudicial and was not a violation of Evid.R.

403(A). We overrule Blevins’ second assignment of error.

VI. Conclusion

{¶34} In summary, we overrule Blevins’ first and second assignments of error.

We sustain Blevins’ third assignment of error in part and overrule it in part. We reverse

his conviction for possession of methamphetamine and remand so that the trial court Scioto App. No. 10CA3353 16

can discharge Blevins on that charge.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED. Scioto App. No. 10CA3353 17

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART, and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto 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. & Kline, J.: Concur in Judgment and Opinion.

For the Court

BY: ____________________________ William H. Harsha, 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.