[Cite as Cleveland v. Evans,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100721

CITY OF CLEVELAND PLAINTIFF-APPELLEE

vs.

JIMMY A. EVANS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cleveland Municipal Court Case No. 2013-TRC-009146

BEFORE: Celebrezze, P.J., Jones, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: October 16, 2014 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender BY: Erika B. Cunliffe Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Victor R. Perez Chief Assistant Prosecutor City of Cleveland, Law Department The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

Mark V. Guidetti Thomas M. Hanculak Prosecutors, Village of Bratenahl Joseph W. Diemert & Associates 1360 SOM Center Road Cleveland, Ohio 44124 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Appellant, Jimmy Evans, bring this appeal from his conviction for driving

under the influence of alcohol (“O.V.I.”). Appellant argues that his right to a speedy trial

as well as his rights against double jeopardy were violated. After a thorough review of

the record and law, we affirm.

I. Factual and Procedural History

{¶2} On October 5, 2012, close to midnight, appellant was driving within the

village of Bratenahl. Officer Benjamin Izor of the Bratenahl Police Department initiated

a traffic stop of appellant’s vehicle after observing that no headlights were on while

appellant was driving on Interstate 90. He also witnessed appellant make an illegal “U”

turn and other traffic violations. Officer Izor indicated that, on approaching the vehicle,

he smelled a strong odor of alcohol. When asked for identification and vehicle

registration, appellant indicated his license was suspended. He also admitted to

consuming alcoholic beverages and that he felt “buzzed.” Officer Izor conducted a

battery of field sobriety tests and developed probable cause to believe that appellant was

intoxicated based on the results. Appellant was arrested and submitted to a breath

alcohol test, which determined his blood alcohol level to be 0.179 grams of alcohol per

210 liters of breath. However, Officer Izor did not issue appellant a citation for

operating a vehicle while intoxicated. Instead, he issued appellant a citation for illegal

“U” turn in violation of Bratenahl Codified Ordinance (“B.C.O.”) 331.12, driving while

under suspension in violation of B.C.O. 335.07; failure to control/weaving in violation of B.C.O. 331.34; driving without headlights illuminated when required in violation of

B.C.O. 337.02; and possession of marijuana in violation of B.C.O. 513.03.

{¶3} On October 15, 2012, a complaint was filed by the village of Bratenahl (the

“Village”) in the Cleveland Municipal Court charging appellant with the above

infractions.

{¶4} Because appellant had several prior arrests for other O.V.I. offenses, police

referred potential charges for violating Ohio’s O.V.I. statute, R.C. 4511.19, to the county

prosecutor for a potential felony indictment. A Cuyahoga County Common Pleas case

number was assigned, but ultimately, a felony prosecution did not go forward.

{¶5} On October 30, 2012, as part of a negotiated plea agreement, appellant

entered a plea of no contest to driving under a suspended license in violation of B.C.O.

335.07, for which he was ordered to pay a fine. The trial court also imposed a jail

sentence, but suspended all days not previously served.

{¶6} On February 10, 2013, appellant was served with a citation for driving under

the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a) and

4511.19(A)(1)(h). A criminal complaint was filed on February 14, 2013, listing the same

charges. Appellant filed a motion to suppress the breath test as unreliable on March 22,

2013. Appellant also filed a motion to dismiss on March 9, 2013, arguing that his rights

to a speedy trial and against double jeopardy were violated. After numerous

continuances at appellant’s request and a few necessitated by the court’s schedule, a

hearing on these motions was held on September 10, 2013. The trial court denied both motions the same day. The court issued a lengthy opinion setting forth its reasoning.

On November 5, 2013, appellant entered a no contest plea to the first count, and the

second count was dismissed in conformity with a plea agreement.

{¶7} The trial court ordered a presentence investigation report and set a date for a

sentencing hearing. There, appellant was fined $525 and ordered to serve 180 days in

jail. Appellant then filed this appeal, assigning three errors for review:

I. [Appellant’s] prosecution for O.V.I. violated his right to a speedy trial guaranteed under R.C. 2945.71(B) and the Ohio Constitution.

II. [Appellant’s] prosecution for O.V.I. violated his rights under the Constitution’s Fifth and Fourteenth Amendments where he had entered into a plea agreement resolving the matter and the [Village] had not expressly reserved the right to pursue the additional charge.

III. The trial court violated [appellant’s] right to due process and his rights under the Fourteenth Amendment when it denied his motion challenging the results of his B.A.C. testing as unreliable without a hearing.

II. Law and Analysis

A. Speedy Trial

{¶8} The right to a speedy trial is a fundamental right guaranteed by the Sixth

Amendment to the United States Constitution. This right must be observed by the states

as mandated by the Fourteenth Amendment. Section 10, Article I of the Ohio

Constitution guarantees an accused this same right. State v. MacDonald,

,

(1976).

{¶9} When reviewing a trial court’s decision granting or denying a motion to

dismiss for violation of the right to a speedy trial, we are to accord deference to the lower court’s findings of fact, but we review the lower court’s application of those facts to the

law de novo. State v. Robertson, 8th Dist. Cuyahoga No. 93396,

, ¶ 11,

citing State v. Henley, 8th Dist. Cuyahoga No. 86591,

. Ohio speedy

trial statutes, “R. C. 2945.71 et seq., constitute a rational effort to enforce the

constitutional right to a public speedy trial of an accused charged with the commission of

a felony or a misdemeanor and shall be strictly enforced by the courts of this state.”

State v. Pachay,

,

(1980), at the syllabus.

{¶10} The Village had 90 days within which to bring appellant to trial on his two

first-degree misdemeanors. R.C. 2945.71(B)(2). There is no indication in the record

before this court that appellant was in jail awaiting trial other than the day of his arrest, so

the triple-count provision of R.C. 2945.71 is inapplicable.1

{¶11} Once the statutory limit has expired, the defendant has established a prima

facie case for dismissal. State v. Howard,

,

(8th

Dist. 1992). At that point, the burden shifts to the state to demonstrate that sufficient time

was tolled pursuant to R.C. 2945.72. State v. Geraldo,

,

(6th Dist. 1983). Conflicts in the court’s trial schedule and motions for continuance

at the defendant’s request will toll the days. R.C. 2945.72(H). If the state fails to meet

1 There was a capias warrant issued in this case, but the record does not reflect any period of arrest as a result. After the warrant was issued, a motion to recall capias was filed on May 21, 2013, and the court reinstated “original bond determination” on June 4, 2013. its burden, the defendant must be discharged. State v. Butcher,

,

(1986). But the Ohio Supreme Court also recognized that

“the prescribed times for trial set forth in R.C. 2945.71 are not absolute in all circumstances, but a certain measure of flexibility was intended by the General Assembly by the enactment of R.C. 2945.72, wherein discretionary authority is granted to extend the trial date beyond the R.C. 2945.71 time prescriptions.”

Brecksville v. Cook,

,

(1996), quoting State v.

Wentworth,

,

(1978).

{¶12} Appellant’s claim of violation is supported by case law indicating that if

multiple charges stem from the same conduct, even if they are prosecuted in differing

jurisdictions, the same speedy trial start date applies to all charges. The Village supports

its argument by citing to Ohio’s speedy trial statute and arguing that appellant was never

under arrest, indicted, or charged with O.V.I. prior to February 10, 2013.

{¶13} This precise situation is not encountered in the case law of this state with

any degree of regularity, but a few cases have analogous situations helpful to this court.

Appellant cites to the correct law on issues surrounding multiple charges that stem from

the same conduct. “[W]hen new and additional charges arise from the same facts as did

the original charge and the state knew of such facts at the time of the initial indictment,

the time within which trial is to begin on the additional charge is subject to the same

statutory limitations period that is applied to the original charge.” State v. Clay,

,

(11th Dist. 1983). {¶14} The Ohio Supreme Court has also held that “in issuing a subsequent

indictment, the state is not subject to the speedy-trial timetable of the initial indictment,

when additional criminal charges arise from facts different from the original charges, or

the state did not know of these facts at the time of the initial indictment.” State v. Baker,

,

(1997).

{¶15} This court has previously decided a case that impacts the analysis of when

the speedy trial clock begins to run in the present case even though that result may

conflict with holdings in other jurisdictions. Robertson, 8th Dist. Cuyahoga No. 93396,

. In Robertson, this court determined that where the facts and

circumstances were known to the state at the time charges were filed that underpin other

related charges later filed, the same speedy trial clock applied to all charges. This court

relied on

to set forth that “all charges are subject to the original statutory

limitations period, so the guarantees as to the time in which trial must commence are

applied to any new and additional charges arising from the same facts as the initial charge

if the state is aware of such facts at the time of the first indictment.” Robertson at ¶ 14,

citing State v. Cotton, 8th Dist. Cuyahoga Nos. 64361 and 64378,

(July 14, 1994). See also State v. Parker,

,

,

.

{¶16} As this court put it,

the key questions that must be considered are whether the additional criminal charges arise from facts different from the original charges, and whether the state knew of these facts at the time of the initial charges. Thus, courts have considered the facts and circumstances of the original and additional charges, dates on which the original and additional charges are alleged to have occurred and whether the additional charges are based on the same conduct for which the defendant is originally arrested, and whether the charges arose from a single investigation or different investigations.

(Citations omitted.) Robertson at ¶ 18.

{¶17} In the present case, the information leading to appellant’s citation for O.V.I.

and various other citations issued on October 6, 2012, came from a single investigation

into conduct that occurred close in time and all observed by Officer Izor.

{¶18} Another situation that has similarities with the present case is when a case

originally charged as a felony is reduced to a misdemeanor. There, a balancing of

interests is necessary given the shorter time the state has to prosecute and the defendant’s

right to a swift resolution of charges:

It is well-settled that, “[w]hen an original charge is later reduced to a lesser offense based upon the same conduct, the speedy trial limitations of R.C. 2945.71 begin to run anew on the date the defendant is served with the charge on the lesser offense.” State v. Smith (Jan. 12, 2000), 4th Dist. No. 99CA31,

, at *4, citing State v. Cattee (1983),

,

,

, and State v. Besimer (Feb. 28, 1996), 4th Dist. No. 95CA2110,

, at *6; see also, State v. Phillips (1984),

,

,

, at syllabus (“The date from which the speedy trial provisions of R.C. 2945.71 begin to run for an accused whose original felony charge has been reduced to a misdemeanor is the date the summons was served for the lesser offense.”); State v. Wantz (Sep. 18, 1992), 11th Dist. No. 92-A-1697,

, at *2. However, “the additional number of days that the State receives to try the defendant for the lesser charge cannot exceed the date of the speedy trial deadline of the original charge” thus, the new speedy trial deadline must be “computed by comparing the deadlines for the original and reduced charges and using the earlier of the two deadlines.” Besimer,

, at *7 (citation omitted). State v. Clark, 11th Dist. Lake No. 2007-L-139,

.

{¶19} However, this quote from Clark is conspicuously missing language

annunciated by the Ohio Supreme Court limiting a new start date for speedy trial purposes

to situations where the state receives new information or evidence. See, e.g., Clay,

,

(11th Dist. 1983). Where the same conduct results in

multiple charges in complaints or indictments or a mixture of the two, the same date

applies to all the proceedings unless new or additional charges result from newly

discovered information or charges result from facts different from those initially charged.

Baker,

,

(1997); State v. Williams, 10th Dist.

Franklin No. 13AP-992,

.

{¶20} The Village’s assertion that the O.V.I. charges stem from differing facts is

not persuasive. Appellant was pulled over by Officer Izor for instances of moving

violations indicative of intoxication. Officer Izor conducted field sobriety tests and had

appellant submit to an alcohol breath test. Appellant was also cited for several traffic

violations and for possession of marijuana, but this information and conduct was all part

of a single occurrence and known to the Village on the night of appellant’s arrest. The

situation would be different if laboratory analysis of a blood sample was required or some

new or additional information became known later. See State v. Vasquez, 10th Dist.

Franklin No. 13AP-366,

. The situation would also be different if the

charges resulted from different conduct. {¶21} In Phillips,

,

(10th Dist. 1984), a case

relied on by the Eleventh District in Clark, the Tenth District set forth a reasonable

approach to balancing the competing interests at play here:

At the time defendant was charged, the parties anticipated that he would be tried for a felony offense, which is governed by the 270-day speedy trial period of R.C. 2945.71 (C)(2). It was only after analysis of the drug possessed by defendant, and the passage of 16 “days” for speedy trial purposes, that it became apparent that defendant would only be tried for a misdemeanor, to which the 45-day period of R.C. 2945.71(B)(1) applies. To hold that defendant must be tried within the time that remains from the lesser misdemeanor period would place an unduly severe burden on the prosecution and would require the prosecution to treat all persons suspected of conduct that could constitute either a felony or a misdemeanor as though they will be tried for the misdemeanor.

. See also State v. Loel, 10th Dist. Franklin No. 13AP-874,

(the days between a dismissed indictment and reindictment toll the

speedy trial clock).

{¶22} The approach below strictly construes the statute, but also balances the

competing interests of the Village as set forth in Phillips, while conforming to our prior

precedent in Robertson.

{¶23} Appellant was arrested on October 5, 2012. The date of arrest is not

counted against the state. State v. Turner, 7th Dist. Mahoning No. 93 CA 91,

. Assuming the clock begins to run on the date of arrest, as appellant

argues, rather than the date the complaint is filed, as the Village argues, 24 days elapsed

until appellant pled no contest to driving under a suspended license on October 30, 2012,

in the earlier misdemeanor case. He was sentenced that day to a suspended jail term and a fine. Thereafter, appellant was not under arrest and no charges were pending from that

date until the receipt of a citation for O.V.I. charges on February 10, 2013.

{¶24} Appellant wishes to count this time against the Village. When no charges

are pending and a person is not under arrest or subject to conditions of bond, the reasons

for which the speedy trial statute was instituted, “to minimize the restrictions on freedom

and the general disruption of life caused by pending and unresolved criminal charges[,]”

are not implicated.

. Therefore, the speedy trial time is tolled for this

period of time. Assuming no tolling would carry over from the earlier misdemeanor case

to the present one, 24 days are chargeable to the state during the time from the October 5,

2012 arrest to the issuance of the O.V.I. citation.

{¶25} Nine days were chargeable to the state between the date of service of the

citation on February 10, 2014, to the February 19, 2014 pretrial conference where a

continuance was entered at appellant’s request. From February 19, 2013 to April 9,

2013, continuances requested by appellant tolled the time for trial. R.C. 2945.72(H).

Also during this time, appellant filed motions to suppress evidence and to dismiss the

charges.2 Between April 9, 2013 and June 4, 2013, no time is chargeable to the state due

to appellant’s failure to appear and the subsequent capias warrant. R.C. 2945.72(D).

The June 4, 2013 hearing that was scheduled after appellant’s motion to recall capias was

continued to June 25, 2013, at his request. The trial court’s schedule required

2 This tolls the time period to give the state a reasonable time to respond. R.C. 2945.72(E). Because these motions were made during a period already subject to tolling, it does not impact the present calculation. continuance of pretrial hearings from June 25, 2013 to August 20, 2013. Where the trial

court’s schedule necessitates a reasonable continuance, that time is not chargeable to the

state. State v. Wells, 8th Dist. Cuyahoga No. 89768,

, citing R.C.

2945.72(H) (“conflicts in the court’s trial schedule and motions for continuance at the

defendant’s request will toll the days”). Therefore, these 56 days are tolled for speedy

trial purposes.

{¶26} The August 20, 2013 hearing did not go forward because appellant

requested further continuances to September 10, 2013. On that date, a hearing was held

on appellant’s motions, which were denied by the court, and a pretrial was set for

September 25, 2013. This resulted in a further 15 days chargeable to the state. From

September 25, 2013, until appellant’s plea was entered on October 22, 2013, continuances

at his request appear in the record. Thus 48 days chargeable to the state had elapsed

from appellant’s arrest until appellant’s plea was entered. Even assuming that only 30

days of the 56-day continuance due to the court’s scheduling conflicts were reasonable,

that still leaves the state with 16 days within which to bring appellant to trial by the time

he entered his plea.

{¶27} The trial court found that the time before appellant was issued a citation did

not count toward the speedy trial calculation. That conclusion is supported by case law

from other jurisdictions, but is contrary to some case law in this jurisdiction. Therefore,

the trial court applied the improper law to the case, but we reach the same result.

{¶28} Appellant’s first assignment of error is overruled. B. Breach of a Plea Agreement

{¶29} Appellant next argues that his prosecution for O.V.I. violated the terms of

his plea agreement with the Village that disposed of the traffic citations and drug

possession charge and violated his rights against being twice called to answer for the

same offense.

{¶30} The Double Jeopardy Clause provides, “no person * * * shall be subject for

the same offence to be twice put in jeopardy of life or limb.” Appellant argues this

prohibition was breached in this case by his subsequent prosecution for O.V.I. after he

pled no contest in the earlier case.

{¶31} In State v. Carpenter,

,

(1993), a defendant

was charged with felonious assault that resulted in the severe injury of a victim. The

state knew at the time it entered into a plea agreement with the defendant that the victim

might die as a result of the injuries sustained at the hands of the defendant. The Ohio

Supreme Court determined that

[b]y accepting a plea to a lesser included charge, the state obtained a definite prison term for the defendant and avoided the uncertainties of trial. In exchange, the appellant anticipated that by pleading guilty to attempted felonious assault, and giving up rights which may have resulted in his acquittal, he was terminating the incident and could not be called on to account further on any charges regarding this incident. We think this expectation was entirely reasonable and justified and that the prosecutor was aware of this expectation.

.

{¶32} This holding is not based on the Double Jeopardy Clause of the

Constitution, but on contract law. The Ohio Supreme Court explained its holding in Carpenter — “[i]f at the time of the guilty plea to the assault charge, the victim has not

died, the final element of the homicide has not occurred, so the offenses are not ‘the

same.’” State v. Dye,

,

,

, citing Diaz v. United States,

,

,

(1912)

(only at the time of the victim’s death, “and not before, [is] it possible to put the accused

in jeopardy for that [homicide] offense”). Therefore, the Double Jeopardy Clause is not

implicated here where none of the prior charges relate to O.V.I.

{¶33} The further prosecution may constitute a breach of the prior plea agreement

under certain circumstances. Plea agreements are creatures of contract. They are

governed by ordinary contract principles. State v. Shelton, 8th Dist. Cuyahoga No.

98416,

.

{¶34} The plea agreement in the present case exchanges appellant forgoing trial

and his assent to plead no contest to driving under a suspended license for the Village’s

agreement to dismiss the remaining charges in the criminal complaint filed in the case.

Whether this agreement precluded further prosecution depends on the reasonableness of

appellant’s claimed intent that the agreement encompassed all possible charges from the

night he was arrested. “The focus in Carpenter was on the reasonableness of the

defendant’s belief that the plea agreement would terminate any future charges based upon

the same incident.” State v. Harrison,

,

,

. The Harrison court also discussed State v. Zima,

,

,

, a case that illustrates when a plea does not prohibit further prosecution. There, the court cited approvingly the recognition by a member of

this court that “‘[a] defendant should be aware that a plea taken before a municipal judge

with limited criminal jurisdiction might not dispose of the matter fully.’” Id. at ¶ 14,

quoting State v. Zima, 8th Dist. Cuyahoga No. 80824,

, ¶ 44 (Kilbane, J.,

concurring in part and dissenting in part).

{¶35} The belief that the plea agreement would dispose of all charges arising from

the events of October 5, 2012, is not reasonable in this case. The agreement does not

touch on O.V.I. charges or preclude further prosecution for such charges. At the time the

first plea was entered, a common pleas court case number was assigned for the O.V.I.

charges, and grand jury proceedings were pending. As in Zima, appellant did not possess

a reasonable belief that a plea disposing of the charges listed in the first citation and

criminal complaint, which did not reference the O.V.I. charges that were the subject of a

common pleas court case, would not preclude his prosecution on those charges. Further,

appellant knew or should have known that charges, including felony charges, would be

forthcoming when he failed field sobriety tests, produced a result higher than allowed in a

breath alcohol test, and had multiple O.V.I. convictions within the past 20 years that

could increase the level of the offense to that of a felony.

{¶36} Appellant’s second assignment of error is overruled.

C. Suppression of Results from an Intoxilyzer 8000

{¶37} In appellant’s third assignment of error, he argues that his Fourth

Amendment rights were violated when the trial court denied his motion to suppress the evidence of his breath alcohol test based on a challenge to the reliability of the Intoxilyzer

8000 system used throughout the state.

{¶38} Appellant cites to case law around this state and others that have questioned

the reliability of this model of breath testing device. See, e.g., State v. Hogue, 11th Dist.

Medina No. 12CA0014-M,

. However, those cases allow for arguments

relating to the unreliability of specific machines, procedures used to administer the test, or

specific allegations that the Intoxylizer 8000 is unreliable. Appellant’s motion to

suppress attacked the use of the Intoxylizer 8000 generally. Specific allegations of

unreliability are not raised other than the refusal of the manufacturer to turn over highly

guarded source code for the machine’s programming and the allegation that certain test

results beyond the bounds of possibility are replaced in maintained records. The

assertion that the machines, in general, are scientifically unreliable are not proper grounds

for suppression of a breath test, as recognized by the Ohio Supreme Court. State v. Vega,

,

(1984) (“in light of R.C. 4511.19, an accused

may not make a general attack upon the reliability and validity of the breath testing

instrument”).

{¶39} More recently, the Ohio Supreme Court reaffirmed that general attacks on

the reliability of the Intoxylizer 8000 are improper grounds for a motion to suppress.

Cincinnati v. Ilg, Slip Opinion No.

(Oct. 1, 2014). The Ilg court

outlined what presumptive validity and the Ohio Department of Health regulations did not

preclude; namely, challenges to specific machines or specific test results, including the manner the test was conducted, the timing of the test, and the proper operation of the

specific machine used. It held that arguments were permitted “challenging the accuracy,

competence, admissibility, relevance, authenticity, or credibility of specific test results or

whether the specific machine used to test the accused operated properly at the time of the

test.”

at the syllabus.

{¶40} As to the reliability and admissibility of the Intoxylizer 8000 generally, the

state legislature has given the Ohio Department of Health the task of implementing

standard and sufficiently reliable equipment to determine alcohol breath concentration.

R.C. 3701.143. As a result, breath tests are given presumptive validity. State v. Hill,

4th Dist. Gallia No. 92 CA 30,

, *5 (May 21, 1993); Ilg at ¶

28.

{¶41} The trial court did not err when it overruled appellant’s motion without a

hearing. A motion to suppress must state its legal and factual bases with sufficient

particularity to put the prosecutor and the trial court on notice of the issues to be decided.

State v. Shindler,

,

(1994), at the syllabus; State v. Perl,

11th Dist. Lake No. 2006-L-082,

. Here, appellant’s motion made

general attacks on the reliability of the Intoxylizer 8000 without any assertion of how the

perceived defects impacted his specific test result.

{¶42} This case is dissimilar to Ilg, where the state failed to comply with subpoena

requests regarding records. Here, appellant never attempted to prove that the results of

his specific breath test were faulty. His motion to suppress made attacks on the reliability of the machines generally. No subpoenas, summons, or discovery requests

appear in the record, which would provide an inference that appellant was attempting to

challenge the accuracy or reliability of the specific machine, specific test result, or

method in which the test was administered.

{¶43} Appellant’s third assignment of error is overruled.

III. Conclusion

{¶44} Appellant’s Sixth Amendment right to a speedy trial was not violated.

Appellant’s plea was entered within the statutory period once periods of tolling were

applied. Appellant’s plea in an earlier case also did not preclude the charges in the

matter currently on appeal. There was no reasonable basis to believe that the plea would

foreclose further prosecution. Finally, the trial court did not err in denying appellant’s

motion to suppress that made general attacks on the reliability of the Intoxylizer 8000.

{¶45} Judgment affirmed.

It is ordered that appellee recover from appellant 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 Cleveland

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., CONCURS; LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY