[Cite as State v. Collins,

.]

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

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 18CA11 : vs. : : DECISION AND SHAWN COLLINS, : JUDGMENT ENTRY : Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Alex Kochanowski, Cincinnati, Ohio, for Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee. _____________________________________________________________

Smith, P.J.

{¶1} This is an appeal from Appellant, Shawn Collins, for his conviction of

burglary, a second-degree felony in violation of R.C. 2911.12(A)(2). On appeal,

Appellant contends that 1) the trial court erred in finding his plea was knowingly,

voluntarily and intelligently entered when the trial court failed to properly follow

the requirements of Crim.R. 11(C)(2); and 2) trial counsel provided ineffective

assistance during Appellant’s plea proceedings where his ability to competently

enter a plea was in question, in violation of his Sixth and Fourteenth Amendment

rights under both the Ohio and United States Constitutions. Because we conclude Lawrence App. No. 18CA11 2

Appellant has failed to demonstrate his plea was not knowing, voluntary and

intelligent, we find no merit to his first assignment of error and it is overruled. In

light of our disposition of Appellant’s first assignment of error, we find

Appellant’s second assignment of error also lacks merit. Having found no merit in

either of the assignments of error raised by Appellant, the judgment of the trial

court is affirmed.

{¶2} However, because we have sua sponte noticed a clerical error in the

sentencing judgment entry we have issued instructions, pursuant to App.R. 9(E)

directing the trial court to issue a nunc pro tunc judgment entry that includes the

fine that was imposed upon Appellant on the record during the sentencing hearing.

FACTS

{¶3} Appellant was indicted on one count of burglary, a second-degree

felony in violation of R.C. 2911.12(A)(2), on February 28, 2018. An allegation

that Appellant broke into the residence of Harvey McGowan in Chesapeake, Ohio,

and stole numerous items including a firearm and jewelry, formed the basis of the

charge. Appellant entered a guilty plea pursuant to a negotiated plea agreement on

April 4, 2018. As part of the plea agreement, Appellant was sentenced to a seven-

year prison term, a mandatory three-year period of post-release control, $1000.00 Lawrence App. No. 18CA11 3

in restitution, and costs of prosecution.1 Appellant has now filed his timely appeal,

arguing that his competency should have been questioned by both the trial court

and trial counsel. His appeal raises two assignments of error primarily challenging

the voluntariness of his plea and effectiveness of his counsel, as follows.

ASSIGNMENTS OF ERROR

I. “THE TRIAL COURT ERRED IN FINDING APPELLANT’S PLEA WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED WHEN THE TRIAL COURT FAILED TO PROPERLY FOLLOW THE REQUIREMENTS OF RULE 11(C)(2).”

II. “COUNSEL PROVIDED INEFFECTIVE ASSISTANCE DURING APPELLANT’S PLEA PROCEEDINGS WHERE APPELLANT’S ABILITY TO COMPETENTLY ENTER A PLEA WAS IN QUESTION, IN VIOLATION OF APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER BOTH THE OHIO AND UNITED STATES CONSTITUTIONS.”

ASSIGNMENT OF ERROR I

{¶4} In his first assignment of error, Appellant contends that the trial court

erred in finding his plea was knowingly, voluntarily, and intelligently entered when

the trial court failed to properly follow the requirements of Crim.R. 11(C)(2). He

argues the trial court failed to comply with Crim.R. 11(C)(2)(a), and claims that

the trial court failed to ensure Appellant was actually capable of understanding the

proceedings in general. The State responds by arguing that although Appellant

1 Although the trial court orally imposed a fine of $10,000.00 on the record during the combined plea and sentencing hearing, the sentencing entry omits any reference to the fine. Lawrence App. No. 18CA11 4

made several “flippant, borderline disrespectful comments” to the trial court during

his hearing, there is no evidence that he genuinely failed to appreciate what he was

doing. The State further argues that the mandates of Criminal Rules 11 and 32

were scrupulously followed by the trial court.

{¶5} “ ‘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. Veney,

,

,

, quoting State v. Engle,

,

(1996). In determining whether a guilty or no contest plea

was entered knowingly, intelligently, and voluntarily, an appellate court examines

the totality of the circumstances through a de novo review of the record to ensure

that the trial court complied with constitutional and procedural safeguards. State v.

Cooper, 4th Dist. Athens No. 11CA15,

.

{¶6} “Crim.R. 11(C) governs the process that a trial court must use before

accepting a felony plea of guilty or no contest.” 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 Lawrence App. No. 18CA11 5

control sanctions at the sentencing hearing.” Crim.R. 11(C)(2)(a). The court must

also inform the defendant of both the constitutional and nonconstitutional rights he

is waiving and determine that he “understands the effect of the plea of guilty or no

contest, and that the court, upon acceptance of the plea, may proceed with

judgment and sentence.” Crim.R. 11(C)(2)(b). Finally, the court must both inform

and determine that the defendant understands that he “is waiving the rights to jury

trial, to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant's favor, and to require the state to prove the

defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot

be compelled to testify against himself or herself.” Crim.R. 11(C)(2)(c).

{¶7} Substantial compliance with Crim.R. 11(C)(2)(a) and (b) is sufficient

for a valid plea because they do not involve constitutional rights. Veney at ¶ 14.

“ ‘Substantial compliance means that, under the totality of the circumstances,

appellant subjectively understood the implications of his plea and the rights he

waived.’ ” State v. McDaniel, 4th Dist. Vinton No. 09CA677, 2010–Ohio–5215,

¶ 13, quoting State v. Vinson, 10th Dist. Franklin No. 08AP–903, 2009–Ohio–

3240, ¶ 6. But strict compliance with Crim.R. 11(C)(2)(c) is required because

constitutional rights are involved. “ ‘However, failure to [literally comply] will not

necessarily invalidate a plea. The underlying purpose, from the defendant's

perspective, of Crim.R. 11(C) is to convey to the defendant certain information so Lawrence App. No. 18CA11 6

that he can make a voluntary and intelligent decision whether to plead guilty.’ ”

Veney at ¶ 18, quoting State v. Ballard,

, 479–480,

(1981). A guilty plea that is not entered into knowingly, intelligently, and

voluntarily is void. State v. Moore,

, 2006–Ohio–114,

, ¶ 22 (4th Dist.), citing McCarthy v. United States,

,

,

(1969).

{¶8} We construe Appellant’s argument as an assertion that he was not

competent to enter a guilty plea. As this Court explained in State v. Pigge, 4th

Dist. Ross No. 09CA3136,

, ¶ 28:

Without question, the conviction of a defendant who is not competent

to enter a plea violates due process of law. See State v. Skatzes,

, 2004–Ohio–6391,

, at ¶ 155, citing

Drope v. Missouri (1975),

,

,

, and State v. Berry (1995),

,

. However, in the absence of evidence to the contrary, a

criminal defendant is rebuttably presumed competent to enter a guilty

plea. See R.C. 2945.37(G); State v. Were,

, 2008–

Ohio–2762,

, at ¶ 45. * * * Rather, a court will

presume that the defendant is competent unless the defendant shows

that the defendant is unable to understand the proceedings or to assist Lawrence App. No. 18CA11 7

in the defense. Were at ¶ 45. “The test for determining whether a

defendant is competent to stand trial [or to plead guilty] is ‘ “ whether

[the defendant] has sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding—and whether he

has a rational as well as a factual understanding of the proceedings

against him.’ ” Id., quoting State v. Berry (1995),

,

, quoting Dusky v. United States (1960),

,

,

; see, also, Godinez v. Moran

(1993),

,

,

. A trial court

possesses no need to sua sponte inquire into a defendant's competency

unless the record contains “ ‘sufficient indicia of incompetence,’ such

that an inquiry * * * is necessary to ensure the defendant's right to a

fair trial.” Berry,

, quoting Drope,

; see, also, State v. Ahmed,

, 2004–Ohio–4190,

, at ¶ 65.

The record before us indicates that Appellant’s case proceeded through the

litigation process, from indictment and arraignment to a change of plea and

sentencing, without Appellant’s competency being questioned at any point.

However, Appellant’s competency is now being questioned on appeal and Lawrence App. No. 18CA11 8

essentially serves as the basis for Appellant’s contention that his guilty plea was

involuntary, unknowing and unintelligent.

{¶9} Here, Appellant does not argue that the trial court failed to give all of

the proper advisements in accordance with Crim.R. 11(C)(2)(b) and (c). Instead,

Appellant contends the trial court failed to comply with Crim.R. 11(C)(2)(a) based

upon an argument that the trial court failed to ensure he was actually capable of

understanding the proceedings in general. As set forth above, the trial court must

substantially comply with Crim.R. 11(C)(2)(a) when accepting pleas. Appellant

points to the manner in which he responded to the trial court’s questions as

evidence that he was not competent. More specifically, Appellant references his

responses of “Yewow,” “Yeep,” “10-4,” and “I’m sorry, I apologize,” rather than

stating “Yes” in response to the court’s questions, as evidence that his plea was not

entered into knowingly, intelligently, and voluntarily. Appellant argues that his

failure to actually answer numerous questions concerning his plea resulted in a

“failure to comply with the precepts mandated under Criminal Rule 11(C)[,]”

presumably on the part of the trial court. Appellant concedes that the trial court

admonished him during the plea colloquy by telling him that the “noises and

rambling he was responding with * * * were not going to ‘cut it[,]’ ” but he argues

the trial court thereafter still failed to “actually obtain intelligible and coherent

responses to the Court’s questions * * *.” Lawrence App. No. 18CA11 9

{¶10} We begin with a review of the plea hearing transcript. The following

exchanges from the various parts of the transcript serve as the basis for Appellant’s

argument:

COURT: * * * Alright Mr. Collins are you a citizen of the United

States?

COLLINS: Yewow.

COURT: And are you presently under the influence of any drugs,

alcohol or other mind altering substance?

COLLINS: No sir.

***

COURT: [in an effort to confirm Appellant’s signature was listed on

the Proceeding on Plea of Guilty form] * * * there’s a signature right

here that purports to be yours, is that your signature?

COLLINS: Yeep.

COURT: Okay. Did you go over this form with Mr. Smith or his

assistant?

COLLINS: Uh yes sir.

COURT: Alright, do you understand all the questions on it?

COLLINS: Yep.

COURT: And were the answers that you provided true and correct? Lawrence App. No. 18CA11 10

COLLINS: Yes sir.

***

COURT: [after several instances of Appellant responding “Yep” to

questions by the court] Alright. Just for the record sake yep’s mean

yes, is that correct?

COLLINS: Ten four.

COURT: Is that a yes?

COLLINS: I’m sorry.

COURT: I need a yes or a no man.

COLLINS: I’m sorry.

COURT: The yeps, the yeps and ten fours aren’t going to cut it. We

need a clear record.

COLLINS: I’m sorry. I apologize your Honor.”

{¶11} Our review of the record, in its entirety, reveals that Appellant

answered the trial court consistently by stating “Yes sir” or “No sir” a large

majority of the time. It is only these few instances where Appellant stated either

“Yewow” or “Yeep” or “Ten four” that he was not entirely clear. Once he was

admonished by the trial court, Appellant cleared up his speech and properly

answered the trial court in a yes or no fashion throughout the remainder of the

hearing. Further, with respect to Appellant’s response of “Ten-four,” it is Lawrence App. No. 18CA11 11

commonly understood that this term is one of affirmation or understanding of the

message being conveyed.2 Thus, our review of this portion of the transcript fails to

demonstrate, based upon the totality of the circumstances, that the trial court fell

short of substantially complying with its duty under Crim.R. 11(C)(2)(a) to ensure

Appellant subjectively understood the implications of his plea and the rights he

was waiving.

{¶12} Appellant also points to another section of the transcript, towards the

end of the hearing, where he interjected into the proceedings as follows:

COURT: Alright, Mr. Smith.

SMITH: Your, Honor, that is a complete and accurate representation

of the plea negotiations had between myself and Mr. Anderson. I

would ask the Court to adopt the recommended and agreed sentence.

COLLINS: Eleven, eleven make a wish.

COURT: Alright, Mr. Collins do you have anything you’d like to say

before sentence is imposed?

COLLINS: Um eleven, eleven let make a wish.

COURT: What’s that?

2 The Association of Public-Safety Communications Officials-International (APCO) developed “Ten Signals” in 1937 “to reduce the use of speech on the radio at a time when police radio channels were limited.” https://en.wikipedia.org/wiki/Ten-code. The official meaning of the phrase “10-4” has varied over the years, beginning in 1937 to present. Over the years, the meanings attributed to this phrase are as follows: “Acknowledgment,” “Message received,” “Affirmative (Ok),” “Roger,” and “Roger/Affirmative.” The current understood meaning of 10-4 is “Roger.” Further, the term “Roger” is understood to mean “Message received and understood.” Lawrence App. No. 18CA11 12

COLLINS: Eleven, eleven make a wish.

COURT: Eleven, eleven make a wish.

COLLINS: Never mind seven to twelve now that’s it, that’s all I got

to say. I’m sorry. I do apologize. Alright.

Appellant contends that his “rambling and incoherence was clear evidence that he

was not, at the time, capable of entering a knowing, intelligent, and voluntary

plea.” He further argues that his behavior at the plea hearing indicated he

“potentially possessed personal circumstances in mitigation of his crime of

conviction and, ultimately, should have been considered in mitigation of the

Court’s sentencing determination.”

{¶12} First, with regard to Appellant’s argument that his behavior during

sentencing should have mitigated in his favor with regard to sentencing, the record

reveals and the State points out that Appellant entered his guilty plea as part of a

negotiated plea agreement that kept him from receiving a maximum sentence and

provided the State would not oppose judicial release after five years. Thus, his

argument that there should have been mitigation in reference to sentencing is not

well-taken. Next, we cannot definitively speak to the comments made by

Appellant in this portion of the transcript. It does not appear Appellant was

initially responding to any question asked of him, but rather he simply interjected

“Eleven, eleven make a wish.” Although this Court generally refrains from Lawrence App. No. 18CA11 13

speculation, one must wonder whether Appellant was possibly watching the clock

and commenting on the fact that the time was 11:11, which prompts a wish to be

made in some contexts.3 One further wonders if possibly the court transcriptionist

incorrectly transcribed “Never mind eleven twelve now” as “Never mind seven to

twelve now,” which would indicate the time to make a wish had passed. The State

characterizes Appellant’s comments during the hearing as “flippant” and

“borderline disrespectful.” We believe this is an accurate characterization, based

upon our review of the record, and we see nothing in the record that indicates

incompetency on Appellant’s part or lack of substantial compliance on the trial

court’s part.

{¶13} However, prior to concluding our analysis, we note that Appellant

appears to raise an additional argument under this assignment of error. At the end

of the argument portion of Appellant’s first assignment of error, he states as

follows:

“Appellant contends that the trial court’s error was more than a slight

deviation from the requirements of the text of Crim.R. 11(C), the

Court failed to substantially comply with Crim.R. 11(C) when the

court incorrectly advised Appellant of the law in regards to whether

3 11:11 is “[t]he time of day when one should make a wish while looking at the clock.” https://www.urbandictionary.com/define/php?term=11%3A11 Lawrence App. No. 18CA11 14

post-release control was mandatory or discretionary under the specific

circumstances of Appellant’s case.”

Aside from this single sentence, there is no additional argument as to exactly how

the trial court erred (i.e. what the trial court should have advised Appellant of

regarding post-release control versus what it actually advised him of). Further,

R.C. 2967.28 provides that the period of post-release control for an offender

convicted of a second-degree felony that is not a felony sex offense shall be three

years. The record here indicates Appellant was correctly advised he would be

subject to a three-year term of post-release control during the plea portion of the

hearing. The trial court additionally imposed a three-year term of post-release

control orally and upon the record during the sentencing portion of the hearing, and

also properly included the correct term of post-release control in the sentencing

judgment entry. Thus, we find no merit to this portion of Appellant’s argument.

{¶14} Based upon the totality of the circumstances, we conclude the trial

court substantially complied with the Crim.R. 11(C)(2)(a) requirements during the

initial plea colloquy. We further conclude there is nothing in the record that raises

“a sufficient indicia of incompetency to suggest that [A]ppellant was not

competent to enter a guilty plea.” State v.

(involving a guilty

plea entered by a “mentally retarded individual”). In light of the foregoing, we Lawrence App. No. 18CA11 15

conclude Appellant’s plea was entered knowingly, intelligently, and voluntarily.

Accordingly, we overrule Appellant’s first assignment of error.

ASSIGNMENT OF ERROR II

{¶15} In his second assignment of error, Appellant contends his trial counsel

provided ineffective assistance in that his competency was in question, or should

have been questioned, during the plea proceedings. More specifically, Appellant

argues that he was not fully aware of the nature of the proceedings and required a

competency evaluation, as he was not, at the time, capable of entering a plea. He

further argues that his trial counsel failed to present any mitigating evidence that he

may have also been suffering from “undetermined issues which influenced his

actions and should have resulted in a lesser sentence.” The State’s position is that

Appellant was simply responding to the trial court in a flippant manner, as

discussed above.

{¶16} We construe Appellant’s argument as a claim that he would not have

entered a guilty plea but for the ineffective assistance provided by trial counsel.

Criminal defendants have a right to counsel, including a right to the effective

assistance from counsel. McMann v. Richardson,

,

,

(1970), fn.14; State v. Stout, 4th Dist. Gallia No. 07CA5,

. To establish constitutionally ineffective assistance of

counsel, a criminal defendant must show (1) that his counsel's performance was Lawrence App. No. 18CA11 16

deficient, and (2) that the deficient performance prejudiced the defense and

deprived him of a fair trial. Strickland v. Washington,

,

,

(1984); State v. Issa,

,

(2001); State v. Goff,

,

(1998). In

addition, in State v. Xie,

,

(1992), the Ohio

Supreme Court stated as follows:

The Strickland test was applied to guilty pleas in Hill v. Lockhart

(1985),

,

,

. “First, the

defendant must show that counsel's performance was deficient.”

Strickland,

,

,

;

Hill,

,

,

. Second,

“the defendant must show that there is a reasonable probability that,

but for counsel's errors, he would not have pleaded guilty * * *.” Hill,

,

,

; see Strickland,

,

,

.”

{¶17} “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.’ ” State

v. Walters, 4th Dist. Washington Nos. 13CA33 & 13CA36,

,

quoting

. “Thus, ‘the defendant must overcome the presumption Lawrence App. No. 18CA11 17

that, under the circumstances, the challenged action might be considered sound

trial strategy.’ ”

quoting

. “ ‘A properly licensed attorney is

presumed to execute his duties in an ethical and competent manner.’ ”

quoting

State v. Taylor, 4th Dist. Washington No. 07CA11,

.

“Therefore, a defendant bears the burden to show ineffectiveness by demonstrating

that counsel's errors were so serious that he or she failed to function as the counsel

guaranteed by the Sixth Amendment.”

{¶18} Appellant’s argument under this assignment of error is premised upon

the idea that his competency should have been called into question and his

behavior at his change of plea/sentencing hearing should have been taken into

consideration as a mitigating factor in terms of sentencing. However, we have

already determined under his first assignment of error that there was nothing in the

record that raised a sufficient indicia of incompetency to suggest Appellant was not

competent to enter a guilty plea. Thus, to the extent Appellant’s argument is based

upon an allegation of incompetency, or an argument that but for counsel’s failure

to raise the issue of competency he would not have pled guilty, we find it is

without merit.

{¶19} Next, with respect to Appellant’s argument that “counsel failed to

present any evidence in mitigation of Appellant’s sentence,” we again note, as does

the State, that this was a negotiated plea agreement whereby Appellant would be Lawrence App. No. 18CA11 18

sentenced to less than the maximum with the State’s agreement not to oppose

judicial release after five years. Thus, it appears Appellant’s trial counsel had

advocated on his behalf with a resulting plea agreement. Moreover, “[t]he decision

to forgo the presentation of additional mitigating evidence does not itself constitute

proof of ineffective assistance of counsel.” State v. Keith,

,

(1997), citing State v. Johnson,

,

(1986). “ ‘Attorneys need not pursue every conceivable avenue; they are

entitled to be selective.’ ” State v. Murphy,

,

(2001), quoting United States v. Davenport (C.A.7, 1993),

; State v. Davis,

, 2008–Ohio–2,

.

Furthermore, “[t]he presentation of mitigating evidence is a matter of trial

strategy.”

. Based upon the foregoing, we cannot conclude Appellant

has demonstrated his trial counsel’s performance was deficient. Thus, we find no

merit in his second assignment of error.

{¶20} However, our analysis does not end here. In reviewing the record, we

sua sponte take notice of the fact that although the trial court imposed a $10,000.00

fine upon Appellant on the record during the combined plea and sentencing

hearing, there is no reference to the fine in the sentencing entry. “It is axiomatic

that a court speaks only through its journal entries.” State v. Payton, 4th Dist.

Scioto No. 14CA3628, 2015–Ohio–1796, ¶ 7, quoting State ex rel. Collier v. Lawrence App. No. 18CA11 19

Farley, 4th Dist. Lawrence No. 05CA4, 2005–Ohio–4204, ¶ 18. “The oral

announcement of a judgment or decree binds no one.” State v. Grube, 4th Dist.

Gallia No. 10CA16, 2012–Ohio–2180, ¶ 7, quoting In re Adoptions of Gibson,

,

(1986), at fn. 3.

{¶21} Because the fine was clearly imposed on the record and in Appellant’s

presence, it appears this was simply a clerical error. Clerical errors can be

corrected by a nunc pro tunc entry. See State v. Bradford,

,

(4th Dist.), citing State v. Lattimore, 1st Dist. Hamilton No. C-

010488,

, *1-2 (2002) (“the trial court’s internally inconsistent

sentencing entry is a correctable clerical error.”); see also State v. Daley, 3rd Dist.

Seneca N. 13-13-26,

(remanded case for correction of clerical

errors included in the sentencing judgment entry). Thus, we need not vacate nor

remand the trial court’s judgment, but rather pursuant to App.R. 9(E), we instruct

the trial court to issue a nunc pro tunc sentencing entry that includes the

$10,000.00 fine, so as to accurately reflect the sentence imposed on the record

during the sentencing hearing. State v. Scoggins, 4th Dist. Scioto No. 16CA3767,

. We find this is necessary and in the interests of justice

because, as set forth above, the trial court speaks only through its journal entry and

thus, the fine cannot be enforced if it is not properly included in the sentencing

judgment entry. Lawrence App. No. 18CA11 20

{¶22} Accordingly, having found no merit in the assignments of error raised

by Appellant, but having sua sponte noticed a clerical error, the judgment of the

trial court is affirmed with instructions to correct the clerical error regarding the

fine that was imposed during the sentencing hearing but omitted from the

sentencing entry.

JUDGMENT AFFIRMED WITH INSTRUCTIONS. Lawrence App. No. 18CA11 21

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED WITH INSTRUCTIONS 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 Lawrence 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. Abele, J. & McFarland, J.: Concur in Judgment and Opinion. For the Court, BY: __________________________________ 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.