[Cite as State v. Brown, 2017-Ohio-2647.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

 

STATE OF OHIO, : 

 : Case No. 16CA3544 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

DAVID E. BROWN, II, : 

 : 

 Defendant-Appellant. : Released: 04/28/17 

_____________________________________________________________ 

APPEARANCES: 

Chase B. Bunstine, Chillicothe, Ohio, for Appellant. 

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. 

Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for 

Appellee. 

_____________________________________________________________ 

 

McFarland, J.

{¶1} David E. Brown, II, appeals the judgment entry of sentence 

dated April 6, 2016 in the Ross County Court of Common Pleas, in which he 

entered guilty pleas to kidnapping, R.C. 2905.01, a felony of the first degree, 

and felonious assault, R.C. 2903.12, a felony of the second degree. Here, 

Appellant asserts that the trial court erred and abused its discretion when it 

denied his timely motion to withdraw guilty plea. Upon review, we find no 

merit to Appellant’s argument. The trial court did not abuse its discretion in 

overruling Appellant’s pre-sentence motion to withdraw plea. Accordingly, 
Ross App. No. 16CA3544 2

we overrule Appellant’s sole assignment of error and affirm the judgment of 

the trial court. 

FACTS

{¶2} On August 28, 2015, Appellant was indicted on two counts: 

Count One, kidnapping, a violation of R.C. 2905.01, a first degree felony, 

and Count Two, felonious assault, R.C. 2903.12, a second degree felony. 

Count One contained a specification that, pursuant to R.C. 2929.01, 

Appellant was a repeat violent offender. The indictment arose from 

activities which occurred on July 22 and 23, 2015 in Ross County when 

Appellant and other individuals allegedly kidnapped and inflicted serious 

physical harm on Arthur Hamlin, Jr. 

{¶3} Appellant was arraigned on September 2, 2015 and pleaded not 

guilty. A status conference was held on October 7, 2015, at which time the 

parties advised the trial court that the State was planning to again present the 

matter to the grand jury for the purpose of adding another repeat violent 

offender specification. On October 23, 2015, a second indictment was filed 

which set forth the same allegations as in the original indictment and 

contained the additional repeat violent offender specification as to Count 

Two. 
Ross App. No. 16CA3544 3

{¶4} Appellant was arraigned a second time on October 28, 2015. 

On November 16, 2015, Appellant changed his plea pursuant to a plea 

agreement and negotiated recommended sentence. Appellant pleaded guilty 

to both counts and the State agreed to dismiss both specifications on the 

condition that Appellant would testify against his co-defendants in the case.1

 

The State further agreed to recommend an eight-year sentence on each 

count, to be served concurrently. 

{¶5} At the change of plea hearing, Appellant’s counsel stated: 

“There is some concern here, obviously about Mr. Brown testifying against 

Codefendants, for his safety and for his family’s safety.” However, after 

further discussion of the parties, the trial court engaged in the required 

Crim.R. 11(C) colloquy with Appellant. The trial court found Appellant’s 

decision to enter a plea of guilty on the two counts as knowing, intelligent, 

and voluntary. The matter was set for disposition. 

{¶6} However, on December 2, 2015, Appellant pro se forwarded a 

handwritten “Motion to Withdraw Plea of Guilty.” On December 9, 2015, 

the trial court held a status conference. Appellant’s counsel advised he 

 

1

Appellant also agreed to provide a statement with respect to an October 2015 offense of rape and felonious 

assault that occurred in the Ross County jail, and to testify against any codefendants in that particular 

matter. The plea agreement further provided that should Appellant face charges out of the jail incident, the 

State would agree to recommend that any sentence for those charges be served concurrently to the eightyear prison sentence. 
Ross App. No. 16CA3544 4

would file a motion on his client’s behalf and the trial court set the matter for 

hearing on the motion to withdraw.2

{¶7} On March 23, 2016, the trial court held a hearing on Appellant’s 

motion to withdraw his guilty plea. When given the opportunity to address 

the court, Appellant began: 

Appellant: Just that, you know, I mean, I was planning 

on going through with the deal but there’s been threats made 

against my family and stuff and I just don’t feel comfortable 

putting my children at risk, you know over, over something that 

involves me and has nothing to do with them. I would rather, 

you now, just take what I have to do and not have them under 

any kind of threat. 

The Court: Okay, I mean, who is making the threats? 

Appellant: Um, I mean, I really don’t know. There’s 

just been threats, there’s been knocks at my house, there’s been 

things done to vehicles, soThe Court: Well what are the things that have been 

done? How are you relating those to your case? 

Appellant: I mean because nothing was going on before 

I took the plea deal and my family is, you know, have had 

windows knocked out, have had car tires slashed. There’s been 

things, um, you know, just threats made, people knocking on 

the door all hours of the night. 

The Court: Alright, is there anything else that you wish 

for me to consider? 

Appellant: No, that’d be it, Your Honor. 

 

2

 The trial court advised Appellant that Ohio did not allow dual representation. 
Ross App. No. 16CA3544 5

{¶8} Appellant’s counsel also spoke on his behalf. At this point, the 

State offered the testimony of Detective Shawn Rourke, an officer for the 

City of Chillicothe Police Department, who testified in regards to 

Appellant’s previous claim of fear for his girlfriend and himself. The State 

also offered as an exhibit a message from jail, from Appellant addressed to 

Detective Rourke, that he was “ready to take a plea deal.” At the close of 

the hearing, defense counsel argued that Appellant’s desire to withdraw his 

plea was based on a credible belief of legitimate threat to his immediate 

family. In overruling Appellant’s motion, the trial court noted that there was 

no specific proof that the threats attached to the case at bar.

{¶9} Appellant’s sentencing occurred on March 31, 2016. When 

given the opportunity to speak, Appellant stated: 

“* * * Just that you should know I’m sorry about what 

happened. I done the best I could for that man, you know, 

without putting myself in the same position he was in and um, 

you know, I just feel that this guilty plea is not something that I 

should be held to because I believe that pressure was put on me 

by those other charges by the police department to get me to 

take a deal and I was talked to somebody and they told me that 

because I was under the influence of depression drugs and I was 

under the influence of street drugs when I took that deal that I 

should not be held to it and I just want that to go on record that 

I’m not comfortable with this guilty plea that I had to take. I 

feel I was forced to take it by the prosecutor and the detectives 

from the Chillicothe police department and the sheriff’s 

department putting that pressure on me, trying to trump up 

charges on me and they just tried to do it again, the same kind 

of charges. 
Ross App. No. 16CA3544 6

* * * 

I don’t believe I did anything; I did not felonious assault that 

guy or did I kidnap him. I was there, and you know if I would 

of done anything like I did when the people was around I would 

have been down there with him.” 

{¶10} The trial court imposed the previously negotiated and 

recommended sentence. This timely appeal followed. Where relevant, 

additional facts will be set forth below. 

ASSIGNMENT OF ERROR 

“I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN 

IT DENIED APPELLANT’S MOTION TO WITHDRAW HIS 

GUILTY PLEA.” 

A. STANDARD OF REVIEW 

{¶11} Crim.R. 32.1 states: “A motion to withdraw a plea of guilty or 

no contest may be made only before sentence is imposed; but to correct 

manifest injustice the court after sentence may set aside the judgment of 

conviction and permit the defendant to withdraw his or her plea.” “ ‘[A] 

presentence motion to withdraw a guilty plea should be freely and liberally 

granted.’ ” State v. Hoke, 4th Dist. Lawrence No. 10CA32, 2011-Ohio-1221, 

¶ 12, quoting State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 

N.E.2d 9, at ¶ 57, quoting State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 

715(1992). However, a defendant does not have an absolute right to 

withdraw a guilty or no contest plea prior to sentencing. Xie at paragraph 
Ross App. No. 16CA3544 7

one of the syllabus; State v. Spivey, 81 Ohio St.3d 405, 415, 1998-Ohio-437, 

692 N.E.2d 151. Thus, the trial court possesses broad discretion to grant or 

deny a presentence motion to withdraw a plea, and we will not reverse the 

court's decision absent an abuse of that discretion. Xie at paragraph two of 

the syllabus; Spivey, 81 Ohio St.3d at 415, 692 N.E.2d 151. The term 

“abuse of discretion” implies that the court's attitude is unreasonable, 

unconscionable, or arbitrary. See, e.g., State v. Adams, 62 Ohio St.2d 151, 

157, 404 N.E.2d 144 (1980). Furthermore, “[w]hen applying the abuse of 

discretion standard, a reviewing court is not free to merely substitute its 

judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 

137-138, 566 N.E.2d 1181 (1991). 

B. LEGAL ANALYSIS 

{¶12} In our prior decisions, we have set forth a list of factors that we 

consider when determining whether a trial court abused its discretion by 

denying a presentence motion to withdraw a plea: “ ‘(1) whether the accused 

was represented by highly competent counsel; (2) whether the accused was 

given a full Crim.R. 11 hearing before entering the plea; (3) whether a full 

hearing was held on the withdrawal motion; and (4) whether the trial court 

gave full and fair consideration to the motion.’ ” Hoke, supra, at 13, quoting 

State v. Campbell, 4th Dist. Athens No. 08CA31, 2009-Ohio-4992, at ¶ 7, 
Ross App. No. 16CA3544 8

quoting State v. McNeil, 146 Ohio App.3d 173, 176, 765 N.E.2d 884 (1st 

Dist.2001); see also State v. Gibbs, 4th Dist. Ross Nos. 10CA3137 and 

10CA3138, 2010-Ohio-2246, at ¶ 9. Other considerations include: “ ‘(1) 

whether the motion was made within a reasonable time; (2) whether the 

motion set out specific reasons for the withdrawal; (3) whether the accused 

understood the nature of the charges and the possible penalties; and (4) 

whether the accused was perhaps not guilty or had a complete defense to the 

charges.’ ” Campbell at ¶ 7, quoting McNeil, 146 Ohio App.3d at 176, 765 

N.E.2d 884. A change of heart or mistaken belief about the plea is not a 

reasonable basis requiring a trial court to permit the defendant to withdraw 

the plea. Campbell at ¶ 7, citing State v. Lambros, 44 Ohio App.3d 102, 103, 

541 N.E.2d 632 (8th Dist.1988).

{¶13} On appeal, Appellant argues his motion pursuant to Crim.R. 

32.1 was filed within a reasonable time, set forth specific reasons for his 

request, including the grounds of innocence, fear for his family, and pressure 

by counsel and law enforcement, and that withdrawal of his plea would have 

resulted in no prejudice to the State. Appellant cites the correct legal 

standard for consideration of his pre-sentence motion, set forth in State v. 

Jones, 4th Dist. Scioto No. 13CA3548, 2013-Ohio-5416. However, 

Appellant urges his case is more factually similar to one in the Seventh 
Ross App. No. 16CA3544 9

Appellate District, State v. Cuthbertson, 139 Ohio App.3d. 895, 746 N.E.2d 

197 (7th Dist.2000). In response, the State maintains the trial court did not 

abuse its discretion when it overruled Appellant’s motion. The State points 

out Appellant was represented by highly competent counsel, that he was 

given a full Crim.R. 11 hearing before entering his plea, that he was given a 

full hearing on his motion to withdraw, and that the record reflects the trial 

court gave full and fair consideration of the motion. The State characterizes 

the reason for Appellant’s motion as simply a change of heart. 

{¶14} In Cuthbertson, the defendant mailed the court a pre-sentence 

request to withdraw his plea to murder with a firearm specification. At the 

hearing conducted on the motion, Cuthbertson elaborated: 

“Basically, I changed my mind because, first of all, I'm 

innocent. Second, I thought about the entire situation with my 

attorney, with my mom and everybody that is involved in this 

case, and I felt that it was my life that was at stake and wanted 

to determine what would happen for the rest of my life. My 

mom encouraged me a lot to take this plea bargain. She really 

knows nothing about the law, and I guess I considered her life a 

lot and that made me decide and think about my son, and I 

guess I felt that also I wouldn't even get a fair trial. I discussed 

it with my attorney for 14 months. I never wanted to take a plea 

bargain, and I had no plans to take a plea bargain and come 

time for trial that's all I ever heard was plea bargain, plea 

bargain, and it was like the only thing for me to do. That's not 

what I wanted to do. 

* * * 
Ross App. No. 16CA3544 10

Basically because, I guess, first of all, I'm human. I'm entitled 

to make a mistake on my decisions. I think the prosecution 

should, or whoever is going to determine what is going to 

happen with this situation, needs to prove me guilty on the 

charges they charged me with. I don't want to spend the rest of 

my life in prison because of what somebody else did or I was 

with somebody that did something.” 

{¶15} On cross-examination, Cuthbertson repeated that he was 

pressured to plead guilty. The appellate court noted the appropriate standard 

of review for pre-sentence motions and addressed the additional factors to be 

used in consideration of such motions, noting that no one factor was 

conclusive.3

 However, the Seventh District Appellate Court disagreed with 

the trial court’s conclusion that Cuthbertson’s motion was based on a 

“change of mind.” The appellate court observed: 

“First, there is no allegation that the state's case would be 

prejudiced upon withdrawal of the plea. 

* * * 

 Admittedly, the required hearing on the motion to withdraw 

occurred, and appellant was able to attempt to explain his 

position. Nonetheless, the transcript leaves one with the 

impression that appellant's attorney was preoccupied with 

making a record to establish that he did not coerce the plea 

rather than attempt to assist appellant in a successful plea 

withdrawal. It is also worth noting that appellant took it upon 

himself to seek plea withdrawal by means of a letter to the 

court. The letter stated specific reasons for his desire to 

withdraw his plea, and these reasons were repeated at the 

hearing. 

 

3 State v. Fish, 104 Ohio App.3d at 240, 661 N.E.2d at 790 (1st Dist.1995). 
Ross App. No. 16CA3544 11

* * * 

[T]he timing of the motion was surely reasonable. Lastly, 

appellant has set forth the possibility of a defense to the charge 

by maintaining his claims that he was not the perpetrator of the 

murder yet implying that he was present. In conclusion, when a 

defendant claims he is innocent and wishes to withdraw his plea 

of guilt prior to sentencing, a comparison of the interests and 

potential prejudice to the respective parties weigh heavily in the 

interests of the accused. 

* * * 

Absent any showing of some other real prejudice to the state 

which occurred solely as a result of entering into a plea bargain, 

as here, the potential harm to the state in vacating the plea is 

slight, whereas the potential harm to the defendant in refusing 

to vacate the plea is great. Accordingly, we hold that the failure 

of the lower court to allow appellant to withdraw his plea was 

unreasonable.” 

{¶16} Here, we are not persuaded Cuthbertson is completely on 

point. Upon review of the relevant facts, we find the trial court did not 

abuse its discretion in denying Appellant’s pre-sentence motion to withdraw 

his plea. We have considered the applicable factors and we agree that 

Appellant’s motion was made within a reasonable time. Appellant changed 

his plea on November 16, 2015 and his sentencing was expected to be in late 

January 2016. He requested to withdraw his plea, approximately 2 weeks 

after changing his plea, on December 2, 2015. 

{¶17} We next observe that the record reflects Appellant was given a 

full Crim.R. 11 hearing before entering his plea. Appellant verified that he 
Ross App. No. 16CA3544 12

was not under the influence of any drugs, medication, or alcohol. Appellant 

further advised that he had not been threatened or been promised anything in 

order to change his plea. He acknowledged reading, executing, and 

understanding the written plea agreement. He further stated, when 

questioned about whether or not he was satisfied with his trial counsel, that 

he was “very satisfied.” Along these lines, we also find Appellant expressed 

full understanding of the nature of the charges and the possible penalties he 

was facing. We find the record clearly reflects Appellant had a full Crim.R. 

11 hearing.

{¶18} We further find no indications in the record that Appellant was 

not represented by highly competent counsel. It is reasonable to assume that 

Appellant’s counsel negotiated the very favorable plea agreement and 

recommended sentence on Appellant’s behalf. During the change of plea 

hearing, Appellant acknowledged he was “very satisfied” with his counsel.4

{¶19} However, we cannot find that either Appellant’s pro se request 

or the motion filed on his behalf set out specific reasons for the withdrawal. 

His stated reason at the motion hearing was the threats and fear for his 

family. At the motion hearing, Appellant did not voice any allegations that 

the police department, the prosecutor, and the detectives were pressuring 

 

4

 And, after forwarding his pro se request to withdraw his plea, at the status conference, he again relied on 

his trial counsel to pursue the matter. The trial court also commented on the record that Appellant was 

represented by highly competent counsel. 
Ross App. No. 16CA3544 13

him to enter the plea agreement. These allegations first surfaced at 

Appellant’s sentencing, a week after the hearing on his motion had taken 

place. Nor did Appellant advise he was under the influence of drugs when 

he “took the deal.” 

{¶20} We further find Appellant’s request was given full and fair 

consideration. Although his handwritten request and the written motion did 

not set out specific reasons, both Appellant and his counsel were given time 

to explain his stated reason. Yet, at the hearing, the State presented evidence 

that Appellant had voiced concerns for his and his girlfriend’s safety when 

initially interviewed, and long before his request to change his plea. 

Detective Rourke testified he interviewed Appellant twice, on the date when 

he was arrested, and that he had “voiced concerns for his safety and the 

safety of a girlfriend.” On cross-examination, Detective Rourke reiterated 

that Appellant did not identify a specific source who had threatened him and 

did not identify specific acts, as mentioned at the hearing. Further, 

Appellant did not mention his children or other immediate family had been 

threatened. The State urged that Appellant was well aware of possible 

ramifications of testifying against his codefendants. In overruling 

Appellant’s motion, the trial court noted that Appellant was not able to 

identify specific persons making the threats or that the threats were, in fact, 
Ross App. No. 16CA3544 14

relating to his particular case. We cannot conclude Appellant’s request was 

not given full and fair consideration. 

{¶21} The Cuthbertson court relied heavily on the fact that there was 

no allegation that the State’s case would be prejudiced upon withdrawal of 

the plea and further cited lack of prejudice to the State as one of the most 

important factors. However, the appellate court also questioned the 

effectiveness of Cuthbertson’s counsel in arguing for grant of the motion, 

commenting that counsel seemed more preoccupied with “making a record” 

than attempting to assist Cuthbertson in a successful plea withdrawal. 

{¶22} Importantly, we observe that Cuthbertson proclaimed first and 

foremost that he was innocent. And the appellate court commented that 

Cuthbertson had set forth the “possibility of a defense to the charge by 

maintaining his claims that he was not the perpetrator yet implying that he 

was present.” The Cuthbertson court noted the potential harm to 

Cuthbertson in refusing to vacate his plea was great. Id. at 900. 

{¶23} By contrast, in the case at bar, at the motion hearing Appellant 

did not stoutly proclaim innocence. It was only after his motion was denied 

that Appellant acknowledged a lesser measure of involvement and 

culpability, stating: “I don’t believe I did anything; I did not felonious 

assault that guy or did I kidnap him. I was there * * *.” In State v. Powers, 
Ross App. No. 16CA3544 15

4th Dist. Pickaway No. 03CA21, 2004-Ohio-2720, this court pointed out a 

defendant's claims of innocence are not sufficient to warrant withdrawal of a 

plea knowingly entered. Id. at ¶ 18; State v. Kandiko (Feb. 9, 1995), 

Cuyahoga App. No. 66888, State v. Frank (April 29, 1993), Cuyahoga App. 

No. 62201. We observed that all defendants who request a withdrawal of 

their plea base their request upon some claim of innocence. State v. 

McGowan (Oct. 3, 1996) Cuyahoga App. No. 68971. We further observed 

Powers made only an unsubstantiated claim of innocence, and that the trial 

court could reasonably have concluded that Powers’ profession of innocence 

was nothing more than a change of heart, which is an insufficient basis for 

withdrawing a guilty plea. Lambros, supra, 44 Ohio App.3d 102 at 103. It 

would appear that when Appellant realized his safety concerns were not 

persuasive to the trial court at the motion hearing, that he subsequently 

proffered a “laundry list” of reasons for his motion at sentencing, i.e., the 

alleged and unsubstantiated influence of drugs and alleged coercion by law 

enforcement and the prosecutor’s office, along with a weak profession of 

innocence. 

{¶24} For the foregoing reasons, we find no merit to Appellant’s 

argument and further find the trial court did not abuse its discretion in 

overruling Appellant’s pre-sentence motion to withdraw his plea. As such, 
Ross App. No. 16CA3544 16

we overrule the sole assignment of error and affirm the judgment of the trial 

court. 

JUDGMENT AFFIRMED. 
Ross App. No. 16CA3544 17

Hoover, J., concurring in judgment only: 

{¶ 25} I respectfully concur in judgment only with the majority 

opinion. 

{¶ 26} I start with the premise that “ ‘a presentence motion to 

withdraw a guilty plea should be freely and liberally granted.’ ” State v. 

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 57 quoting 

State v. Xie at 527. Brown’s motion to withdraw his guilty plea was made 

prior to his sentencing. Brown filed the motion at issue in December 2015. 

At the motion hearing, Brown stated, “I was planning on going through with 

the deal but there’s been threats made against my family and stuff and I just 

don’t feel comfortable putting my children at risk, you know over, over 

something that involves me and has nothing to do with them.” March 23, 

2016 Hrg., p. 3-4. He went on to explain that his family’s home and personal 

property had been vandalized. He added that he did not know who was 

making the threats but “nothing was going on before [he] took the plea 

deal.” Id. at p. 4. After considering the factors in State v. Xie, the trial court 

denied Brown’s motion. 

{¶ 27} A few days later, at Brown’s sentencing hearing, but prior to 

the actual sentencing of Brown, the trial court gave Brown the opportunity to 

address the court. Brown again indicated that he wanted to withdraw his 
Ross App. No. 16CA3544 18

plea. This time, however, he gave completely different reasons for 

withdrawing his plea. Brown stated that he should not be “held to” his guilty 

plea because (1) he felt pressured into taking a plea deal; and (2) he talked to 

someone and they told him that because he was under the influence of drugs 

when he took the deal he should not be held to it. March 31, 2016 Hrg., p. 4. 

He also proclaimed his innocence. The trial court did not address Brown’s 

claims and proceeded immediately to sentencing. 

{¶ 28} I believe that the statements Brown made could be construed as 

a second motion to withdraw his plea. Brown once again indicated to the 

trial court that he wanted to withdraw his plea. Brown did not base his 

second request on the same reasons that he stated in his first motion to 

withdraw his plea; and there is no requirement in Crim.R. 32.1 that a motion 

to withdraw guilty plea be in writing. See State v. Elkins, 4th Dist. Lawrence 

No. 16CA15, 2016-Ohio-8579 (trial court erred in failing to conduct any 

inquiry into defendant’s oral, presentence request to withdraw guilty plea 

that defendant made at the beginning of his sentencing hearing). 

{¶ 29} Therefore, pursuant to State v. Xie, I believe that the trial court 

should have conducted a hearing “to determine whether there [was] a 

reasonable and legitimate basis for the withdrawal of the plea” rather than 

proceeding immediately to sentencing. 62 Ohio St. 3d 521, 527, 584 N.E.2d 
Ross App. No. 16CA3544 19

715 (1992). Of particular concern to me is the fact that Brown states that he 

was under the influence of drugs at the time that the guilty plea was entered. 

I am mindful, however, of the fact that Brown had originally stated that he 

was not under the influence of any drugs. 

{¶ 30} That being said, Brown does not argue on appeal that the trial 

court erred in failing to hold a hearing on his second motion to withdraw his 

guilty plea. I refuse to make Brown’s argument for him. His appeal presents 

the issue whether the trial court erred in denying his first motion to withdraw 

his guilty plea; and I do not believe that the trial court erred with respect to 

that decision. Therefore, I concur in judgment only with the majority 

opinion. 
Ross App. No. 16CA3544 20

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 Ross 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. 

Harsha, J.: Concurs in Judgment and Opinion. 

Hoover, J.: Concurs in Judgment Only with Concurring Opinion. 

For the Court, 

 BY: ____________________________ 

 Matthew W. McFarland, 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.