[Cite as State v. Adams, 2016-Ohio-7772.]

 IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

STATE OF OHIO, : 

 : Case No. 15CA2 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

JASON M. ADAMS : 

 : 

 Defendant-Appellant. : Released: 11/10/16 

_____________________________________________________________ 

APPEARANCES: 

James S. Sweeney, James Sweeney Law, LLC, Columbus, Ohio, for 

Appellant. 

Brigham M. Anderson, Prosecuting Attorney, and Robert C. Anderson, 

Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee. 

_____________________________________________________________ 

 

McFarland, J. 

{¶1} Jason M. Adams appeals from the final judgment entry of 

conviction and sentence of the Lawrence County Court of Common Pleas, 

entered December 23, 2014. A jury convicted Adams of complicity to 

aggravated robbery, R.C. 2923.03/2911.01(A)(3), a felony of the first 

degree. Adams raises six assignments of error, arguing: (1) that his 

conviction is against the manifest weight of the evidence; (2) that the trial 

court ordered an “inconsistent” sentence; (3) that the trial court committed 

plain error in permitting the jury to be informed that his codefendants pled 
Lawrence App. No. 15CA2 2

guilty; (4) that the trial court failed to properly advise him of post-release 

control; (5) that the trial court failed to give him all the required jail time 

credit; and, (6) that he was rendered ineffective assistance of counsel. 

However, upon our review of the record, we find no merit to Appellant’s 

arguments, except for the issue regarding his post-release control 

notification. Further, the parties had resolved the issue regarding jail time 

credit prior to oral arguments in this matter, so we have declined to consider 

that alleged error. As such, we overrule Appellant’s assignments of error 

except for assignment of error number four, which we sustain and remand 

for further proceedings consistent with current case law. In all other 

respects, we affirm the judgment of the trial court. 

FACTUAL AND PROCEDURAL BACKGROUND 

{¶2} Jason M. Adams was indicted for one count of aggravated 

robbery by the Lawrence County Grand Jury on March 25, 2014. The 

indictment occurred after Charles Sam Jones (Jones) was robbed on January 

14, 2014, near the Central Christian Church in the City of Ironton. On that 

date, two church volunteers saw some commotion in front of the church, saw 

two men running away, and saw Jones and Appellant, who appeared to have 

been robbed. 
Lawrence App. No. 15CA2 3

{¶3} Jones, age 77 at the time of trial, was a local “bookie.” 

Appellant had placed bets with Jones for approximately four months before 

the robbery. The robbery occurred at approximately 8:15 p.m. in the 

evening. Sergeant Brian Pauley of the Ironton Police Department responded 

to the scene. Detectives Mitch Crum and Joe Ross investigated the robbery. 

{¶4} Detective Crum initially obtained surveillance video from 

Ironton High School, which faintly showed the robbery taking place and 

revealed the “get away” vehicle, a black Dodge Durango. Further 

investigation led Detective Crum to ask Appellant to come to the police 

department and give a statement, which he did. Appellant, his long-time 

friend Scott Lewis, and a third man, Ed Hampton, Lewis’s uncle, were 

subsequently indicted for robbing Jones. 

{¶5} Appellant’s codefendants eventually entered guilty pleas and did 

not proceed to trial. However, Appellant, an Iraq war veteran with no prior 

criminal record and good standing in the community, proceeded to trial and 

testified on his own behalf. While the State argued Appellant was the 

mastermind of the scheme to rob Jones, who was known to carry large 

quantities of cash on his person, Appellant denied any involvement and 

maintained that he, too, was a victim of crime. 
Lawrence App. No. 15CA2 4

{¶6} The State presented testimony from Jones, the 

bystanders/witnesses at the church, the officers who investigated Jones’ 

robbery, Appellant’s codefendant Scott Lewis, and additional witnesses who 

identified and explained the State’s exhibits. Essentially, Jones testified that 

on the incident date, Appellant arranged an evening meeting with Jones to 

pay a gambling debt. Appellant then changed the meeting place a couple of 

times. When the two met at the church, Appellant paid Jones the money he 

owed and talked briefly. Just after they parted, Lewis and Hampton 

approached Jones, robbed him and beat him. Jones testified he immediately 

felt he had been “set up” by Appellant. Jones did not know Lewis or 

Hampton, but Appellant had recently given him Lewis’s name. 

Interestingly, Jones testified that Appellant initially asked him to meet at the 

church because it was near the Urgent Care where his wife and child were, 

and he was in a hurry. However, after the money was exchanged, Appellant 

made conversation and asked Jones if he would like to get a drink. 

{¶7} Scott Lewis testified he and Appellant had been friends since 

elementary school. While their contact had been sporadic after high school 

when Appellant went into the military and Lewis moved to Wyoming, at 

times the men talked 10-20 times a day. Lewis had a private cell phone and 

a work phone. Prior to the incident, Lewis did not know Sam Jones. 
Lawrence App. No. 15CA2 5

{¶8} Lewis testified it was Appellant’s idea to rob Jones. Lewis 

testified Appellant needed money to remodel a house and after talking, the 

friends agreed to do it. Appellant also asked Lewis to get his uncle, Ed 

Hampton, involved. Ed Hampton had a criminal history and Appellant 

indicated he would “feel more comfortable” with Hampton involved. On the 

incident date, Lewis was working in West Virginia. He borrowed a coworker’s dark-colored Dodge Durango, drove to Ironton, and joined 

Appellant for lunch at Giovanni’s. 

{¶9} After leaving Giovanni’s, Lewis and Appellant spoke by cell 

phone while driving around Ironton looking for Jones. Appellant described 

Jones’ physical appearance, the vehicle he drove, and his daily routine 

matriculating through Ironton. Lewis testified Appellant’s description of 

Jones was “key on point.” Appellant also described to Lewis where Jones 

kept his money: “Smaller bills in his right pocket, larger bills, hundred and 

fifties in his left pocket and he carried large sums of cash on him * * *.” 

Lewis drove around Ironton until it got dark. Then he picked up Ed 

Hampton. 

{¶10} Appellant joined Lewis and Hampton at Johnny on the Spot on 

Second Street. Then they went to the Dollar General to purchase toy guns to 

use to scare Jones. While the original plan was for Appellant to meet Jones 
Lawrence App. No. 15CA2 6

at Johnny on the Spot, Appellant felt there were too many people there, so 

they changed the meeting place to Central Christian. Adams drove his own 

vehicle to the church. Lewis and Hampton parked at the old Ironton High 

School parking lot and walked to the church. Because there were people in 

the back, Appellant changed the meeting with Jones to the front. 

{¶11} After Appellant and Jones concluded business and Appellant 

walked away, Ed Hampton approached Jones from the front and demanded 

his money. Lewis was behind. Jones started to fall and Hampton rushed to 

get into his left pocket. Lewis testified Appellant rushed back and pretended 

he was helping Jones. Then Appellant and Ed Hampton had a “staged” fight 

during which Appellant fell and pretended he was hurt. Lewis saw Hampton 

hit Jones, so he ran towards the truck. As Lewis ran, he heard someone 

yelling that the police were on their way. 

{¶12} The State’s exhibits admitted at trial included surveillance film 

from Ironton High School; phone records between Appellant and Lewis on 

January 13th, 14th, and 15th, 2014; Appellant’s initial statement to the 

responding officers; Appellant’s recorded statement at the police 

department; surveillance film from Dollar General Store; and photographs of 

Jones’ facial injuries after the robbery occurred. 
Lawrence App. No. 15CA2 7

{¶13} The defense strategy at trial was to cast Appellant as the model 

citizen while casting doubt on the credibility of the Ironton police officers 

and Scott Lewis. Appellant’s testimony began by telling the jury that he was 

married to his high school girlfriend. They had been together since 1999 

and had three children. He joined the United States Marine Corps in 2002, 

spent two years in combat in Iraq, and was honorably discharged. He also 

had some course work through Hocking College. Appellant had a good 

work record and was currently employed with the federal prison system in 

Kentucky.1

 Appellant was involved with little league football, basketball, 

and baseball and had handled the finances for the league. Appellant had no 

criminal record. 

{¶14} Appellant testified he began placing bets with Jones in October 

2013.2

 Appellant and Jones met on Tuesdays to pay. Lewis had been with 

him on two occasions when he paid Jones. He testified Lewis began asking 

him about placing bets with Jones and getting information about Jones, 

meeting places, and Jones’ vehicle when the two went to an Ohio State 

football game in October 2013. 

 

1

 Appellant testified he and his wife were currently going through divorce, due in part to the stress of his 

criminal case. He also informed he had been placed on administrative leave from his job since he had been 

arrested. 

2

 He testified Detective Crum placed bets with Jones through a third person. 
Lawrence App. No. 15CA2 8

{¶15} Appellant testified that Lewis called him on the January 14, 

2014 and told him he was on his way to Ironton. He needed to discuss 

“family issues” with Appellant. Appellant invited him to meet him for lunch 

at Giovanni’s. 

{¶16} Appellant testified Lewis asked him to meet at Johnny on the 

Spot at 6:45. Then, they rode around and eventually Lewis asked him to go 

with him to pick up Ed Hampton. Appellant had met Ed Hampton a few 

times prior. As they drove, Hampton talked about seeing his kids and not 

having money to buy them anything. Appellant offered to buy what he 

needed so they went to Dollar General to purchase the toy guns for Ed 

Hampton’s children. They then dropped Appellant off at Johnny on the 

Spot. Appellant denied ever seeing Lewis again until in the courtroom. 

{¶17} After Appellant was dropped off, he met Jones at the church. 

They talked briefly and he paid Jones. As Appellant was walking to his 

vehicle, he looked back and saw Jones on the ground with two people over 

him. He did not recognize the people. He ran back to try to help Jones. The 

larger individual hit him and he was knocked to the ground. He had a knot 

and red place on his head. He gave a brief statement to officers at the scene. 

{¶18} The next day Lewis called him and asked him to meet at Burger 

King in Ashland, Kentucky. When he went there, Lewis did not show up 
Lawrence App. No. 15CA2 9

but Ed Hampton did. Appellant was friends with some of the Ironton police 

officers. Also on the day after the incident, Appellant was contacted by his 

friends and asked to come to the police department. Appellant gave a 

statement at that time. He testified he tried to answer the officers’ questions 

but they kept cutting him off. 

{¶19} Appellant denied planning the hit on Jones. He denied being 

asked to be involved. He denied needing money to remodel. Appellant 

testified there was “nothing ever discussed about hitting Sam Jones. No not 

specifically.” Appellant believed, looking back, he was naive in trusting 

Lewis with Jones’ information. Appellant testified he, too, was a victim of 

crime and had lost $1,500.00 dollars. 

{¶20} The jury convicted Appellant of complicity to aggravated 

robbery on December 12, 2014. The trial court sentenced Appellant to a 

nine-year prison term. This timely appeal followed. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED WHEN IT ENTERED A 

JUDGMENT AGAINST THE APPELLANT WHEN THE 

JUDGMENT WAS NOT SUPPORTED BY THE MANIFEST 

WEIGHT OF THE EVIDENCE.” 

A. Standard of Review 

{¶21} When an appellate court considers a claim that a conviction is 
Lawrence App. No. 15CA2 10

against the manifest weight of the evidence, the court must dutifully 

examine the entire record, weigh the evidence and all reasonable inferences, 

and consider the witness credibility. State v. Pickett, 4th Dist. Athens No. 

15CA13, 2016-Ohio-4593, ¶ 26; State v. Dean, 2015-Ohio-4347, ¶ 151, 

citing Thompkins, 78 Ohio St.3d at 387. A reviewing court must bear in 

mind, however, that credibility generally is an issue for the trier of fact to 

resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. 

Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “ ‘Because 

the trier of fact sees and hears the witnesses and is particularly competent to 

decide “whether, and to what extent, to credit the testimony of particular 

witnesses,” we must afford substantial deference to its determinations of 

credibility.’ ” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 

N.E.2d 1047, ¶ 20, quoting State v. Konya, 2nd Dist. Montgomery No. 

21434, 2006-Ohio-6312, ¶ 6, quoting State v. Lawson, 2nd Dist. 

Montgomery No. 16288 (Aug. 22, 1997). 

{¶22} Once the reviewing court finishes its examination, the court 

may reverse the judgment of conviction only if it appears that the fact-finder, 

when resolving the conflicts in evidence, “ ‘clearly lost its way and created 

such a manifest miscarriage of justice that the conviction must be reversed 

and a new trial ordered .’ ” Pickett, supra, at 27, quoting Thompkins, 78 
Lawrence App. No. 15CA2 11

Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 

N.E.2d 717 (1st Dist.1983). If the prosecution presented substantial credible 

evidence upon which the trier of fact reasonably could conclude, beyond a 

reasonable doubt, that the essential elements of the offense had been 

established, the judgment of conviction is not against the manifest weight of 

the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978), 

syllabus, (superseded by state constitutional amendment on other grounds in 

State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997)). 

{¶23} “[W]hen conflicting evidence is presented at trial, a conviction 

is not against the manifest weight of the evidence simply because the jury 

believed the prosecution’s testimony.” State v. Cooper, 170 Ohio App.3d 

418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 17, quoting State v. Mason, 9th 

Dist. No. 21397, 2003-Ohio-5785, ¶ 17, quoting State v. Gilliam, 9th Dist. 

No. 97CA006757, 1998 WL 487085 (Aug. 12, 1998). Moreover, a 

conviction is not against the manifest weight of the evidence even if the 

“evidence is subject to different interpretations.” State v. Adams, 2nd Dist. 

Greene Nos. 2013CA61, 2013-CA-62, 2014-Ohio-3432, ¶ 24. Instead, a 

reviewing court should find a conviction against the manifest weight of the 

evidence only in the “ ‘exceptional case in which the evidence weighs 

heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, quoting 
Lawrence App. No. 15CA2 12

Martin, 20 Ohio App.3d at 175. Accord State v. Lindsey, 87 Ohio St.3d 479, 

483, 721 N.E.2d 995 (2000). 

B. Legal Analysis 

{¶24} Appellant was found guilty of complicity to aggravated 

robbery. The Revised Code defines the offense of aggravated robbery as 

follows: 

(A) No person, in attempting or committing a theft offense, as 

defined in section 2913.01 of the Revised Code, or in fleeing 

immediately after the attempt or offense, shall do any of the 

following: 

* * * 

(3) Inflict, or attempt to inflict, serious physical harm on 

another.3

 {¶25} Appellant argues his conviction is not supported by the 

manifest weight of the evidence as the State failed to establish either that the 

victim, Sam Jones, suffered serious physical harm, or that there was an 

attempt to inflict serious physical harm upon him. “Serious physical harm” 

is defined under R.C. 2901.01(A)(5)(c), (d), and (e) as including harm that 

produces “temporary, substantial incapacity”, “temporary, serious 

 

3 (A) No person, acting with the kind of culpability required for the commission of an offense, shall do any 

of the following: 

(1) Solicit or procure another to commit the offense; 

(2) Aid or abet another in committing the offense; 

(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code; 

(4) Cause an innocent or irresponsible person to commit the offense. 
Lawrence App. No. 15CA2 13

disfigurement”, or “acute pain of such duration as to result in substantial 

suffering or that involves any degree of prolonged or intractable pain.” State 

v. Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-4170, ¶ 23. The State 

disputes Appellant’s argument, contending that Sam Jones suffered 

“temporary, serious disfigurement” and “physical pain of such duration as to 

result in substantial suffering.” The State relies on Jones’ testimony that he 

was struck multiple times in the head area which resulted in the injuries 

depicted in State’s Exhibits 16-19. We agree with the State. We find there 

was substantial credible evidence upon which a jury could find beyond a 

reasonable doubt that serious physical harm was inflicted upon Mr. Jones. 

{¶26} “The degree of harm that rises to the level of ‘serious’ physical 

harm is not an exact science, particularly when the definition includes such 

terms as ‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.’ ” State v. 

Mango, 8th Dist. Cuyahoga No. 103146, 20156-Ohio-2935, ¶ 33, quoting 

State v. Miller, 8th Dist. Cuyahoga No. 98574, 2013-Ohio-1651, ¶ 18, 

quoting State v. Irwin, 7th Dist. Mahoning No. 06MA20, 2007-Ohio-4996, 

¶ 37. The statute does not define “substantial suffering”; instead, the trierof-fact must determine its existence from the facts of each particular case. 

State v. Bell, 1989 WL 10372, (Feb. 7, 1989), *2. See State v. Daniels

(1984), 14 Ohio App.3d 41, (victim's testimony that defendant punched and 
Lawrence App. No. 15CA2 14

kicked her was sufficient to prove serious physical harm); see also State v. 

Spikes, 67 Ohio St.2d 405, 414, 423 N.E.2d 1122, (1981), fn.10 (dicta). 

“Physical harm to persons” means “any injury, illness, or other physiological 

impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). State 

v. Henry, 8th Dist. Cuyahoga No. 10002634, 2016-Ohio-692, ¶ 40. The 

extent or degree of a victim's injuries is “normally a matter of the weight 

rather than the sufficiency of the evidence.” Henry, supra; Irwin at ¶ 37, 

citing State v. Salemi, 8th Dist. Cuyahoga No. 81091, 2002-Ohio-7064, ¶ 34. 

{¶27} Scott Lewis testified that during the altercation, he was behind 

Mr. Jones, who “started to fall back” and eventually was on the ground. 

Lewis testified that “when Sam went to sit up, Ed hit Sam Jones and Sam 

fell back down.” Mr. Jones testified as follows: 

“A. * * * That’s about that time that’s all I can remember and 

the guys running and he had a hold of me before I could turn 

around or anything. They had me on the ground. 

Q. And were you hit? 

A. Quite a few times yeah. 

Q. And beat up pretty bad? 

A. Beat up. . . worse I’ve ever been beat up, yeah. 

Q. Describe to the jury what your injuries were from that. 

A. Well I had two of them, black eyes and the side of my 

face was all skinned up where they hit me and my forehead, had 
Lawrence App. No. 15CA2 15

a place inside my mouth they busted, I think there was six or 

eight stitches that had to be put in my lip. And um, broke my 

teeth, had false teeth and they broke them. And um, I was just 

lucky that um, we had two guys come around the building to 

save my life by coming around and heard them say that 

someone was coming. They got up off me and took off 

running. 

{¶28} The State’s exhibits 16, 17, 18, and 19 depict Jones’ injuries. 

The photographs reveal bruising under both eye areas. Bruising is more 

noticeable on the right side of Jones’ face, with obvious injuries on the right 

temple, right cheekbone, and right jaw. Also visible in the photographs are 

small marks on Mr. Jones’ forehead, nose, and chin, as well as an injury to 

the lip area. At the time of the incident, Jones was 76 years old. 

{¶29} In Scott, the defendant was charged with felonious assault and 

domestic violence after an altercation with his live-in girlfriend. At trial, the 

victim testified in great detail about the injuries she sustained. Specifically, 

she testified that her left eye was swollen shut for three weeks following the 

incident, that she broke her nose and lost teeth as a result of the incident, and 

that a blood clot developed under her eye. The State corroborated the 

victim’s description of her injuries by introducing photographs of them. In 

Scott’s appeal challenging the proof of “serious physical harm,” we 

concluded these types of injury constitute “temporary, substantial 
Lawrence App. No. 15CA2 16

incapacity” and “temporary, serious disfigurement” as those words are 

commonly understood. 

{¶30} Courts have also determined that “serious physical harm” exists 

“ ‘where the injuries caused the victim to seek medical treatment.’ ” Scott, 

supra, at ¶ 3. State v. Muncy, 4th Dist. Scioto No. 11CA3434, 2012-Ohio4563, ¶ 23, quoting State v. Sharp, 12th Dist. Butler No. CA2009-09-236, 

2010-Ohio-3470, ¶ 11. See also Mango, supra, at ¶ 34. In Scott, the 

testimony established that the victim did visit a hospital. We ultimately held 

that sufficient evidence of serious physical harm existed. In the case sub 

judice, Sam Jones did not seek medical treatment immediately after the 

incident. However, he did testify to having 6-8 stitches in his lip. We note 

that on cross-examination, Appellant’s wife Nicole Adams, herself a nurse, 

agreed it would have been a good idea for Jones to go to the hospital, that he 

was “beaten up pretty good.” She felt his injuries were serious enough that 

he needed to go to the hospital “because of his age.” 

{¶31} In Henry, the defendant was charged and convicted of felonious 

assault. On appeal, Henry argued there was no evidence that the victim, 

Gatto, suffered from any degree of prolonged or intractable pain or was in 

any way incapacitated by his cut lip or “bent in” teeth; no evidence the 

victim missed any school or work or was precluded from engaging in any of 
Lawrence App. No. 15CA2 17

his other ordinary activities as a result of his injury; and no evidence the 

victim had a scar or any other type of permanent disfigurement. The 

appellate court was left to determine whether the injury to the victim’s upper 

lip “involve[d] acute pain of such duration as to result in substantial 

suffering” within the meaning of R.C. 2901.01(A)(5)(e) or a “temporary, 

serious disfigurement” under R.C. 2901.01(A)(5)(d). 

{¶32} Photographs taken by an officer at the hospital showed Gatto 

with a bloodied, swollen upper lip that appeared to be cut in two places. The 

victim testified that he was in “excruciating pain” when he arrived at the 

hospital and the medical records reflect that Gatto told the hospital staff that 

his pain level was six out of ten at that time. The victim testified that, as 

result of Henry's punch, his front teeth were “bent in,” that he received 30 

stitches and that he saw the “medical surgeon” “about five times” and his 

family dentist twice for his injuries. Viewing the evidence in the light most 

favorable to the State, the appellate court found that the victim’s testimony, 

together with the photographs and medical records introduced by the State, 

was sufficient to establish that Henry caused him serious physical harm 

under R.C. 2901(A)(5)(d) or (e). 

{¶33} Henry also made a manifest weight challenge based on the 

absence of medical evidence corroborating the victim’s testimony regarding 
Lawrence App. No. 15CA2 18

the severity of his injuries and the treatment he received; the lack of 

evidence of any permanent scarring; and criticisms regarding inconsistencies 

in, and the lack of credibility of, Gatto’s testimony. 

{¶34} The appellate court noted the severity of Gatto's injury was 

unclear based on the photographs alone. Although Gatto claimed to have 

needed 30 stitches in and around his lip to repair the injury, there was no 

reference to Gatto having received any stitches in the medical records. Gatto 

testified that as a result of the punch he received from Henry his two front 

teeth were also “bent in”; however, there were no photographs of any 

damage to the victim’s teeth and no testimony or other evidence in the 

record explaining what the victim meant when he said that his two front 

teeth were “bent in” or how, if at all, that condition was remedied. And, 

although Gatto claimed to have seen the “medical surgeon” “about five 

times” and his family dentist twice for the injuries he sustained, there were 

no medical records documenting any of his alleged follow-up treatment and, 

other than the victim’s own testimony that a “plastic surgeon” removed his 

stitches without further testimony as to when that occurred what follow-up 

treatment involved. The record contained only Gatto's medical records from 

the emergency room where he had presented for treatment. No medical 

expert or medical provider testified. 
Lawrence App. No. 15CA2 19

{¶35} The appellate court acknowledged a number of credibility 

issues with Gatto's testimony. However the court concluded: 

“[A] defendant is not entitled to reversal on manifest weight 

grounds merely because certain aspects of a witness's testimony 

are not credible or were inconsistent or contradictory. See, e.g., 

State v. Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, 

¶ 38, citing State v. Asberry, 10th Dist. Franklin No. 04AP1113, 2005-Ohio-4547, ¶ 11. The decision whether, and to 

what extent, to believe the testimony of a particular witness is 

“within the peculiar competence of the factfinder, who has seen 

and heard the witness.” State v. Johnson, 8th Dist. Cuyahoga 

No. 99822, 2014-Ohio-494, ¶ 54. It was, therefore, within the 

province of the trial court, as the trier of fact, to believe Gatto's 

testimony regarding the severity of his injuries and to find that 

he sustained serious physical harm as a result of Henry's 

actions. It is not our role to substitute our judgment for that of 

the trial judge.” 

{¶36} In Henry at 40, the appellate court acknowledged it had 

“historically applie[d] a liberal interpretation of ‘serious physical harm to 

persons.’ ” State v. Davis, 8th Dist. Cuyahoga No. 81170, 2002-Ohio-7068, 

¶ 20. The appellate court also stated that the fact that a victim seeks medical 

treatment does not alone “substantiate [ ] an inference that the victim 

suffered serious physical harm” and that although “[t]he inference derived 

from a victim seeking medical treatment is a proper factor to consider,” it is 

“not a dispositive one.” State v. Clopton, 8th Dist. Cuyahoga No. 95297, 

2011-Ohio-2392, ¶ 14-16. For an injury to constitute “serious physical 

harm,” it must fall within at least one of the five categories enumerated in 
Lawrence App. No. 15CA2 20

R.C. 2901.01(A)(5)(a)-(e). See, e.g., State v. Addison, 8th Dist. Cuyahoga 

No. 96514, 2012-Ohio-260, ¶ 29. 

{¶37} In Henry, the court was mindful that “[t]his court has 

consistently held that the need for stitches constitutes serious physical harm 

for purposes of a felonious assault conviction.” Id. at 42. State v. Studgions, 

8th Dist. Cuyahoga No. 94153, 2010-Ohio-5480, ¶ 10. However, the court 

acknowledged in most cases, it appears that it was not simply the fact that 

the victim received stitches that led the court to conclude that the victim 

sustained “serious physical harm” within the meaning of R.C. 

2901.01(A)(5), but rather, the fact that, as is often the case with an injury 

requiring stitches, the injury and stitches led to a permanent scar or 

disfigurement.4

 However, the Henry court observed that serious physical 

harm has been found where a victim sustains a bloody cut and/or significant 

swelling to the face, even where there is no evidence stitches were required. 

Henry, supra, at 42; See, e.g., State v. Payne, 8th Dist. Cuyahoga No. 76539, 

 

4 See Studgions at ¶ 10; Williams at ¶ 10; State v. Paythress, 8th Dist. Cuyahoga No. 91554, 2009-Ohio2717, ¶ 6-7 (finding serious physical harm when the medical records documented that victim sustained a 

three-to-four-inch cut on his face that required 60 stitches to close and victim was able to point out his 

injury to the jury, “suggesting that he suffered some permanent disfigurement as a result of the attack”); see 

also State v. Townsend, 9th Dist. Summit No. 24311, 2009-Ohio-3190, ¶ 10-12 (victim's testimony that 

defendant slapped her, punched her in the mouth, hit her in the face and spit on her, leaving her lip bleeding 

and hanging, requiring stitches and resulting in a permanent scar and lack of feeling in her lip was 

sufficient to establish “serious physical harm” under R.C. 2901.01(A)(5)); State v. Edwards, 83 Ohio 

App.3d 357, 360, 614 N.E.2d 1123 (1992) (where victim received 23 stitches for two-centimeter cut above 

his right eyebrow, which resulted in a permanent scar, and the reopening of a one-centimeter scar on his 

forehead, jury could reasonably find victim sustained some permanent disfigurement constituting “serious 

physical harm”). 
Lawrence App. No. 15CA2 21

2000 WL 1010969 *9-10 (July 20, 2000) (bloody, cut and swollen right eye 

was sufficient to establish serious physical harm because the injury was a 

temporary, serious disfigurement). 

{¶38} We have reviewed the photographs of Mr. Jones’ injuries and 

the testimony of various witnesses describing his injuries. At the time Mr. 

Jones’ face and head were beaten, he was approximately 76 years old. Sgt. 

Pauley testified when he arrived on the scene and encountered the elderly 

victim, he appeared to have been “beaten up.” Pauley described “some 

bleeding from one of the eyebrows, and some swelling around his eye.” Eric 

Williams, one of the church witnesses, testified Mr. Jones was injured and 

had “blood on his head.” Appellant’s wife testified Jones “had a busted lip,” 

and was “starting to bruise.” Even she testified she had recommended he 

seek medical attention. 

 {¶39} The photos reveal bruising on the right side of Jones’ face. In 

our view, recognizing these determinations are “case by case” and “not an 

exact science,” Jones’ facial bruising and lip injury constitute a temporary 

serious disfigurement and pain resulting in substantial suffering. “ ‘If the 

evidence is susceptible of more than one construction, the reviewing court is 

bound to give it that interpretation which is consistent with the verdict and 

judgment, most favorable to sustaining the verdict and judgment.’ ” Id. at 
Lawrence App. No. 15CA2 22

¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 

N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate 

Review, Section 60, at 191-192 (1978). While the evidence here is subject 

to more than one interpretation, the jury obviously found Mr. Jones’ 

testimony about his injuries, without the inclusion of medical records to 

verify the need for 6-8 stitches, to be credible. We must afford substantial 

deference to the jury’s determination of credibility. 

{¶40} We find this case not to be one in which the jury clearly lost its 

way so as to create a manifest miscarriage of justice. We find substantial 

credible evidence that Sam Jones suffered serious physical harm. As such, 

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

the trial court. 

“II. THE TRIAL COURT ERRED IN IMPOSING A 

SENTENCE OF NINE YEARS ON THE APPELLANT.” 

A. Standard of Review 

{¶41} When reviewing felony sentences we apply the standard of 

review set forth in R.C. 2953.08(G)(2). State v. Taylor, 138 Ohio St.3d 194, 

2014-Ohio-460, 5 N.E.3d 612, ¶ 40; State v. Marcum, 2016-Ohio-1002, –––-

N.E.3d ––––, ¶ 1. R.C. 2953.08(G)(2) specifies that an appellate court may 

increase, reduce, modify, or vacate and remand a challenged felony sentence 

if the court clearly and convincingly finds either that “the record does not 
Lawrence App. No. 15CA2 23

support the sentencing court's findings” under the specified statutory 

provisions or “the sentence is otherwise contrary to law.” Id. 

B. Legal Analysis 

{¶42} Appellant argues the trial court erred in imposing a sentence of 

nine years. Appellant points out that codefendant Scott Lewis was 

sentenced to a term of five years in prison, and codefendant Ed Hampton 

was sentenced to a term of six years. In support of the argument, Appellant 

points out that the record established that Appellant’s codefendants were 

those responsible for physically harming the victim while Appellant never 

physically harmed him. Furthermore, Appellant had no felony record as 

compared to Ed Hampton. As such, Appellant concludes that his sentence is 

not supported by the record and is contrary to law. 

{¶43} The State’s first argument in response is that Appellant failed to 

raise the issue of consistency at sentencing and did not present any evidence 

in the trial court about similar offenders and their sentences. The State 

directs us to the transcript of Appellant’s sentencing hearing in support. 

Based on the authority of State v. Miller, 2nd Dist. Clark No. 09CA28, 

2010-Ohio-2138, the State contends Appellant has forfeited his ability to 

raise this issue on appeal. Secondly, the State contends that the trial court 

was not obligated to impose a similar sentence on Appellant because: (1) 
Lawrence App. No. 15CA2 24

Appellant is the one who masterminded the robbery; (2) planned the details; 

and (3) never acknowledged his guilt or any remorse. Finally, the State 

argues that R.C. 2929.11(B), with its inconsistency language, has no merit 

when a trial court states that it has considered the purposes and principles of 

sentencing in accordance with R.C. 2929.11, 2929.12, and has weighed the 

applicable factors in R.C. 2929.13 and R.C. 2929.14. 

{¶44} The language of R.C. 2929.11(B) provides that a felony 

sentence must be “consistent with sentences imposed for similar crimes 

committed by similar offenders.” In State v. Gibson, 8th Dist. Cuyahoga 

No. 98725, 2013 WL 5517927, the appellate court observed that there is no 

requirement that codefendants receive equal sentences. Id. at ¶ 76, citing

State v. Wickham, 5th Dist. Muskingum No. CT2006-0084, 2007-Ohio1754, ¶ 29, citing State v. Lloyd, 11th Dist. Lake No. 2002-L-069, 2003-

Ohio-6417, ¶ 21 and United States v. Fry (C.A.6, 1987), 831 F.2d 664, 667. 

“Each defendant is different and nothing prohibits a trial court from 

imposing two different sentences upon individuals convicted of similar 

crimes.” Wickham at ¶ 29, citing State v. Aguirre, 4th Dist. Gallia No. 

03CA5, 2003-Ohio-4909, at ¶ 50. When that happens, “the task of the 

appellate court is to determine whether the sentence is so unusual as to be 

outside the mainstream of local judicial practice. We bear in mind that 
Lawrence App. No. 15CA2 25

although offenses may be similar, there may be distinguishing factors that 

justify dissimilar sentences.” State v. Beasley, 8th Dist. Cuyahoga No. 

82884, 2004-Ohio-988, ¶ 24 (internal citation omitted). 

{¶45} In Gibson, the defendant raised a “consistency” argument. The 

Gibson court noted that in order to support a contention that a sentence is 

disproportionate to sentences imposed upon other offenders, the defendant 

must raise this issue before the trial court and present some evidence, 

however minimal, in order to provide a starting point for analysis and to 

preserve the issue for appeal. State v. Jones, 8th Dist. Cuyahoga No. 99121, 

2013-Ohio-3141, ¶ 17, citing State v. Edwards, 8th Dist. Cuyahoga No. 

89181, 2007-Ohio-6068. In Gibson, the record revealed that Gibson's 

counsel did not make any proportionality argument. The appellate court 

summarily overruled Gibson’s assignment of error. 

{¶46} Likewise, in State v. Montanez-Roldon, 8th Dist. Cuyahoga No. 

103509, 2016 WL 2941098, the appellate court observed that “[a] 

consistency-in-sentencing determination, along with all sentencing 

determinations pursuant to R.C. 2929.11 and 2929.12, is a fact-intensive 

inquiry that does not lend itself to being initially reviewed at the appellate 

level.” Id. at ¶ 14. The court held: 

“[A]ny review must begin with the defendant producing a 

record for the trial court's consideration before the final 
Lawrence App. No. 15CA2 26

sentence is imposed. As courts have long concluded, a 

“defendant must raise [the consistency-in-sentencing] issue 

before the trial court and present some evidence, however 

minimal, in order to provide a starting point for analysis and to 

preserve the issue for appeal.” (Emphasis added.) State v. 

Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 37, 

citing State v. Lang, 8th Dist. Cuyahoga No. 92099, 2010-Ohio433; State v. Picha, 8th Dist. Cuyahoga No. 102506, 2015-

Ohio-4380, ¶ 9. Without evidence provided on the record at 

sentencing upon which to base an R.C. 2929 .11(B) argument 

on appeal, and without any other arguments for us to consider 

for the purpose of declaring Montanez–Roldon's sentence 

contrary to law, we cannot review his final sentence as being 

contrary to law pursuant to R.C. 2953.08(A)(4).” 

{¶47} We have completely reviewed the transcript of Appellant’s 

sentencing. It is true the transcript is devoid of any mention of Appellant’s 

codefendants’ sentences or that Appellant’s sentence was inconsistent. As 

such, we could summarily overrule the assignment of error. However, in the 

interests of justice, we would point out that even a cursory review 

demonstrates that the trial court weighed the purposes and principals of R.C. 

2929.11 and the seriousness and recidivism factors of R.C. 2929.12. The 

trial court also stated it was taking into consideration Appellant’s military 

service, pursuant to R.C. 2929.14. 

{¶48} Furthermore, Appellant was subject to a maximum sentence of 

eleven years for aggravated robbery. The State had recommended a ten-year 

sentence. The trial court noted Appellant’s previous lack of a criminal 

record and his military service when it imposed the nine-year prison 
Lawrence App. No. 15CA2 27

sentence. Appellant’s sentence was within the range for a felony of the first 

degree. 2929.14(A)(1). 

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

argument that his sentence was inconsistent with those of his codefendants. 

We therefore overrule the second assignment of error and affirm the 

judgment of the trial court. 

“III. THE TRIAL COURT COMMITTED PLAIN ERROR IN 

PERMITTING INFORMATION THAT APPELLANT’S 

CODEFENDANTS HAD PLEAD (SIC) GUILTY.” 

A. Standard of Review 

{¶50} At trial, Appellant’s counsel failed to object to the introduction 

of evidence that Appellant’s codefendants Scott Lewis and Ed Hampton had 

already entered pleas. A failure to object at trial constitutes a waiver of all 

but plain error of the issues on appeal. Gibson, supra, at ¶ 83, citing State v. 

Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 (1977). Under Crim.R. 

52(B), plain errors affecting substantial rights may be noticed by an 

appellate court even though they were not brought to the attention of the trial 

court. Gibson supra, at ¶ 84. To constitute plain error, there must be an 

error that is plain or obvious and that affected the outcome of the case. Id; In 

re: J.G., 8th Dist. Cuyahoga No. 98625, 2013-Ohio-583, ¶ 10, citing State v. 

Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Courts are 
Lawrence App. No. 15CA2 28

to notice plain error under Crim.R. 52(B) “with the utmost caution, under 

exceptional circumstances and only to prevent a manifest miscarriage of 

justice.” Id. 

B. Legal Analysis 

{¶51} Appellant argues that at his trial, the jury was often informed of 

the fact that his codefendants Scott Lewis and Ed Hampton had already 

pleaded guilty. This was pointed out in opening statements, during Lewis’ 

direct testimony, and during closing argument, and in the jury instructions. 

Appellant argues disclosing their pleas rises to the level of plain error 

because his defense was that he, too, was a victim of crime. Lewis and 

Appellant had been friends since childhood. Lewis’s guilt was critical to 

linking Appellant with the robbery. Appellant submits there was no valid 

tactical consideration and the trial court’s limiting instruction on the 

inclusion of the codefendants’ pleas were insufficient. 

{¶52} In response, the State argues that it is sound and common trial 

strategy by a defendant to bring to the attention of the jury that a 

codefendant has already entered a plea in order to impeach the codefendant’s 

testimony. The State’s purpose, which was proper, was to introduce the 

evidence of codefendant’s plea in order to lessen the impact of the 

information on the jury, and to let the jury know “up front,” that Lewis had a 
Lawrence App. No. 15CA2 29

plea agreement with the State. The State points out that defense counsel’s 

closing argument obviously and strategically utilized this information in 

order to cast doubt on Lewis’s credibility. 

{¶53} The Eighth Appellate District set forth a careful analysis of this 

argument and the law to be applied in State v. Kartsone, 8th Dist. Cuyahoga 

No. 95104, 2011-Ohio-1930. There, Kartsone was convicted of three counts 

of felonious assault. Kartsone’s codefendant had entered a plea but did not 

testify. At trial, Kartsone stipulated that his codefendant’s written statement 

would be read to the jury. After both sides presented their cases, the State 

requested the trial court to take judicial notice that the codefendant had 

previously entered a guilty plea. Kartsone objected but the trial court 

overruled. The trial court took judicial notice of the fact of the plea just 

before closing arguments. Then in rebuttal, the State strategically 

emphasized the fact of the plea. On appeal, Kartsone argued the trial court 

erred to his prejudice. 

{¶54} The Kartsone appellate court began by citing a long-standing 

rule that information that a codefendant has pleaded guilty to or has been 

convicted of an offense stemming from the same facts or circumstances 

forming the basis of a prosecution against another is inadmissible as proof 

against the other. Id. at 31. See Kazer v. Ohio, 5 Ohio 280, 281-282, 1831 
Lawrence App. No. 15CA2 30

WL 97 (1831). This is because evidence that another pleaded guilty to or 

was convicted of an offense stemming from the same facts or circumstances 

is not necessarily evidence that the other committed the same offense. Id.

 “There are strong considerations against using a 

coconspirator's guilt as substantive evidence of another 

defendant's guilt. ‘The foundation of [this] policy is the right of 

every defendant to stand or fall with the proof of the charge 

made against him, not against somebody else * * *. The 

defendant has a right to have his guilt or innocence determined 

by the evidence presented against him, not by what has 

happened with regard to a criminal prosecution against 

someone else.’ ” Kartsone at ¶ 32, quoting State v. Smith, 148 

Ohio App.3d 274, 2002-Ohio-3114, 772 N.E.2d 1225, quoting 

United States v. Gambino (C.A.3, 1991), 926 F.2d 1355, 1363. 

The Kartsone court explained, as in United States v. Toner, 173 F.2d 140, 

142 (1949): “From the common sense point of view a plea of guilty by an 

alleged fellow conspirator is highly relevant upon the question of the guilt of 

another alleged conspirator. If A's admission that he conspired with B is 

believed, it is pretty hard to avoid the conclusion that B must have conspired 

with A.” Id. at 33. However, Kartsone pointed out: 

“This is not to say that evidence of a codefendant's guilty plea 

is never admissible. In some circumstances, evidence of a 

codefendant's guilty plea may go to the jury if its use is limited 

to other purposes such as impeachment, or to show that the 

state has nothing to hide in its plea agreements. See, e.g.,

United States v. King (C.A.5, 1974), 505 F.2d 602, United 

States v. Hilton (C.A.11, 1985), 772 F.2d 783, 787. The test 

most often used to determine the admissibility of a 

codefendant's guilty plea was set forth in United States v. Casto

(C.A.5, 1989), 889 F.2d 562, 567. This test requires a 
Lawrence App. No. 15CA2 31

reviewing court to consider (1) whether a limiting instruction 

was given; (2) whether there was a proper purpose in 

introducing the fact of the guilty plea; (3) whether the plea was 

improperly emphasized; (4) whether the plea was used as 

substantive evidence of guilt; and (5) whether the introduction 

of the plea was invited by defense counsel.” Kartsone, supra, at 

¶ 34. 

{¶55} The Kartsone court analyzed the defendant’s argument and the 

case law set forth in Casto, beginning with the fact that the trial court did not 

instruct the jury with a limiting instruction regarding the codefendant’s 

guilty plea, as well as the fact Kartsone did not request one. The Kartsone

court observed the model jury instruction of the Eighth Circuit states as 

follows: 

 “ ‘You have heard evidence that witness (name) has pleaded 

guilty to a crime which arose out of the same events for which 

the defendant is on trial here. You must not consider that guilty 

plea as any evidence of this defendant's guilt. You may 

consider that witness's guilty plea only for the purpose of 

determining how much, if at all, to rely upon that witness's 

testimony.’ Id. at 38. 

 {¶56} The Committee Comments following this instruction provide an 

explanation: 

“ ‘Evidence that a codefendant has pleaded guilty may not be 

used as substantive proof of a defendant's guilt. However, such 

evidence is admissible to impeach, to show the witness's 

acknowledgment of participation in the offense, or to reflect on 

his credibility. In such circumstance the jury should be 

instructed that the evidence is received for one or more of these 

purposes alone, and that the jurors are not to infer the guilt of 
Lawrence App. No. 15CA2 32

the defendant.’ ” (Internal citations omitted.) Smith at 280-281, 

772 N.E.2d 1225 (Karpinski, J., concurring). 

Kartsone, supra, at ¶ 40. 

{¶57} As indicated above, Kartsone did not request a limiting 

instruction. The Kartsone court noted the Second Appellate District has 

held that “ ‘[t]he admission of such evidence without a limiting instruction is 

not reversible error if defense counsel does not request an instruction and if 

the evidence was introduced for a proper purpose.’ ” Id. at 41, quoting 

Clark, supra, and Gerberding, supra. 

{¶58} The appellate court determined although Kartsone did not 

request a limiting instruction that did not end the analysis. The court looked 

to the remaining factors to determine if the trial court erred by allowing 

evidence of his codefendant’s plea to be submitted to the jury. The court 

next analyzed whether or not there was a proper purpose in introducing the 

evidence. “ ‘Guilty pleas of codefendants should be brought to the attention 

of the jury in only certain narrow instances; i.e., when it is used to impeach 

trial testimony or to reflect on a witness' credibility in accordance with the 

standard rules of evidence; where other codefendants plead guilty during 

trial and are conspicuously absent; where opposing counsel has left the 

impression of unfairness which raises the issue or invites comment on the 
Lawrence App. No. 15CA2 33

subject.’ ” Clark, supra, quoting United States v. Bryza (C.A.7, 1975), 522 

F.2d 414. In Kartsone, the court found no proper purpose applied. 

{¶59} Kartsone also discussed factors three and four, “improper 

emphasis” or “substantive evidence.” The State emphasized it only 

mentioned the plea one time during its closing argument and that it merely 

reiterated what the trial court had already told the jury. However, the 

appellate court was not persuaded. The court noted the State strategically 

mentioned the codefendant’s plea at the end of its rebuttal closing argument 

to the jury – the very last thing it argued to the jury – when it likely had the 

most impact. The State specifically argued the evidence in its rebuttal 

argument. After reviewing the record, the appellate court found that the 

State strategically placed an improper emphasis on the plea and court held: 

“The state's only purpose in mentioning [the codefendant’s] 

guilty plea at that point was to provide substantive evidence of 

Kartsone's guilt. The state was asking the jury to infer that 

because [his codefendant] pleaded guilty, Kartsone must be 

guilty. This is strictly prohibited under all circumstances.” Id. 

 {¶60} Kartsone analyzed the final Casto factor, whether introduction 

of the plea was invited by something defense counsel did. The trial court 

seemed to allude to the fact that it believed defense counsel did invite the 

introduction of the plea because defense counsel stipulated to the 

codefendant’s statement being read to the jury. But defense counsel did not 
Lawrence App. No. 15CA2 34

mention the written statement in its opening remarks or closing argument. 

The appellate court found no invited error and concluded that four out of the 

five Casto factors were in Kartsone's favor. 

{¶61} The Kartsone court went on to determine whether the error was 

harmless. Any error will be deemed harmless if it did not affect the 

accused's “substantial rights.” Id. at 63. When a guilty plea of a codefendant 

is brought to a jury's attention without any guiding instructions as to its use 

in their deliberations, the potential for misuse is manifest. Kartsone at 70; 

State v. Stefanelli (N.J.1979), 78 N.J. 418, 396 A.2d 1105, 1113. The 

appellate court concluded that the error was not harmless beyond a 

reasonable doubt under the facts and circumstances of the case. The court 

found Kartsone was entitled to a new trial. 

{¶62} While the Kartsone opinion provides us a very detailed 

analysis, other cases have applied the Casto test and have done so in a more 

generalized or summary fashion. In State v. Holbrook, the defendant was 

convicted by a jury of complicity to commit felonious assault, complicity to 

tampering with evidence, and obstructing justice. At trial, the jury had been 

informed that a codefendant had already “taken his lumps.” On appeal, 

Holbrook argued that the statement was prejudicial and compromised a fair 

trial. 
Lawrence App. No. 15CA2 35

{¶63} After discussing the test set forth in Casto and Kartsone, the 

appellate court noted there was no argument concerning invited error. The 

court first considered whether a limiting instruction was given and whether 

the information was used as substantive evidence of guilt. The court further 

noted that the challenged information was introduced in closing argument, 

not during the trial. 

{¶64} Upon review of the transcript, the Holbrook court found that the 

trial court informed the jury, generally, that the statements of counsel in 

closing arguments “are not to be considered as evidence.” Id. at 36. The 

court further instructed the jury “[t]he defendant must be found not guilty 

unless the State produces evidence, which convinces you beyond a 

reasonable doubt of every essential element of the offense charged in the 

indictment.” Id. The Holbrook court found the limiting instruction sufficient 

because the information was produced in closing argument and not used as 

substantive evidence of guilt. Id.

{¶65} Holbrook next considered whether there was a proper purpose 

in introducing the fact of the guilty plea and whether it was improperly 

emphasized. Once during closing argument, the State implied that the 

codefendant had been found guilty of attempted murder. It has long been 

held that “no person shall be bound by a judgment but him who has had an 
Lawrence App. No. 15CA2 36

opportunity to be heard in the cause concluded by the judgment.” Holbrook 

supra, at 37, quoting Kazer at 282. The court found that it was improper for 

the prosecution to reference the specific disposition of the codefendant's case 

in this matter. However, the information was not improperly emphasized 

and Holbrook was eventually acquitted of conspiracy to commit murder and 

conspiracy to commit attempted murder. The Holbrook court concluded that 

after consideration of all of the factors set forth in the Casto test, the 

prosecutor's statement was improper. However, the court did not believe the 

prosecutor's actions prejudicially affected appellant's substantial rights. 

{¶66} In State v. Clement, 8th Dist. Cuyahoga No. 94869, 2012-Ohio 

582, the defendant was convicted of multiple charges including aggravated 

murder, murder, aggravated robbery, and kidnapping in conjunction with a 

drug deal involving multiple parties which had gone awry. The Eighth 

District Appellate Court considered Clement’s argument on appeal that the 

introduction of his two codefendants’ convictions was error. Clement 

asserted that the trial court should have instructed the jury that his 

codefendants' pleas of guilty or convictions could not be considered as 

substantive evidence of Clement's guilt. Citing Kartsone and Clark, supra,

the appellate court observed: 

“ ‘[T]he admission of such evidence without a limiting 

instruction is not reversible error if defense counsel does not 
Lawrence App. No. 15CA2 37

request an instruction and if the evidence was introduced for a 

proper purpose.’ Proper purposes include impeaching the 

witness or showing that the state has nothing to hide in its plea 

agreements.” Id. at ¶ 42; Clement, supra, at ¶ 9. 

{¶67} The appellate court concluded that Clement did not establish 

the prerequisites for giving a limiting instruction. The court further found 

that a review of the transcripts showed that the guilty plea was introduced 

for proper purposes and that the prosecutor did not emphasize the guilty plea 

or the codefendant’s conviction. Clement's argument was not well taken. 

{¶68} As set forth above, we review for plain error. Appellant did not 

request a limiting instruction. At the close of trial, the court instructed the 

jury as follows: 

“You have heard the testimony from Scott Lewis another 

person who pled guilty to this robbery in which the same crime 

is charged as in this case and is said to be an accomplish. (Sic.) 

An accomplis is one who purposely, knowingly, assists or joins 

another in the commission of a crime. Whether Scott Lewis 

was an accomplis and the weight to give his testimony are 

matters for you to determine. Testimony of a person who you 

find to be an accomplis should be viewed with grave 

suspension (Sic.) and weighed with great caution.” 

{¶69} While this is a standard Ohio jury instruction, and it does point 

out the proper purpose for consideration of the evidence is for credibility 

purposes, this does not follow the model jury instruction highlighted by the 

Eighth Appellate District in Kartsone, which specified that the jury was not 
Lawrence App. No. 15CA2 38

to consider a codefendant’s guilty plea as evidence of Appellant’s guilt. As 

in Kartsone, we look to the remaining factors to determine any error. 

{¶70} The next question is whether or not there was a proper purpose 

in introducing the evidence. The instances at trial wherein the State 

informed the jury regarding the codefendants’ pleas began with the State’s 

opening remarks: 

“* * * It’s at that time Jason sees...wow. This man carries a 

substantial amount of money. Maybe I’ll take it. You see 

Jason and Scott Lewis who is a codefendant in this case who 

has already pled guilty to the offense of robbery are best 

friends. They’ve been best friends since they were young and 

children.” 

{¶71} At the end of opening, the prosecutor also stated: 

“You’ll hear evidence from Scott Lewis who’s pled guilty in 

the case, who is Jason Adams’ best friend and he’s going to tell 

you how this robbery was planned and how it took place. 

* * * There will be no doubt that Jason Adams is guilty of 

aiding and abetting Scott Lewis and Ed Hampton.” 

{¶72} Defense chose to defer opening statement. The next time a 

codefendant’s plea is referenced occurred when Scott Lewis testified: 

“Q: You have been indicted in this case with an indictment from 

Lawrence County grand jury, for robbery is that correct? 

A: Yes sir. 

Q: You are represented by an attorney? 

A: Yes sir. 
Lawrence App. No. 15CA2 39

Q: And your attorney I believe is in the courtroom, Mr. Wolfson. 

A: Yes Sir. 

Q: You have pled guilty to robbery is that correct? 

A: Yes sir. 

Q. And that’s in connection with the January 14, 2014 robbery of 

Sam Jones? 

A. Yes sir. 

* * * 

Q: You’ve admitted your involvement in that, correct? 

A: Yes sir. 

* * * 

Q: Um, in exchange for your testimony the State is going to 

recommend a sentence for you, when the Judge sentences you at that 

later sentencing date and that is a sentence of five years in prison* * *. 

A: Yes sir. 

Q: That’s your understanding? 

A: Yes. 

Q. The deal that you and your attorney reached with the State of 

Ohio in your plea negotiations? 

A: Yes sir. 

Q. Do you know Jason Adams? 

Q. Yes sir. 
Lawrence App. No. 15CA2 40

Q. Tell the jury how you know Jason. 

A. We grew up together * * *. Just been life-long friends.” 

{¶73} The next reference to the codefendants’ pleas occurred during 

the State’s closing: 

“One of the things that the Judge is going to tell you is that you 

have to find he aided and abetted Scott Lewis, and Ed 

Hampton, in committing this aggravated robbery. As the proof 

in this case was both Ed Hampton and Scott Lewis, had been 

convicted of the robbery, um, and each pled guilty to the 

offense.” 

{¶74} Finally, on rebuttal, the State argued: 

“The Judge will give you the legal instructions in a minute. He 

talks about Scott Lewis’ testimony. Let’s compare Scott 

Lewis’ testimony with Jason Adams’ testimony. Who’s more 

believable. In your test of credibility who do you believe. He 

says well Scott Lewis he’s got no reason to lie. What is it? 

What is it? He’s pled guilty to this offense. Going to spend the 

next five years in prison? He has to testify against his best 

friend since they were kids. What’s his reason to lie? Why 

would he lie, why would he do that?” 

{¶75} It would appear that the purpose for introducing the fact of the 

codefendants’ guilty pleas, especially that of Scott Lewis, was because the 

State reasonably anticipated that defense counsel would attack Lewis’s 

credibility, which was done. During cross-examination, defense counsel 

elicited repetitive testimony about Lewis’s plea bargain with the State of 

Ohio and his guilty plea to aggravated burglary. He also attempted to 

damage Lewis’s credibility with the jury by inquiring about Lewis’s past, 
Lawrence App. No. 15CA2 41

including a failed business, financial trouble, alleged drug dealing, a 

discharge from employment, and accusing Lewis of fabricating a confession. 

In closing, defense counsel argued: 

“The testimony of a codefendant, Scott Lewis, you will receive 

in instructions is to be viewed with gray suspicion. Remember 

that when you go back and you weigh what he had to say. And 

think about his motives for what he said. * * * And again he is 

a convicted criminal. * * * Think back to Scott Lewis’ 

testimony and think about how he was all over the place when 

he testified. It wasn’t consistent and that’s one of the things 

you look at and see if you are being told the truth. The truth 

doesn’t change.” 

{¶76} Defense counsel further argued: 

“You have one man and that one man would be Scott Lewis, 

and he’s the only evidence that could implicate Jason Adams in 

this. And again, he is a convicted criminal.” 

{¶77} Based upon our review of the transcript, we find it appears the 

State had a proper purpose in introducing the fact of Lewis’s guilty plea and 

the details of his plea agreement. Furthermore, we find the plea was not 

improperly emphasized. The State introduced the plea information in 

opening and in Lewis’s direct examination. Although it was mentioned 

again in closing and rebuttal, it was mentioned enough by opposing counsel 

as well that there would have been little shock value when the State again 

mentioned it in closing and rebuttal. Furthermore, the transcript does not 
Lawrence App. No. 15CA2 42

reveal any argument by the State that the evidence of Lewis’s plea was 

argued to be additional evidence of Appellant’s guilt. 

{¶78} We, however, note there is no evidence in the transcript to 

suggest that defense counsel invited this introduction of evidence. Defense 

counsel deferred opening statement, so the State made a strategic decision to 

introduce the evidence for fear the defense would highlight the information 

as it indeed did. We conclude there was no error, let alone plain error, in 

allowing the information of the codefendants’ pleas to be transmitted to the 

jury. 

{¶79} Had there been error, we would not find it to have affected the 

outcome of the case as there was additional overwhelming evidence of 

Appellant’s guilt. The jury was presented evidence that there were 

numerous phone calls which occurred between Appellant and Scott Lewis 

on the days before, during, and after the robbery. On the date of the robbery 

alone, there were 40 calls between the friends. The evidence of the 

frequency of calls was provided to the jury. Scott Lewis drove from West 

Virginia to meet with Appellant at Giovanni’s in Ironton on the date of the 

incident. After their lunch meeting, an additional 24 calls took place 

between the two friends up until the time of the incident. And, there were 

numerous calls between the two after the robbery until the next day. While 
Lawrence App. No. 15CA2 43

the subject of the conversations is not known, but for the testimony of Scott 

Lewis, the fact of the frequent phone calls is circumstantial evidence of 

planning and preparation for the crime. 

{¶80} The jury was provided surveillance tape of the friends leaving 

their meeting at Giovanni’s, as well as surveillance tape of Appellant at the 

Dollar General store in Ironton. Appellant, Lewis, and Hampton went into 

Dollar General and purchased toy guns. Appellant is clearly seen doing the 

purchasing, which he explained as being for Hampton’s children. Lewis 

testified the toy guns were purchased in order to use to frighten Jones. 

{¶81} Appellant also admitted he met with Ed Hampton at Burger 

King in Ashland, Kentucky the day after the robbery. While he explained 

that Lewis invited him there and did not show up, Lewis testified the 

meeting was planned. This was another conflict in the evidence, again 

involving Appellant’s credibility, which the jury had to resolve. 

{¶82} Appellant also gave statements to the officers who testified. In 

his first statement, he failed to mention that he had made and received 

multiple phone calls to Scott Lewis, who was then known to be a primary 

suspect in the robbery. Appellant failed to mention he had been to Dollar 

General with Lewis and another person. He failed to mention he even knew 

Scott Lewis or Ed Hampton. 
Lawrence App. No. 15CA2 44

{¶83} Convincing evidence is the fact that Appellant was the only link 

between Scott Lewis and Sam Jones. Both Lewis and Jones testified they 

did not know each other. Lewis testified he had never met Jones but 

Appellant described him and pointed him out, along with the vehicle Jones 

drove. Appellant testified that Lewis had gone with him to meet Jones on 

two occasions. 

{¶84} And, Jones testified Appellant kept changing the meeting place 

on the date of the incident. Appellant indicated to Jones he was in a hurry 

that evening, yet afterwards he asked Jones to get a drink. The jury did not 

find Appellant to be a credible witness or to have provided credible 

explanations for conflicts in the evidence. 

{¶85} For the foregoing reasons, we find plain error did not occur due 

to the fact the jury was informed regarding the codefendants’ guilty pleas. 

As such, we overrule the assignment of error and affirm the judgment of the 

trial court. 

“IV. THE TRIAL COURT ERRED IN FAILING TO 

PROPERLY ADVISE APPELLANT OF POST-RELEASE 

CONTROL RENDERING APPELLANT’S CONVICTION 

PARTIALLY VOID.” 

A. Standard of Review 

{¶86} We have previously set forth the standard of review for felony 

sentences above. 
Lawrence App. No. 15CA2 45

B. Legal Analysis 

{¶87} When a court determines that a prison term is necessary at 

sentencing, R.C. 2929.19(B)(3)(c) requires it to notify the offender of a 

mandatory term of post-release control for certain felony convictions, 

including felonies of the second degree. Taylor, supra, at ¶ 41. To comply 

with this requirement, the Supreme Court of Ohio held that trial courts must 

actually notify offenders of post-release control sanctions both at the 

sentencing hearing and in the sentencing entry. Id. See State v. Jordan, 104 

Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at paragraph one of the 

syllabus (superseded by statute on separate grounds as stated in State v. 

Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958.) When a 

court fails to properly impose post-release control for a particular offense, 

the offending portion of the sentence is void, must be set aside, and is 

subject to review and correction. State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, at ¶ 27-29; State v. Triplett, 4th Dist. Lawrence 

No. 10CA35, 2011-Ohio-4628, ¶ 4. Appellant points out the transcript of 

the sentencing hearing demonstrates Appellant was not advised of postrelease control in any way at his sentencing and only in the final judgment 

entry, which was insufficient. Our review of the record confirms this. The 

transcript from the sentencing hearing shows that the trial court did not 
Lawrence App. No. 15CA2 46

inform Appellant that he would be subject to post-release control, nor did it 

inform him of the sanctions for violation of post-release control. As a result, 

that portion of the sentence is vacated and the matter is remanded for a 

resentencing hearing in accordance with R.C. 2929.191. We sustain 

Appellant’s fourth assignment of error. 

“V. THE TRIAL COURT ERRED BY NOT GIVING 

APPELLANT ALL REQUIRED JAIL TIME CREDIT.”5

“VI. APPELLANT RECEIVED INEFFECTIVE 

ASSISTANCE OF COUNSEL TO A DEGREE THAT 

APPELLANT DID NOT RECEIVE A FAIR TRIAL.” 

A. Standard of Review 

{¶88} The Sixth Amendment to the United States Constitution and 

Article I, Section 10 of the Ohio Constitution provide that defendants in all 

criminal proceedings shall have the assistance of counsel for their defense. 

The United States Supreme Court has generally interpreted this provision to 

mean a criminal defendant is entitled to the “reasonably effective assistance” 

of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052; 

McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, (1970); State v. 

Creech, 188 Ohio App.3d 513, 2010-Ohio-2553, 936 N.E.2d 79, ¶ 39 (4th 

Dist.); State v. Pickett, supra, at ¶ 36. 

 

5

 At oral argument, the parties agreed that this assignment of error had been resolved. As such, we do not 

address the issue of jail time credit in this opinion. 
Lawrence App. No. 15CA2 47

{¶89} To establish constitutionally ineffective assistance of counsel, a 

defendant must show (1) that his counsel's performance was deficient and 

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

defendant of a fair trial. Pickett, supra, at ¶ 37; Strickland, 466 U.S. at 687; 

State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. 

“In order to show deficient performance, the defendant must prove that 

counsel's performance fell below an objective level of reasonable 

representation. To show prejudice, the defendant must show a reasonable 

probability that, but for counsel's errors, the result of the proceeding would 

have been different.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, 848 N.E.2d 810, ¶ 95 (citations omitted); State v. Wesson, 137 Ohio 

St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 81. “Failure to establish 

either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 

06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a 

court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 

N.E.2d 52, (2000) (stating that a defendant's failure to satisfy one of the 

elements “negates a court's need to consider the other”). 

{¶90} 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 
Lawrence App. No. 15CA2 48

professional assistance.” Pickett, supra, at ¶ 38, quoting Strickland, 466 U.S. 

at 689. Thus, “the defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound trial 

strategy.” Id. “A properly licensed attorney is presumed to execute his 

duties in an ethical and competent manner.” State v. Taylor, 4th Dist. 

Washington No. 07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith, 17 

Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). 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. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156, 524 

N.E.2d 476 (1988). 

{¶91} To establish prejudice, a defendant must demonstrate that a 

reasonable probability exists that but for counsel's errors, the result of the 

trial would have been different. Pickett, supra, ¶ 39; State v. Short, 129 Ohio 

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. White, 82 Ohio 

St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 

538 N.E.2d 373 (1989), paragraph three of the syllabus. Furthermore, courts 

may not simply assume the existence of prejudice, but must require the 

defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike 
Lawrence App. No. 15CA2 49

No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No. 

01CA2592 (Apr. 2, 2002). As we have repeatedly recognized, speculation is 

insufficient to demonstrate the prejudice component of an ineffective 

assistance of counsel claim. State v. Jenkins, 4th Dist. Ross No. 13CA3413, 

2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No. 13CA4, 

2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012-

Ohio-1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-

Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233, 2012-Ohio2577, 971 N.E.2d 865, ¶ 86 (stating that an argument that is purely 

speculative cannot serve as the basis for an ineffectiveness claim). 

B. Legal Analysis 

{¶92} Appellant argues his counsel was ineffective for failing to 

object to the numerous occasions throughout the trial when the jury was 

informed of the guilty pleas of both Scott Lewis and Ed Hampton. 

Appellant contends that the guilt of Lewis and Hampton was critical in 

establishing that Appellant, who maintained he was also a victim of the 

robbery, was actually involved in perpetrating the offense. As a result of the 

error, Appellant argues he was deeply prejudiced. In response, the State 

counters that the decision not to object to the mention of codefendant’s 

guilty pleas was reasonable trial strategy and cannot be held to fall below an 
Lawrence App. No. 15CA2 50

objective standard of reasonableness. The State further points out that 

Appellant fails to demonstrate prejudice, i.e., that the outcome of the trial 

would have been different had his counsel objected. 

{¶93} First, we observe that “ ‘[t]he failure to object to error, alone, is 

not enough to sustain a claim of ineffective assistance of counsel.’ ” Pickett, 

supra, at ¶ 41, quoting State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 

136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 

831 (1988). A defendant must also show that he was materially prejudiced 

by the failure to object. State v. Holloway, 38 Ohio St.3d at 244. State v. 

Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 233. 

Additionally, tactical decisions, such as whether and when to object, 

ordinarily do not give rise to a claim for ineffective assistance. Pickett, 

supra, ¶ 42 at State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 

N.E.2d 1144, ¶ 139-140. As the court explained in Johnson at ¶ 139-140: 

“[F]ailure to object to error, alone, is not enough to sustain a 

claim of ineffective assistance of counsel. To prevail on such a 

claim, a defendant must first show that there was a substantial 

violation of any of defense counsel's essential duties to his 

client and, second, that he was materially prejudiced by 

counsel's ineffectiveness. State v. Holloway (1988), 38 Ohio 

St.3d 239, 244, 527 N.E.2d 831. 

 * * * 

 [E]xperienced trial counsel learn that objections to each 

potentially objectionable event could actually act to their party's 
Lawrence App. No. 15CA2 51

detriment. * * * In light of this, any single failure to object 

usually cannot be said to have been error unless the evidence 

sought is so prejudicial * * * that failure to object essentially 

defaults the case to the state. Otherwise, defense counsel must 

so consistently fail to use objections, despite numerous and 

clear reasons for doing so, that counsel's failure cannot 

reasonably have been said to have been part of a trial strategy or 

tactical choice. Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d 

754, 774. Accord State v. Campbell, 69 Ohio St.3d 38, 52-53, 

1994-Ohio-492, 630 N.E.2d 339.” 

{¶94} In Pickett, the defendant was convicted of aggravated burglary 

and complicity to felonious assault. On appeal, Pickett argued his trial 

counsel performed ineffectively by failing to object to inadmissible hearsay. 

We held that trial counsel's decision not to object fell within the broad realm 

of trial strategy and did not constitute deficient performance. Moreover, 

even if trial counsel performed deficiently by failing to object to alleged 

hearsay testimony, appellant could not demonstrate that the failure to object 

affected the outcome of the trial. We observed that even if the statements 

had been excluded, the evidence still amply established that appellant 

committed aggravated burglary and that he knowingly aided or abetted the 

commission of the felonious assault. We pointed out Pickett’s speculation 

that some of the hearsay statements bolstered the State’s theory of the case 

was not sufficient to demonstrate ineffective assistance of counsel, and that 

had trial counsel objected to the statements and had the court excluded them, 
Lawrence App. No. 15CA2 52

we could not find a reasonable probability that the outcome of the 

proceedings would have been different.

{¶95} Appellant argues trial counsel failed to object “on numerous 

occasions throughout the trial” when the jury was informed of the guilty 

pleas of his codefendants Lewis and Hampton. Pursuant to App.R. 16(A) it 

is Appellant’s duty to cite to specific portions of the transcript where alleged 

error occurred. Since he has not done so, we will assume Appellant is 

referring to the instances where the codefendants’ pleas were mentioned, as 

pointed out in assignment of three above, which was: (1) twice in opening; 

(2) in direct; (3) in closing; and (4) in rebuttal. 

{¶96} We find no plain error occurred by the admission of the 

information that Appellant’s codefendants had entered guilty pleas in 

conjunction with the robbery of Sam Jones and no error has occurred by 

defense counsel’s failure to object to the admission of this evidence. 

Counsel’s failure to object fell within the broad realm of reasonable trial 

strategy. Furthermore, as set forth at length above, overwhelming 

circumstantial evidence of Appellant’s guilt is in the record. We cannot find 

a reasonable probability that the proceedings would have been different. For 

the foregoing reasons, we find Appellant’s counsel did not render ineffective 

assistance. As such we overrule the final assignment of error and affirm the 
Lawrence App. No. 15CA2 53

judgment of the trial court. Accordingly, we affirm the trial court in all 

regards except as it pertains to the fourth assignment of error, and remand 

for resentencing consistent with this opinion. 

JUDGMENT AFFIRMED IN 

PART, REVERSED IN PART, 

AND CAUSE REMANDED 

FOR FURTHER PROCEEDINGS 

CONSISTENT WITH THIS 

OPINION. 
Lawrence App. No. 15CA2 54

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED IN PART, 

REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER 

PROCEEDINGS CONSISTENT WITH THIS OPINION. 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 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. 

Harsha, J. & Abele, J.: Concur in Judgment and Opinion. 

 For the Court, 

 BY: __________________________ 

 Matthew W. McFarland

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.