[Cite as State v. Chancey, 2017-Ohio-2828.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

WASHINGTON COUNTY 

STATE OF OHIO, : 

 : Case No. 16CA18 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

EDWARD CHANCEY : 

 : 

 Defendant-Appellant. : Released: 05/10/17 

_____________________________________________________________ 

APPEARANCES: 

Angela Wilson Miller, Jupiter, Florida, for Appellant. 

Kevin A. Rings, Washington County Prosecuting Attorney, Nicole Tipton 

Coil, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, 

for Appellee. 

_____________________________________________________________ 

 

McFarland, J. 

{¶1} Edward R. Chancey (Appellant) appeals from the “Journal Entry: 

Defendant Taken Into Custody to Serve Sentence” entered on May 4, 2016 

in the Washington County Court of Common Pleas. Appellant raises three 

assignments of error with regard to the length of his sentence for a thirddegree felony. Upon review, we find merit to Appellant’s first assignment 

of error. Accordingly, we vacate the judgment of the trial court and remand 

the matter for resentencing consistent with this opinion. 
Washington App. No. 16CA18 2

FACTUAL AND PROCEDURAL BACKGROUND 

{¶2} Appellant was indicted for a violation of R.C. 4511.19(A)(1)(h) 

and (G)(1)(e), operating a motor vehicle under the influence after having 

been previously convicted of a felony OVI. The indictment contained a 

specification, R.C. 2941.1413, that he had previously been convicted of or 

pleaded guilty to five or more equivalent offenses. On February 5, 2015, 

Appellant proceeded to a jury trial, in which he was convicted of a violation 

of R.C. 4511.19(A)(1)(h) and (G)(1)(e). The details surrounding 

Appellant’s traffic stop are set forth more fully in our decision rendered in 

his direct appeal, State v. Chancey, 4th Dist. Washington No. 15CA17, 

2015-Ohio-5585, ¶ 2. 

{¶3} The trial court sentenced Appellant to 120 days at the Orient 

Reception Center to be followed by a mandatory three-year prison term. 

Appellant filed a timely notice of appeal. In his direct appeal, Appellant 

argued his conviction was not supported by the sufficiency of the evidence 

or the manifest weight of the evidence. He further asserted his counsel was 

ineffective for failing to retain an expert. He did not raise any assignments 

of error with regard to his sentence, nor did he supplement his appeal with 

any additional authority regarding his sentence. We considered his 

arguments under the applicable standards of review and released our 
Washington App. No. 16CA18 3

decision in the direct appeal, State v. Chancey, supra, on December 24, 

2015. 

{¶4} The currently appealed from entry notes that on March 14, 2016, 

Appellant, his counsel, and the assistant prosecuting attorney for 

Washington County appeared in court and addressed the issue of the 

imposition of Appellant’s sentence in light of our decision in his direct 

appeal and other “recent opinions concerning the imposition of sentence.” 

The hearing transcript of the March 14th hearing states that the sentence is 

“hereby modified, consistent with State versus South to 36 months with a 

credit for 39 days previously served.” However, the appealed from entry 

makes no mention of this order and indicates Appellant was to be “taken into 

custody to serve the sentence imposed on April 6, 2015.” 

{¶5} The appealed from entry further notes the matter came on for 

Appellant’s remand into custody on April 18, 2016, where the parties again 

spoke to the issue of sentence. The defense argued that the sentence 

originally imposed on April 6, 2015 was improper under Ohio law. The 

State maintained that Appellant’s conviction had been directly appealed and 

affirmed and that the trial court was without authority to modify the sentence 

originally imposed on April 6, 2015. The Court found that it did not have 

authority to amend the sentence originally imposed and ordered Appellant to 
Washington App. No. 16CA18 4

serve the sentence imposed on April 6, 2015, 120-days mandatory, plus an 

additional three years mandatory sentence, for an aggregate sentence of three 

years and four months. Appellant was given credit for time served. 

{¶6} This timely appeal followed. 

ASSIGNMENTS OF ERROR 

“I. APPELLANT CHANCEY’S SENTENCE IS VOID DUE 

TO THE TRIAL COURT’S IMPOSITION OF A PRISON 

SENTENCE BEYOND THE STATUTORY MAXIMUM IN 

VIOLATION OF THE FIFTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, OHIO CONSTITUTION, ARTICLE 1, 

SECTION 10, AND R.C. 2929.14. 

II. APPELLANT CHANCEY WAS DENIED THE 

EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS 

ATTORNEY FAILED TO FILE A MOTION FOR 

RESENTENCING AND SPECIFICALLY ARGUE THAT 

CHANCEY’S SENTENCE WAS VOID AND A VIOLATION 

OF HIS RIGHTS UNDER THE FIFTH, SIXTH, AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND ARTICLE 1, SECTIONS 5, 10, AND 

16 OF THE OHIO CONSTITUTION. 

III. THE TRIAL COURT ERRED IN SENTENCING 

CHANCEY TO THREE YEARS AND FOUR MONTHS IN 

PRISON. THE SENTENCE IS NOT AUTHORIZED BY 

STATUTE AND IS CONTRARY TO LAW. FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION; ARTICLE 1, SEC. 10 OF THE OHIO 

CONSTITUTION. 

A. STANDARD OF REVIEW 
Washington App. No. 16CA18 5

{¶7} 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 

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

provisions or “the sentence is otherwise contrary to law.” State v. Romine,

quoting State v. Pippen, 4th Dist. Scioto No. 14CA3595, 2014-Ohio-4454, 

¶ 13. See State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, ¶ 33 (4th Dist.). 

Furthermore, a sentence that is void * * * may be reviewed at any time, 

either on direct appeal or by collateral attack. State v. Billiter, 134 Ohio 

St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 10. 

B. LEGAL ANALYSIS 

{¶8} Appellant was sentenced to a mandatory term of 120 days 

imprisonment to be served first and consecutively to a three-year mandatory 

prison sentence. Appellant argues that the Supreme Court of Ohio’s 

decision in State v. South,144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 

734, is directly applicable to his case and that the maximum sentence he can 

be given for a felony of the third degree is 36 months. We initially note that 

appellant did not raise any argument with regard to his sentence during his 
Washington App. No. 16CA18 6

direct appeal.1

 The first time appellant mentioned the sentencing error is in 

the current appeal of the “Journal Entry: Defendant Taken Into Custody to 

Serve Sentence,” filed May 4, 2016. Appellant also did not provide 

supplemental authority, the South decision, while the direct appeal was 

pending. Given the fact that Appellant failed to raise the sentencing issue in 

his direct appeal, the usual application of the doctrine of res judicata would 

bar consideration of his issue. However, Appellant now argues his sentence 

is void, so we begin with a discussion of void jurisprudence. 

{¶9} In Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 

(1964), the court described the trial judge's role at sentencing: “Crimes are 

statutory, as are the penalties therefor, and the only sentence which a trial 

court may impose is that provided for by statute. A court has no power to 

substitute a different sentence for that provided for by statute or one that is 

either greater or lesser than that provided for by law.” See State v. Williams, 

¶ 20. And applying this principle in State v. Beasley, 14 Ohio St.3d 74, 75, 

471 N.E.2d 774 (1984), we stated that “[a]ny attempt by a court to disregard 

 

1 App.R. 12(A)(b) provides that the court of appeals shall determine the appeal on its merits on the 

assignments of error set forth in the briefs under App.R. 16. App.R. 16(A)(3) further provides that the brief 

of appellant shall include a “statement of the assignments of error presented for review,” and subpart (A)(7) 

specifies that there must be an “argument, containing the contentions of the appellant with respect to each 

assignment of error presented for review and the reasons in support of the contentions,* * * and parts of the 

record on which appellant relies.” 
Washington App. No. 16CA18 7

statutory requirements when imposing a sentence renders the attempted 

sentence a nullity or void.” 

{¶10} Our jurisprudence on void sentences “reflects a fundamental 

understanding of constitutional democracy” that the power to define criminal 

offenses and prescribe punishment is vested in the legislative branch of 

government, and courts may impose sentences only as provided by statute. 

Williams, ¶ 22, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio6238, 942 N.E.2d 332, ¶ 21-22. Because “[n]o court has the authority to 

impose a sentence that is contrary to law,” Id. at ¶ 23, when the trial court 

disregards statutory mandates, “[p]rinciples of res judicata, including the 

doctrine of the law of the case, do not preclude appellate review. The 

sentence may be reviewed at any time, on direct appeal or by collateral 

attack.” Id. at ¶ 30. 

{¶11} The currently appealed from entry emerged subsequent to the 

March 14th and April 18th remand hearings when defense counsel argued 

that, pursuant to the South decision, Appellant’s sentence was more than the 

statutory maximum. Under the particular facts of this case, we construe 

counsel’s arguments at the April 18th hearing as an oral motion to correct 
Washington App. No. 16CA18 8

sentence.2

 Generally, courts may recast irregular motions into whatever 

category necessary to identify and to establish the criteria by which a motion 

should be evaluated.3

 As such, we proceed to consider Appellant’s 

argument that his sentence is void. 

{¶12} In South, supra, the Supreme Court of Ohio held that a trial 

court must sentence a defendant convicted of a third-degree-felony 

operating-a-vehicle-while-under-the-influence (OVI) and a repeat-offender 

specification, pursuant to R.C. 2941.1413, to a mandatory prison term of 

one- to five-year sentence for the repeat-offender specification, which must 

be served prior to and consecutive to any additional prison term, and a 

discretionary term of 9 to 36 months for the underlying OVI conviction. In 

South, the trial court's imposition of a three-year mandatory prison term for 

repeat-offender specification was not contrary to law, but a five-year 

mandatory prison term imposed for defendant's underlying third-degree 

felony OVI was contrary to law, requiring remand. Appellant points out 

that, unlike South, he was not convicted of the specification, R.C. 

2941.1314, and argues that under South, the maximum prison term that can 

be imposed for a third-degree felony OVI, the underlying offense, is 36 

 

2

 Other courts have, in turn, construed irregular motions as petitions for post-conviction relief. State v. 

Sanders, 4th Dist. Pickaway No. 13CA29, 2014-Ohio-2521, ¶ 6. 3 State v. Lett, 7th Dist. Mahoning No. 09MA131, 2010-Ohio-3167, at ¶ 15, citing State v. Schlee, 117 Ohio 

St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, at ¶ 12. 
Washington App. No. 16CA18 9

months. The State’s brief essentially argues that Appellant’s sentence was 

affirmed in his direct appeal and there was nothing the trial court could have 

done at the March 16th remand hearing other than remand Appellant into 

custody to begin serving his sentence.4

{¶13} In the case sub judice, Appellant was convicted of R.C. 

4511.19(A)(1)(h) and (G)(1)(e). R.C. 4511.19(A)(1)(h) provides: 

(A)(1) No person shall operate any vehicle, streetcar, or 

trackless trolley within this state, if, at the time of the operation, 

any of the following apply: 

* * * 

(h) The person has a concentration of seventeen-hundredths of 

one gram or more by weight of alcohol per two hundred ten 

liters of the person's breath. 

{¶14} R.C. 4511.19(G)(1)(e) further provides: 

(G)(1) Whoever violates any provision of divisions (A)(1)(a) to 

(i) or (A)(2) of this section is guilty of operating a vehicle under 

the influence of alcohol, a drug of abuse, or a combination of 

them. Whoever violates division (A)(1)(j) of this section is 

guilty of operating a vehicle while under the influence of a 

listed controlled substance or a listed metabolite of a controlled 

substance. The court shall sentence the offender for either 

 

4 Appellant’s conviction was affirmed based on resolution of the assignments of error raised. This court 

does have the authority to sua sponte consider plain error. See State v. Wharton, 4th Dist. Hocking No. 

15CA9, 2-15-Ohio-5026. In Wharton, the defendant argued that the trial court erred by failing to merge the 

offense of telecommunications fraud with the identity fraud offense. We found that the two offenses were 

not allied and overruled the sole assignment of error. However, in conducting a de novo review of the trial 

court’s merger determination, we discovered the trial court imposed a sentence that was contrary to law 

and, sua sponte, vacated Wharton’s sentence, reversed, and remanded for proceedings consistent with the 

opinion. In Wharton, we considered the record, from the outset, under the de novo standard of review, a 

different circumstance than presented herein. Raising alleged errors to the attention of the court remains 

the duty of the Appellant.
Washington App. No. 16CA18 10

offense under Chapter 2929 of the Revised Code, except as 

otherwise authorized or required by divisions (G)(1)(a) to (e) of 

this section: 

* * * 

(e) An offender who previously has been convicted of or 

pleaded guilty to a violation of division (A) of this section that 

was a felony, regardless of when the violation and the 

conviction or guilty plea occurred, is guilty of a felony of the 

third degree. The court shall sentence the offender to all of the 

following: 

* * * 

ii) If the sentence is being imposed for a violation of division 

(A)(1)(f), (g), (h), or (i) or division (A)(2) of this section, a 

mandatory prison term of one, two, three, four, or five years as 

required by and in accordance with division (G)(2) of section 

2929.13 of the Revised Code if the offender also is convicted of 

or also pleads guilty to a specification of the type described in 

section 2941.1413 of the Revised Code or a mandatory prison 

term of one hundred twenty consecutive days in accordance 

with division (G)(2) of section 2929.13 of the Revised Code if 

the offender is not convicted of and does not plead guilty to a 

specification of that type. The court may impose a prison term 

in addition to the mandatory prison term. The cumulative total 

of a one hundred twenty-day mandatory prison term and the 

additional prison term for the offense shall not exceed five 

years. In addition to the mandatory prison term or mandatory 

prison term and additional prison term the court imposes, the 

court also may sentence the offender to a community control 

sanction for the offense, but the offender shall serve all of the 

prison terms so imposed prior to serving the community control 

sanction. 

{¶15} Further, R.C. 2929.13(G)(2) provides: 

(G) Notwithstanding divisions (A) to (E) of this section, if an 

offender is being sentenced for a fourth degree felony OVI 
Washington App. No. 16CA18 11

offense or for a third degree felony OVI offense, the court shall 

impose upon the offender a mandatory term of local 

incarceration or a mandatory prison term in accordance with the 

following: 

 * * * 

(2) If the offender is being sentenced for a third degree felony 

OVI offense, or if the offender is being sentenced for a fourth 

degree felony OVI offense and the court does not impose a 

mandatory term of local incarceration under division (G)(1) of 

this section, the court shall impose upon the offender a 

mandatory prison term of one, two, three, four, or five years if 

the offender also is convicted of or also pleads guilty to a 

specification of the type described in section 2941.1413 of the 

Revised Code or shall impose upon the offender a mandatory 

prison term of sixty days or one hundred twenty days as 

specified in division (G)(1)(d) or (e) of section 4511.19 of the 

Revised Code if the offender has not been convicted of and has 

not pleaded guilty to a specification of that type. Subject to 

divisions (C) to (I) of section 2967.19 of the Revised Code, the 

court shall not reduce the term pursuant to section 2929.20, 

2967.19, 2967.193, or any other provision of the Revised Code. 

The offender shall serve the one-, two-, three-, four-, or fiveyear mandatory prison term consecutively to and prior to the 

prison term imposed for the underlying offense and 

consecutively to any other mandatory prison term imposed in 

relation to the offense. 

{¶16} In South, the Supreme Court of Ohio recognized that the 

applicable statutes, R.C. 4511.19(A), R.C. 4511.19(G)(1)(e), R.C. 

2941.1413, R.C. 2929.13(G)(2) and R.C. 2929.14(A)(3)(b) were thought to 

be irreconcilable. However, the justices in South concluded that they could 

harmonize the statutes and no one provision need prevail over the others. 

The Eighth District Court of Appeals considered a similar sentencing issue 
Washington App. No. 16CA18 12

in State v. Semenchuk, 8th Dist. Cuyahoga No. 102636, 2015-Ohio-5408, 

decided December 24, 2015. 

{¶17} In Semenchuk, the defendant pleaded guilty to a violation of 

R.C. 4511.19(A)(1)(a), a third-degree felony pursuant to R.C. 

4511.19(G)(1)(e). The trial court sentenced him to a five-year term of 

imprisonment and various other sanctions. Semenchuk appealed, arguing 

several assignments of error, including that the maximum sentence for a 

felony three OVI without the R.C. 2941.1413 specification was three years. 

The appellate court agreed with his argument, holding: 

“The Ohio Supreme Court recently settled the issue and held 

that an offender convicted of a third-degree felony OVI and the 

repeat-offender specification is subject to (1) a one- to five-year 

mandatory, consecutive prison sentence under the specification, 

and (2) an additional discretionary term of 9 to 36 months for 

the underlying OVI conviction pursuant to R.C. 2929.14(A)(3). 

State v. South, Slip Opinion No. 2015-Ohio-3930. We need not 

dwell on this issue. Semenchuk was not found guilty of the 

R.C. 2941.1413 specification, and therefore, the maximum 

sentence for his offense was three years irrespective of the 

South decision.” 

{¶18} Semenchuk was convicted of R.C. 4511.19(A)(1)(a). R.C. 

4511.19(G)(1)(e)(i), provides: 

“[i]f the offender is being sentenced for a violation of division 

(A)(1)(a) * * * of this section, [the court shall impose] a 

mandatory prison term of one, two, three, four, or five years as 

required by and in accordance with division (G)(2) of section 

2929.13 of the Revised Code if the offender also is convicted of 

or also pleads guilty to a specification of the type described in 
Washington App. No. 16CA18 13

section 2941.1413 of the Revised Code or a mandatory prison 

term of sixty consecutive days in accordance with division 

(G)(2) of section 2929.13 of the Revised Code if the offender is 

not convicted of and does not plead guilty to a specification of 

that type. (Emphasis added.) The court may impose a prison 

term in addition to the mandatory prison term. The cumulative 

total of a sixty-day mandatory prison term and the additional 

prison term for the offense shall not exceed five years. 

{¶19} The Semenchuk court emphasized that if the offender was not 

also convicted of that specification, the trial court must sentence the offender 

to a mandatory 60-day prison term in accordance with subsection (G)(2) of 

R.C. 2929.13. The appellate court further cited that subsection in paragraph 

7: 

“If the offender is being sentenced for a third degree felony 

OVI offense, * * * the court shall impose upon the offender a 

mandatory prison term of one, two, three, four, or five years if 

the offender also is convicted of or also pleads guilty to a 

specification of the type described in section 2941.1413 of the 

Revised Code or shall impose upon the offender a mandatory 

prison term of sixty days or one hundred twenty days as 

specified in division (G)(1)(d)(or (e) of section 4511.19 of the 

Revised Code if the offender has not been convicted or and has 

not pleaded guilty to a specification of that type R.C. 

2929.14(G)(2).” 

{¶20} The Semenchuk opinion clarified that if not convicted of the 

specification, the offender was subject to a three-year maximum sentence 

pursuant to a third-degree felony sentencing, 60 or 120 days of which 

include the maximum mandatory portion of the sentence pursuant to the OVI 

specific statutes provided by R.C. 4511.19(G)(1)(d) or (e). 
Washington App. No. 16CA18 14

{¶21} The Semenchuk opinion went on to explain that in addition to 

the OVI specific statues, if the trial court imposes an additional basic term 

for a third-degree felony pursuant to R.C. 2929.14(B)(4), the additional 60 

or 120-day prison terms imposed under the felony OVI specific statues 

reduce the total prison term imposed under R.C. 2929.14(A)(3)(b) so as to 

limit the maximum aggregate term. ¶ 8. R.C. 2929.14(B) provides in 

pertinent part: 

“(4) If the offender is being sentenced for a third or fourth 

degree felony OVI offense under division (G)(2) of section 

2929.13 of the Revised Code, the sentencing court shall impose 

upon the offender a mandatory prison term in accordance with 

that division. In addition to the mandatory prison term, if the 

offender is being sentenced for a fourth degree felony OVI 

offense, the court, notwithstanding division (A)(4) of this 

section, may sentence the offender to a definite prison term of 

not less than six months and not more than thirty months, and if 

the offender is being sentenced for a third degree felony OVI 

offense, the sentencing court may sentence the offender to an 

additional prison term of any duration specified in division 

(A)(3) of this section. In either case, the additional prison term 

imposed shall be reduced by the sixty or one hundred twenty 

days imposed upon the offender as the mandatory prison term.

(Emphasis added.) The total of the additional prison term 

imposed under division (B)(4) of this section plus the sixty or 

one hundred twenty days imposed as the mandatory prison term 

shall equal a definite term in the range of six months to thirty 

months for a fourth degree felony OVI offense and shall equal 

one of the authorized prison terms specified in division (A)(3) 

of this section for a third degree felony OVI offense. If the 

court imposes an additional prison term under division (B)(4) of 

this section, the offender shall serve the additional prison term 
Washington App. No. 16CA18 15

after the offender has served the mandatory prison term 

required for the offense.”5

{¶22} R.C. 2929.14(A)(3)(b) provides: 

“For a felony of the third degree that is not an offense for which 

division (A)(3)(a) of this section applies, the prison term shall 

be nine, twelve, eighteen, twenty-four, thirty, or thirty-six 

months.” 

 In Semenchuk’s case, the Eighth District Appellate Court held at ¶ 9: 

“As a result, we conclude that for a third degree felony offense 

under R.C. 4511.19(G)(1)(e) without the accompanying 

specification, the maximum aggregate term is limited to the 

term authorized by subsection (A)(3)(b) - three years, 60 days 

of which are mandatory. R.C. 2929.14(B)(4); see also South.” 

{¶23} Applying the reasoning set forth by the Eighth District, we find 

Appellant’s argument that his sentence is void for failure to comply with 

statutorily mandated terms has merit. His sentence is contrary to law. 

Appellant, convicted of R.C. 4511.19(A)(1)(h), to which the mandatory 120 

days pursuant to subsection (G)(1)(e)(ii) applies, without the accompanying 

specification, should have been sentenced to a maximum aggregate sentence 

of three years, reduced by the mandatory 120 days. We hereby sustain his 

first assignment of error. And, as such, the second and third assignments of 

error have become moot. Accordingly, we remand the matter for 

resentencing consistent with this opinion. 

 

5

 The current version of the statute, cited above, became effective September 14, 2016. However, the 

language of the statute was the same at the time Appellant was sentenced. 
Washington App. No. 16CA18 16

 JUDGMENT REVERSED 

 AND CAUSE REMANDED. 
Washington App. No. 16CA18 17

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE REVERSED AND CAUSE 

REMANDED. Appellant shall recover any costs herein from Appellee. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Washington 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. & Hoover, J.: Concur in Judgment Only. 

 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.