[Cite as State v. Johnson , 2022 - Ohio - 1479.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : Plaintiff

- Appellee, : CASE NO. 20CA3935

v. : SASHIA JOHNSON, : DECISION AND JUDGMENT ENTRY Defendant

- Appellant. :

_________________________________________________________________ APPEARANCES: Roger Soroka and Joshua Bedtelyon, Columbus, Ohio, for appellant. Shane Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Assis tant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

___________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 4

- 28

- 22 ABELE, J. {¶1} Sashia Johnson, defendant below and appellant herein , appea ls the trial court’s granting of the state’s motion to disqualify her attorney. Appellant assigns two errors for review:

FIRST ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED IN DENYING APPELLANT HER SIXTH AMENDMENT RIGHT TO COUNSEL BECAUSE THE COUR T DID N OT HAVE AN AFFIRMATIVE DUTY TO INQUIRE INTO POSSIBLE CONFLICTS OF INTEREST BETWEEN CODEFENDANTS JORDAN AND JOHNSON.”SCIOTO, 20CA3935 2

SECOND ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED IN DENYING APPELLANT HER SIXTH AMENDMENT RIGHT TO COUNSEL BECAUSE THERE WAS NO ACTU AL CONFLICT OF INTEREST BETWEEN CODEFENDANTS JORDAN AND JOHNSON.” {¶2} On June 29, 2020, a Scioto County Grand Jury returned an indictment that charged appellant with (1) trafficking in cocaine in violation of R.C. 2925.03(A)(2) and possession of coca ine in violation of R.C. 2925.11(A), both first

- degree felonies with maj or drug offender and forfeiture specifications, and (2) possessing criminal tools in violation of R.C. 2923.24(A), a fifth

- degree felony. On the same date, a Scioto County Grand Jury returne d an indictment that charged Co

- defendant Adrienne Jordan ( see St ate v. Jordan, 4th Dist. Scioto No. 20CA3936, 2022

- Ohio

- XXXX) with identical offenses. The same attorney represented appellant and
Co

- defendant Jordan 1
. {¶3} After the state raised the i ssue of conflicting representation, at the September 3, 2020 hearing a ppellant’s counsel argued that (1) a criminal defendant has a fundamental right to be represented by an attorney of their choice, (2) counsel advised his clients of potential conflicts, and (3) counsel obtained conflict waivers from each client. Also, bot h appellant

1 The same attorney represents appellant and Jorda n on ap pe al.SCIOTO, 20CA3935 3

and Jordan told the trial court on the record that they wished to have the same attorney represent them both, and provided written disclosures of potential conflict. {¶4} At a se cond he aring, the trial court inquired about the particular facts inv olved in the traffic stop that resulted in the indictments, including who drove the vehicle, who owned the vehicle and the precise location within the vehicle where officers found the dru gs. Co ncerning the cocaine, the state replied, “in the
center consol e, accessible to both Defendants.” When asked about the marijuana, the state replied, “[t]here was residue in the driver’s side door panel, and there were baggies of marijuana retrieved from De fendant Jordan’s purse.” The state also indicated
that the co

- defendants’ cell phones were “being downloaded by the O.S.P. lab.” The court then asked defense counsel, “why wouldn’t Ms. Johnson at trial want to argue that this is Ms. Jordan’s

narco tics?” Counsel answered “they understand that” and indicated that he had filed a suppression motion 2 , “so we don’t necessarily get to that trial until we have that suppression hearing. * * * They would not have to make that decision, but at this point th ey

are aware that that would potentially be a defense available to th e m , and neither of them are interested in that defense.” At that

2 Appellant and Co

- defendant Jordan filed a motion to suppress evid ence on October 2, 2020.SCIOTO, 20CA3935 4

point, appellee interjected that “any offers that would be considered being made by the State would occur before that [su ppressi on] hearing. Once that hearing is underway it will be a plead as charged situation or go to trial.” Defense counsel then responded, “which was relayed at the last hearing, Your Honor, and then relayed to our clients as well, and they still wish to procee d in this manner.” {¶5} On November 9, 2020, the trial court re moved Soroka & Associates LLC as counsel and ordered appellant to obtain new counsel. The court wrote in part: In this matter the State has alleged that Johnson was the driver of a vehicl e owned by either Jordan, or her family member, and Jordan was the p assenger when they were stopped by the Troopers of the Ohio State Highway Patrol. The State further alleges that a large quantity of cocaine was found in the center console. Defendants, through counsel do not dispute these facts but allege that the suppr ession of evidence will decide the issue and the parties will not proceed to trial. The trial court cannot foresee what evidence the State will present at trial, or what each of the co

- de fendant s may wish to explore prior to trial. In reviewing this matt er this Court finds there is serious potential that one defendant will change her position and claim the other committed the charged offenses alone. The evidence at trial may more strongl y incri minate one defendant over the other. It is also possible tha t the evidence could more strongly exculpate one defendant over the other. Counsel representing both defendants would be precluded from arguing those facts to the jury that tend to incrim inate o ne defendant but not the other or tend to exculpate one defen dant but not the other. Additionally, one defendant may desire to explore potential plea bargains with the State rather than go to trial. ThisSCIOTO, 20CA3935 5

Court finds that there is a serious potenti al for a conflict of interest in dual representation of both defenda nts. The hearing in this matter also included defendant Jordan’s probation violation in 17

- CR

- 733. Since that matter is separate and distinct from the issues raised in the case in which they a re codefendants, this Court finds there is no actual or serio us potential for conflict in defense counsel’s continued representation in that matter. Therefore, this Court refuses the waiver of conflicts offered in this matter and finds a serious p otentia l for conflict of interest in the matter in which Johnson and Jordan are co

- defendants, being case number 20

- CR

388(A)/(B). Wherefore, in case number 20

- CR

- 388(A)/(B) defense counsel and the firm Soroka & Associates LLC are hereby removed as counse l of re cord and relieved of further responsibilities in this matter. Defendants are ORDERED to obtain new counsel within fourteen (14) days of the date of this entry. Defense counsel shall continue as counsel in the matter of State of Ohio v. Adrienne Jo rdan, 1 7

- CR

- 733 [the probation violation case]. This appeal follow ed.
I. {¶6} Because appellant’s assignments of error are interrelated, we consider them together. In her first assignment of error, appellant asserts that the trial court did not have a n affir mative duty to inquire into possible conflicts of interest b etween Co

- defendants Jordan and Johnson and, thus, the court’s order denied appellant her Sixth Amendment right to counsel. In her second assignment of error, appellant contends the court’s orderSCIOTO, 20CA3935 6

denied appellant her Sixth Amendment right to counsel becaus e no actual conflict of interest exists between Co

- defendants Jordan and Johnson. {¶7} “‘[T]he standard of review for determining whether the court erred in its pretrial disqualification of de fense c ounsel is whether it abused its broad discretion.’” State v. Keenan , 81 Ohio St.3d 133, 137, 689 N.E.2d 929 (1998), quoting State ex rel. Keenan v. Calabrese , 69 Ohio St.3d 176, 180, 631 N.E.2d 119 (1994). The term ‘abuse of discretion’ implies th at a co urt’s attitude is unreasonable, arbitrary or unconscionable
. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When reviewing a trial court’s decision concerning counsel disqualification, an appellate court must be cognizant of the co ntext w ithin which the ruling is made and aware that “‘the likelih ood and dimensions of nascent conflicts of interest are notoriously hard to predict.’” Wheat v. U.S., 486 U.S. 153, 162, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). {¶8} The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal pro secutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” “[W]hile the right to select and be represented by one’s preferred attorney is comprehe nded by the Sixth Amendment, the essential aim of the Amendment i s to guarantee an effective advocate for each criminal defendant rather than to ensure that aSCIOTO, 20CA3935 7

defendant will inexorably be represented by the lawyer whom he [or she] prefers.” Wheat, 466 U.S . at 15 9, citing Morris v. Slappy , 461 U.S. 1, 13

- 14, 103 S.Ct. 1 610, 75 L.Ed.2d 610 (1983) and Jones
v. Barnes , 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Thus, the Sixth Amendment right to choose one’s counsel “is circumscribed in several impo rtant r espects,” Wheat, supra, at 159, including the right to be free from conflicts of interest. State v. Gillard , 64 Ohio St.3d 304, 312, 595 N.E.2d 878 (1992); accord State v. Pickett , 4th Dist. Athens No. 15CA13, 2016

- Ohio

4593, ¶ 49. {¶9} In general, d ual rep resentation does not per se violate due process, Holloway v. Arkansas , 435 U.S. 475, 482, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and may even benefit clients in cases when a common defense may be mounted against charges. Id. at 483. However, “multi ple rep resentation of criminal defendants engenders special dang ers of which a court must be aware.” Wheat, supra, 486 U.S. at 159, 108 S.Ct. 1692, 100 L.Ed.2d 140. Therefore, both defense counsel and the trial court are under an affirmative duty
to ensu re that a defendant's representation is conflict

- free.
State v. Dillon, 74 Ohio St.3d 166, 167

- 168, 657 N.E.2d 273 (1995). {¶10} “[A] court confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether the conflicts warran t separate counsel.” Wheat , supra , at 159

- 160.SCIOTO, 20CA3935 8

The Sup reme Court of Ohio has held that a trial court does not have

a duty to inquire regarding potential conflicts with dual representation unless the court knows or reasonably should know that a pos sible c onfl ict of interest exists, or when the defendant objects to the multiple representation. State v. Manross , 40 Ohio St.3d 180, 181, 532 N.E.2d 735, (1988); see also State v. Williams, __ Ohio St.3d __, 2021

- Ohio

- 3152, __ N.E.3d __. {¶11} Thus, the right t o co unsel of choice is not unqualified, but is “only a pres umptive right to employ * * * chosen counsel.” Keenan, 81 Ohio St.3d 133, 137, 689 N.E.2d 929. “‘[T]hat presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.’”
Id. , quoting Wheat , 486 U.S. at 164. While an essential element of the Sixth Amendment right to counsel is to have counsel of one’s choice, and the “erroneous deprivation of the right to counsel of choice, ‘w ith con sequ ences that are necessarily unquantifiable and indetermi nate, unquestionably qualifies as ‘structural error,’” (internal citations omitted), a defendant may not “demand that a court honor his waiver of conflict

- free counsel.” United States v.
Go nzalez

- Lope z, 126 U.S. 140, 147, 150

- 152, 126 S.Ct. 2557, 165 L.Ed .2d 409 (2006). {¶12} The Supreme Court of Ohio has stated that “[a] lawyer represents conflicting interests when on behalf of one client, itSCIOTO, 20CA3935 9

is his duty to contend for that which duty to anothe r clien t

re quires him to oppose.” Manross , 40 Ohio St.3d at 182 , citing Columbus Bar Ass’n. v. Grelle , 14 Ohio St.2d 208, 237 N.E.2d 298 (1968). “Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney fr om doin g. * * * [A] conflict may * * * prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clie nts in orde r to minimize the culpability of one by emphasizing t hat of another.” Holloway, 435 U.S. at 489

- 490, 98 S.Ct. 1173, 55 L.Ed.2d 426. {¶13} The Fifth District has considered this issue in State v. Kish , 5th Dist. Fairfield No. 17

- CA

- 22, 2017

- Ohio

- 7551 and Sta te v . Cook, 5th Dist. Fairfield No. 17

- CA

- 23, 2017

- Ohi o - 7552. In Kish and Cook , after a weekend visitation, authorities charged the co

defendants, presumably boyfriend and girlfriend, with domestic violence, endangering children and assault. When the sam e at torney represented both co

- defendants, the state m oved to disqualify and explained that a plea offer had been extended to Kish for testimony against Cook. Both co

- defendants, however, expressed satisfaction with joint representation and provide d writt en d isclosures of any potential conflict. After the t rial court disqualified defense counsel from representing both defendants, the Fifth DistrictSCIOTO, 20CA3935 10

concluded “there is clearly a potential conflict of interest inherent in counsel’s simultaneous repre sentati on o f [Cook and Kish] in litigation stemming from the same set of facts.” Cook at ¶ 30, Kish at ¶ 32. The court wrote: Neither the trial court, nor this court can foresee what evidence the state will present at trial, or what each of the co

- defend ants ma y wi sh to explore prior to trial. For instance, it is possible that Kish will change his position and claim Appellant committed the charged offenses alone. The evidence at trial may more strongly incriminate one defendant over the other. It is al so poss ible that the evidence could more strongly exculpate o ne defendant over the other. Counsel representing both defendants would be precluded f r o m arguing those facts to the jury that tend to incriminate one defendant but not the other or tend to excu lpate o ne d efendant but not the other. Additionally, while K ish rejected a plea bargain, Appellant may desire to explore potential plea bargains with the state rather than go to trial. Id. The Fifth District further noted that, although appellants expli citly w aive d any potential conflict, the trial court could
pr operly refuse to accept their waiver. Cook at ¶ 31, Kish at ¶ 33. “As in Keenan, nothing in the record suggests that the trial court’s decision to refuse the waiver and remove retained counsel

was unr easo nable, arbitrary or unconscionable. Instead, it i s clear the court based its decision on the potential for conflict and the court’s decision to protect both of the Appellant s ’ constitutional rights.” Id.SCIOTO, 20CA3935 11

{¶14} In another joint representation case, State v. R ivera , 2017

- Ohio

- 8514, 3 multiple co

- defendants ind icated they wanted the same attorney to represent them, but the trial court expressed concern “about the codefendants’ interests diverging once further discovery, plea discussions, and trial prep aration beg an.” Id. The Ninth District observed that “neith er the trial court nor the appellate court can foresee what evidence will be presented at trial or what plea deals may be offered by the State and accepted by one or more of these individuals.” Id. at ¶ 12
. Joint representation could: (1) preclude counse l from exploring plea negotiations and agreements to testify favorable to one and prejudicial to another, (2) prevent counsel from challenging the admission of evidence prejudicial to one, but pe rhaps f avor able to another, and (3) cause counsel to refrain from arguing at sentencing the relative involvement and culpability of one by minimizing the involvement of another. Rivera at ¶ 12. {¶15} In U.S. v. Brock , 501 F.3d 762 (6th Cir.2007), after the
govern ment asked about the appropriateness of joint represe ntation, the co

- defendants sought to waive any conflict. The district court disqualified counsel because the situation was “rife with potential

3 The complete citation for Rivera is State v. Rivera , 9 th Dist. Lorain No. 16CA011057, 16CA011059, 16CA011060, 16CA011061, 16CA011063, 16CA0011073 and 16C A0 1107 5, 2017

- Ohio

- 8514.SCIOTO, 20CA3935 12

conflicts of interest.” Brock at 766. Although th e Sixth Cir cuit noted that the co

- defendants’ waivers did no t adequately acknowledge potential conflicts, the court agreed with the district court’s observation that it may be in one client’s best interest to plead guilty and testify against the other. Al so, if both defendants are found guilty, counsel may be in a position to contend that one or the other should receive a lesser sentence. Id. See, also, Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1354 (6th Cir.1994), (defenses of each defendant “intrin sica lly antagonistic.” Id. at 1350

- 1351). United Sta tes v. Curcio, 680 F.2d 881, 887 (2d Cir. 1982)(conflict implications include whether to present a defense that helps one defendant more than the other; whether to have one defendant testify while other

rema ins silent; whether neither defendant testify bec ause one poor or vulnerable witness; whether emphasize in summation that certain evidence admitted only against (or less compelling against) one defendant rather than other); U.S. v. Garner, E.D.K entucky No. 12

- CR

- 65

- JMH, 2013 WL 99396 (Jan.7, 2013), fn. 2 (difficulties inhere nt in dual representation because attorney’s ability to give best representation to both clients compromised when one defendant acts in own best interest and may hurt the othe r defen dant’s interests

- also, the defendants desire for sol idarity can be achieved with separate counsel, and court’s conclusion does notSCIOTO, 20CA3935 13

foreclose co

- defendants opportunity to present a “unified” or “united” defense). {¶16} Additionally, the Fifth District i n Cook descri bed conflicts in this manner: Potential conflict s that can arise where the same attorney represents codefendants can include where both of the defendants wish to testify but they have differing explanations as to how the relevant events transp ired. Where one of the defendants wishes to testify while th e other does not and the silence of one might suggest to the jury that he alone is guilty of the crime. Additionally, the evidence against one of the defendants may be stronger than the evidenc e again st the other and comparison of the respective strength s of the evidence against the two during plea bargaining or examination of witnesses or closing argument would be helpful to the defendant faced with the weaker evidence but would be harmful to t he defe ndant faced with the stronger evidence.
State v. Coo k , 5th Dist. Fairfield No. 17

- CA

- 23, 2017

- Ohio

- 7552, ¶ 24. {¶17} The United States Supreme Court also spoke at length to the minefield that trial courts must navigate to predict possible conflicts: Unfor tunate ly for all concerned, a * * * court must pass o n the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre

- trial contex t when relati onships between parties are seen through a glas s, darkly. * * * It is the rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government’s wit nesses will s ay on the stand. A few bits[Cite as State v. Johnson , 2022 - Ohio - 1479.]

of unforseen testi mony or a single previously unknown or unnoticed document may significantly alter the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, an d even more d ifficult to convey by way of explanation to a c riminal defendant untutored in the niceties of legal ethics. * * * For these reasons we think the district courts must be allowed substantial latitude in refusing waivers of conflicts of interest not on ly in those rare cases where an actual conflict may b e demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.
Wheat , supra, 486 U.S. at 162

- 1 63, 108 S.Ct. 1692, 100 L.Ed.2d 140. {¶18} “The Unit ed States Supreme Court has definitely recognized the authority of a federal district court to disqualify chosen defense counsel, over objection and despite waivers of conflict of interest, because of act ual co nflicts of interest or serious potential confl icts of interest.” United States v. Lamar , E.D. Kentucky No. 09

- 82

- DLB, 2013 WL 12221618, (Sept. 20, 2013) *10. “Such discretion is warranted, moreover, because of the ‘whipsaw’ nature of waiver of conf lict

- f ree representation: ‘If a trial court disquali fies counsel, defendant will argue * * * a violation of his Sixth Amendment right to counsel of his choice. If a trial court refuses to disqualify an attorney, a defendant may later attempt to rai se an i neffec tive assistance of counsel claim based on conf lict of interest, asserting that his waiver was not knowingly or voluntarily made.’” U.S. v. Swafford , 512 F.3d 833,[Cite as State v. Johnson , 2022 - Ohio - 1479.]

840 (2008), quoting Serra at 1353

- 1354, citing Wheat , 486 U.S. at 161

- 162, 108 S.Ct. 1 692. U .S. v. Mays , 69 F.3d 116, 121 (6th Cir.1995)(d istrict courts given wide latitude to make such determinations and decision upheld unless ‘arbitrary’ or ‘without adequate reasons’). But see U.S. v. Gebbie , 185 F.R.D. 516 (S.D. Ohio 1999) (disq ualific ation not warranted because (1) co

defendants volunt arily, knowingly and intelligently waived Sixth Amendment right to conflict

- free representation, (2) attorney steadfastly maintained no conflict exists, (3) attorney invested significant time and e ffort i n leng thy and complex case and has a high level of k nowledge that uniquely qualifies him, and (4) united defense is best for co

- conspirators.) {¶19} In the case sub judice, appellant asserts that because both co

- defendants have been apprised of potential confli cts an d have formally waived any conflict, the tria l court should have denied appellee’s request for disqualification. However, as we point out above, Wheat “rejected the claim that waivers by all affected defendants cure any problems created by th e multi ple

re presentation, noting that courts have an inde pendent interest to ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them and that various rules o f ethic s and professional conduct impose limitations on mu ltiple representation[Cite as State v. Johnson , 2022 - Ohio - 1479.]

of clients.” State v. Keenan , 8th Dist. Cuyahoga No. 89554, 2008

- Ohio

- 807, ¶ 27. Thus, courts must look beyond a wa i v er to determine if dual representation is appropriate. H ere, we agree with the trial court’s conclusion that poten tial conflicts of interest exist with the du a l representation of appellant and her

co - defendant. A trial court must be allowed “substantial latitude in refusing waivers of conflicts of interest not only * * * w here an actual conflict may be demonstrated b efore trial, but in the more common cases [such as the case at bar] where a potential for conflict exists which may or may not burgeon into an actual conflict * * *.” Wheat, 486 U.S at 163, 108 S.C t.1692, 100 L .Ed.2d 140. Here, the trial court observed t hat, although the co

defendants argue that the eventual suppression of evidence would result in this matter not proceeding to trial, this outcome is not a certainty. Furthermore, unfor e seen events, includ ing

una nticipated testimony or other evidence, could unexpectedly and quickly shift the relationship between the co

- defendants. The trial court is also properly concerned about the possibility that one defendant may contend that her co

- defendant al one com mitted the charged offenses. As the trial court poi nted out: (1) the evidence adduced at trial could more strongly exculpate or inculpate one or the other co

- defendant, and could place counsel in the position of arguing one client may have greater culpabi lity th an the other[Cite as State v. Johnson , 2022 - Ohio - 1479.]

client, and (2) the plea agreeme nt process, including the reduction of the seriousness of an offense in exchange for testimony, could invite a potential conflict of interest in the dual representation of both defendants. 4 As the Wheat court p ointed out, trial courts should have substant ial latitude to refuse waivers of conflicts of interest, not only in cases when an actual conflict can be demonstrated prior to trial, but also in situations when the potential for conflict exists that ma y resul t in an actual conflict once a trial begins. Here, in light of the nature of the traffic stop and discovery of controlled substances, we believe that it is certainly foreseeable that conflicts between the co

- defendants may arise throughout t his pro ceeding
. {¶20} Accordingly, in the case at bar we do not believe that the trial court’s disqualification of counsel constitutes an abuse of discretion. Therefore, we hereby overrule appellant’s assignments of error and affirm the trial court’s judgment.
JU DGMENT AFFIRMED.

4 Additionally, a comment to the Ohio Rules of Pro fessional Conduct is particularly salient in the case sub judice: “The potential for conflict of interest in representing multiple defendants in a criminal matter is so grave that o rd inar ily a lawyer should decline to represent more than one co

- defendant.” Prof.Cond.R. 1.7, Comment 15.[Cite as State v. Johnson , 2022 - Ohio - 1479.]

JUDGMENT ENTRY

It is o rdered that the judgment be affirmed. Appellee shall recover of appellant the costs herein taxed. The Court finds there were reasonable grounds for this appeal.[Cite as State v. Johnson , 2022 - Ohio - 1479.]

It is ordered that a spec ial ma ndate issue out of this Co urt directing the Scioto County Common Pl eas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Smith, P. J. & Wilkin , J.: Concur in Jud gment & Opinion
For the Court

BY:

_____________________________ Peter B. Abele, Judge

NOTI CE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final ju dgment entry and the time period for further appeal commences from the d ate of filing with the clerk.