[Cite as State v. Corder , 2021-Ohio-2880.]

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

State of Ohio, : Case No. 20CA10 Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY Andrew Corder, : Defendant-Appellant. : RELEASED 8/18/2021

_______________________________________________________________ _______ APPEARANCES: Kathyrn Cornelius-Blume, Dagger, Johnston, Miller, Ogilvie & Ha mpson, LLP, Lancaster, Ohio, for appellant. Ryan Stickel, Hocking County Prosecutor’s Office, Logan, Ohio, for appellee.

_______________________________________________________________ _______ Hess, J. {¶1} Andrew Corder appeals from a judgment of the Hocking County Cou rt of Common Pleas revoking his judicial release and reimposing his o riginal prison sentence

with credit for time served. Corder contends that the state fa iled to submit competent, credible evidence that he violated the terms of his “probation. ” He also contends, and the state concedes, that the trial court erred when it failed to ad vise him about post-release control at his “probation violation sentencing hearing.” For t he reasons that follow, we reject these contentions and affi rm the trial court’s judgment.

I. FACTS AND PROCEDURAL HISTORY {¶2} In January 2016, the Hocking County grand jury indicted Corder on the following charges with forfeiture specifications: (1) Count I, unlawful sexual conduct withHocking App. No. 20CA10 2

a minor in violation of R.C. 2907.04(A), a third-degree felony; (2) Count II, unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), a third-d egree felony; (3) Count III, importuning in violation of R.C. 2907.07(B)(1), a fifth-degree felony; (4) Count IV, contributing to the unruliness of or delinquency of a child in violation of R.C. 2919.24(A) (now (B)(1)), a first-degree misdemeanor; and (5) Count V, cont ributing to the unruliness of or delinquency of a child in violation of R.C. 2919.24(A) (n ow (B)(1)), a first-degree misdemeanor. Corder ultimately pleaded guilty as charged. {¶3} In July 2016, the court issued an entry sentencing him to a pri son term of 24 months on Count I, 24 months on Count II, 11 months on Count III, 180 days on Count IV, and 180 days on Count V. The court ordered the sentences o n “Count I, Count II and Count III to be served consecutive to each other, with the sent ences ordered on Count IV and Count V to merge for sentencing for a total term of 4 years 11 months.” The entry states that the court “notified the defendant that post release control is mandatory for FIVE years, as well as the consequences of violating conditions of post release control *

* *.” {¶4} In May 2019, the court issued an entry that granted Corder judi cial release under R.C. 2929.20. The court placed him on five years of comm unity control with conditions, including that he successfully complete an appropri ate community based correctional facility (CBCF) pr ogram and inpatient treatment. The court stated: Defendant is placed on a Community Control Sanction, and if the conditions of the sanction are violated, * * * the court may (1) lengthen the term of the community control sanction (2) impose a more restrictive commun ity control sanction or (3) impose a prison term on the offender. The rese rved term is: 4 years, 11 months (less credit). This Court reserves the righ t to re-impose the sentence.Hocking App. No. 20CA10 3

{¶5} In December 2019, the state moved the court to revoke Corder’s “supervision” and impose his previously suspended sentence, in part because he was “unsuccessfully terminated” from the Franklin County CBCF. In January 2020, the court issued an entry finding he had violated “the terms and conditio ns of his community control,” ordering that he “remain under community control sanc tions and conditions as originally imposed by the Court” in May 2019, and ordering that he “enter and successfully complete the full 6-month STAR program.” The entry states that if he “violates the rules of community control,” the court can “(1) lengthen the term of the community control sanction (2) impose a more restr ictive community control sancti ons [sic] or (3) impose the balance of his reserved prison term of 4 years and 11 months mi nus jail time credit.” The entry also states that the court has “notified the defendant th at post release control is mandatory in this case for a period of 5 years, as well as the consequences of violating conditions of post release control * * *.” {¶6} In August 2020, the state moved the court to revoke Corder’s “s upervision” and impose his previously suspended sentence because he was uns uccessfully terminated from STAR. In September 2020, the court conducted a hearing at which the state introduced into evidence a STAR discharge statement which indicates Corder entered STAR on January 21, 2020, and was unsuccessfully discha rged on July 7, 2020, i.e., 11 days before he would have completed the program. The statement indicates he had five major concern slips (one for “out of area,” one for “n on-homework compliance,” two for “disrespectful behavior,” and one for “threats of viole nce”) and 44 minor concern slips. The statement provides that “[s]taff made several attem pts to address theseHocking App. No. 20CA10 4

antisocial behaviors through various levels of interventions,” but “[d]ue to continued rule infractions, it was determined that Mr. Corder is not amenable to treatment at this time.” {¶7} Cindy Hacker, an employee at STAR Community Justice Center, te stified that STAR is “a community behavior therapy facility where we ch allenge residents’ thoughts and behaviors and try to teach them a new way of livin g so they don’t go back out into the community and have violations again * * *.” STAR residents receive a handbook of program rules and can receive “major concern” and “ minor concern” slips for violations. Major violations “have criminal behavior * * * or criminal intent behind them,” and minor violations relate more to forgetfulness. Hacker test ified that “a concern slip is not grievable” but the “corrective action that is attached to i t” is. She could not give details about three of Corder’s major violations or his 44 minor violat ions. She testified that he received a slip for disrespectful behavior because he flipped o ff another resident in violation of STAR’s rule against profanity. When asked if it is “a major violation whenever someone uses profanity,” Hacker testified that “it can be, abso lutely” and that “[w]e typically hold everybody accountable for if they use profanity or if they flip someone off.” Hacker testified that Corder received a slip for threats of vio lence because he told another resident that he did not know what Corder was like in prison an d that Corder “would put

a lock in a sock and find him.” Corder claimed the resident ha d called him a name.

Hacker testified that Corder had more interventions than the av erage resident, and that during them, he acknowledged his violations but tried to justif y his behavior. She was not aware of Corder failing any random drug tests given to resident s and testified that he attended all STAR classes prior to his discharge. She did not know whether he “put in aHocking App. No. 20CA10 5

grievance” to challenge his discharge but knew he met with seve ral administrative staff members prior to his discharge. {¶8} Diane Allwine, Corder’s parole offi cer, testified that she had two interventions with Corder while he was in STAR, which is unusua l because she typically

has “about one with a CBCF.” She believed he understood that h e had to successfully complete the STAR program as a condition of his community contr ol. Allwine testified that during their conversations, Corder “seemed compliant. I d on’t want to say remorseful, necessarily, but I -- the fact that he understood w hat was going to happen if he didn’t complete it. He said he would try kind of thing [sic ].” {¶9} Defense counsel represented that Corder had 54 days remaining o n his original prison sentence. The court orally found Corder “viola ted his community control” and stated it was “returning him to prison for the period of 54 days until he completes his sentence.” The court made no mention of post-release control. {¶10} The court then issued a judgment entry finding Corder violated the terms and conditions of community control because he failed to succes sfully complete the STAR program. The court revoked his “community control” and reimpos ed the original prison sentence with 477 days of credit. The entry states that the co urt notified Corder “that upon release he will be subject to a mandatory 5 years of post-release control ” and notified him of the consequences of violating it. (Emphasis si c.) After Corder filed a notice of appeal from this entry, the trial court issued an entry corr ecting the number of days of

credit.

II. ASSIGNMENTS OF ERROR {¶11} Corder assigns two errors for our review:Hocking App. No. 20CA10 6

1. The trial court erred as a matter of law when it failed to a dvise appellant of postrelease control at his probation violation sentencing he aring. 2. The state failed to submit competent, credible evidence that appellant violated the terms of his probation. For ease of discussion, we address the assignments of error out of order.

III. JUDICIAL RELEASE VIOLATION {¶12} In his second assignment of error, Corder contends that the sta te failed to submit competent, credible evidence that he violated the terms of his “probation.” Corder asserts that Hacker could not provide details about why he rece ived three of the five major concern slips or any of the 44 minor concern slips, which “were likely due to simply negligent, or ‘forgetful’ conduct.” Regarding the slip for fli pping off another resident, Corder states that Hacker could not confirm that profanity is a lways a “ ‘major’ concern.” Regarding the slip for threatening another resident, Corder sta tes that his “retaliatory behavior was due to another resident’s ‘major’ violation for ut ilizing profanity,” that it is unclear whether the other resident received a major concern sli p, and that Hacker’s testimony about profanity “leaves open the possibility of subje ctive enforcement of the facility’s rules.” Corder asse rts that it is “concerning” that he was discharged from STAR for criminal thinking and antisocial comments and thoughts when there is only evidence that one of his rule violations (the threat) involved criminal intent. Corder claims “some of the alleged violations at issue were likely due to [his] ong oing mental health and treatment concerns, the exact rationale for initially placing [ him] in the STAR program.” He suggests that his demeanor during Allwine’s interventions sh ows he had the capacity to successfully complete the STAR program. Corder asserts that STAR residents “do not have any type of due process or other fact-finding procedural m echanisms to confirm theHocking App. No. 20CA10 7

veracity of the allegations of fa cility workers,” which “is con cerning as clearly the alleged ‘major’ violations gave rise to prison time despite [his] total sobriety and class attendance”

at STAR. {¶13} “[A] judicial-release-revocation hearing is not a criminal tria l, so the state is not required to establish a violation of the terms of judicial release beyond a reasonable

doubt.” State v. Westrick , 196 Ohio App.3d 141, 2011-Ohio-1169, 962 N.E.2d 818, ¶ 21 (3d Dist.). “Instead, the state must show ‘substantial’ proof that the offender violated the terms of his or her judicial release.” Id. This standard is akin to the preponderance of the evidence burden of proof, and we will affirm the trial court’s finding that a violation has occurred if some competent, credible evidence supports it. See generally State v. Griffin, 4th Dist. Athens No. 16CA4, 2017-Ohio-6877, ¶ 15 (applying this standard in the context of a community control revocation hearing, which also requires that the state present substantial proof of a violation). {¶14} Competent, credible evidence supports the finding that Corder v iolated the terms of his judicial release. The trial court ordered Corder to “enter and successfully complete the full 6-month STAR program.” It is undisputed that he did not do this as he was discharged from the program after 169 days. Corder cites n o legal support for his suggestion that the state had to provide detailed evidence abou t the 49 underlying program violations which led to his discharge or that he had a due process right to challenge the violations prior to his discharge. Although Cord er suggests that STAR staff could have lied about his rule violations, might have engaged i n inconsistent rule enforcement, and did not do enough to help him, Hacker testifie d that CorderHocking App. No. 20CA10 8

acknowledged his violations during interventions and received m ore interventions than the average resident prior to his discharge. {¶15} For the foregoing reasons, we overrule the second assignment of error. IV. POST-RELEASE CONTROL {¶16} In his first assignment of error, Corder contends that the tria l court erred as a matter of law when it failed to advise him about post-release control at his “probation violation sentencing hearing,” i.e., the September 2020 hearing . Corder asserts that the court violated R.C. 2929.19(B)(2)(d) by not advising him about post-release control at this hearing. He relies on State v. Fraley , 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, for the proposition that after a community control violati on, a trial court conducts a second sentencing hearing at which it sentences the offender an ew and must comply with relevant sentencing statutes. He cites State v. Filous , 2017-Ohio-7203, 95 N.E.3d 573 (4th Dist.), for the proposition that a trial court is required to advise a defendant about post-release control when it revokes community control and impo ses a prison term.

Corder asserts that the trial c ourt lacks subject-matter jurisd iction to correct its postrelease control error because he has completed his prison sente nce. He asks us to vacate the post-release control portion of his sentence and dis charge him. {¶17} The state concedes that the trial court erred by not advising C order about post-release control at the September 2020 hearing, that we sho uld vacate the postrelease control portion of his sentence, and that the trial cou rt cannot correct its error because Corder has completed his prison sentence. However, as we explain below, we disagree.Hocking App. No. 20CA10 9

{¶18} Pursuant to R.C. 2953.08(A)(4), “a defendant who is convicted o f or pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant” on the ground that “[t]he sentence is contrary to la w.” “The appellate court may increase, reduce, or otherwise modify a sentence that is ap pealed under [R.C. 2953.08] or may vacate the sentence and remand the matter to th e sentencing court for resentencing * * * if it clearly and convincingly finds” that t he record does not support certain findings by the sentencing court or “[t]hat the sentenc e is otherwise contrary to law.” R.C. 2953.08(G)(2). {¶19} “[A] trial court has a statutory duty to provide notice of post release control at the sentencing hearing,” and “any sentence imposed without s uch notification is contrary to law.” State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23, overruled on other grounds , State v. Harper , 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. R.C. 2929.19(A) states: “The court shall hold a sentencing hearing before imposing a sentence under this chapter upon an offender who was convicted of or pleaded guilty to a felony * * *.” If the sentencing court det ermines “that a prison term is necessary or required,” the court shall “[n]otify the offender that the offender will be supervised under section 2967.28 of the Revised Code[, the stat ute on post-release control,] after the offender leaves prison if the offender is b eing sentenced * * * for a felony sex offense * * *.” R.C. 2929.19(B)(2)(d) (this provision was in R.C. 2929.19(B)(2)(c) when Corder was originally sentenced). A felony sex offense is “a violation of a section contained in Chapter 2907. of the Revised Code that is a felony .” R.C. 2967.28(A)(3);

see R.C. 2929.01(RR) (in R.C. Chapter 2929, felony sex offense has the same meaningHocking App. No. 20CA10 10

as in R.C. 2967.28). An offender is subject to a mandatory fiv e-year period of postrelease control for a felony s ex offense. R.C. 2967.28(B)(1). {¶20} In this case, Corder pleaded guilty to three felony sex offense s. The transcript from his original sentencing hearing is not part of the record before us, so we presume the trial court properly notified Corder about post-rel ease control at that time.

State v. Conn , 2020-Ohio-370, 151 N.E.3d 974, ¶ 21 (4th Dist.). The court i ncorporated that notice into its original sentencing entry. {¶21} Corder’s contention that the trial court erred by not again not ifying him about post-release control at the September 2020 hearing is not well- taken. Corder is correct

that in Fraley , the Supreme Court of Ohio stated: “Following a community contr ol violation, the trial court conducts a second sentencing hearing . At this second hearing, the court sentences the offender anew and must comply with the relevant sentencing

statutes.” Fraley , 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, at ¶ 17. He is

also correct that Filous stands for the proposition that when a trial court revokes community control and imposes a prison term, the court must ora lly advise the defendant about post-release control. Filous , 2017-Ohio-7203, 95 N.E.3d 573, at ¶ 20-23. However, Fraley and Filous set forth these principles in situations in which the offender ’s original

sentence was to community control, the trial court revoked community con trol, and the court was sentencing the offender to prison for the first time

. Fraley at ¶ 1-2, 5; Filous at ¶ 3, 21-23. Here, Corder’s original sentence was to prison time, the trial court placed him on community control as part of its grant of judicial release, and the court reimposed the original prison sentence with credit for time served when it revoked judicial release.Hocking App. No. 20CA10 11

{¶22} “Even though ‘community control sanctions are imposed when judi cial release is granted, judicial release is different from and not synonymous with community

control.’ ” State v. Phipps , 2021-Ohio-258, 167 N.E.3d 576, ¶ 18 (3d Dist.), quoting State

v. Cox , 3d Dist. Auglaize Nos. 2-09-31 & 2-09-32, 2010-Ohio-3799, ¶ 9 , fn. 3. “[J]udicial release is governed by a different statute than community contr ol.” Filous at ¶ 25. “ ‘[T]he rules dealing with a violation of an original sentence of commu nity control should not be confused with those dealing with a violation of community contr ol while on judicial

release.’ ” State v. King , 4th Dist. Lawrence No. 19CA10, 2020-Ohio-1512, ¶ 13, quoting State v. Perry , 4th Dist. Athens No. 13CA12, 2013-Ohio-4066, ¶ 12. {¶23} “Pursuant to R.C. 2929.15, a trial court may impose community c ontrol sanctions as part of an offender’s original sentence.” Phipps at ¶ 19. The court “shall notify the offender that, if the conditions of the sanction are violated * * * the court may impose a longer time under the same sanction, may impose a more restrictive sanction, or may impose a prison term on the offender and shall indicate the specific prison term that may be imposed as a sanction for the violation * * *.” R. C. 2929.19(B)(4). If the offender violates the conditions of community control and the t rial court imposes a prison term, it “shall not exceed the prison term specified in the not ice provided to the offender at the sentencing hearing * * *.” R.C. 2929.15(B)(3). Thus, t he trial court can impose the previously specified prison term or a lesser one, but a not a g reater one. Griffin , 4th Dist. Athens No. 16CA4, 2017-Ohio-6877, at ¶ 18, citing State v. Brooks , 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 22.Hocking App. No. 20CA10 12

{¶24} “[P]ursuant to R.C. 2929.20, a trial court may grant judicial r elease upon the motion of an eligible offender who is currently serving a term of incarceration.” (Emphasis sic.) Phipps at ¶ 21. R.C. 2929.20(K) states: If the court grants a motion for judicial release under this se ction, the court shall order the release of the eligible offender, shall place t he eligible offender under an appropriate community control sanction, under appropriate conditions, and under the supervision of the depart ment of probation serving the court and shall reserve the right to reimpose the sentence that it reduced if the offender violates the sanction. * * * (Emphasis added.) This provision allows the trial court “ ‘mer ely to reinstate the reduced, original prison term upon a violation of the condition s of early judicial release.’ ”

Filous , 2017-Ohio-7203, 95 N.E.3d 573, at ¶ 25, quoting State v. McConnell , 143 Ohio App.3d 219, 224, 757 N.E.2d 1167 (3d Dist.2001). “ ‘[T]he tria l court is bound by the specific term of incarceration imposed at the original sentenci ng hearing. This means the

offender serves the remainder of the exact term of incarceratio n that has only been suspended by the grant of judicial release.’ ” Id. , quoting State v. Abrams , 7th Dist. Mahoning No. 15 MA 0217, 2016-Ohio-5581, ¶ 14. {¶25} In Filous , the trial court originally sentenced the defendant to five ye ars of community control. Filous at ¶ 3. During the sentencing hearing, the court did not mention post-release control, but its sentencing entry stated p ost-release control was optional for three years if he violated community control. Id. at ¶ 3, 13. The defendant violated community control, and the trial court terminated it a nd imposed prison terms for

his offenses. Id. at ¶ 4. At the violation hearing, the court did not mention p ost-release control, but its subsequent judgment entry stated that it was o ptional for three years. Id. The court later granted judicial release. Id. The judicial release entry stated that the defendant was placed on five years of community control, that t he court reserved the rightHocking App. No. 20CA10 13

to reimpose the sentence that was reduced if he violated the te rms of judicial release/community control, and that the defendant was subject t o an optional three-year term of post-release control if the court reimposed his prison sentence. Id. Subsequently, the court found he violated the terms of judicial release/commu nity control, reimposed the suspended prison sentence, and orally advised the defendant tha t he was subject to a mandatory three-year term of post-release control. Id. at ¶ 1, 5. The court memorialized this decision in the judgment entry from which the defendant ap pealed. Id. at ¶ 5. {¶26} On appeal, the defendant argued that “the trial court erred by imposing postrelease control for a prison term imposed for a community contr ol violation.” Id. at ¶ 6. We rejected his argument but found “the trial court failed to p roperly impose post-release control when it terminated Appellant’s community control and sent him to prison the first

time * * *.” (Emphasis added.) Id. at ¶ 7. We explained that when the trial court originally sentenced the defendant to community control, it did not have t o notify him about postrelease control. Id. at ¶ 19. However, when it revoked community control and senten ced him to prison, it had to notify him about post-release control because under Fraley , the court was sentencing him anew. Id. at ¶ 20-23. As a result, based on then existing case law, we determined that the imposition of post-release control was void. 1 Id. at ¶ 22-23. The trial court attempted to correct its error “when Appellant’ s judicial release was revoked and he was returned to prison.” Id. at ¶ 24. However, we explained that “the sentencing at a judicial release revocation hearing is much mor e limited than the

1 Later, in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 42-43, th e Supreme Court of Ohio held that as long as a trial court has jurisdicti on to act, any error in the imposition of postrelease control renders the sentence “voidable, not void,” and “any claim that the trial court has failed to properly impose postrelease control in the sentence must be bro ught on appeal from the judgment of conviction or the sentence will be subject to res judicata.”Hocking App. No. 20CA10 14

sentencing at a community control revocation hearing, which was the situation in Fraley,

* * * where the court reasoned an offender is sentenced ‘anew.’ ” Id. at ¶ 25. We stated that because a trial court “is limited to reimposing the senten ce previously imposed upon a violation of judicial release, it stands to reason that the c ourt cannot, at that time, correct a sentencing error that occurred when the sentence was original ly imposed.” Id. And because the defendant had completed his prison sentence, we con cluded that the trial court no longer had jurisdiction to correct his sentence. Id. at ¶ 26. {¶27} In State v. Thompson , 3d Dist. Crawford Nos. 3-16-01 & 3-16-12, 2016- Ohio-8401, the trial court originally sentenced the defendant t o prison time. Id. at ¶ 4. The court later granted judicial release, suspended the remaind er of his prison sentence, and released him under conditions of judicial release. Id. at ¶ 5. Subsequently, the court found that he violated the conditions of judicial release and r eimposed the remainder of his original sentence. Id. at ¶ 6. After the defendant filed a notice of appeal, the stat e filed a “Motion on Defendant’s Motion to Correct a Judgment of Conviction” in the trial

court. Id. at ¶ 8. The motion evidently related to a purported deficiency in the imposition of post-release control because the court conducted a hearing o n the motion at which it notified the defendant about post-release control and then issu ed a judgment entry informing him of post-release control. Id. at ¶ 8, 17. The defendant also filed an appeal from that entry, and the appellate court consolidated the appea ls. Id. at ¶ 8. {¶28} In affirming, the appellate court rejected the defendant’s argu ment that when the trial court revoked judicial release, it had to fully consider statutory sentencing factors “as if it were sentencing him anew.” Id. at ¶ 14. The appellate court explained: “When the trial court is reimposing the remainder of the defend ant’s original sentenceHocking App. No. 20CA10 15

after revoking his judicial release, the trial court need not m ake the statutory findings that are required when a felony sentence is originally imposed.” Id. The appellate court also rejected the contention that the trial court lacked jurisdictio n to act on the state’s motion during the pendency of the first appeal. Id. at ¶ 17, 28. The appellate court presumed the trial court gave the defendant notice of post-release contr ol at the original sentencing hearing because he did not provide a transcript of that hearing

. Id. at ¶ 22. The appellate court also found that the original sentencing entry was valid b ecause it included the postrelease control sanction imposed by the court. Id. at ¶ 27. The appellate court found that “[b]ecause [the] original sentencing entry is not void and does not contain a clerical error, there is no need for a subsequent sentencing entry.” Id. at ¶ 28. The entry issued after the defendant filed his first appeal was “surplusage” and had “ no legal effect,” id. at ¶ 28, and the defendant “was not prejudiced by any ‘re-notification’ of his postrelease-control sanction,” Id. at ¶ 21. {¶29} Based on the foregoing authorities, we conclude that when a tri al court sentences an offender to a prison term, grants judicial release , but later revokes judicial release and reimposes the prison sentence that it reduced, the appropriate time for the court to give a R.C. 2929.19(B)(2)(d) post-release notification is when the prison term is originally imposed. Nothing in R.C. 2929.20(K) or R.C. 2929.19 (B)(2)(d) suggests that when a trial court revokes judicial release, it must orally ren otify the offender about postrelease control. Moreover, Corder has not directed this court to any legal authority that stands for that proposition. Therefore, we conclude that the t rial court had no duty to orally renotify him about post-release control at the September 2020 hearing when it revoked his judicial release. Accordingly, we overrule the fir st assignment of error.Hocking App. No. 20CA10 16

V. CONCLUSION {¶30} Having overruled the assignments of error, we affirm the trial court’s judgment.

JUDGMENT AFFIRMED.Hocking App. No. 20CA10 17

JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the HOCKING COUNTY COURT OF COMMON PLEAS to carry this judgment into execut ion.

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 60 days upon t he bail previously posted. The purpose of a continued stay is to allow appellant to file w ith the Supreme Court of Ohio an application for a stay during the pendency of proceedin gs in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of app eal with the Supreme Court of Ohio in the 45-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 60 days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for further appeal commences from the date of filing with the clerk.