COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68321 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHARLES UNDERWOOD : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JANAUARY 18, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 286003 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Cuyahoga County Prosecutor By: David C. Sheldon, Esq. Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- Peter Lawson Jones, Esq. 1228 Euclid Avenue Suite 800 Cleveland, Ohio 44114-1800 HARPER, P.J.: A Cuyahoga County Grand Jury indicted defendant-appellant, Charles Underwood, in a four-count indictment on October 1, 1992. Appellant was charged with selling or offering to sell cocaine in an amount equal to or exceeding three times bulk amount, R.C. 2925.03(A)(7); knowingly preparing for shipment, shipping, transporting, delivering, preparing for distribution or distributing cocaine, with the intent to sell or resell, R.C. 2925.03(A)(2); knowingly possessing cocaine in an amount equal to or exceeding three times bulk amount, R.C. 2925.03(A)(6); possessing criminal tools, R.C. 2923.24. Appellant entered not guilty pleas at his October 15, 1992 arraignment. The trial court held a hearing on April 1, 1993 regarding a plea agreement entered into between appellant and plaintiff- appellee, the state of Ohio. Pursuant to the plea agreement, count one was amended to selling or offering to sell cocaine in an amount less than the bulk amount, R.C. 2925.03(A)(1); appellant would plead guilty to count one, as amended, and count two as charged in the indictment. In exchange for the dismissal of the remaining two counts via nolle prosequi, appellant would serve consecutive two- year terms on the first two counts. The state then requested the following of the court: -3- The state requests, your Honor that the defendant remain out on bond for sentencing at a later date, at which time the state will appear with defense counsel, and members of the Cleveland Law Enforcement Agency to evaluate if the defendant has in fact cooperated with the authorities, and either done one of the following: Number one, has set up a buy for a law enforcement agency of a kilogram, or set up five buys from dealers of controlled substances in an amount three times greater than the bulk amount. And if in fact, your Honor the defendant has done one of the following two conditions, the state will not object to this honorable court considering probation for the defendant. If however, your Honor the defendant has not complied with the above conditions of this plea arrangement, the state would respectfully request that the honorable court sentence the defendant to a term of incarceration of four years flat. The trial court accepted appellant's guilty pleas to count one, as amended, and count two. Appellant was sentenced to two consecutive terms of two years, "the agreed upon sentece [sic]," on 2 May 7, 1993. The state, on March 28, 1994, filed a motion to vacate appellant's April 1993 guilty pleas. The gist of the motion was that appellant agreed to not only cooperate with the authorities as 1 Appellant also agreed to forfeiting his rights or interests in certain contraband as part of the plea agreement. However, the propriety of the forfeiture is not an issue in this appeal. 2 The record before this court does not contain a transcript from the sentencing hearing. The reason why appellant was sentenced to a four year term rather than placed on probation, as outlined in the plea agreement, is not explained elsewhere, though references to appellant's failure to set up a buy for a kilogram, or five buys of a controlled substance in an amount three times the bulk amount, are made in a subsequent motion to vacate hearing. Additionally, appellant was presumably a first- time offender who completed two years of college and was currently a student at the time of his plea hearing. -4- to controlled buys, but "to testify truthfully at the trial(s) of any cocaine dealer that was arrested and indicted as a result of the defendant's undercover work." According to the state, when appellant was called upon to discuss the upcoming trial of defendants who were arrested with appellant's assistance, appellant either feigned memory loss or refused to see or speak with prosecutors and/or law enforcement personnel. The state, therefore, sought to have appellant's guilty pleas vacated and the original charges reinstated, based upon his alleged violation of the plea agreement. After appellant filed a brief in opposition to the motion to vacate, the trial court conducted a hearing on the motion on June 1, 1994. The state conceded at the hearing that the "testify truthfully" requirement of appellant's plea agreement was not commented on at the April 1, 1993 plea hearing. It explained that the requirement is not generally announced in an open courtroom so as to secure the safety of a cooperating defendant and/or any officers working with the defendant in his or her undercover capacity. Moreover, the state asserted that appellant's obligation to testify truthfully was always understood to be a condition of the plea agreement by all involved parties. The state offered the testimony of Winston Grays and Michael Gray at the hearing to justify the granting of its motion to vacate appellant's guilty pleas. Grays, with the Cuyahoga County Prosecutor's Office, was the supervisor of the three times bulk drug unit and second in command of the major trial unit at the time -5- of the hearing. Gray was a third-year member of the Greater Cleveland Regional Transit Authority Police Department, assigned to the Caribbean Gang Task Force at the time. Grays testified that after appellant's indictment, he met with appellant's counsel, members of the Cleveland Police Department, and an assistant prosecuting attorney, to discuss a possible plea bargain between the state and appellant. After confirming that appellant could assist the police department, an outline was prepared which set forth the terms of the agreement. Appellant's counsel was then clearly advised that the state would not recognize a plea agreement unless appellant agreed to testify, if called upon to do so by the state, at any trial involving a defendant who was arrested with appellant's assistance. Grays testified that appellant's counsel acknowledged this condition as part of the plea agreement. Grays testified further that Jerome Davis and Ivory Carroll were two of several people arrested as a result of appellant's cooperation with the authorities. Grays testified that these defendants pled guilty to drug trafficking charges, but appellant's refusal to speak with the prosecutor(s) and law enforcement authorities resulted in the decision to reduce the charges by the prosecutor's office as to Davis. Grays, however, admitted that appellant never expressly stated, "I refuse to testify," at any point. Detective Gray testified that appellant participated in a number of controlled drug buys both prior to and after he entered -6- his guilty pleas in April 1993. It was Gray's office which was responsible for advising the prosecutor's office of appellant's participation in the controlled buys. Gray specifically recalled speaking with appellant in February 1993 about appellant's obligation to identify suspects and possibly to testify against them at trial pursuant to the plea agreement in question. Gray testified that appellant accepted this responsibility, and even spoke of relocation if, in fact, he fulfilled it. With regard to the drug transaction involving Davis and Carroll, appellant was the only witness, according to Gray, who could positively identify Davis' voice on a tape recording. Gray testified that when he visited appellant to discuss Davis' and Carroll's upcoming trial, appellant ultimately stated, "'I'll have to check with my attorney to see what I can and cannot remember.'" Appellant responded similarly when shown his previously prepared statement about his dealings with Davis and Carroll. Both Gray and an assistant prosecuting attorney, who also heard appellant's "I cannot remember" statement, concluded that appellant was reluctant, "didn't care to assist us," and not willing to either testify against Davis and Carroll or identify them at trial. Appellant testified that he was always willing to testify truthfully against Davis and Carroll, and more to the point, that he never stated to either Grays or an assistant prosecuting attorney that he would not testify against these individuals. Contrary to the state's position that appellant feigned memory loss, appellant testified that he honestly could not remember the -7- events in a manner that was acceptable to the state. Appellant denied that he ever said to anyone that he would have to speak with his attorney before he decided what he could or could not remember regarding Davis and Carroll. Rather, he testified that he merely wanted to speak with his attorney before saying anything further. Appellant also refused to meet with the state a second time because he did not want to be subjected to further "badgering" and "drilling." Finally, appellant testified that he reviewed and confirmed the statement which he provided following his dealings with Davis and Carroll, hoping that this would satisfy the state, to no avail. The trial court vacated appellant's guilty pleas on July 20, 1994. The court set November 21, 1994 as appellant's trial date. On the day scheduled for trial, appellant entered guilty pleas to the first and third counts of the original indictment which were both amended to "less than bulk offenses," and to count two, drug trafficking. The state dismissed the fourth count of possession of criminal tools. The trial court immediately sentenced appellant to two-year terms on each of the first two counts, and to a term of one year on count three, all terms to be served consecutively. The court also fined appellant, respectively, in the amounts of $2,500, $5,000 and $1,500 on counts one through three. This appeal followed with appellant claiming as error: I. THE COURT'S GRANTING OF THE MOTION OF APPELLEE TO VACATE APPELLANT'S PLEA[S] WAS CONTRARY TO LAW AND NOT SUPPORTED BY THE EVIDENCE. -8- II. THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO DENY APPELLEE'S MOTION TO VACATE APPELLANT'S PLEA[S] AS SAID MOTION WAS THE PRODUCT OF APPELLEE'S VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHT TO COUNSEL. III. THE COURT COMMITTED REVERSIBLE ERROR BY GRANTING APPELLEE'S MOTION TO VACATE APPELLANT'S PLEA [S], ACCEPTING A NEW PLEA[S] AND RESENTENCING APPELLANT AS SAID ACTS VIOLATED HIS CONSTITUTIONALLY PROTECTED RIGHT AGAINST DOUBLE JEOPARDY. Appellant discusses his understanding of the parties' plea agreement in his first assignment of error. He submits that there were two distinct and independent components to the one agreement, but neither component required him to testify at anyone's trial in order for him to receive two consecutive terms of two-years as his sentence. Appellant thus argues that the trial court abused its discretion when it vacated his April 1993 guilty pleas, thereby allowing the original charges to be reinstated against him. The first component was that if he pled guilty to count one which was amended to delete the three time bulk amount element, and to count two as charged, he would be sentenced to the total four- year term. Appellant benefitted from this bargain by not facing the remaining two charges, and the state benefitted by not enduring the uncertainties of trial on all four counts. The second component was that if appellant cooperated with the state and law enforcement authorities, the state would not object to probation instead of the four-year sentence. Appellant benefitted from this bargain by possibly being placed on probation if he cooperated, whereas the state benefitted once again by not going to trial against appellant, and possibly convicting other drug offenders. -9- Appellant suggests that under this agreement, his cooperation with the authorities was not mandatory in order to enter guilty pleas under the first component and receive the four-year sentence. In other words, once appellant pled guilty to the first two counts as set forth supra, and received the four-year sentence, he was not obligated to carry out the second component, i.e., cooperate with the state and its representatives. Appellant next proposes that assuming arguendo that he agreed to the condition that he testify, he maintains that he was always willing to testify even when he could not honestly and fully recall his dealings with Davis and Carroll. In addition to this reason, appellant declares that equity demands the reinstatement of the original pleas of April 1, 1993 because his cooperation with the authorities netted numerous indictments and convictions beyond those of Davis and Carroll. Appellant, in his third assignment of error, constitutionally attacks the trial court's vacating of his pleas based upon a violation of the Fifth Amendment to the United States Constitution 3 and Section 10, Article I, Ohio Constitution. He argues that the vacating of his pleas, and his subsequent convictions and sentences, amounted to a violation of his right against double jeopardy. As this assignment of error is linked with appellant's first assignment, the two are reviewed jointly in this appeal. 3 Appellant raised the double jeopardy argument in the trial court during the motion to vacate hearing. -10- The state responds to all of appellant's assigned errors, both constitutional and otherwise, with the argument that once appellant pled guilty on November 21, 1994, he was no longer capable of raising constitutional claims regarding events prior to this date. The state relies on the following language contained in Tollett v. Henderson (1973), 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235: We thus reaffirm the principle recognized in the Brady [v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed. 747] trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea ***. The state also cites Menna v. New York (1975), 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195, and Brown v. Maryland (C.A.4, 1980), 618 F.2d 1057, in support of its position. See, also, State v. Barnett (1991), 73 Ohio App.3d 244. In Menna, a case decided after Tollett, the petitioner refused to testify before a New York grand jury on November 7, 1968 and March 18, 1969 with regard to a murder investigation. After the petitioner was found in contempt of court on the second occasion, he was sentenced to, and served, a thirty-day jail term. Menna, 423 U.S. at 61, 96 S.Ct. at 241. The petitioner was indicted on June 10, 1970 for refusing to answer questions before the grand jury on November 7, 1968. He argued unsuccessfully that the Double Jeopardy Clause of the Fifth -11- Amendment to the United States Constitution required the dismissal of the indictment. The petitioner then pled guilty to the indictment and was sentenced on his plea. Id. The petitioner repeated his double jeopardy argument in his appeal. The New York Court of Appeals affirmed the petitioner's conviction by holding that the petitioner waived the double jeopardy claim when he pled guilty. The court of appeals' decision to decline review of the constitutional argument was based on Tollett. Id., 423 U.S. at 62, 96 S.Ct. at 242. The Supreme Court of the United States reversed, noting that not all counseled guilty pleas absolutely result in the waiver of prior constitutional violations under Tollett or any of the cases on which it relied, e.g., Brady, supra, and McMann v. Richardson (1970), 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763. Menna made clear that the concept of waiver was not the cornerstone of this line of cases, rather, the cases establish that a voluntary and intelligent admission of guilt removes the issue of factual guilt from a case. Menna, 423 U.S. at 63, fn. 2, 96 S.Ct. 242, fn. 2. Thus, "[w]here the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty." Id., 423 U.S. at 62, 96 S.Ct. 242, citing Blackledge v. Perry (1974), 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628. The court in Menna applied the foregoing to the petitioner's double jeopardy argument, and concluded that he did not waive his -12- claim that the state could not convict him notwithstanding the valid establishment of his factual guilt. Id., 423 U.S. at 63, fn. 2, 96 S.Ct. 242, fn. 2. The court, therefore, remanded the case to the New York Court of Appeals for a determination of the petitioner's double jeopardy argument. Id., 423 U.S. at 63, 96 S.Ct. at 242. Based upon Tollett and Menna, a defendant may waive double jeopardy arguments by pleading guilty to the charges against him or her. Constitutional violations which are not logically inconsistent with the valid establishment of factual guilt are rendered irrelevant by a guilty plea. Id., 423 U.S. at 63, fn. 2, 96 S.Ct. at 242, fn. 2; see, State v. Shabazz (Sept. 30, 1993), Cuyahoga App. No. 63826, unreported; State v. Hill (Feb. 4, 1993), Cuyahoga App. Nos. 61685, 61686, unreported. However, "a plea of guilty to a charge does not waive a claim that--judged on its face- -the charge is one which the State may not constitutionally prosecute." Menna, 423 U.S. at 63, fn. 2, 96 S.Ct. 242, fn. 2. Compare, State v. Spates (1992), 64 Ohio St.3d 269 (following Tollett, once the defendant entered guilty pleas, he waived constitutional claim that he was denied counsel at a preliminary hearing, a claim which does not affect the state's right to prosecute). In the present case, appellant makes a similar argument made by the petitioner in Menna, i.e., that due to his June 16, 1993 conviction, the November 25, 1994 conviction was barred under the double jeopardy provisions of the state and federal constitutions. -13- The Fifth Amendment to the United States Constitution provides, in part, that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." Section 10, Article I, Ohio Constitution similarly requires that "[n]o person shall be twice put in jeopardy for the same offense." The Fifth Amendment guarantee against double jeopardy is comprised of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-2077, 23 L.Ed.2d 656; see, United States v. Dixon (1993), 509 U.S. , 113 S.Ct. 2849, 125 L.Ed.2d 556; State v. Worsencroft (1995), 100 Ohio App.3d 255; State v. Crago (1994), 93 Ohio App.3d 621. The Double Jeopardy Clause prohibits a second prosecution for the same offense(s) after conviction. Illinois v. Vitale (1980), 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed. 228. A trial court's acceptance of a tendered guilty plea places the defendant in jeopardy, and the vacating of the plea is forbidden except for legal cause. See, Gamble v. State (Fla.App. 1984), 449 So.2d 319, 321; see, also, Serfass v. United States (1975), 470 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265; State ex rel. Leis v. Gusweiler (1981), 65 Ohio St.2d 60, 61; State ex rel. Sawyer v. O'Connor (1978), 54 Ohio St.2d 380, 382. If the plea is accepted conditionally and the defendant fails to comply with the -14- condition(s), the court is justified in vacating the plea. Gamble; see, United States v. Verrusio (C.A.7, 1986), 803 F.2d 885, 887- 890. The Double Jeopardy Clause, therefore, does not bar a state's prosecution of a defendant after jeopardy attached if the defendant's plea is vacated based upon a breach of the plea agreement. See, e.g., Verrusio; State v. Curry (1976), 49 Ohio App.2d 180; State v. Small (1987), 41 Ohio App.3d 252. A state's right to enforce a plea agreement actually made between the parties does not violate double jeopardy principles when both parties bargained for and received substantial benefits, and the defendant understood that the charges would be reinstated upon a breach of the agreement. See, Ricketts v. Adamson (1987), 483 U.S. 2, at 9-10, 107 S.Ct. 2680, 2685-2686. It is irrelevant that double jeopardy is not expressly waived in the agreement; rather, it is the defendant's understanding of the consequences of a breach which determines the application of double jeopardy. Id. In Ricketts, the plea agreement clearly called for the defendant to testify fully and completely in any court when requested by the authorities, in connection with a murder. The agreement also clearly provided that upon the defendant's failure to testify, either at all or truthfully, the agreement was "null and void." At this point, the charges would automatically be reinstated against him. Id., 483 U.S. at 2, 107 S.Ct. at 2682. In this context, the Supreme Court of the United States determined that the defendant was fully aware of the consequences of his failure to comply with the plea agreement, i.e., that he waived any -15- double jeopardy defense by accepting the agreement. Id., 483 U.S. at 10, 107 S.Ct. at 2685-2686. A plea bargain is contractual in nature. United States v. Arnett (C.A.9, 1979), 628 F.2d 1162, 1164, citing Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. Courts are to examine what was reasonably understood by the parties at the time the guilty plea is entered when determining whether there has been a breach of the agreement. United States v. Partida-Parra (C.A.8, 1988), 859 F.2d 629, 633; Arnett. Herein, the transcript of appellant's plea hearing illustrates the correctness of appellant's understanding of the agreement as set forth, supra: in exchange for entering two guilty pleas, he would receive a total sentence of four years; if he cooperated with the authorities in the outlined drug transactions, the state would not object to probation. The transcript reveals that the state neither set forth that appellant was ever obligated to testify against anyone, nor that the charges against him could be reinstated if he failed to comply with the terms of the agreement. The state seeks to justify this omission by asserting appellant and his counsel knew about the "testify truthfully" requirement before appellant's plea hearing, and moreover, that the requirement is not in the plea hearing transcript in order to safeguard appellant and any law enforcement official. This attempt to justify an egregious error on behalf of the state falls on deaf ears for a variety of reasons. -16- First, appellant's plea had to be voluntary, knowing and intelligent under Crim.R. 11 at the time he entered it. If the state wanted to reserve its right to require appellant's testimony at other defendants' trials, or otherwise seek reinstatement of the charges against him, it should have stated so at the time of the plea hearing, thereby making this condition of the plea agreement part of the record. Ricketts. Compare, State v. Carpenter (1993), 68 Ohio St.3d 59 (state should have reserved its right to bring additional charges against defendant by making reservation a part of the record at the time of the plea). This court is aware of the fact that the assistant prosecuting attorney who was assigned to appellant's case was not the same assistant prosecuting attorney who appeared on behalf of the state at the plea hearing. If communication failed between these two assistant prosecutors as to the conditions of appellant's plea agreement, or if the "testify truthfully" and/or reinstatment of the charges conditions were inadvertently omitted from the hearing, appellant should not be punished by the state's failure to adequately and fully insert the plea agreement into the record. The state and its representatives are or should be cognizant of the mechanics of the plea bargaining process. The state's slant in this case, which ignores the long-standing principle of the plea bargaining process that an agreement be fully set forth in the record, is an unreasonable attempt to remedy a situation which should never have happened in the first place. -17- Second, even accepting the state's precautionary reason for not placing the "testify truthfully" requirement into the record, the state nonetheless arguably placed appellant at peril by merely speaking about his involvement in upcoming undercover operations. The safety of appellant and any officer was obviously an issue at that point, so placing the "testify truthfully" requirement into the record would not have heightened the danger. Finally, not only did the state fail to set forth this condition in the plea, but it also failed to address, at the plea hearing, the reinstatement of the charges against appellant if he did not fulfill the obligations of the agreement. Under these circumstances, an issue would still have remained with regard to appellant's waiver of a double jeopardy defense. It is true that a defendant's failure to fulfill the terms of a plea agreement relieves the government of reciprocal obligations under the contract. Verrusio, 888. It is also true that whether a defendant breached the obligations of the agreement is a discretionary issue left to the trial court. Verrusio; State v. Smith (1977), 49 Ohio St.2d 261, 264; Curry, 183; State v. Blatnik (1984), 17 Ohio App.3d 201, 202. However, the terms of the plea agreement, as contained in the record, must form the basis of the trial court's determination. See, Carpenter. The trial court herein had to look to the plea hearing to determine appellant's compliance, and not to new evidence offered by the state at the motion to vacate hearing. In other words, the trial court's sole function at the motion to vacate hearing was to -18- hear evidence as to appellant's breach, not to the terms of the agreement itself, a function it deviated from in accepting the state's assertion that appellant agreed to testify as part of his plea agreement. In conclusion, appellant did not waive his double jeopardy rights by either entering into the plea agreement, or by pleading guilty on November 25, 1994. Ricketts; Menna. The vacating of his April 1993 guilty pleas, and the reinstatement of the charges against him, violated appellant's right against double jeopardy. Compare, State v. Weisenfluh (Aug. 23, 1993), Delaware App. No. 92CA-A-07-026, unreported (reinstatement of charges after sentencing violated double jeopardy where written plea documents and plea hearing transcript failed to disclose defendant understood that as part of the plea, the original charges against him could be reinstated if he failed to cooperate in "drugs for sex" investigation); State v. Taylor (May 19, 1993), Lorain App. No. 92CA005469, unreported (double jeopardy not violated where plea hearing transcript showed defendant informed about reinstatement of charges in case of failure to fulfill agreement to testify against husband). Appellant's first and third assignments of error are sustained. Appellant's second assignment of error deals with the discussions had between appellant and the state's representatives outside the presence of counsel. Since these discussions motivated the state to file its motion to vacate, appellant argues that the -19- motion should have been denied based upon a violation of the Sixth Amendment to the United States Constitution and Section 10, Article I, Ohio Constitution. In light of this court's conclusion that the trial court's vacating of appellant's guilty pleas and the reinstatement of the charges against him violated the Double Jeopardy Clause, his second assignment of error is moot. We, therefore, do not address it. See, App.R. 12(A)(1)(c). Judgment reversed and cause remanded for proceedings to be consistent with this opinion. -20- It is ordered that appellant recover of appellee his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate Pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY McMONAGLE, J., CONCURS; JAMES M. PORTER, J., CONCURS IN JUDGMENT ONLY. PRESIDING JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, .