[Cite as State v. Campbell, 2026-Ohio-2710.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, : CASE NO. 25CA24
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY
TIMOTHY B. CAMPBELL, :
Defendant-Appellant. :
APPEARANCES:
Angela Miller, Jupiter, Florida, for appellant1.
Anneka P. Collins, Highland County Prosecuting Attorney, and Adam J. King, Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee.
________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:7-8-26
ABELE, J.
{¶1} This is an appeal from a Highland County Common Pleas
Court judgment of conviction and sentence. Timothy Campbell,
defendant below and appellant herein, raises three assignments
of error for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT’S SENTENCE OF APPELLANT,
WHICH INCLUDED BOTH THE MAXIMUM JAIL TERM
AND THE MAXIMUM FINE, WAS AN ABUSE OF
DISCRETION. R.C. 2929.22.”
1 Different counsel represented appellant during the trial court proceedings. Highland App. No. 25CA24 2
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING A DISTRICT-WIDE EMPLOYMENT
PROHIBITION AS A CONDITION OF STAY PENDING
APPEAL. U.S. CONST. AMENDS. VIII, XIV; OHIO
CONST. ART. I, §§ 9, 16; OHIO APP.R. 7.”
THIRD ASSIGNMENT OF ERROR:
“THE REPRESENTATION PROVIDED TO CAMPBELL
FELL BELOW THE PREVAILING NORMS FOR COUNSEL
AND AFFECTED THE OUTCOME OF HIS SENTENCING
IN VIOLATION OF THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, ARTICLE I, §§ 2, 10, AND 16 OF
THE OHIO CONSTITUTION.”
{¶2} In May 2025, a Highland County Grand Jury returned an
indictment that charged appellant with one count of felonious
assault in violation of R.C. 2903.11(A)(1), a second-degree
felony. Appellant entered a not guilty plea.
{¶3} At appellant’s September 29, 2025 jury trial, Rhonda
Matracia testified that she is employed at the local VFW and on
February 14, 2025 observed appellant enter the VFW and order a
drink at the bar. After she said hello, she lost him in the
crowd until “there was a commotion . . . at the back end of the
bar. The band stopped playing, and the lights came on.”
Appellee played State’s Exhibit 1, the VFW surveillance video,
for the jury. Matracia stated that when she got to the victim,
she observed blood on him and he “was lying on the floor, his
wife was hovering over him, he was completely unconscious.” Highland App. No. 25CA24 3
{¶4} VFW bartender Dorothy Leath worked the night of
February 14, 2025. Leath said that as appellant entered the
VFW, the victim (Shane Fligor) sat at a table in a corner with
his wife. When appellant entered, he “came in and ordered a
beer and mingled, and then he ended up over there in the corner,
and [appellant] was pointing at [Fligor], I didn’t hear what he
said.” Then, Leath testified, “I saw [appellant] hit [Fligor]
two times.” Similarly, VFW employee Chuck Bender “saw
[appellant] walk in, looked like him and [Fligor] was having a
conversation and then [appellant] started swinging... at
Fligor.” VFW employee Donita Palmer testified that on February
14, 2025, she was outside on a “smoke break” when appellant
left. Palmer said, “Hey, Campbell, what is wrong?” And
appellant “is like, well, I just beat the f*ck out of somebody.”
{¶5} VFW patron Brandi Tait testified that on February 14,
2025 she observed appellant approach the victim, and “heard him
say something to the effect of, I didn’t say I thought you were
gay, Shane, so it made me take notice of what was going on.”
When Tait looked back a moment later, “it literally looked like
Shane’s head was bouncing off the wall like three or four times,
and then Shane went to the ground, and he definitely looked
out.” Tait explained that appellant hit the victim, he fell out
of his chair to the floor, and “there was blood everywhere,” and
it looked like the victim lost consciousness.
Highland App. No. 25CA24 4
{¶6} VFW patron Angela Hurless observed the victim sitting
behind her. Hurless noticed appellant enter the VFW, get a
drink, and then he “ran toward [Fligor] and hit him.” After
appellant “hit [Fligor] that one time,” Fligor “hit the floor,”
and had “blood all over him.” Outside the VFW that evening,
patron Bridget Davis testified that about a year before, she
joined the victim and his wife and some friends at Furman’s,
where appellant approached her and said, “he was sorry that I
had a fagot for a friend.”
{¶7} Greenfield Police Patrolman Quinton Smith testified
that Shane Fligor entered the police station between 10:00 and
11:00 p.m. with “blood coming out of his ear, . . . an abrasion
on his nose, [and] blood on his jacket . . . pants and shoes.”
Fligor told Smith that appellant “struck him in the face
multiple times, causing him to go unconscious. . . he couldn’t
remember what happened after he got hit.” After Smith
photographed Fligor’s injuries, he and another officer searched
for appellant for about 30 minutes and eventually visited the
VFW, where they spoke with managers and requested video footage.
Smith testified that, after they called appellant and told him
they had an arrest warrant, appellant drove to the station and
turned himself in.
{¶8} Emergency Department Physician Dr. Daren Barker
testified that on February 14, 2025, Fligor arrived with “a Highland App. No. 25CA24 5
laceration to his right ear, it had some bleeding, he had an
abrasion to his nose, some facial contusions, mostly to the nose
as well.” A CT head scan revealed a nondisplaced fracture of
the left tip of the nasal bone. In addition, the victim also
suffered a cervical (neck) sprain and neck tenderness and told
Barker that he had lost consciousness for less than a minute.
Barker repaired the laceration to the right ear. Barker’s note
said, “[Fligor] was knocked against the wall and was witnessed
to be unconscious for less than thirty seconds.” Barker
prescribed Toradol, a non-steroidal anti-inflammatory for pain,
Cephalexin, an antibiotic, Robaxin, a muscle relaxer, and
ibuprofen.
{¶9} Victim Shane Fligor serves as a substitute teacher at
McClain High School and an assistant instructor/mentor for the
McClain Cadet Corps, “similar to an Army or Air Force Jr. ROTC
program.” Fligor served 23 years on active duty, including
three Iraq deployments and one to Bosnia, and retired in 2021.
Fligor is married to his wife, Jennifer.
{¶10} Fligor met appellant at McClain High School in 2023 or
2024, “where [appellant] was also working as a substitute
teacher.” Fligor had a few interactions with appellant outside
of the school, and the two did not speak to each other at the
high school. Fligor explained:
Highland App. No. 25CA24 6
The first time I had gone to see a band at Catch 22 there
in Greenfield, I was back up against the back wall. Tim
[appellant] came up to me he said, ‘I know you, you work
at the school,’ and I said ‘yes.’ And he said, ‘you
need to f*cking lighten up.’ . . . nobody at the school
likes you, the students don’t respect you and they make
fun of the way you dress.
{¶11} At the second interaction, “my wife and I had just got
done with a cadet corps event, we decided to go to the VFW, I
was in my military uniform. Appellant approached and said,
“That is f*cking gay.” Appellant and his wife left. For the
third interaction, Fligor and his wife joined friends at
Furman’s restaurant when appellant approached their table, and
“asked the ladies that were with us, my wife and two other
ladies what they were doing with me. My wife said, ‘I’m his
wife,’ and he said, ‘I always thought he was a f*cking fagot.”
Fligor and the group left.
{¶12} Fligor’s fourth interaction with appellant occurred on
February 14, 2025, when Fligor and his wife stopped at the VFW
“for a quick Valentine’s date.” They ordered drinks and sat at
a table in the back of the bar. When his wife went to the
restroom:
I saw Tim Campbell walk by and then a brief moment later
I heard him yelling my name. Without leaving the chair
I turned back around towards him and he said, ‘I want to
talk to you about the time I called you a fagot.’ I said,
‘Tim, now is not the time and the place to discuss this.
If you want to talk about it later we can definitely do
that. But, please, just go.’ He leaned in close to me
and said, ‘if I slam your head through this f*cking wall
I’ll bet you will f*cking talk to me then.’ I said,
Highland App. No. 25CA24 7
‘Tim, no.’ That is when Tim hit me and I lost
consciousness.
The next thing I remember is I heard my wife, I couldn’t
see anything, everything was still black, but I heard my
wife say, ‘Shane, wake up, Shane, wake up, Shane, please
wake up.’ I began to hear other voices saying ‘come on,
Shane, what is going on, what happened, what is going
on.’ When I was able to open my eyes I was sitting on
the floor, I could taste blood in my mouth. I couldn’t
see really who was around me, I couldn’t even make out
my wife. I sat there for, I don’t know exactly how long.
And finally I said, ‘Please get me up, get me up, get me
out of this area,’ because we were still in the bar area.
{¶13} After Fligor washed blood off his face, his wife drove
him to the police station and the hospital, where he received
five stitches in his right ear and learned he had a broken nose
and a sprained neck. A few days later, Fligor had “a lot of
headaches, trouble seeing, very nauseated, was sleeping a lot,”
so he visited the VA Medical Center, which diagnosed him with a
concussion. Fligor explained,
Still to this day, I have a lot of ringing in my right
ear, my neck is still stiff, I mean it’s a lot better
than it actually was, I’m having trouble sleeping,
incredibly anxious, there are times that I’ll be in the
classroom or I’ll been having a communication with
somebody and I will completely forget what we were
talking about what I was saying at that time. And
somebody will remind me what we were talking about and
it’s like I’m completely lost. It will take me several
minutes to get everything back.
{¶14} Fligor testified that he attended the annual Cadet
Corp Ball, the next day. Because Fligor is a Cadet Corp leader,
he explained that he needed “to be there for them.” At the Highland App. No. 25CA24 8
dance, Fligor “was in excruciating pain, I had a severe
headache, my nose hurt, my ear hurt.” Fligor said that the
music and bright lights bothered him, and he spent the majority
of the event “in the hallway, in the bathroom, throwing up, or
out in my car until I could get the headache to subside and I
could come back in the room.” Fligor and his wife left early.
Fligor also testified that he and his wife attended a basketball
game earlier in the day, but he did not remember attending it.
On cross-examination, Fligor acknowledged that he had been
diagnosed with tinnitus previously and already took medication
for anxiety related to his post-traumatic stress disorder (PTSD)
from previous deployments.
{¶15} Jennifer Fligor, the victim’s wife, testified that she
is self-employed and previously served as a combat medic in the
military. Ms. Fligor testified that she only knew appellant “by
our previous encounters. . . we have had several encounters with
him variously over the years.” For example, before the assault
on February 14, Ms. Fligor explained that they joined friends
for dinner at a restaurant, and had just been seated, when
appellant approached them, looked at Fligor and said, “I always
pinned you for a fagot.” The group left the restaurant.
{¶16} On February 14, Ms. Fligor stated that, although she
did not notice appellant at the VFW, later, when she excused
herself to visit the ladies’ room, as she washed her hands, she Highland App. No. 25CA24 9
heard “people starting to yell, ‘Shane is hurt, Shane is hurt.’”
When Ms. Fligor arrived, “he was completely slumped up against
the wall, down, his head was crunched up against his chest, he
was unconscious, and there was blood everywhere. . . his hands
were inverted, almost like a seizure activity that you see. His
eyes were rolled back.” Fligor confirmed that her husband was
breathing, tried to get him up so she could clear his airway,
and yelled for someone to call an ambulance. After a few
seconds, Fligor regained consciousness and asked to be removed
from that area, so Ms. Fligor moved him to a back room to clean
him and ensure he was fully conscious. After that, the couple
drove to the police station, then to the hospital.
{¶17} Ms. Fligor testified that she is a photographer and
needed to work a basketball game the following day, but did not
want to leave her husband home alone because he showed signs of
concussion, such as headaches and nausea. At the game, Fligor
sat in the corner with Ms. Fligor’s camera gear and wore
earplugs. Later that evening, the couple attended the Cadet
Corps Ball and “[Fligor] was very much not there.” Ms. Fligor
drove because she did not trust him to drive and Fligor slept
most of the way. After the music started at the event, Fligor
excused himself and stayed away from the loud music and bright
lights “because he kept complaining that everything was making Highland App. No. 25CA24 10
his stomach nauseous and the bright lights were hurting his
head.” They left early.
{¶18} Greenfield McClain High School Military Science
Instructor John Wilson served in the Air Force for 20 years.
Wilson observed Shane Fligor at the military ball on February
15. When the music started and the lights flickered, Wilson
noticed “that [Fligor] . . . winc[ed], his eyes bugged a little
bit. . . and on several occasions he departed that area and went
out into the lobby area.”
{¶19} At the close of appellee’s case, the trial court
overruled appellant’s Crim.R. 29 motion for judgment of
acquittal.
{¶20} Appellant’s brother-in-law, Aaron Penn, testified that
he observed Fligor at the basketball game on February 15 and did
not notice anything unusual about him other than a scab on his
nose, even though Penn knew of the beating the night before.
{¶21} Appellant testified that he had only seen Shane Fligor
twice outside of school. At Furmans, Fligor and his fiancé were
sitting at the bar, “and I was looking around like I always do
because of PTSD and working as a correction officer, I always
know what my surroundings are.” Appellant stated that Fligor,
“yelled across and said, ‘that is my wife you’re looking at.’
And I was like, and I said, and I said, ‘this is my fiancé,’ and
I said, ‘I’m very sorry, but I thought you were gay. I did say Highland App. No. 25CA24 11
that.” Appellant explained that Fligor “stood up, took a pretty
good defensive posture for a few minutes and I just turned
around.”
{¶22} On February 14, appellant arrived at the VFW
about 45 minutes before he punched Fligor. “I had noticed
Shane, and I walked up to Shane and I said, ‘hey, Shane, I
would like to apologize for the words we had.’ ” Shane
said, “F off, not here.” Appellant said, “You’re going to
say something to the wrong person, like you're doing in one
of these places late at night in a bar like this, and they
are probably going to put your head through that wall.”
Fligor said, “F’ off.” When asked on cross-examination,
“you don’t like to be told no, do you?” appellant replied,
“No.”
{¶23} After hearing the evidence, the jury found appellant
not guilty of R.C. 2903.11(A)(1) felonious assault, but guilty
of first-degree misdemeanor assault in violation of R.C.
2903.13(A).
{¶24} Subsequently, the trial court proceeded to sentencing
and the victim gave a statement:
I did nothing to [provoke] Mr. Campbell. When this
situation happened my kids let me know that he was a
teacher at their school and has taught them. I fear for
my safety, I fear for my children’s safety. I have
been deployed four times and my wife has never had to
deal with me getting hurt. Until I came home and was
attacked by Mr. Campbell. I ask that he please be
Highland App. No. 25CA24 12
incarcerated and that we do everything we can to make
sure that Mr. Campbell never approaches me, my family,
my parents, any of our family because I do fear
retaliation.
In addition, Mrs. Fligor gave a victim impact statement:
I just ask that, like Shane said, that you take into
consideration that as a spouse to have to come around
the corner and see their spouse on the floor like that.
I have been deployed to Iraq, and I’m telling you that
I was never so scared as I was that night seeing my
husband bleeding on the floor for no reason, hearing
somebody scream through a place where we call home, the
VFW, that is our safety net, as veterans. And I never
want anybody else to have to hear that again.
In allocution, appellant provided the following:
I just want to apologize to Mr. Fligor, and to everybody
else, the Jury did find me guilty, my peers did, and I
apologize and I am sorry everything happened. And I
hope things go better for the both of us and everyone,
and thank everyone for being here.
The trial court then stated:
Well, in my opinion, this verdict was the result of the
law. Next to the definition of recklessly the definition
of serious physical harm is the most poorly worded
statute in the Criminal Code. And the way I look at it,
would I be willing to trade places and accept the harm
that was caused in this case. And I think the answer to
that I, no. But, unfortunately, the way the law is
drafted the jury found that it did not meet that
standard. And so, you know, that is the reason we have
this verdict that we do.
I will say this, Mr. Campbell, I think that you are a
liar, I think you’re a bully, I think you have got a big
mouth, there is no reason for you to go after Mr. Fligor
at all. So what if other people in the school didn’t
like him, I don’t know if that is true or not, I don’t
believe you. But even if were, so what, why is that
your business, why do you go out and confront him at a
bar. You know, if you had to use self-defense, if you
Highland App. No. 25CA24 13
are worried about yourself and getting hurt then you
need to start shutting your big mouth and keep it to
yourself. But, no, you want to go out and show everybody
what a tough guy you are. Which you’re just a bully.
Mr. Fligor walked away, there is no evidence at all in
this case that you acted in self-defense and everybody
in this case knows that.
So, the Court feels in order to send a message and make
sure hopefully that the Department of Education revoked
your credentials as a substitute teacher, because, you
know, if there is a worse example of somebody to the
youth of a school I don’t know who it could be, maybe a
sex offender. But other than that what you have done is
a disgrace. And to just walk in there and assault this
man in a VFW too. And other organizations. You know,
veterans are [supposed] to be there for an exchange of
fellowship and camaraderie and support of each other and
not to go in and attack each other. Or in this case you
attacked him. And totally unprovoked. And I don’t
believe your story, neither did the jury, for a minute.
They found you guilty because of what they believed the
law required and felt that the State did not prove that.
{¶25} At that juncture the trial court sentenced appellant
to (1) serve a 180-day jail sentence, (2) pay a $1,000 fine, and
(3) pay costs. On September 30, 2025, appellant filed a motion
to stay his sentence pending appeal. After an October 6, 2025
hearing, the trial court granted the motion upon the following
conditions: (1) defendant post a $10,000 bond, (2) all previous
conditions as stated in the arraignment entry remain in effect,
(3) defendant is not permitted to substitute teach at Greenfield
School District or be on premises owned by them, (4) defendant
shall not have any contact directly or indirectly with the
victim or any witnesses who testified at trial, and (5) if the
court of appeals affirms the conviction, defendant shall report Highland App. No. 25CA24 14
to the Highland County Sheriff’s Office within two business days
to complete his sentence. This appeal followed.
I.
{¶26} In his first assignment of error, appellant asserts
that the trial court’s sentence, which included both the maximum
jail time and the maximum fine, constitutes an abuse of
discretion. Appellee, however, contends that the trial court
considered the proper statutory framework and the sentence is
within the authorized range.
{¶27} “ ‘We review a misdemeanor sentence for an abuse of
discretion.’ ” State v. Williams, 2016-Ohio-733, ¶ 17 (4th
Dist.), quoting State v. Marcum, 2013-Ohio-2447, ¶ 22 (4th
Dist.). “An abuse of discretion consists of more than an error
of judgment; it connotes an attitude on the part of the trial
court that is unreasonable, unconscionable, or arbitrary.” State
v. Wyatt, 2002-Ohio-4479, ¶ 20 (4th Dist.), citing State v.
Lessin, 67 Ohio St.3d 487 (1993), citing Rock v. Cabral, 67 Ohio
St.3d 108 (1993). “An abuse of discretion includes a situation
in which a trial court did not engage in a ‘sound reasoning
process’; this review is deferential and does not permit an
appellate court to simply substitute its judgment for that of
the trial court.” State v. Felts, 2016-Ohio-2755, ¶ 29 (4th
Dist.), quoting State v. Darmond, 2013-Ohio-966, ¶ 34.
Highland App. No. 25CA24 15
{¶28} Pursuant to R.C. 2929.21 and 2929.22, trial courts
possess broad discretion to determine the appropriate sentence
for misdemeanor cases. State v. Kinsworthy, 2014-Ohio-2238, ¶
30 (12th Dist.). In doing so, a trial court must be guided by
the purposes of misdemeanor sentencing, which are “to protect
the public from future crime by the offender and others and to
punish the offender.” R.C. 2929.21(A). The court must also
consider the factors that are relevant to achieving the purposes
and principles of misdemeanor sentencing. R.C. 2929.22(B)(3).
“To achieve those purposes, the sentencing court [must] consider
the impact of the offense upon the victim and the need for
changing the offender's behavior, rehabilitating the offender,
and making restitution to the victim of the offense, the public,
or the victim and the public.” R.C. 2929.21(A).
{¶29} In determining the appropriate sentence for a
misdemeanor, a trial court must consider seven factors listed
under R.C. 2929.22(B)(1):
(a) The nature and circumstances of the offense or
offenses;
(b) Whether the circumstances regarding the offender and
the offense or offenses indicate that the offender has
a history of persistent criminal activity and that the
offender's character and condition reveal a substantial
risk that the offender will commit another offense;
(c) Whether the circumstances regarding the offender and
the offense or offenses indicate that the offender's
history, character, and condition reveal a substantial
risk that the offender will be a danger to others and
Highland App. No. 25CA24 16
that the offender's conduct has been characterized by a
pattern of repetitive, compulsive, or aggressive
behavior with heedless indifference to the consequences;
(d) Whether the victim's youth, age, disability, or
other factor made the victim particularly vulnerable to
the offense or made the impact of the offense more
serious;
(e) Whether the offender is likely to commit future
crimes in general, in addition to the circumstances
described in divisions (B)(1)(b) and (c) of this
section;
(f) Whether the offender has an emotional, mental, or
physical condition that is traceable to the offender's
service in the armed forces of the United States and
that was a contributing factor in the offender's
commission of the offense or offenses;
(g) The offender's military service record.
{¶30} A trial court may also consider “any other factors
that are relevant to achieving the purposes and principles of
sentencing set forth in [R.C. 2929.21.]” R.C. 2929.22(B)(2). In
addition, the court must consider “any relevant oral or written
statement made by the victim, the defendant, the defense
attorney, or the prosecuting authority regarding sentencing for
a misdemeanor.” R.C. 2929.22(D)(1).
{¶31} “Although it is preferable that a trial court
affirmatively state on the record that it considered the
criteria set forth in R.C. 2929.21 and R.C. 2929.22, the statute
does not mandate that the record state that the trial court
considered the applicable statutory factors.” Kinsworthy at ¶
30; State v. McClurg, 2020-Ohio-1144, ¶ 7 (2d Dist.). Moreover, Highland App. No. 25CA24 17
“a trial court is presumed to have considered the statutory
factors when the sentence is ‘within the statutory limits and
there is no affirmative showing that the trial court failed to
do so.’ ” Id., quoting State v. Collins, 2005-Ohio-4755, ¶ 12
(3d Dist.); McClurg, id. “Unless a mandatory jail term or
specific sanction is required to be imposed, a trial court has
discretion to determine the most effective way to achieve the
purposes and principles of misdemeanor sentencing, which may
include any sanction or combination of sanctions authorized.”
State v. Horr, 2022-Ohio-3160, ¶ 5 (2d Dist.), citing R.C.
2929.22(A).
{¶32} Relevant to the case at bar, R.C. 2929.22(C) provides
that the maximum jail term for a misdemeanor may only be imposed
“upon offenders who commit the worst forms of the offense” or
“upon offenders whose conduct and response to prior sanctions
for prior offenses demonstrate that the imposition of the
longest jail term is necessary to deter the offender from
committing future crime.” R.C. 2929.22(C). In the case sub
judice, appellant claims that the trial court’s decision to
impose the maximum jail term for his offense does not comply
with the requirements of R.C. 2929.22(C) because: (1) the trial
court did not order a Pre-Sentence Investigation (PSI), and (2)
the trial court relied on his personal animus towards appellant
and his identification with the victim in sentencing appellant. Highland App. No. 25CA24 18
{¶33} Because the trial court did not order a PSI, the only
basis on which the trial court could have imposed a maximum jail
term is by concluding that appellant committed one of the worst
forms of the offense of assault. R.C. 2929.22(C). “The phrase
‘worst forms of the offense’ is not defined by statute, and is
left primarily to the trial court’s discretion to determine its
meaning.” State v. Huff, 2000 WL 1741901 (7th Dist. Nov. 20,
2000), citing State v. Mushrush, 135 Ohio App.3d 99 (1st
Dist.1999). Thus, “[t]he General Assembly must have intended
the phrase ‘worst forms of the offense’ to include many
conceivable forms, because the plural ‘forms’ contemplates ‘not
just a single form of any offense that is the worst, but that
more than one situation may be one of the worst forms of the
offense.’ ” Mushrush at 110, quoting State v. Patterson, 1998
WL 720733, * 4 (4th Dist.); State v. Scott, 2023-Ohio-476, ¶ 13
(2d Dist.).
{¶34} Appellant asserts that the trial judge relied on his
“personal animus” towards appellant and his “identification with
the victim in the case” in sentencing appellant, and that the
record reflects that the trial judge became irritated and
frustrated by the fact that the jury found appellant guilty of
the lesser-included offense of assault and not felonious
assault. Appellee, on the other hand, argues that R.C.
2929.22(B)(1) expressly authorizes a trial court to consider Highland App. No. 25CA24 19
whether the offender’s conduct caused or threatened physical
harm and whether the offender presents a substantial risk of
future offenses. Appellee contends that nothing required the
trial court to ignore the seriousness of the conduct simply
because the jury convicted on a lesser-included offense.
Moreover, appellee submits that judges may comment on the
seriousness of an offense, the defendant’s conduct, and the
court’s assessment of responsibility and accountability.
{¶35} Generally, when a defendant wishes to raise a
challenge to a trial judge's objectivity, he must utilize the
procedure for filing an affidavit of disqualification set forth
in R.C. 2701.03. State v. Casada, 2016-Ohio-2633, ¶ 25 (8th
Dist.), citing State ex rel. Pratt v. Weygandt, 164 Ohio St. 463
(1956), paragraph three of the syllabus. A court of appeals has
“no authority to determine a claim that a trial judge is biased
or prejudiced against a defendant and no authority to void a
trial court's judgment based on a claim that the trial judge is
biased or prejudiced.” State v. Williamson, 2016-Ohio-7053, ¶
27 (8th Dist.). However, in State v. Power, 2013-Ohio-4254 (7th
Dist.), the Seventh District explained that an appellate court
may review biased comments at sentencing for due process
violations. Id. at ¶ 22, citing State v. Arnett, 88 Ohio St.3d
208, 218 (2000).
Highland App. No. 25CA24 20
{¶36} Ohio law generally permits trial judges to make
critical comments about a defendant’s conduct at sentencing.
See State v. Thomas, 36 Ohio St.2d 68, 71 (1973). Judicial bias
has been described as
a hostile feeling or spirit of ill will or undue
friendship or favoritism toward one of the litigants or
his attorney, with the formation of a fixed anticipatory
judgment on the part of the judge, as
contradistinguished from an open state of mind which
will be governed by the law and the facts.
State v. Dean, 2010–Ohio–5070, ¶ 48, quoting Pratt, supra, 164
Ohio St. 463, paragraph four of the syllabus. “If the trial
judge forms an opinion based on facts introduced or events
occurring during the course of the current or prior proceedings,
this does not rise to the level of judicial bias, ‘unless [the
opinions] display a deep-seated favoritism or antagonism that
would make fair judgment impossible.’ ” State v. Hough, 2013–
Ohio–1543, ¶ 11 (8th Dist.), citing Dean at ¶ 49, quoting Liteky
v. United States, 510 U.S. 540, 555 (1994).
{¶37} The law presumes that a judge is unbiased and
unprejudiced in the matters over which he or she presides, and
the appearance of bias or prejudice must be compelling in order
to overcome the presumption. Power, supra, at ¶ 23, citing In
re Disqualification of Olivito, 74 Ohio St.3d 1261, 1262 (1994).
In Power, the defendant argued that the trial court demonstrated
bias against him during sentencing due to comments the court Highland App. No. 25CA24 21
made to the victim's mother (calling her a bad mother because
she failed to report the abuse to her daughter sooner), and
telling the defendant, “What you did here is despicable. It's
beyond understanding.” Power at ¶ 13. The Seventh District
concluded that the trial court’s comments “do not come near the
level of a due process violation or otherwise constitute
reversible sentencing error.” Id. The court explained:
[O]pinions formed by the judge on the basis of facts in
the record do not constitute a basis for a bias or
partiality motion unless they display a deepseated
antagonism that would make fair judgment impossible.
State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937
N.E.2d 97, ¶ 49. Hence, critical, disapproving, or even
hostile statements ordinarily do not support a bias or
partiality challenge. Id.
It is not reversible error for a sentencing judge, in
explaining his sentence, to make critical statements
about a defendant's conduct based upon the facts of the
case presented to the court. See, e.g., State v. Cemino,
2d Dist. No. 24442, 2011-Ohio-5690 [2011 WL 5326563], ¶
8, 18–20 (scolding defendant and characterizing what he
did as nasty, despicable, disgusting, and awful was not
indicative of bias); State v. Coomer, 12th Dist. Nos.
CA2009–09–016, CA2009–09–017, 2010-Ohio-3474 [2010 WL
2891748], ¶ 18 (trial court's statement that the
defendant was a psychopath may have been ill-advised,
but it was not reversible).
Power at ¶ 26-27.
{¶38} Similarly, in State v. Filous, 2016-Ohio-8312 (8th
Dist.), the trial court mocked the defendant’s efforts to
rehabilitate himself, discredited his sobriety and his
obtainment of both a driver's license and a job, called his
mother a “liar,” and mocked the defendant’s “expression of Highland App. No. 25CA24 22
remorse.” The Eighth District concluded that the exchange did
not evidence judicial bias, and held that “[i]t is not
reversible error for a sentencing judge, in explaining his
sentence, to make critical statements about a defendant's
conduct based upon the facts of the case presented to the
court.” Id. at ¶ 16, citing Power at ¶ 27. Further, the court
found no error in the trial court's challenge of the defendant's
sincerity or credibility when the defendant made contradictory
statements. Finally, although the court found the trial court’s
characterization of Filous's mother unduly harsh, it did not
conclude that the criticism evidenced judicial bias. Id., see
State v. Clay, 2008–Ohio–1415, ¶ 22–23 (8th Dist.) (sentencing
court's criticism of defendant's mother was not reversible).
{¶39} In State v. Corchado, 2017-Ohio-4390 (7th Dist.),
after the prosecutor made his rebuttal closing argument and
characterized Corchado as “simply not credible,” the trial court
stated that Corchado's testimony was “totally incredible,
absolutely incredible. Shame on you. I have absolutely no
difficulty at all in finding that you are guilty of assault as
charged.” Id. at ¶ 16. During sentencing, in addition to other
“intemperate comments,” the trial court expressed its disgust
for Corchado's “immature” and “ridiculous” conduct and “shamed
Corchado as a mother for acting in such a manner.” Id. at ¶ 17.
The court explained: “These comments, and others made by the Highland App. No. 25CA24 23
trial court, are akin to those in Power, and were at times illadvised and inappropriate. Nonetheless, the trial court's
statements do not rise to the level of a due process violation
or reversible sentencing error.” Id.
{¶40} Appellant cites State v. Yeban, 2024-Ohio-2545 (1st
Dist.) in support. Yeban testified at his trial for operating a
motor vehicle while under the influence of alcohol and other
traffic violations. Prior to sentencing, Yeban informed the
trial judge that he would bring a lawsuit under the Uniform
Commercial Code (UCC) and common law against the court and
stated that he did not recognize the court’s legitimacy. Id. at
¶ 20. When the trial court sentenced Yeban to the maximum jail
term of 180 days, the First District reversed, holding that the
trial court focused on two factors unrelated to the offense:
Yeban’s perceived lies to the jury and his views on sovereign
citizenship. The court held that, “[o]n a silent record,
reviewing courts often presume that trial courts considered the
proper statutory criteria for a misdemeanor sentence.” Id. at ¶
70. However, the court held that this presumption, “is
destroyed when the trial court introduces an improper factor
into the maximum sentencing determination.” Id., citing State
v. Brooks, 2006-Ohio-4610, ¶ 26 (7th Dist.)(trial court
indicated at sentencing that it would impose maximum jail term
“based on its assessment that the defendant was lying in court.” Highland App. No. 25CA24 24
This constituted abuse of discretion because trial court's
perception as to defendant's truthfulness fell outside the R.C.
2929.22(C) criteria for maximum sentences.) Id. at ¶ 25-26.
{¶41} In Yeban, the First District concluded that the trial
court’s explanation made it clear that the court contemplated
community control as the appropriate punishment for Yeban's
conduct, but elected instead to sentence him to 180 days in
jail, not because it determined that Yeban committed the worst
form of OVI or because Yeban's response to prior criminal
punishments made him likely to commit another crime, but because
the court impermissibly weighed Yeban's perceived lying and
Yeban's proclamation that he was a sovereign citizen rather than
the criteria set forth in R.C. 2929.22(C). Id. at ¶ 72; see
Brooks at ¶ 25-26.
{¶42} We do not agree with appellant’s argument concerning
the application of the First District’s analysis to the case at
bar. Although here, the trial court moved forward with
sentencing without the benefit of a PSI, the trial court’s
comments indicate both skepticism at appellant’s credibility as
well as concern over the assault itself and the three prior
incidents in which appellant approached the victim and harassed
him, as well as the physical harm appellant caused in the final
incident. As appellee notes, appellant’s argument improperly
conflates judicial candor with judicial bias. See also Dean, Highland App. No. 25CA24 25
2015-Ohio-4347, ¶ 225-227 (trial court’s comments, stating that
it might sound ridiculous to aggravated murder defendant that
court sentenced defendant to death plus additional 125 years
imprisonment and court wanted to make sure that defendant
understood that it was court's fervent hope that defendant never
walk the streets again as a free man, did not exhibit a bias
that deprived defendant of due process or a fair trial; court's
statements were founded on facts taken from the record and not
an extrajudicial source, and although the statements reflected
court's opinions about defendant's conduct, they did not
indicate that court possessed a deep-seated favoritism or
antagonism that would make fair judgment impossible); Liteky,
510 U.S. at 550–551 (presiding judge may, upon completion of the
evidence, “be exceedingly ill disposed towards the defendant,
who has been shown to be a thoroughly reprehensible person. But
the judge is not thereby recusable for bias or prejudice, since
his knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are
indeed sometimes (as in a bench trial) necessary to completion
of the judge's task.”)
{¶43} In addition to taking issue with the trial court’s
comments regarding appellant being a liar and a bully, appellant
argues that the trial judge “was irritated and frustrated” that
the jury found appellant guilty of the lesser-included offense Highland App. No. 25CA24 26
of assault rather than felonious assault. However, we point out
that the court did not second-guess the jury. Rather, the court
noted that the somewhat confusing statutory definitions brought
about the verdict. Although these comments may have been
arguably inappropriate, they do not rise to the level of a due
process violation or reversible sentencing error. Moreover,
appellant did not establish prejudice. Appellant engaged in
multiple attempted altercations with the victim, and ultimately
assaulted him and caused him physical injury. Despite the trial
court’s strong language, the court imposed a sentence within the
statutory range. Thus, appellant’s sentence does not constitute
an abuse of discretion.
{¶44} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶45} In his second assignment of error, appellant asserts
that the trial court abused its discretion when it imposed a
district-wide employment prohibition as a condition of stay
pending appeal. Appellee, however, contends that (1) this
assignment of error is moot, and (2) even if reviewed on the
merits, the trial court did not abuse its discretion under Ohio
law.
{¶46} The determination of whether to issue a stay of
proceedings generally rests within the trial court’s sound Highland App. No. 25CA24 27
discretion and will not be disturbed on appeal absent an abuse
of discretion. In re B.N.S., 2020-Ohio-4413, ¶ 13 (12th Dist.);
In re Goff, 2003-Ohio-6087, ¶ 19 (11th Dist.). An abuse of
discretion is more than an error in judgment or law and connotes
that the trial court's decision is arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶47} As appellant points out, Ohio Appellate Rule 7
provides that a party may seek a discretionary right to bail and
suspension of the execution of a criminal sentence pending
appeal. However, appellee contends that this assignment of
error is moot because a stay of appeal exists for one purpose
only: to preserve the status quo while appellate review is
ongoing. App.R. 7(A). Thus, appellee argues that once this
appeal is resolved, the stay terminates by operation of law, and
all attached conditions necessarily dissolve. We agree.
{¶48} In State v. Roberts, 2008-Ohio-3835, the Supreme Court
of Ohio explained, “The effect of a stay pending review in a
criminal appeal is preventive in nature. It preserves the
status quo of the litigation pending appellate review and
suspends the power of the lower court to issue execution of the
judgment or sentence.” Roberts at ¶ 24, citing Loeb v. State
(Fla.App.1980), 387 So.2d 433, 435–436. R.C. 2949.02(A)
provides that when a person convicted of a bailable offense Highland App. No. 25CA24 28
gives written notice of intention to appeal, “the trial judge or
magistrate may suspend . . . execution of the sentence or
judgment imposed for any fixed time that will give the person
time either to prepare and file, or to apply for leave to file,
the appeal.” The statute further provides that “the trial judge
or magistrate may release the person on bail in accordance with
section 2937.011 of the Revised Code, and the bail shall at
least be conditioned that the person will appeal without delay
and abide by the judgment and sentence of the court.” The
language of R.C. 2949.02 specifies that bail conditions must “at
least” require that the defendant appeal without delay and abide
by the court's judgment and sentence. We believe that this
language suggests courts have some discretion to impose
additional conditions, but the statute does not enumerate what
those conditions might include.
{¶49} Appellant contends that a district-wide employment ban
against appellant constitutes an abuse of discretion. Appellant
cites State v. Henny, 2025-Ohio-4975 (1st Dist.) in support. In
Henny, following a guilty plea to attempted vandalism, the trial
court imposed a community-control sanction term and a term of
her general probation that prohibited Henny from possessing
firearms, requiring her to seek new employment as she worked at
a pawn shop. Id. at ¶ 7. The First District Court of Appeals
concluded that restricting Henny from her current employment is Highland App. No. 25CA24 29
not reasonably related to her rehabilitation, id. at ¶ 16, and
the gun restriction had no relationship to the vandalism
conviction. Id. at ¶ 17. Thus, the court held that, although
related to criminal conduct or reasonably related to future
criminality, the measure constituted an overbroad condition to
the extent that it prevented Henny from maintaining her
employment. Id.
{¶50} However, as appellee points out, the case at bar does
not involve community control sanctions, but rather a stay of
the execution of sentence pending appeal. Consequently, our
decision moots this assignment of error. Generally, appellate
courts do not address issues that become moot. Redmon v.
Columbus City Council, 2006-Ohio-2199, ¶ 5–6 (10th Dist.); In re
Brown, 2005-Ohio-2425, ¶ 15–16 (10th Dist.). This is because an
appellate court's jurisdiction is limited to actual cases or
controversies under Section 2, Article III of the Ohio
Constitution. If an issue or case is moot, there is no longer a
case or controversy to resolve. State v. Winland, 2005-Ohio3408, ¶ 6 (11th Dist.); State v. Graves, 2008-Ohio-5763, ¶ 5
(4th Dist.). Thus, because the employment restriction dissolves
by operation of our disposition of the case sub judice, we
conclude that this issue is moot.
{¶51} Accordingly, we overrule appellant’s second assignment
of error.
Highland App. No. 25CA24 30
III.
{¶52} In his third assignment of error, appellant asserts
that his trial counsel rendered ineffective assistance of
counsel in violation of his constitutional guarantees. In
particular, appellant contends that his counsel provided
ineffective assistance of counsel by failing to object to the
district-wide employment ban imposed in the stay of sentence
pending appeal.
{¶53} The standard of review for ineffective assistance of
counsel claims is de novo. State v. Weaver, 2022-Ohio-4371, ¶
25, citing State v. Gondor, 2006-Ohio-6679. To evaluate an
ineffective assistance of counsel claim, Strickland v.
Washington, 466 U.S. 668 (1984) sets forth the standard for
judging ineffective assistance.
{¶54} The Sixth Amendment to the United States Constitution
and Article I, Section 10 of the Ohio Constitution provide that
defendants in all criminal proceedings shall have the assistance
of counsel for their defense. The United States Supreme Court
has generally interpreted this provision to mean a criminal
defendant is entitled to the “reasonably effective assistance”
of counsel. Strickland, supra.
{¶55} To establish constitutionally ineffective assistance
of counsel, a defendant must show that (1) his counsel's
performance was deficient and (2) the deficient performance Highland App. No. 25CA24 31
prejudiced the defense and deprived the defendant of a fair
trial. See Strickland, 466 U.S. at 687; State v. Myers, 2018-Ohio-1903, ¶ 183; State v. Powell, 2012-Ohio-2577, ¶ 85.
“Failure to establish either element is fatal to the claim.”
State v. Jones, 2008-Ohio-968, ¶ 14 (4th Dist.). Moreover, if
one element is dispositive, a court need not analyze both.
State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
{¶56} The deficient performance part of an ineffectiveness
claim “is necessarily linked to the practice and expectations of
the legal community: ‘The proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.’ ” Padilla v. Kentucky, 559 U.S. 356, 366 (2010),
quoting Strickland, 466 U.S. at 688. Prevailing professional
norms dictate that “a lawyer must have ‘full authority to manage
the conduct of the trial.’ ” State v. Pasqualone, 2009-Ohio315, ¶ 24, quoting Taylor v. Illinois, 484 U.S. 400, 418 (1988).
{¶57} Further, “the performance inquiry must be whether
counsel's assistance was reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688. Accordingly,
“[i]n order to show deficient performance, the defendant must
prove that counsel's performance fell below an objective level
of reasonable representation.” State v. Conway, 2006-Ohio-2815,
¶ 95 (citations omitted). In addition, when considering whether
trial counsel's representation amounts to deficient performance, Highland App. No. 25CA24 32
“a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Id. Additionally, “[a] properly licensed attorney is presumed
to execute his duties in an ethical and competent manner.”
State v. Taylor, 2008-Ohio-482, ¶ 10 (4th Dist.), citing State
v. Smith, 17 Ohio St.3d 98, 100 (1985). Therefore, a defendant
bears the burden of showing ineffectiveness by demonstrating
that counsel's errors were “so serious” that counsel failed to
function “as the ‘counsel’ guaranteed ... by the Sixth
Amendment.” Strickland, 466 U.S. at 687; e.g., State v. Gondor,
2006-Ohio-6679, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156
(1988).
{¶58} To establish prejudice, a defendant must demonstrate
that a reasonable probability exists that “but for counsel's
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine the outcome.” Strickland, 466 U.S. at 694; e.g.,
State v. Short, 2011-Ohio-3641, ¶ 113; State v. Bradley, 42 Ohio
St.3d 136 (1989), paragraph three of the syllabus; accord State
v. Spaulding, 2016-Ohio-8126, ¶ 91 (prejudice component requires
a “but for” analysis). “[T]he question is whether there is a Highland App. No. 25CA24 33
reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.”
Strickland, 466 U.S. at 695. Further, courts ordinarily may not
presume the existence of prejudice; rather, they must require a
defendant to establish prejudice affirmatively. State v. Clark,
2003-Ohio-1707, ¶ 22 (4th Dist.). Moreover, we have recognized
that speculation is insufficient to establish the prejudice
component of an ineffective assistance of counsel claim. E.g.,
State v. Tabor, 2017-Ohio-8656, ¶ 34 (4th Dist.); State v.
Jenkins, 2014-Ohio-3123, ¶ 22 (4th Dist.); State v. Simmons,
2013-Ohio-2890, ¶ 25 (4th Dist.); accord State v. Powell, 2012-Ohio-2577, ¶ 86.
{¶59} We note that trial counsel's “failure to make
objections is not alone enough to sustain a claim of ineffective
assistance of counsel.” State v. Conway, 2006-Ohio-2815, ¶ 103;
accord State v. Sowell, 2016-Ohio-8025, ¶ 144 (rejecting
argument that failing to preserve error is inherently
prejudicial and stating, “[i]t is not enough that an alleged
error resulted in a disadvantage for an accused”). Instead, a
defendant still must “show that any particular failure to object
substantially violated an[ ] essential duty [and] was
prejudicial.” State v. Fears, 86 Ohio St.3d 329, 347 (1999);
accord State v. Holloway, 38 Ohio St.3d 239, 244 (1988) (stating
that failure to object insufficient on its own to establish Highland App. No. 25CA24 34
ineffective assistance of counsel; instead, a defendant still
must demonstrate that counsel substantially violated an
essential duty and that counsel's performance materially
prejudiced the defense); accord State v. Platt, 2024-Ohio-1330
(4th Dist.).
{¶60} In addition, trial counsel's decision to object, or
not to object, may be a legitimate trial strategy or tactical
decision for the reason that “ ‘each potentially objectionable
event could actually act to [the defendant]’s detriment.’ ”
State v. Johnson, 2006-Ohio-6404, ¶ 140, quoting Lundgren v.
Mitchell, 440 F.3d 754, 774 (C.A. 6, 2006). Thus,
any single failure to object usually cannot be said to
have been error unless the evidence sought is so
prejudicial * * * that failure to object essentially
defaults the case to the state. Otherwise, defense
counsel must so consistently fail to use objections,
despite numerous and clear reasons for doing so, that
counsel's failure cannot reasonably have been said to
have been part of a trial strategy or tactical choice.
{¶61} Johnson at ¶ 140, quoting Lundgren, 440 F.3d at 774;
cf. United States v. Cronic, 466 U.S. 648, 656 (1984)
(describing the right to the effective assistance of counsel as
“the right of the accused to require the prosecution's case to
survive the crucible of meaningful adversarial testing”).
{¶62} In the case sub judice, appellant argues that no
strategic reason exists for counsel’s failure to object to the
district-wide employment ban placed on appellant. Appellant Highland App. No. 25CA24 35
again cites Henny, supra, 2025-Ohio-4975, the community-control
sanction case we distinguished above. The decision whether to
object at sentencing or during a stay hearing is a matter of
trial strategy. When reviewing ineffective-assistance claims,
we will not second-guess trial-strategy decisions. State v.
Miller, 2025-Ohio-197, ¶ 30 (2d Dist.), citing State v. Mason,
82 Ohio St.3d 144, 157 (1998); Strickland at 689. “ ‘Debatable
strategic and tactical decisions may not form the basis of a
claim for ineffective assistance of counsel, even if, in
hindsight, it looks as if a better strategy had been available.’
” Miller at ¶ 30, quoting State v. Conley, 2015-Ohio-2553, ¶ 56
(2d Dist.). “When a claim of ineffective assistance of counsel
is based on counsel's failure to file an objection or file a
motion, the appellant must demonstrate that the objection or
motion had a reasonable probability of success.” State v.
Jones, 2019-Ohio-2134, ¶ 52 (10th Dist.) (citing cases). “If
the objection or motion would not have been successful, then the
appellant cannot prevail on an ineffective assistance claim.”
Id.
{¶63} Appellant points to State v. Burgins, 44 Ohio App.3d
158 (4th Dist.1988) for the proposition that, “[w]hile defense
tactics, even ineffective ones, are usually not considered
grounds for reversal, where there has been such a deviation from
the norm that ordinary trial counsel would scoff at hearing of Highland App. No. 25CA24 36
it, a reviewing court may reverse a guilty verdict and order a
new trial.” Id. at syllabus. However, while unusual, we do not
believe that failing to object to an employment restriction
during the pendency of an appeal is such a deviation from the
norm. Our review of the record in the case sub judice reveals
that appellant fails to demonstrate that the objection to the
employment restriction in the stay of appellant’s sentence
pending appeal would have been sustained. Thus, appellant did
not demonstrate ineffective assistance of counsel.
{¶64} Accordingly, based on the foregoing reasons, we
overrule appellant’s third assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
Highland App. No. 25CA24 37
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and 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 directing the Highland 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 60 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 the proceedings 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 appeal with the Supreme Court of Ohio in the 45-day appeal period set forth in 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 that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.