[Cite as State v. Penix, 2026-Ohio-3096.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
State of Ohio, : Case Nos. 25CA26
25CA27
Plaintiff-Appellee, :
DECISION AND
: JUDGMENT ENTRY
v.
:
Jonathan D. Penix, RELEASED 8/06/2026
:
Defendant-Appellant.
APPEARANCES:
Christopher Bazeley, Esq., Cincinnati, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Andrea M. Kratzenberg, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
______________________________________________________________________ Hess, J.
{¶1} Jonathan D. Penix appeals from a judgment of the Lawrence County
Common Pleas Court convicting him, following a jury trial, of possession and aggravated
possession of drugs and trafficking and aggravated trafficking in drugs, as well as a
forfeiture offense. Penix presents three assignments of error asserting that (1) his
convictions are not supported by legally sufficient evidence or the weight of the evidence,
(2) that the trial court erred when it ordered him to serve consecutive sentences, and (3)
the forfeiture statute is unconstitutional and his forfeiture conviction should be vacated.
For the following reasons, we overrule the assignments of error and affirm the trial court’s
judgment.
Lawrence App. Nos. 25CA26, 25CA27 2
I. FACTS AND PROCEDURAL HISTORY
{¶2} In January 2024, Penix was indicted on one count of aggravated
possession of drugs in violation of R.C. 2925.11(A)(2) and (C)(11)(c), a second-degree
felony; one count of possession of fentanyl in violation of R.C. 2925.11(A) and (C)(11)(c),
a third-degree felony; one count of possession of cocaine in violation of R.C. 2925.11(A)
and (C)(4)(a), a fifth-degree felony; one count of aggravated trafficking in drugs in
violation of R.C. 2925.03(A)(2) and (C)(1)(d), a second-degree felony; one count of
aggravated trafficking in fentanyl in violation of R.C. 2925.03(A)(2) and (C)(9)(d), a thirddegree felony; one count of trafficking in cocaine in violation of R.C. 2925.03(A)(2) and
(C)(4)(a), a fifth-degree felony; and one count of receiving proceeds of an offense subject
to forfeiture in violation of R.C. 2927.21(B), a first-degree misdemeanor with a
specification that Penix was the owner of the property derived from proceeds obtained
from the commission of a felony drug offense, to wit $883.00 in cash. The charges arose
from a traffic stop of Penix and a search of the vehicle he was driving. Penix pleaded not
guilty. In December 2024, Penix was fitted with a GPS monitoring device and required to
complete mental health and recovery services, but he left the facility, destroyed the
monitoring device, and failed to appear for a December 2024 pretrial.
{¶3} As a result, Penix was indicted in December 2024 with one count of
tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree felony, one
count of vandalism in violation of R.C. 2909.05(B)(2), a fifth-degree felony, and one count
of failure to appear in violation of R.C. 2937.99(A) and (B), a fourth-degree felony. Lawrence App. Nos. 25CA26, 25CA27 3
{¶4} The two cases were consolidated for trial. On the second day of trial Penix
pleaded guilty to the tampering, vandalism, and failure to appear offenses. Those
convictions are not at issue in this appeal.
{¶5} The drug possession and trafficking offenses and the forfeiture offense went
forward in a two-day jury trial. The jury found Penix guilty on all counts. The trial court
merged the three drug possession offenses into the three drug trafficking offenses and
sentenced Penix on the drug trafficking offenses. The trial court sentenced Penix to 7 to
10.5 years on the aggravated trafficking count (count 4), 30 months on aggravated
trafficking in fentanyl (count 5), 12 months on trafficking in cocaine (count 6) and 180 days
in jail on the forfeiture offense (count 7) and ordered that the $883.00 cash seized be
forfeited. The sentences were ordered to run consecutively for a total sentence of 10.5
years to 14 years in prison. The 180-day jail time for the forfeiture offense was ordered to
run concurrently to those terms. The trial court ordered Penix to serve 30 months in prison
for tampering with evidence, 12 months for vandalism, and 12 months for failure to appear
to run consecutively for a total prison term of 54 months. The court further ordered that
these terms run consecutively to the drug trafficking sentences for a total of 15 to 18.5
years in prison.
{¶6} Penix appealed.
II. ASSIGNMENTS OF ERROR
{¶7} Penix presents three assignments of error:
I. Penix’s convictions for possession and trafficking are not supported by
legally sufficient evidence or the weight of the evidence.
II. The trial court erred when it ordered that Penix serve his sentence in
Case No. 24CR005 [the drug possession and trafficking case]
consecutively to each other.
Lawrence App. Nos. 25CA26, 25CA27 4
III. R.C. 2927.21 is unconstitutional and, as a result, Penix’s conviction
and sentence, including the forfeiture, on count seven of the
indictment in Case No. 24CR005 must be vacated.
III. LAW AND ANALYSIS
A. Sufficiency and Manifest Weight of the Evidence
{¶8} In the first assignment of error, Penix contends that his drug possession and
trafficking convictions are not supported by the evidence at trial because it was his
passenger, not him, who was in possession of the cocaine, fentanyl, and
methamphetamine found during the traffic stop. He argues that the only evidence that the
drugs were in his possession came from a law enforcement officer who testified that the
drugs were found on the passenger side of the vehicle where his passenger was sitting.
Penix also argues that his behavior during the traffic stop was inconsistent with someone
who knows that they are in possession of a substantial amount of drugs because he was
cooperative and consented to a search of the vehicle. He contends that because he did
not have possession of the drugs, the trafficking charges which stem from possession of
those same drugs must also be vacated.
1. Standards of Review
{¶9} In reviewing the sufficiency of the evidence to support a conviction, “[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus, superseded by state constitutional amendment on other grounds as
stated in State v. Smith, 80 Ohio St.3d 89, 102, fn. 4 (1997), and following Jackson v.
Virginia, 443 U.S. 307 (1979). “A sufficiency assignment of error challenges the legal Lawrence App. Nos. 25CA26, 25CA27 5
adequacy of the state’s prima facie case, not its rational persuasiveness.” State v.
Anderson, 2019-Ohio-395, ¶ 13 (4th Dist.). We will not overturn a conviction based on
insufficient evidence “‘unless reasonable minds could not reach the conclusion that the
trier of fact did.’” State v. Cook, 2019-Ohio-4745, ¶ 15 (4th Dist.), quoting State v.
Bradshaw, 2018-Ohio-1105, ¶ 15 (4th Dist.).
{¶10} In determining whether a conviction is against the manifest weight of the
evidence, an appellate court
must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in
resolving conflicts in the evidence, the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that reversal of the conviction
is necessary. In order to satisfy this test, the state must introduce substantial
evidence on all the elements of an offense, so that the [trier of fact] can find
guilt beyond a reasonable doubt.
Although a court of appeals may determine that a judgment of a trial court
is sustained by sufficient evidence, that court may nevertheless conclude
that the judgment is against the weight of the evidence. However, we are
reminded that generally, it is the role of the [trier of fact] to determine the
weight and credibility of evidence.
(Citations omitted.) Anderson at ¶ 14-15. “The trier of fact is free to believe all, part, or
none of the testimony of any witness, and we defer to the trier of fact on evidentiary weight
and credibility issues because it is in the best position to gauge the witnesses’ demeanor,
gestures, and voice inflections, and to use these observations to weigh their credibility.”
State v. Chafin, 2017-Ohio-7622, ¶ 32 (4th Dist.), citing State v. Dillard, 2014-Ohio-4974,
¶ 28 (4th Dist.), citing State v. West, 2014-Ohio-1941, ¶ 23 (4th Dist.).
2. Analysis
{¶11} Although the jury found Penix guilty of possession and aggravated
possession of drugs and trafficking and aggravated trafficking in drugs, the trial court Lawrence App. Nos. 25CA26, 25CA27 6
merged the three possession counts with the three trafficking counts and only sentenced
him on the trafficking counts. As a result, if Penix’s conviction on the trafficking counts
was supported by sufficient evidence and was not against the manifest weight of the
evidence, an erroneous verdict on the merged possession counts would be harmless.
State v. Alexander, 2022-Ohio-1812, ¶ 38 (4th Dist.), citing State v. Wickersham, 2015-Ohio-2756, ¶ 21 (4th Dist.).
{¶12} Penix only challenges the “possession” element of the possession
convictions. He incorrectly states that the possession element is also an element of the
trafficking convictions, and argues “if this court were to concur with Penix’s argument that
his Aggravated Possession convictions are based upon legally insufficient evidence or
against the weight of the evidence, it must also find that the Trafficking convictions must
be vacated for the same reason.”
{¶13} However, “possession” is not a necessary element of drug trafficking. Drug
trafficking is prohibited in R.C. 2925.03(A)(2), which states:
(A) No person shall knowingly do any of the following:
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or
distribute a controlled substance or a controlled substance analog, when
the offender knows or has reasonable cause to believe that the controlled
substance or a controlled substance analog is intended for sale or resale by
the offender or another person.
See State v. Pimental, 2005-Ohio-384, ¶ 28 (8th Dist.) (“possession of a controlled
substance is not a necessary element of drug trafficking.”).
{¶14} In State v. Stuart, 2025-Ohio-2420 (6th Dist.), the defendant, like Penix
here, challenged the sufficiency of the evidence of his drug trafficking convictions by Lawrence App. Nos. 25CA26, 25CA27 7
arguing that the State failed to present sufficient evidence of his “possession” of the drugs
which were found in a container in the vehicle he was driving. The appellate court rejected
the entire premise of the argument on the ground that “possession” is not a necessary
element of drug trafficking:
Appellant's argument is premised on the state's alleged failure to show that
he had “constructive possession” of the magnetic box while he was driving.
Appellant's argument, however, misstates the elements of the drug
trafficking offenses on which he was convicted. The plain language of R.C.
2925.03(A)(2) does not require that an offender be in “possession” of the
controlled substance at the time they are arrested for trafficking in order to
be convicted. See State v. Pimental, 2005-Ohio-384, ¶ 28 (8th Dist.)
(“possession of a controlled substance is not a necessary element of drug
trafficking.”). To require the state to show that the offender had possession
of the controlled substance would create an absurd result that would allow
a drug trafficker to prepare controlled substances for delivery, arrange for
their transport, and facilitate their sale, but avoid criminal liability because
they were not found in possession of those substances. Therefore, the state
was not obligated to present sufficient evidence that appellant had
possession—actual or constructive—of the magnetic box, but only whether
he knowingly transported the box.
Id. at ¶ 23.
{¶15} Like the defendant in Stuart, Penix misstates the elements of the drug
trafficking offenses. Moreover, he does not challenge his drug trafficking convictions on
any other ground. Because the trial court merged the drug possession counts into the
trafficking counts and sentenced him on the drug trafficking counts, any purported
erroneous verdict on the merged possession counts would be harmless. State v.
Alexander, 2022-Ohio-1812, ¶ 38 (4th Dist.). Therefore, we overrule his first assignment
of error.
B. Consecutive Sentences
{¶16} Penix contends the trial court improperly imposed consecutive sentences
on each of the drug trafficking offenses. He argues that the trial court’s stated justification Lawrence App. Nos. 25CA26, 25CA27 8
for consecutive sentences was that he committed one or more multiple offenses while he
was awaiting trial or sentencing. However, only the tampering, vandalism, and failure to
appear offenses were committed while he was awaiting trial. Therefore, he argues, the
record does not clearly and convincingly support the trial court’s sentence in which his
drug trafficking sentences were to run consecutively with each other.
{¶17} R.C. 2953.08(A) authorizes a defendant who is convicted of a felony to
appeal as a matter of right the sentence imposed on the defendant on various grounds,
including that the sentence is “contrary to law.” R.C. 2953.08(G)(2) states:
The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or
modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶18} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. Lawrence App. Nos. 25CA26, 25CA27 9
{¶19} Penix contends that the record does not support the sentencing court’s
“consecutive” findings under R.C. 2929.14(C)(4), which states:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶20} The trial court found that consecutive sentences were necessary:
to protect the public from future crimes, or to punish the Defendant. These
consecutive sentences are not disproportionate to the seriousness of the
Defendant’s conduct and to the danger the Defendant poses to the public.
Further, the offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, or was under a sanction
imposed pursuant to 2929.16, 2929.17, or 2929.18 of the Revised Code.
{¶21} Penix concedes that three of his offenses were committed while he was
awaiting trial, but because none of his drug offenses occurred while he was awaiting trial,
he could not be required to serve those consecutively to each other under R.C.
2929.14(C)(4)(a). However, Penix provides no legal authority to support his argument that
R.C. 1919.14(C)(4)(a) must be given this limited interpretation. That section simply states Lawrence App. Nos. 25CA26, 25CA27 10
that if one or more of the offenses are committed while Penix was awaiting trial then the
trial court may require the offender to serve multiple sentences consecutively. It does not
limit the consecutive nature of the sentences to only those offenses committed while
awaiting trial.
{¶22} The same argument Penix makes was considered and rejected by the
appellate court in State v. Long, 2025-Ohio-1654 (8th Dist.). In Long, the defendant had
been indicted on multiple counts of gross sexual imposition, rape, and kidnapping,
referred to as the “Independence case.” While those charges were pending, the
defendant committed multiple gross sexual imposition and kidnapping offenses in Shaker
Heights, referred to as the “Shaker Heights case.” The defendant eventually pleaded
guilty and the trial court ran all his sentences in the Independence case consecutive to
each other, all the sentences in the Shaker Heights case consecutive to each other, and
all the sentences in both cases consecutive to each other. The trial court’s basis for the
consecutive sentences was R.C. 2929.14(C)(4)(a) – one or more of the offenses were
committed while awaiting trial. The defendant argued, like Penix argues here, that only
the sentences in the Shaker Heights case qualified as being “committed while awaiting
trial” because he was not awaiting trial when he committed the Independence case
offenses. Therefore, he argued, the trial court’s imposition of consecutive sentences in
the Independence case lacked support in the record.
{¶23} The Long court rejected this argument:
Here, the trial court found that consecutive sentences were necessary to
protect the public from future crime by Long and to punish him, that
consecutive sentences were not disproportionate to the seriousness of his
conduct and the danger he poses to the public, and that Long committed
one or more of the offenses while awaiting trial. Long does not dispute that
the trial court made the requisite findings under R.C. 2929.14(C)(4).
Lawrence App. Nos. 25CA26, 25CA27 11
Instead, he asserts that the R.C. 2929.14(C)(4)(a) finding — that the
offender committed one or more of the multiple offenses while awaiting trial
or sentencing, while under a sanction, or while under postrelease control
for a prior offense — was clearly and convincingly unsupported by the
record because he committed the offenses in the Independence case prior
to the offenses in the Shaker Heights case (and had no other pending
criminal cases at that time).
This court has recently rejected a similar argument. In State v. Banville, the
appellant received consecutive sentences across multiple cases. State v.
Banville, 2024-Ohio-956 (8th Dist.). The appellant acknowledged that the
trial court made the requisite findings but argued that the findings were only
relevant to “running the sentence ‘within this case’ consecutively and that
the trial court went on to run the sentence consecutive to two other cases
without having made separate findings in that regard” and without giving
any additional information about the other cases at the sentencing hearing.
Id. at ¶ 7. This court rejected the appellant's argument, noting that R.C.
2929.14(C) refers to “convictions of multiple offenses,” but does not
distinguish between multiple counts in a single case and multiple counts in
separate cases. Id., quoting State v. Alexander, 2013-Ohio-1987, ¶ 6, fn. 1
(8th Dist.). Further, “ ‘[i]n order to impose any or all of the sentences
consecutively, the trial court was required to make findings, not multiple sets
of findings dependent on the source of the sentence imposed.’ ” Id. at ¶ 8,
quoting State v. Smith, 2023-Ohio-3974, ¶ 17 (8th Dist.), citing State v.
Jones, 2022-Ohio-4485, ¶ 12 (8th Dist.).
Therefore, after careful review, we are unable to conclude that the record
clearly and convincingly does not support the trial court's finding under R.C.
2929.14(C)(4)(a).
State v. Long, 2025-Ohio-1654, ¶ 14-16 (8th Dist.).
{¶24} We agree with the analysis in Long and find it persuasive. There is no
language in R.C. 2929.14(C)(4) and (C)(4)(a) that limits the imposition of consecutive
sentences to only those offenses committed in a specific case while awaiting trial. It allows
for the imposition of consecutive sentences of multiple offenses, without regard to the
case or cases in which those offenses arose. Thus, we do not find that the record clearly
and convincingly does not support the trial court's finding under R.C. 2929.14(C)(4)(a).
We overrule Penix’s second assignment of error.
Lawrence App. Nos. 25CA26, 25CA27 12
C. The Constitutionality of R.C. 2927.21
{¶25} For his third assignment of error, Penix contends that R.C. 2927.21 is
unconstitutionally vague and prohibits a defendant from asserting a meaningful defense.
However, Penix did not raise this constitutional issue at trial and therefore it need not be
heard for the first time on appeal.
Failure to raise at the trial court level the issue of the constitutionality of a
statute or its application, which issue is apparent at the time of trial,
constitutes a waiver of such issue and a deviation from this state’s orderly
procedure, and therefore need not be heard for the first time on appeal.
State v. Awan, 22 Ohio St.3d 120, syllabus (1986); State v. Johnson, 2022-Ohio-2136, ¶
7 (8th Dist.). And although a defendant who forfeits an argument that a statute or its
application is unconstitutional may still argue plain error on appeal, an appellate court will
not sua sponte undertake a plain error analysis if defendant fails to do so. E.g., Akron v.
Lewis, 2008-Ohio-6256 (9th Dist.); Remley v. Cincinnati Metro. Housing Auth., 99 Ohio
App.3d 573 (1st Dist. 1994). The test for plain error is stringent. A party claiming plain
error must show that (1) an error occurred, (2) the error was obvious, and (3) the error
affected the outcome of the trial. See State v. Barnes, 94 Ohio St.3d 21, 27 (2002);
Crim.R. 52(B). The burden of demonstrating plain error is on the party asserting it. See,
e.g., State v. Jester, 32 Ohio St.3d 147, 150 (1987); State v. Davis, 2008-Ohio-2, ¶ 378.
{¶26} Penix argues that the standard of review for the appellate court is de novo,
but “it may still review the constitutionality of a statute for plain error.” Penix failed to
demonstrate plain error occurred. He was not indicted with a violation of R.C. 2927.21(C),
but instead was indicted with a violation of R.C. 2927.21(B), which states, “No person
shall receive, retain, possess, or dispose of proceeds knowing or having reasonable
cause to believe that the proceeds were derived from the commission of an offense Lawrence App. Nos. 25CA26, 25CA27 13
subject to forfeiture proceedings.” (Emphasis added). He acknowledges that R.C.
2927.21(B) requires that the State prove that he possessed the $833 knowing or having
reasonable cause to believe they were derived from an offense subject to forfeiture. But
he argues that the next section, R.C. 2927.21(C), prevents him from providing the
defense that the funds came from a legitimate source. R.C. 2927.21(C) provides, “It is not
a defense to a charge of receiving proceeds of an offense subject to forfeiture
proceedings in violation of this section that the proceeds were derived by means other
than the commission of an offense subject to forfeiture proceedings if the property was
explicitly represented to the accused person as having been derived from the commission
of an offense subject to forfeiture proceedings.” (Emphasis added).
{¶27} He argues that the law enforcement officer testified at trial that Penix
claimed the $833 came from his girlfriend who had recently cashed a check. But Penix
argues that R.C. 2927.21(C) prevented him from putting into evidence the cancelled
check or his girlfriend’s testimony. Penix acknowledges that his trial counsel did not
attempt to put this evidence in the record, but that trial counsel was excused from doing
“a void act.” However, Penix does not contend that the State alleged that the $833 was
explicitly represented to him as having been derived from the commission of an offense
subject to forfeiture. Again, Penix was indicted under R.C. 2927.21(B) – not R.C.
2927.21(C). Contrary to Penix’s assertion, R.C. 2927.21(C) prohibits the defense that the
funds came from a legitimate source if someone explicitly represented to him that they
were derived from the commission of an offense subject to forfeiture. Nothing in the
indictment or the trial proceeding suggests that R.C. 2927.21(C) had any application to
Penix’s case. And, there is nothing in R.C. 2927.21(B) that prevented Penix from putting Lawrence App. Nos. 25CA26, 25CA27 14
evidence on the record to prove, if it were true, that the monies were from his girlfriend’s
check. Therefore, the prohibition against a defense that the proceeds were derived from
a legitimate source contained in R.C. 2927.21(C) did not apply to him. Penix has failed to
show any error occurred, obvious or otherwise. Furthermore, because Penix was not
charged under R.C. 2927.21(C), his argument that R.C. 2927.21(C) is unconstitutionally
vague similarly has no relevance to his case.
{¶28} We overrule his third assignment of error.
IV. Conclusion
{¶29} We overrule the assignments of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Lawrence App. Nos. 25CA26, 25CA27 15
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 directing the Lawrence 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 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 the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
This document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.