[Cite as State v. McCray,
2015-Ohio-4689.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102852
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KAYLIN J. MCCRAY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-590310-A
BEFORE: Celebrezze, A.J., Keough, J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 12, 2015
ATTORNEY FOR APPELLANT
Thomas A. Rein
700 W. St. Clair
Suite 212
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Norman Schroth
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., A.J.:
{¶1} Defendant-appellant, Kaylin McCray (“McCray”), brings this appeal challenging
the trial court’s imposition of consecutive sentences for one count of attempted murder and one
count of intimidating a crime victim or witness. Specifically, McCray argues that: (1) the trial
court improperly imposed consecutive sentences without making the appropriate findings
required by R.C. 2929.14, and (2) the trial court erred by imposing consecutive sentences without
determining whether the offenses are allied offenses of similar import. After a thorough review
of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} The criminal proceedings arose from an incident at a hotel party in Brookpark,
Ohio. McCray got into a verbal argument with one of the female party guests. During this
argument, another party guest attempted to leave the hotel room. McCray shot the male party
guest in the right thigh and genital region. After being shot, the male victim left the hotel.
McCray proceeded to order the remaining party guests to not say anything about the shooting—
threatening them with his gun and demanding that they “bet not say anything.” McCray
surrendered to the police roughly one week after the hotel party.
{¶3} The Cuyahoga County Grand Jury returned a multiple count indictment charging
McCray with: (1) attempted murder, R.C. 2923.02 and 2903.02(A), (2) felonious assault, R.C.
2903.11(A)(1), (3) felonious assault, R.C. 2903.11(A)(2), (4) intimidation of a crime victim or
witness, R.C. 2921.04(B)(2), and (5) having weapons while under disability, R.C. 2923.13(A)(2).
Counts 1 through 3 contained both one- and three-year firearm specifications.
{¶4} The parties reached a plea agreement, and McCray pled guilty to: (1) attempted
murder, R.C. 2923.02 and R.C. 2903.02(A), with a one-year firearm specification under
2941.141(A), (2) intimidation of a crime victim or witness, R.C. 2921.04(B)(2), and (3) having a
weapon while under disability, R.C. 2923.13(A)(2).
{¶5} The trial court imposed a prison sentence of five years and nine months: four
years on the attempted murder count, with a one-year firearm specification, nine months on the
intimidation of a victim or witness count, and nine months on the having a weapon while under
disability count. The trial court ordered the sentences for attempted murder and intimidation of
a victim or witness to be served consecutively, and the sentence for having a weapon while under
disability to be served concurrently with the sentence for attempted murder.
{¶6} McCray filed the instant appeal assigning two errors for review:
I. The trial court erred by ordering appellant to serve a consecutive sentence
without making the appropriate findings required by R.C. 2929.14 and HB 86.
II. The trial court erred by ordering convictions and a consecutive sentence for
separate counts because the trial court failed to make a proper determination as to
whether those offenses are allied offenses pursuant to R.C. 2941.25 and they are
part of the same transaction under R.C. 2929.14.
I. Law and Analysis
A. Consecutive Sentences
{¶7} We note, initially, that the presumption in Ohio is that sentencing is to run
concurrent. State v. Rodrigues, 8th Dist. Cuyahoga No. 102507, 2015-Ohio-2281, ¶ 5. In
order to overcome this statutory presumption, and before imposing consecutive sentences, the
trial court is required to make the findings mandated by R.C. 2929.14(C)(4). State v. Bonnell,
140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, ¶ 29.
{¶8} Pursuant to R.C. 2929.14(C)(4), the trial court must find: (1) a consecutive
sentence is necessary to protect the public from future crime or to punish the offender, (2)
consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and (3) one of the following — (a) the offender
committed one or more of the multiple offenses while awaiting trial or sentencing, (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, or () the offender’s criminal
history demonstrates consecutive sentences are necessary to protect the public. Id.
{¶9} In imposing consecutive terms of imprisonment, the trial court “must both make
the statutory findings mandated for consecutive sentences under R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate those findings into its sentencing entry.” State v. Allen, 8th
Dist. Cuyahoga No. 101342, 2015-Ohio-1448, ¶ 12; see State v. Bonnell,
140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, ¶ 37. Where a trial court fails to make these requisite
findings, the imposition of consecutive sentences is contrary to law, and the sentences must be
served concurrently.
Bonnell at ¶ 37.
{¶10} Although the requisite findings must be made, the trial court “has no obligation to
state reasons to support its findings,” so long as “the necessary findings can be found in the
record and are incorporated into the sentencing entry.” Id. Furthermore, this court has
repeatedly held that the trial court — in making its findings — is not required to use “talismanic
words to comply with the guidelines and factors for sentencing.” State v. Mannarino, 8th Dist.
Cuyahoga No. 98727,
2013-Ohio-1795, ¶ 23, quoting State v. Brewer, 1st Dist. Hamilton No.
C-000148,
2000 Ohio App. LEXIS 5455, *10 (Nov. 24, 2000); see also
Bonnell at ¶ 37.
{¶11} R.C. 2953.08(G)(2) provides two bases for a reviewing court to overturn the
imposition of consecutive sentences: the sentence is “otherwise contrary to law” or the reviewing
court clearly and convincingly finds that “the record does not support the sentencing court’s
findings” under R.C. 2929.14(C)(4). State v. Venes, 2013-Ohio-1891
992 N.E.2d 453, ¶ 11. (
8th Dist.)
{¶12} First, McCray argues that the trial court did not make the necessary findings to
justify a consecutive sentence.
{¶13} Regarding the first R.C. 2929.14(C)(4) requirement, the trial court stated:
I’m running that [intimidation of a crime victim or witness sentence] consecutive
[with the attempted murder sentence] because I think that conduct is separate and
apart from the conduct of firing. When that occurred, Mr. McCray, your instinct
was to protect yourself by threatening others. That’s very different than your
attitude here today but your conduct at the time indicates to me that you felt
necessary to intimidate someone else in order to avoid taking responsibility for
your conduct at that time and I think that is accountable in a separate fashion.
That’s why I have made it a consecutive sentence, giving you the minimum
amount of time for the intimidation component when I could have made that up to
three years.
I make that finding consistent with 2929.14(C)(4) of the code. I think it’s
necessary to punish the offender for this particular sentence, that it should be
consecutive for the reasons I’ve just stated. I do think it’s necessary to protect
the public from future crime.
Furthermore, the trial court identified several other reasons as to why a consecutive sentence is
necessary to protect the public from future crime or to punish the offender, including: (1) the
seriousness of the attempted murder offense and its accompanying one-year firearm specification,
(2) the probation department found McCray to be at a “high risk” of drawing a new case in the
future, and (3) the harm that the victim suffered — and will continue to suffer — as a result of
McCray’s conduct.
{¶14} In addressing the harm that the victim has suffered, and will continue to suffer, the
trial court stated:
I also have to be mindful of the fact that the victim in this case is going to be
dealing with a leg-related issue as a result of a wound in his leg apparently for the
rest of his life. He’s going to have to be cognizant of that and address that
situation. It is apparently a painful circumstance that has not abated at this point
in time and the indications are that that’s not going to change. So that’s going to
be with him for a significant, if not a permanent condition of his life, and I have to
bear that in mind and consider that as a meaningful fact in this case because, one,
it could have been worse. Fortunately, it’s not. But the victim in this case has
suffered, will suffer and will continue to suffer throughout his life.
And being on blood thinners is not an easy thing to do and be on, and he is
exposed to certain risks as a result of that. One of those risks, I just heard a
five-day or seven-day trial resulting from blood thinners and the effect that the
person died as a result of the blood thinners..So there are serious issues with
regard to those who have to take blood thinners that their life is very different than
those who don’t have to do that. So they are a significant risk.
Furthermore, the trial court noted that: (1) the victim will be “[c]omplaining of pain 24/7,” (2)
“the gunshot caused severe internal problems with [the victim’s] leg”, and (3) the victim’s blood
clotting will require him to wear a compression sleeve on his right leg for the rest of his life.
{¶15} Regarding the second R.C. 2929.14(C)(4) requirement, the trial court stated, “I
don’t think [the consecutive sentence] is disproportionate to the conduct itself.” In making this
finding, the trial court emphasized that McCray’s conduct of shooting the gun and injuring the
victim was separate and distinct from his conduct of threatening the witnesses. On the other
hand, the trial court ordered a concurrent nine-month sentence for McCray’s having weapons
while under disability offense, stating:
I don’t see any reason, although I certainly could have justification to make that a
consecutive sentence, I’m choosing not to do that and run it concurrent.
{¶16} Regarding the third R.C. 2929.14(C)(4) requirement, the trial court found that
consecutive sentences are necessary — based on McCray’s criminal history — to protect the
public. The trial court stated:
I note [McCray] has some definite issues with regard to juvenile issues that were
brought in the juvenile court and the nature of those charges. Those are crimes
of violence and they fall into a pattern, unfortunately, from my analysis in
connection with the charges in this case. If you look at the charges in the
juvenile area, you would almost say it was either predictable or it was certainly
not a surprise to have the charges that he’s facing and pled guilty to in my court a
few years later in time.
Furthermore, the trial court stated:
I don’t think [the sentences] can be handled concurrently
because of the nature of the situation
here and taking into account
[McCray’s] juvenile history, it does
demonstrate an ongoing pattern had
developed.
{¶17} McCray argues that his juvenile history should not be considered “criminal history”
for R.C. 2929.14(C)(4) purposes because juvenile delinquency adjudications are not criminal
convictions. We find no merit to this argument.
{¶18} In State v. Gross, the trial court imposed consecutive sentences, finding that
defendant — based on his prior juvenile record and his action in the case — posed a great danger
to the public. State v. Gross, 8th Dist. Cuyahoga No. 76836, 2005-Ohio-1664,
2005 Ohio App.
LEXIS 1600, *10. This court upheld the trial court’s consecutive sentences, finding that the
trial court complied with the statute and made the requisite R.C. 2929.14 findings.
Id. In State
v. Hudak, the trial court imposed consecutive sentences, finding that defendant’s juvenile record
and history “indicated recidivism was more likely.” State v. Hudak, 8th Dist. Cuyahoga No.
82108,
2003-Ohio-3805, ¶ 21. This court upheld the trial court’s consecutive sentences, finding
that the trial court’s reasons for imposing consecutive sentences “were all based on the reasons
enumerated in [R.C. 2929.14].” Id. at ¶ 23. In State v. Williams, the trial court found that
consecutive sentences were necessary to protect the public based on the fact that defendant had
an extensive criminal record as a juvenile and continued to pick up new cases. State v.
Williams, 8th Dist. Cuyahoga No. 100488,
2014-Ohio-3138, ¶ 5. This court upheld the trial
court’s consecutive sentences:
The [trial] court separately and distinctly made all the findings required by R.C.
2929.14(C)(4). It found that consecutive sentences were necessary to protect the
community and punish Williams; that consecutive sentences were not
disproportionate to his conduct; and that his history of criminal conduct
demonstrated that consecutive sentences were necessary to protect the public. It
follows that consecutive sentences were not contrary to law.
Id. at ¶ 6. Accordingly, the trial court did not err by finding that consecutive sentences were
necessary to protect the public based on McCray’s juvenile history and “ongoing pattern” of
violence.
{¶19} After a careful review of the record, we find that the record clearly and
convincingly demonstrates that the trial court engaged in the correct analysis — and made the
requisite R.C. 2929.14(C)(4) findings — before imposing consecutive sentences.
Furthermore, we cannot say that the trial court’s findings are not supported by the record. The
trial court thoroughly considered the attempted murder and intimidation of a crime victim or
witness offenses, weighed the need to both protect the public and to punish McCray, and
evaluated the proportionality of punishment to McCray’s conduct. Furthermore, regarding the
third R.C. 2929.14(C)(4) requirement, the trial court found that consecutive sentences were
necessary based on McCray’s criminal history. See State v. Hawkins, 8th Dist. Cuyahoga No.
102185, 2015-Ohio-3140, ¶ 14. The trial court emphasized that the victim’s injuries could have
been fatal, and that the victim — as a result of McCray’s actions — will continue to suffer
throughout his life.
{¶20} Second, McCray argues that the trial court failed to incorporate its findings into the
sentencing journal entry, as required by Bonnell. Specifically, McCray argues that the findings
incorporated into the journal entry “fell short to justify a consecutive sentence in this case.”
The record does not support McCray’s argument.
{¶21} In addition to making the requisite R.C. 2929.14(C)(4) findings on the record, the
trial court properly incorporated the findings into its sentencing journal entry. The trial court’s
sentencing entry states in relevant part:
THE COURT CONSIDERED ALL REQUIRED FACTORS OF THE LAW.
THE COURT FINDS THAT PRISON IS CONSISTENT WITH THE PURPOSE
OF R.C. 2929.11. THE COURT IMPOSES A PRISON SENTENCE AT THE
LORAIN CORRECTIONAL INSTITUTION OF 5 YEAR(S), 9 MONTH(S).
COUNT 1 PRC: - 5 YEARS MANDATORY; COUNT 4 PRC - 3 YEARS
MANDATORY; COUNT 5 PRC - 3 YEARS DISCRETIONARY. COUNT 1 - 1
YEAR FIREARM SPEC PLUS 4 YEARS IN PRISON FOR UNDERLYING
CRIME. COUNT 4 - 9 MONTHS IN PRISON CONSECUTIVE TO COUNTS 1
& 5. COUNT 5 - 9 MONTHS IN PRISON CONCURRENT TO COUNT 1. THE
COURT IMPOSES PRISON TERMS CONSECUTIVELY FINDING THAT
CONSECUTIVE SERVICE IS NECESSARY TO PROTECT THE PUBLIC
FROM FUTURE CRIME OR TO PUNISH DEFENDANT; THAT THE
CONSECUTIVE SENTENCES ARE NOT DISPROPORTIONATE TO THE
SERIOUSNESS OF DEFENDANT’S CONDUCT AND TO THE DANGER
DEFENDANT POSES TO THE PUBLIC; AND THAT, THE DEFENDANT
COMMITTED ONE OR MORE OF THE MULTIPLE OFFENSES WHILE THE
DEFENDANT WAS AWAITING TRIAL OR SENTENCING OR WAS UNDER
A COMMUNITY CONTROL OR WAS UNDER POST-RELEASE CONTROL
FOR A PRIOR OFFENSE, OR AT LEAST TWO OF THE MULTIPLE
OFFENSES WERE COMMITTED IN THIS CASE AS PART OF ONE OR
MORE COURSES OF CONDUCT, AND THE HARM CAUSED BY SAID
MULTIPLE OFFENSES 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 DEFENDANT’S CONDUCT, OR DEFENDANT’S
HISTORY OF CRIMINAL CONDUCT DEMONSTRATES THAT
CONSECUTIVE SENTENCES ARE NECESSARY TO PROTECT THE
PUBLIC FROM FUTURE CRIME BY DEFENDANT.
{¶22} The trial court fulfilled both of the Bonnell requirements: (1) making the requisite
R.C. 2929.14(C)(4) findings on the record and (2) incorporating those findings into the
sentencing journal entry. Furthermore, the record supports the trial court’s findings. Thus, we
find no error that would result in overturning the court’s imposed sentences.
{¶23} McCray’s first assignment of error is overruled.
B. Allied Offenses of Similar Import
Review for Plain Error
{¶24} First, McCray argues that the trial court failed to analyze — both at the change of
plea hearing and the sentencing hearing — whether the attempted murder and intimidation of a
crime victim or witness offenses were allied offenses of similar import. This claim is not
supported by the record.
{¶25} The trial court analyzed whether the attempted murder and intimidation of a crime
victim or witness offenses merged during the sentencing hearing:
On the Count 4, intimidation of crime victim, I’m going to sentence the defendant
to nine months and I’m going to run that consecutive to the time period for the
felony in the first-degree, attempted murder.
And I’m running that consecutive because I think that [intimidation] conduct is
separate and apart from the conduct of firing [the gun]. When that occurred, Mr.
McCray, your instinct was to protect yourself by threatening others. That’s very
different than your attitude here today but your conduct at the time indicates to me
that you felt necessary to intimidate someone else in order to avoid taking
responsibility for your conduct at that time and I think that is accountable in a
separate fashion.
{¶26} Based on this analysis, the trial court concluded that the attempted murder conduct
— shooting the victim — was separate and distinct from McCray’s subsequent conduct of
intimidating the witnesses.
{¶27} Furthermore, McCray neither raised the issue of allied offenses nor objected to the
trial court’s allied offenses analysis at the sentencing hearing.
{¶28} The Ohio Supreme Court recently held that the issue of allied offenses must be
raised with the trial court. In State v. Rogers, the court held that the failure to raise the issue of
allied offenses of similar import forfeits all but plain error. State v. Rogers, 143 Ohio St.3d
385,
2015-Ohio-2459,
38 N.E.3d 860, ¶ 3. Furthermore, the court held that such error “is not
reversible error unless it affected the outcome of the proceeding and reversal is necessary to
correct a manifest miscarriage of justice.”
Id.
{¶29} Therefore, McCray has the burden to “demonstrate a reasonable probability that the
convictions are for allied offenses of similar import committed with the same conduct and
without a separate animus ….” Rogers at ¶ 22.
Ruff Test for Merger of Multiple Offenses
{¶30} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution,
prohibiting multiple punishments for the same offense. R.C. 2941.25 states:
(A) Where the same conduct by defendant can be construed to constitute two or
more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
{¶31} The Ohio Supreme Court recently identified the proper analysis courts should
apply in determining whether the offenses merge or whether the defendant may be convicted of
separate offenses under R.C. 2941.25(B):
A trial court and the reviewing court on appeal when considering whether there
are allied offenses that merge into a single conviction under R.C. 2941.25(A)
must first take into account the conduct of the defendant. In other words, how
were the offenses committed? If any of the following is true, the offenses cannot
merge and the defendant may be convicted and sentenced for multiple offenses:
(1) the offenses are dissimilar in import or significance — in other words, each
offense caused separate, identifiable harm, (2) the offenses were committed
separately, and (3) the offenses were committed with separate animus or
motivation.
At its heart, the allied-offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at trial
or during a plea or sentencing hearing will reveal whether the offenses have
similar import. When a defendant’s conduct victimizes more than one person,
the harm for each person is separate and distinct, and therefore, the defendant can
be convicted of multiple counts. Also, a defendant’s conduct that constitutes
two or more offenses against a single victim can support multiple convictions if
the harm that results from each offense is separate and identifiable from the harm
of the other offense. We therefore hold that two or more offenses of dissimilar
import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct
constitutes offenses involving separate victims or if the harm that results from
each offense is separate and identifiable.
State v. Ruff, 143 Ohio St.3d 144,
2015-Ohio-995,
34 N.E.3d 892, ¶ 25-26. The evidence
during the change of plea and sentencing hearings will reveal whether McCray’s attempted
murder and intimidation of a crime victim or witness offenses have similar import. See id. at ¶
26.
{¶32} To commit the offense of attempted murder as defined in R.C. 2903.02(A), one
must engage in conduct that, if successful, would result in purposely causing the death of
another. R.C. 2921.04(B) defines intimidation of a victim or witness in criminal cases:
No person, knowingly and by force or by unlawful threat of harm to any person or
property or by unlawful threat to commit any offense or calumny against any
person, shall attempt to influence, intimidate, or hinder any of the following
persons:
(1) The victim of a crime or delinquent act in the filing or prosecution of
criminal charges or a delinquent child action or proceeding;
(2) A witness to a criminal or delinquent act by reason of the person being a
witness to that act.
{¶33} Regarding the first Ruff factor, McCray’s attempted murder and intimidation
offenses are dissimilar in import and significance, because they caused separate and identifiable
harm and victimized more than one person. See Ruff at ¶ 26. The attempted murder offense
caused physical harm to the victim’s leg, as outlined above. On the other hand, the intimidation
offense caused emotional damage to the witnesses of the shooting who were present in the hotel
room when McCray went around threatening people with his gun. Although several witnesses
from the party gave statements to the police after the incident, neither the victim nor any
witnesses wanted to provide a statement in court at the sentencing hearing.
{¶34} Regarding the second Ruff factor, McCray’s attempted murder and intimidation
offenses were committed separately — at separate times and with separate conduct. McCray
committed the attempted murder offense by pulling the trigger and shooting the male victim.
After the shooting took place and the victim left the hotel, McCray proceeded to commit the
intimidation offense by threatening the party guests with his gun. A witness statement indicated
that “McCray was running around the [hotel] room with the gun saying that ‘nobody bet not say
anything.’”
{¶35} Regarding the third Ruff factor, McCray’s attempted murder and intimidation
offenses were committed with separate animus or motivation. McCray committed the
attempted murder offense with the animus to severely injure or kill the male victim during the
argument. On the other hand, McCray committed the intimidation offense with the animus to
protect himself from any legal or criminal repercussions of the shooting.
{¶36} The record reflects that the trial court properly conducted an allied offenses and
merger analysis of the attempted murder and intimidation of a crime victim or witness counts
during the sentencing hearing. Furthermore — based on our review of the record and the
foregoing Ruff analysis — McCray has failed to satisfy his burden of showing a reasonable
probability that his attempted murder and intimidation of a crime victim or witness offenses are
for allied offenses of similar import, committed with the same conduct and without a separate
animus. Thus, McCray cannot demonstrate that the trial court’s failure to merge the offenses
for sentencing purposes was plain error.
{¶37} McCray’s second assignment of error is overruled.
III. Conclusion
{¶38} After reviewing the record, we find that the trial court made the requisite R.C.
2929.14(C)(4) findings in imposing consecutive sentences for McCray’s attempted murder and
intimidation of a crime victim or witness offenses. The trial court made the requisite findings
on the record and incorporated its findings into the sentencing journal entry, as required by
Bonnell. Furthermore, the trial court’s findings are supported by the record.
{¶39} We also find that the trial court properly conducted an allied offenses analysis
during the sentencing hearing. Furthermore, McCray failed to demonstrate that the trial court’s
failure to merge the offenses for sentencing was plain error, because the offenses: (1) are
dissimilar in import or significance, (2) were committed separately, and (3) were committed with
separate animus or motivation. We overrule McCray’s two assignments of error.
{¶40} Judgment affirmed.
It is ordered that appellee recover of appellant 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 common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
_________________________________________________________
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR
