State v. McBride

[Cite as State v. McBride, 2024-Ohio-4870.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

MATTHEW R. MCBRIDE,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 24 CO 0005

Criminal Appeal from the

Municipal Court of Columbiana County, Ohio

Case No. 2024 CRB 97

BEFORE:

Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:

Affirmed.

Atty. Vito J. Abruzzino, Columbiana County Prosecutor and Atty. Shelley M. Pratt,

Assistant Prosecutor, for Plaintiff-Appellee

Atty. David J. Betras and Atty. James N. Melfi, Betras Kopp, LLC, for Defendant-Appellant

Dated: September 19, 2024

–2–

WAITE, J.

{¶1} Appellant Matthew R. McBride, acting pro se, pleaded no contest in

Columbiana County Municipal Court to misdemeanor assault. After being sentenced, he

retained counsel and filed a motion to stay the sentence. At the stay of execution hearing,

counsel raised an oral motion to withdraw this plea. The court denied the motion, and

Appellant has appealed denial of his oral motion to withdraw. Appellant argues that the

arraignment procedure was improper in this case and denial of his motion to withdraw his

plea constituted a manifest injustice. Although Appellant was not represented by counsel

at his arraignment, the trial judge advised him of his right to counsel, and Appellant waived

that right orally and in writing. Appellant now contends he was suffering memory loss

from epileptic seizures when he entered his plea, but the record does not support this

claim. Appellant gave detailed and intelligent responses during his no contest plea. The

record reveals Appellant's plea was made voluntarily, knowingly, and intelligently, and

there was no manifest injustice in overruling his motion to withdraw the plea. The

judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} On January 12, 2024, a complaint was filed in Columbiana County

Municipal Court charging Appellant with assault in violation of R.C. 2903.13(A), a first

degree misdemeanor. The charge arose out of an incident that occurred on January 11,

2024 at the JDE Food and Fuel Station in New Waterford, Ohio. Appellant approached

Alex Conkle as he was pumping gas, and punched Conkle in the face. The assault

continued as the two of them fell to the ground. Appellant admitted to the arresting officer

Case No. 24 CO 0005

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that he assaulted Conkle. Appellant later explained that Conkle had borrowed $200 from

him years earlier and never paid him back, and that was why he assaulted Conkle.

{¶3} Appellant was arraigned on January 12, 2024. He signed a written waiver

of the right to counsel form, which was filed the same day. He also signed a "waiver of

rights upon plea" form that included his waiver of the right to be represented by counsel.

The court informed Appellant at arraignment that he had the right to an appointed attorney

if he financially qualified for one. The court also explained the rights Appellant would be

waiving if he pleaded guilty or no contest to the charges, and several other constitutional

and non-constitutional rights. The court fully explained to him the meaning and effect of

pleading guilty or no contest. (1/12/24 Tr., p. 6-7). The court asked Appellant how he

wished to plead. Appellant: "What is going to be the way to get it done as [ ] soon as

possible to get rid of this?" (1/12/24 Tr., p. 12.) The court explained to Appellant the

procedure that would occur if he pleaded guilty. Appellant then stated he was entering a

no contest plea. The court again explained that Appellant would be giving up his right to

consult with an attorney, the right of presumed innocence, the right to a jury trial, the right

to present a defense, to right to confront witnesses, and the right to remain silent. When

the court asked Appellant if he intended to give up all these rights. Appellant answered:

"Okay. Yes." (1/12/24 Supplemental Tr., p. 14.)

{¶4} The court made a finding of guilt following Appellant's no contest plea and

set the sentencing hearing for January 18, 2024. Sentencing was continued to February

1, 2024. The court sentenced Appellant to 180 days in jail, with 30 days suspended, and

a $250 fine.

Case No. 24 CO 0005

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{¶5} On February 2, 2024, Appellant retained counsel and filed a motion for stay

of sentence. A hearing was held on February 12, 2024. At the hearing, Appellant for the

first time made an oral motion to withdraw his plea. The court decided to hear the motion

immediately. The prosecutor objected because no written motion had been filed and no

time was being offered to the state to brief the arguments that might be raised. The court

nevertheless proceeded to hear the motion. Appellant offered no evidence other than his

own testimony. He testified that he suffered from epileptic seizures. The seizures began

when he was 21 or 22 years old, and he was presently 42 years old. He claimed that

when he has a seizure he becomes confused, very tired, sweaty, lethargic, and unable to

understand what is going on around him. His counsel asked him if he had a seizure on

the day of the plea hearing or the day before. Appellant stated he could not recall whether

he had a seizure at that time, because he has memory lapses when he has seizures. He

was asked again whether he had a seizure before he saw the judge at arraignment, and

he could not recall.

{¶6} Appellant testified that he has a device implanted in his chest that stimulates

the nerves in his brain every three minutes. He takes four drugs to regulate seizures. He

testified that he gets angry, confused, and tired when he has seizures.

{¶7} Appellant testified that he thought he was going to have a public defender

appointed because, in the past, "I have always gotten one." (2/12/24 Tr., p. 9.)

Appellant's counsel also noted that Appellant has a prior criminal record. The docket of

the Columbiana County Municipal Court reflects that Appellant does have an extensive

criminal record.

Case No. 24 CO 0005

–5–

{¶8} He testified that he did not understand the rights he waived when he entered

his plea because "I have had comprehension problems since school." (2/12/24 Tr., p. 9.)

{¶9} The court took the motion under advisement and allowed the parties to

submit briefs. The state filed its brief on February 14, 2024. Appellant did not respond in

any way or submit further evidence in support of the oral motion to withdraw his plea.

{¶10} The court overruled the motion to withdraw the plea by judgment entry filed

on February 14, 2024. Appellant appealed the February 14, 2024 judgment entry on

February 28, 2024. We note that Appellant has not appealed the February 1, 2024

judgment of conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

WITHDRAW HIS NO CONTEST PLEA.

{¶11} Appellant contends that his plea was not made voluntarily, knowingly, or

intelligently. Appellant is aware that the oral motion to withdraw his plea was made after

sentencing, and that Crim.R. 32.1 only allows a postsentence plea to be withdrawn to

correct manifest injustice. Appellant argues that he suffers from epileptic seizures, that

he may have been impaired by those seizures at the time he entered his no contest plea,

and that his seizure disorder interfered with his ability to waive his right to counsel. For

these reasons, Appellant believes that the court should have allowed him to withdraw his

post-sentencing no contest plea.

{¶12} Appellee responds that the trial judge fully informed Appellant of the effect

of a no contest plea and the meaning of all the rights he was waiving by pleading no

Case No. 24 CO 0005

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contest. The court informed Appellant of the nature of the charge against him and the

potential penalties. Appellant specifically told the court that he desired to waive his right

to counsel and he signed two written waivers that included the waiver of his right to the

assistance of counsel. Appellee argues that at no time did Appellant indicate he wanted

to be represented by counsel, and that he expressed only a desire to complete the

proceedings as quickly as possible. Appellee points out the record does not support that

Appellant was impaired in any way when he entered his no contest plea or when he

waived the right to counsel. For these reasons, Appellee concludes there was no

manifest injustice in the court's denial of the postsentence motion to withdraw the plea.

Standard of Review

{¶13} "A motion to withdraw a plea of guilty or no contest may be made only before

sentence is imposed; but to correct manifest injustice the court after sentence may set

aside the judgment of conviction and permit the defendant to withdraw his or her plea."

Crim.R. 32.1. The defendant must show withdrawal is necessary to correct manifest

injustice. State v. Stumpf, 32 Ohio St.3d 95, 104 (1987). "[A] defendant seeking to

withdraw a plea of guilty after sentence has the burden of establishing the existence of

manifest injustice." State v. Smith, 49 Ohio St.2d 261, 264 (1977). A post-sentence plea

withdrawal motion is warranted "only in extraordinary cases." Id.

{¶14} An appellate court reviews the disposition of a motion to withdraw a guilty

plea for an abuse of discretion. State v. Carabello, 17 Ohio St.3d 66, 67 (1985). "Abuse

of discretion means an error in judgment involving a decision that is unreasonable based

upon the record; that the appellate court merely may have reached a different result is

not enough." State v. Dixon, 2013-Ohio-2951, ¶ 21 (7th Dist.).

Case No. 24 CO 0005

–7–

{¶15} Appellant sets forth two main reasons why he thinks his motion to withdraw

his plea should have been granted. The first is that he did not validly waive his right to

counsel. However, this record shows that he waived his right to counsel in writing twice,

and again, orally, at arraignment. Nevertheless, Appellant contends that the waivers in

the record were an insufficient basis on which to find valid waiver because he suffers from

epileptic seizures and because the court did not tell him of the dangers of proceeding pro

se.

{¶16} Pursuant to Crim.R. 11(E), which deals with pleas in petty offense cases,

the court may accept a no contest plea only after explaining to the defendant the effect of

a no contest plea. Crim.R. 11(E) also states that the waiver of counsel rules in Crim.R.

44(B) and (C) apply to petty offense cases. The rule on which Appellant relies is Crim.R.

44(B), which provides:

Where a defendant charged with a petty offense is unable to obtain

counsel, the court may assign counsel to represent the defendant. When a

defendant charged with a petty offense is unable to obtain counsel, no

sentence of confinement may be imposed upon the defendant, unless after

being fully advised by the court, the defendant knowingly, intelligently, and

voluntarily waives assignment of counsel.

{¶17} Both parties agree that a timely request to waive counsel and self-represent

must be granted "when [a defendant] voluntarily, and knowingly and intelligently elects to

do so." State v. Gibson, 45 Ohio St.2d 366 (1976), paragraph one of the syllabus. "[T]rial

courts may constitutionally deny a defendant his right to self-representation when there

Case No. 24 CO 0005

–8–

are lingering doubts concerning the defendant's competency to represent himself." State

v. Godley, 2018-Ohio-4253, ¶ 15 (3rd Dist.). There are no such doubts to be gleaned

from the record in this case. Although Appellant mentioned at arraignment that he had

problems with anxiety and stress that leads to seizures, there was absolutely no indication

that he was suffering from any such issue when he waived his right to counsel and entered

his no contest plea. He was so lucid that he made a special point to correct the record

regarding the address where the crime occurred: "I personally lived on both streets . . .

I'm very aware of the names of the streets of my town." (1/12/24 Tr., p. 12.) When the

judge asked him why the crime occurred, he told the judge that he has problems with his

temper and is involved in counseling. Appellant engaged in intelligent conversation with

the judge throughout the hearing. There is nothing in the record of the arraignment that

reveals any impairment, or that undermines the validity of the no contest plea or his waiver

of counsel.

{¶18} Appellant relies primarily on his testimony from the hearing on his motion to

withdraw to support that he was suffering from the effect of either epilepsy or epilepsy

medication when he entered his plea. His argument at the motion hearing was that the

judge could have asked about, and discovered at arraignment, the fact that Appellant had

been suffering from seizures for 20 years, that he often lost his memory and became

confused, was prescribed medication, and that he had a nerve stimulator implanted in his

chest because of his condition that shocked his brain every three minutes. Appellant

believes the court had a duty to inquire into all of these matters at arraignment simply

because Appellant mentioned the words stress, anxiety, and seizures.

Case No. 24 CO 0005

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{¶19} A trial court must be convinced that a no contest plea is made voluntarily,

knowingly, and intelligently. There is no magic formula that can be used to make this

determination. Appellant gave no indication at arraignment that he was suffering from

any medical conditions or drugs that would prevent him from entering a valid, knowing no

contest plea. At the hearing on his motion to withdraw, Appellant could not recall whether

he was having a seizure the day he entered his plea. He testified that he gets confused,

angry, and tired when he has a seizure. The record of plea does not support that he

seemed confused, angry, or tired when he entered his plea. He testified that he becomes

sweaty, lethargic, and unable to understand what is going on around him when he has a

seizure. Again, there is no indication any of this was present at the change of plea

hearing. He claimed to have memory lapses when he has seizures, and yet, his memory

seemed to be crystal clear at the change of plea hearing and he asked and answered

questions cogently. Because the record does not support there was any indication that

Appellant was suffering from any condition that prevented him from properly entering his

no contest plea, there cannot be manifest injustice in refusing to allow him to withdraw

the plea.

{¶20} Appellant contends that there were enough indications regarding the

possibility that he was impaired or suffering from a disability at the January 12, 2024

arraignment that the court should have further inquired into the matter, or at least

continued the proceeding. Appellant cites to a moment in the hearing when he claims the

court cut him off just as he was about to explain the nature of his seizures. Appellant

said: "How long would it take for sentencing? I'm having problems with anxiety and stress

due to this leads to seizures. I --". (1/12/24 Tr., p. 13.) The court then answered

Case No. 24 CO 0005

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Appellant's question and said: "Your case is going to be set -- if you want to plead guilty,

your case is going to be set sentencing hearing." (1/12/24 Supplemental Tr., p. 13.) The

court did not stop Appellant from finishing his thought, but simply answered the question

Appellant asked. Based on Appellant's statement, taken at face value, he indicated that

the matter was creating anxiety and stress that could lead to seizures, and he was looking

for the quickest way possible to resolve the case. There was no mention of epilepsy or

any other medical condition that would require further inquiry at that time. Appellant did

not mention having had a seizure recently, or that he was taking medication for seizures,

or that he has a medical device implanted in his chest that was regulating seizures. The

fact that he was suffering from anxiety and stress would be expected from every

defendant charged with a crime and brought before the court, and would not, alone,

trigger a further investigation.

{¶21} Appellant also notes that he told the court he was disabled and that the

court made no further inquiry about the nature of the disability. The mention of the word

"disabled" occurred at the very end of the arraignment hearing, after Appellant had

already pleaded no contest and after the court's instructions as to sentencing. The court

told Appellant he would be sentenced on January 18, 2024, that a $2,500 bond would be

set, that he could post the bond and if so, that he must voluntarily appear in court.

(1/12/24 Tr., p. 15.) Appellant said: "it's going to be impossible to post bond being I'm

disabled." (1/12/24 Tr., p. 15.) The judge told him that he would remain in custody until

the bond was posted, and ended the hearing.

{¶22} Appellant's epilepsy and disability were raised at sentencing, however,

Appellant did not mention these issues in an attempt to challenge his no contest plea.

Case No. 24 CO 0005

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Instead, they were discussed to explain why he committed the assault, as he sought to

mitigate his sentence. He explained that the victim borrowed money from him many years

ago, and Appellant happened to encounter him on January 11, 2024. Appellant claimed

that his epilepsy makes him lose control of his emotions and he cannot control himself.

He felt that the county was not doing enough to help him with his problems, and he

believed this was a factor in committing the crime. Apparently, the court believed this

was nothing more than an excuse, intended to shift the blame, rather than Appellant

showing remorse for the crime.

{¶23} It is clear from the record that Appellant did not offer any evidence that he

was impaired by any condition, medical or otherwise, on the day he entered his plea. At

the hearing on the motion to withdraw, Appellant testified that his seizures or epilepsy

(which was not established by any medical evidence) caused him to be emotional or out

of control, and yet this is not how Appellant presented at arraignment. He appeared

completely in control of his emotions and thought processes, and he made a special point

of correcting the judge regarding the exact location of the crime. Appellant was asked

more than once at the motion to withdraw hearing if he was under the influence of a

seizure at arraignment, or had suffered one the day before, and he could not recall. At

oral argument, Appellant's counsel urged several times, that there were "breadcrumbs"

in the record that should have triggered a further inquiry by the court into Appellant's

condition. And yet, when given a chance to substantiate those "breadcrumbs," Appellant

provided no evidence to corroborate his testimony. He did not file a memorandum in

support of the oral motion to withdraw his plea, even though he was given the opportunity

to do so by the court. He did not file any medical records, reports, tests, conclusions, or

Case No. 24 CO 0005

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evidence that he was actually taking prescription drugs for any illness or condition. His

testimony about his condition is equivocal at best, and does not provide any reason for

the trial court to have questioned his no contest plea.

{¶24} Appellant also argues that he was not told of the dangers of entering a no

contest plea without the assistance of counsel. Although Crim.R. 44(B) does not

specifically require the court to explain the dangers of acting pro se in a criminal case,

Appellant contends that "[w]hen a trial court fails to advise a defendant on the record of

the inherent dangers of proceeding pro se, waiver of the right to counsel cannot be

inferred." State v. St. Thomas, 2024-Ohio-2568, ¶ 24 (7th Dist.). There is no need to

infer a waiver in this case, though, because the waiver is explicit. Appellant waived the

right to the assistance of counsel twice in writing and also orally at arraignment.

{¶25} Regardless, the court did explain the difficulties of acting pro se. The judge

told Appellant that the court could not give him legal advice, but could only explain the

meaning of a no contest plea and what the next stage of the proceeding would be. The

court explained that there would be no trial if he pleaded no contest and that the next step

would be sentencing. The court explained more than once that if Appellant wanted to

immediately plead no contest, he would do so without being advised by an attorney. The

court explained that if he entered a plea of no contest at arraignment, he would be giving

up the right to trial, to present a defense, to call witnesses, to have an attorney to assist

him, and many other constitutional rights. The court then asked again: "Is that what you

want to do?" (1/12/24 Tr., p. 4.) Appellant answered "Yeah." (1/12/24 Tr., p. 4.)

{¶26} The issue under review is whether a manifest injustice occurred in denying

Appellant's motion to withdraw his no contest plea. Since the record reflects that the plea

Case No. 24 CO 0005

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was made voluntarily, knowingly, and intelligently, and that there was a valid waiver of

the right to counsel, there was no manifest injustice in denying the motion to withdraw.

As stated by Appellee, the record supports the conclusion that Appellant simply had a

change of heart about pleading no contest and tried to justify it after the fact. A mere

change of heart is an insufficient basis on which to withdraw a no contest plea. State v.

Kinney, 2023-Ohio-2549, ¶ 31 (7th Dist.).

{¶27} Appellant's first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT DID NOT SUBSTANTIALLY COMPLY WITH THE

PROPER ARRAIGNMENT PROCEDURE FOR [MISDEMEANORS].

{¶28} This assignment of error is a continuation of his earlier argument that his

waiver of his right to counsel was invalid. Under this assignment of error, Appellant

argues that a trial court is required to tell a defendant at arraignment that he has a right

to retain counsel, a right to a reasonable continuance to secure counsel, and the right to

have counsel assigned without cost if he cannot afford to retain counsel. These rights in

petty offense cases are contained in Crim.R. 5(A)(2), 10(C), and 44(B). Appellant

acknowledges that the court is not required to recite any specific words from the Rules of

Criminal Procedure, and that waiver of the right to counsel can only be upheld if the court

substantially complied with the directives regarding the notices regarding the right to

counsel. State v. Koons, 2007-Ohio-4985, ¶ 14 (7th Dist.). Appellant is also aware that

the only issue under review is whether there was a manifest injustice in the denial of his

motion to withdraw the no contest plea.

Case No. 24 CO 0005

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{¶29} Appellant’s specific argument is that the arraignment process insufficiently

apprised him of his rights regarding the assistance of counsel. Crim.R. 10 deals with

arraignments. Crim.R. 10(C) states:

When a defendant not represented by counsel is brought before a

court and called upon to plead, the judge or magistrate shall cause the

defendant to be informed and shall determine that the defendant

understands all of the following:

(1) The defendant has a right to retain counsel even if the defendant

intends to plead guilty, and has a right to a reasonable continuance in the

proceedings to secure counsel.

(2) The defendant has a right to counsel, and the right to a

reasonable continuance in the proceeding to secure counsel, and, pursuant

to Crim. R. 44, the right to have counsel assigned without cost if the

defendant is unable to employ counsel.

{¶30} Appellant argues that the trial judge did not inform him of the right to be

assigned counsel without cost if he could not afford retained counsel, and that he had a

right to a reasonable continuance to obtain counsel.

{¶31} During arraignment the judge stated: "[You] have the right to have an

attorney appointed to represent you if you qualify financially for that appointment."

(1/12/24 Tr., p. 2.) This substantially complies with the notice requirement in Crim.R.

10(C)(2). The court also stated: "If you need time to speak to a lawyer or get some legal

Case No. 24 CO 0005

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advice before you proceed any further -- in that event you should plead not guilty."

(1/12/24 Tr., p. 5.) The court then explained that if a not guilty plea was entered the case

would be continued for a future hearing called a pretrial. These two statements together

constitute substantial compliance with the notice requirement of Crim.R. 10(C)(1).

{¶32} The written waiver of the right to counsel, filed on January 12, 2024, stated

that Appellant understood he had a right to counsel, and that if he could not afford to pay

the cost of hiring counsel, counsel would be appointed without charge. He knowingly,

intelligently, and voluntarily waived his right to employ an attorney or have one appointed

to represent him. The written waiver of rights upon plea, also signed by Appellant and

filed on January 12, 2024, contained another waiver of his right to have retained or

appointed counsel. These two written waivers fully support the conclusion that the court

complied with Crim.R. 10(C).

{¶33} We also note Appellant was no stranger to the criminal litigation process,

having an extensive prior criminal record in the same court. He, himself, testified that he

was aware an attorney could have been appointed because that is what had happened

in the past. Appellant made it absolutely clear to the court that he did not want an attorney

and that his only concern was to expedite this matter so that the case would be resolved

as quickly as possible.

{¶34} Because the court substantially complied with the notice requirements of

Crim.R. 10(C), there can be no manifest injustice in denying Appellant's post-sentence

motion to withdraw his no contest plea. Therefore, Appellant's second assignment of

error is overruled.

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Conclusion

{¶35} Appellant argues the trial court should not have accepted his no contest

plea and should have sustained his motion to withdraw that plea because he may have

been suffering from the effects of a seizure disorder during arraignment, and because he

did not properly waive the right to counsel. He contends that under Crim.R. 32.1, the

denial of his motion to withdraw his no contest plea created a manifest injustice.

Appellant's arguments are not persuasive. The trial judge advised Appellant of his

constitutional rights, including the right to be represented by counsel, and Appellant

waived those rights both orally and in writing. The record does not support any inference

that Appellant was suffering from epilepsy or any other ailment when he pleaded no

contest. Appellant provided intelligent and thoughtful responses during arraignment when

he pleaded no contest, thus contradicting his argument on appeal. Appellant also

contends the court specifically failed to give him two notices regarding the right to counsel

at arraignment required by Crim.R. 10(C), but the record shows that the court did

substantially comply with those notices. As there was no manifest injustice in this case,

the judgment of the trial court is affirmed.

Robb, P.J. concurs.

Hanni, J. dissents; see dissenting opinion.

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Hanni, J., dissenting.

{¶36} With regard and respect to my colleagues, I must dissent from the majority

opinion. I would find that once Appellant informed the trial court of his medical issues and

potential disability at his arraignment, the court should have inquired further of Appellant

before accepting his uncounseled no contest plea. At his arraignment, before entering

his plea, Appellant told the court: “I'm having problems with anxiety and stress due to this

which leads to seizures. I - -”. (Arraignment Tr. 3). The court then interrupted Appellant,

telling him that if he pleaded guilty, his case would be set for sentencing. (Arraignment

Tr. 3). The court did not allow Appellant to finish his statement regarding his stress and

anxiety leading to seizures. Appellant then stated “No contest” without any further inquiry

by the court. (Arraignment Tr. 4). Given the facts that Appellant was proceeding without

counsel and was attempting to bring his medical condition/disability to the trial court’s

attention, the court should have inquired further of Appellant before accepting his no

contest plea.

{¶37} In addition, at the hearing to withdraw the plea, the trial court was informed

by defense counsel of Appellant’s condition regarding his disability and inability to clearly,

knowingly, and intelligently make a decision regarding the plea.

{¶38} Thus, I would find the trial court should have granted Appellant’s motion to

withdraw his plea.

Case No. 24 CO 0005

[Cite as State v. McBride, 2024-Ohio-4870.]

For the reasons stated in the Opinion rendered herein, Appellant’s assignments of

error are overruled and it is the final judgment and order of this Court that the judgment

of the Municipal Court of Columbiana County, Ohio, is affirmed. Costs to be taxed against

the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.