State v. Brown

[Cite as State v. Brown, 2025-Ohio-274.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 113818

v. :

TONY BROWN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: January 30, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-12-560590-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Sarah E. Hutnik, Assistant Prosecuting

Attorney, for appellee.

Tony Brown, pro se.

KATHLEEN ANN KEOUGH, P.J.:

Defendant-appellant, Tony Brown, appeals from the trial court’s

judgment entry denying him leave to file a motion for a new trial and denying his

untimely petition for postconviction relief. For the reasons that follow, this court

affirms the trial court’s decision.

I. Procedural History and Background

In 2012, the trial court sentenced Brown to 31 years in prison

following his convictions for two counts of aggravated burglary, five counts of

kidnapping, and one count each of aggravated robbery, aggravated theft, and having

weapons while under disability. This court affirmed his convictions, overruling his

assignments of error that challenged the sufficiency and weight of the evidence and

the prosecutor’s statements made during closing argument regarding DNA

evidence. See State v. Brown, 2013-Ohio-2690 (8th Dist.).

In August 2023, Brown, pro se, filed a motion for leave to file a

delayed motion for a new trial based on newly discovered evidence. He contended

that with the help of a family friend in 2022-2023, he obtained through public

records requests newly discovered exculpatory evidence that the jury did not

consider at his trial. On the same day, he filed a combined motion for new trial and

petition for postconviction relief.

Without conducting a hearing, the trial court denied his request for

leave to move for a new trial, concluding that Brown failed to demonstrate by clear

and convincing evidence that he (1) was unavoidably prevented from obtaining the

relied upon information and (2) could not have with reasonable diligence discovered

the information and produced it at trial. For the same reasons, the trial court denied

Brown’s petition for postconviction relief, finding that it lacked jurisdiction because

the petition was untimely. Additionally, the court rejected Brown’s postconviction

claim of effective assistance of trial counsel because Brown failed to demonstrate

both deficient performance and prejudice.

This appeal followed.

II. The Appeal

A. Motions to Compel Service

Brown states in his first assignment of error:

The trial court erred in ignoring pro se prisoner’s motions to compel

service of prosecutor’s defaulted response to appellant and in not

granting appellant’s motions to strike the prosecutor’s default response

all of which is and was contrary to Ohio Criminal Rule 49, Ohio Civil

Rule 5(B)(4), controlling authorities of law and the due process clause

of the Fourteenth Amendment of the U.S. Constitution.

The State contends that Brown has not properly invoked this court’s

jurisdiction to challenge the trial court’s decisions regarding his motions to compel

and strike because he did not provide notice in accordance with App.R. 3(D) that he

intended to appeal those decisions. Under App.R. 3(D), the notice of appeal “shall

designate the judgment, order or part thereof appealed from.” In his notice of

appeal, Brown noted that he intended to appeal the trial court’s “final judgment

entry . . . entered on March 27, 2024.” A review of the record reveals that on March

28, 2024, the trial court addressed Brown’s pending motions, including his motion

for leave to move for new trial, petition for postconviction relief, motion to strike,

combined motion to reconsider and compel, motion to proceed to judgment, and

second motion to strike.

Although he only appended the trial court’s written decision denying

his motion for leave to file a motion for a new trial and petition for postconviction

relief, Brown’s failure to include the trial court’s other decisions does not deprive

this court of jurisdiction. See Loc.App.R. 3(B)(1) (attachment of judgment or order

appealed from is not jurisdictional). Moreover, the trial court did not issue a

separate journal entry denying Brown’s other motions; the docket only shows the

motions as “moot.”

An issue is moot, however, “when it has no practical significance and,

instead, presents a hypothetical or academic question.” State ex rel. Ford v.

Ruehlman, 2016-Ohio-3529, ¶ 55. As a general matter, courts will not resolve moot

issues. State v. Harding, 2014-Ohio-1187, ¶ 50 (10th Dist.). Consistent with this

law, the trial court declined to rule on Brown’s motions once it found those motions

moot due to its consideration and denial of his substantive motions. The question

before this court, therefore, is whether the trial court abused its discretion in

deciding that Brown’s motions were (1) moot after it ruled on his postconviction

motions, or (2) declining to consider Brown’s motions prior to ruling on his

postconviction motions.

Our standard of review for a motion to strike and a motion to compel

is whether the trial court abused its discretion by granting or denying the motions.

Abernethy v. Abernethy, 2003-Ohio-1528, ¶ 7 (8th Dist.) (motion to strike); United

States Specialty Sports Assn. v. Majni, 2022-Ohio-3035, ¶ 14 (8th Dist.) (motion to

compel). An abuse of discretion occurs when “a court exercise[es] its judgment, in

an unwarranted way, in regard to a matter over which it has discretionary authority.”

Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35.

Brown’s motions to compel and strike involved the State’s untimely

filing of their brief in opposition to his motion for leave to move for a new trial and

petition for postconviction relief and the State’s purported failure of serving its

opposition on Brown. He contended that because the State filed its opposition five

days after the extension deadline, the trial court should have stricken the response,

entered judgment, or proceeded directly to an evidentiary hearing on his motions.

Additionally, Brown claimed that the State failed to serve him with their opposition,

and thus he requested that the court compel the State to serve him with the

response, and when the State purportedly failed to do so, Brown requested that the

trial court strike the State’s opposition.

Upon review of the record, we find no abuse of discretion by the trial

court in either (1) finding Brown’s motion to compel moot after it ruled on his

postconviction motions, or (2) declining to consider Brown’s motions prior to ruling

on his postconviction motions. Although the State filed its opposition beyond the

extension deadline imposed by the trial court, Brown has failed to demonstrate how

this late filing prejudiced him in his pursuit for a new trial.

Moreover, we find no merit in Brown’s contention that the State failed

to serve him with a copy of their opposition. First, the State certified in its certificate

of service that it served its opposition to Brown on the same day that it filed its

opposition, October 25, 2023. Pursuant to Civ.R. 5(B), “service by mail is complete

upon mailing.” “A presumption of proper service arises when the record reflects that

a party has followed the Civil Rules pertaining to service of process.” Potter v. Troy,

78 Ohio App.3d 372, 377 (2d Dist. 1992). The opposing party may rebut that

presumption, however, by producing sufficient evidence, such as an affidavit that he

never received service. Potter, citing Grant v. Ivy, 69 Ohio App.2d 40 (10th Dist.

1980); Sullivan v. N. Eighteenth St. Energy Efficient Homeownership Project Ltd.

Partnership, 2022-Ohio-1472, ¶ 14 (10th Dist.) (“A rebuttable presumption of

proper service arises when a party complies with the civil rules governing service.”).

Brown produced documentary evidence purportedly demonstrating

that he did not receive a copy of the State’s opposition. However, on November 13,

2023, Brown filed his “motion for extension to submit contra response” to the State’s

opposition. Brown’s certificate of service on that motion indicates that he served his

motion on November 3, 2023 — nine days after the State filed its opposition.

Moreover, in Brown’s motion for an extension of time, he did not support his request

with any assertion that he had not yet received the State’s response to timely

respond; rather, he asserted that his prisoner status restricted and impeded his

access to legal and research materials to respond adequately and thoroughly to the

State’s opposition. Accordingly, the record refutes Brown’s documentary evidence

and contention that he did not receive the State’s opposition.

Based on the foregoing, we find no abuse of discretion by the trial

court in either finding Brown’s motions moot or declining to consider his motions

prior to ruling on his postconviction motions.

Brown’s first assignment of error is overruled.

B. Denial of Motion for Leave

In his second and third assignments of error, Brown challenges the

trial court’s denial of his motion for leave to move for new trial.1

Assignment of Error II

The trial court erred in denying pro se prisoner’s motion for leave to file

motion for new trial and by not conducting [an] evidentiary hearing all

of which was contrary to Ohio Criminal Rule 33(B) and controlling

authorities of law and the due process clause of the Fourteenth

Amendment of the U.S. Constitution.

Assignment of Error III

The trial court erred in denying pro se prisoner’s motion for leave to file

motion for new trial (due to expired procedure deadline) when

prisoner’s motion for new trial and its evidence demonstrates an actual

innocence claim and constitutional Brady violations of concealed

evidence and destroyed evidence all of which is contrary to controlling

authorities of law and the due process clause of the Fourteenth

Amendment of the U.S. Constitution.

We review a trial court’s ruling on a motion for leave to move for a

new trial for an abuse of discretion. State v. McNeal, 2022-Ohio-2703, ¶ 13, citing

1 Brown requested an App.R. 9(B) record in his notice of appeal. This court, sua

sponte, converted the appeal into an App.R. 9(A) record. Upon review of the trial court’s

judgment entry and arguments raised on appeal, this court issued a subsequent sua sponte

order, reverting to an App.R. 9(B) record and ordered the State to assist the clerk of courts

in locating the trial transcript and exhibits. The trial transcript has since been located and

filed; the exhibits are still missing. Nevertheless, the missing exhibits do not hinder our

review of this case because the transcripts provide the relevant information to adequately

and thoroughly address Brown’s assignments of error. Compare Crutchfield v. Sharon

Twp. Bd. of Zoning Appeals, 2004-Ohio-6265, ¶ 25 (9th Dist.) (finding that a description

of photographs in a transcript is inadequate without the photographs themselves). In

resolving an appeal that involved missing exhibits, this court stated, “While a trial court

record need not be perfect for appellate review, we must balance adequacy of the record

with the deprivation of a defendant’s due process rights.”). State v. Tiedjen, 2019-Ohio-

2430 ¶ 15 (8th Dist.), citing State v. Skatzes, 2004-Ohio-6391, ¶ 161.

State v. Hawkins, 66 Ohio St.3d 339, 350 (1993) (“The decision to grant or deny a

motion for a new trial on the basis of newly discovered evidence is within the sound

discretion of the trial court and, absent an abuse of discretion, that decision will not

be disturbed.”).

Brown moved for leave to file a motion for new trial based on newly

discovered evidence, asserting a Brady claim. Brady v. Maryland, 373 U.S. 83, 87

(1963), governs situations where the State withholds evidence that tends to

exculpate a criminal defendant. “When the prosecution withholds material,

exculpatory evidence in a criminal proceeding, it violates the due process right of the

defendant under the Fourteenth Amendment to a fair trial.” State v. Johnston, 39

Ohio St.3d 48, 60 (1988). Brady violations may be found regardless of whether the

defense requested the evidence and “irrespective of the good faith or bad faith of the

prosecution.” Brady at 87.

Crim.R. 33 provides that a trial court may grant a defendant’s motion

for a new trial where the discovery of new evidence materially affects the defendant’s

substantial rights and:

[w]hen new evidence material to the defense is discovered, which the

defendant could not with reasonable diligence have discovered and

produced at the trial. When a motion for a new trial is made upon the

ground of newly discovered evidence, the defendant must produce at

the hearing on the motion, in support thereof, the affidavits of the

witnesses by whom such evidence is expected to be given, and if time is

required by the defendant to procure such affidavits, the court may

postpone the hearing of the motion for such length of time as is

reasonable under all the circumstances of the case. The prosecuting

attorney may produce affidavits or other evidence to impeach the

affidavits of such witnesses.

Crim.R. 33(A)(6).

Under Crim.R. 33(B), a defendant must file a motion for new trial

based on newly discovered evidence within 120 days after a verdict is rendered. A

defendant who fails to file a motion for new trial within the prescribed timeframe

must seek leave from the trial court to file a delayed motion for new trial. State v.

Murphy, 2021-Ohio-3925, ¶ 25 (8th Dist.), citing State v. Hale, 2019-Ohio-1890,

¶ 9 (8th Dist.).

When the ground for a motion for leave to file a new-trial motion is

newly discovered evidence, the movant must show that he had been “unavoidably

prevented” from timely discovering that evidence. Importantly, “‘[w]hen a

defendant seeks leave to file a motion for a new trial under Crim.R. 33(B), the trial

court may not consider the merits of the proposed motion for a new trial until after

it grants the motion for leave.’” State v. Hatton, 2022-Ohio-3991, ¶ 30, and State v.

Bethel, 2022-Ohio-783, ¶ 41. “The sole question before the trial court when

considering whether to grant leave is whether the defendant has established by clear

and convincing proof that he was unavoidably prevented from discovering the

evidence on which he seeks to base the motion for a new trial.” Hatton at ¶ 30.

When a defendant seeks to assert a Brady claim in an untimely

postconviction motion, the defendant satisfies the “unavoidably prevented”

requirement by establishing that the prosecution suppressed the evidence on which

the defendant relies. Bethel at ¶ 25, 29 (rejecting the State’s assertion that a

defendant seeking to assert a Brady claim is required to show that he could not have

discovered the suppressed evidence by exercising reasonable diligence); see also

McNeal, 2022-Ohio-2703, at ¶ 17, and Hatton at ¶ 31.

Brown contended that he was unavoidably prevented from

discovering various reports, including Bureau of Criminal Investigation (“BCI”)

DNA testing reports and purported chain-of-custody deficiencies until 2022

because, as an incarcerated individual, R.C. 149.43 prohibited him from obtaining

public records.

The trial court found that although R.C. 149.43 placed restrictions on

Brown’s access to public records, the statute did not entirely prohibit Brown from

obtaining information. The court correctly noted that Brown needed to first request

the material from the trial court and establish that the information was necessary to

support a justiciable claim. Because Brown did not present any evidence showing

compliance with R.C. 149.43, the trial court found that Brown failed to prove by clear

and convincing evidence that he was unavoidably prevented from obtaining this

information prior to 2023.

Brown contends that even if he had followed the procedures in R.C.

149.43, the trial court would have “ignored any public records motion” because the

trial court refused to rule on his motions to compel and for service. According to

Brown, the trial court’s refusal to conduct a hearing on his motion for leave

prevented him from demonstrating how he was unavoidably prevented from

discovering the evidence supporting his motion for a new trial and postconviction

relief.

At the outset, we summarily find Brown’s argument regarding the

trial court’s potential treatment of any R.C. 149.43 request purely speculative and

unpersuasive. Additionally, an evidentiary hearing on a motion to leave is required

only if the evidence the movant offers in support of his motion for leave

demonstrates on its face unavoidable prevention. State v. Howard, 2022-Ohio-

2159, ¶ 27 (1st Dist.), citing State v. Carusone, 2013-Ohio-5034, ¶ 4 (1st Dist.).

In support of his motion for leave, Brown contends that the newly

acquired evidence includes photographs, police statements, witness statements,

DNA testing and reports, DNA chain of custody deficiencies, fingerprints, proof of

perjury by his accusers, and no evidence of gun operability. He maintains that

“most” of this evidence was not presented to the jury, and in fact, he had never seen

some of the evidence. Based on our review of the 88 exhibits attached to his motion

for a new trial, we find that this evidence on its face does not demonstrate

unavoidable prevention.

The trial court correctly found that the evidence Brown relied upon to

support his motion was either presented at trial or provided to Brown’s trial counsel

during discovery. The trial court noted that some of the documents that Brown

contended are “newly discovered” were marked as “counsel only”; thus Brown’s trial

counsel would have been prohibited under Crim.R. 16(C) from showing the items to

Brown. Brown has not presented any evidence to refute this assertion. Compare

Tiedjen, 2019-Ohio-2430 (8th Dist.) (movant provided affidavits from his trial and

appellate counsel averring that the “newly discovered” supporting documentation

never seen by counsel nor provided by the State during discovery). Brown has not

offered any similar affidavits from his trial or appellate counsel, averring that the

documentation supporting Brown’s motion for leave is newly discovered.

Accordingly, Brown has failed to demonstrate that the State suppressed the evidence

supporting his motion for leave to move for a new trial.

Moreover, Brown has also failed to demonstrate how the supporting

documentation qualifies as Brady material, such that the documentation tends to

exculpate him. In his combined motion, Brown contends that the State withheld the

identities of the “undisclosed” other gunmen who committed the robbery and did

not make any diligent effort to retest DNA evidence or compare fingerprints found

at the victims’ house. The State’s purported lack of investigation to discover

accomplices or failure to retest DNA evidence or compare fingerprints do not

amount to Brady evidence, unless Brown affirmatively shows that the State

suppressed the identities of known suspects prior to trial. State v. Wickline, 50 Ohio

St. 3d 114, 116 (1990) (Brady applies only in situations where information known to

the prosecution but unknown to the defense is discovered after trial.) He has not

satisfied his burden.

Brown’s next challenge is the State’s purported mishandling of the t-

shirt rag that contained his DNA and connected him to the robbery. According to

Brown, the “newly discovered” DNA reports, police reports, and witness statements

reveal that the State withheld chain-of-custody information that the t-shirt was

mishandled and contaminated. Who discovered the t-shirt rag and chain-of-

custody information is not new.

Both Desdemona Sanderfer and Leslie Slocum testified at trial that

they discovered the t-shirt rag in the upstairs bathroom two days after the home

invasion. The State presented evidence at trial that one of home invaders wore this

rag as a face covering, but that it fell off during the robbery. Slocum testified that

she contacted Cleveland Heights police about the discovery and that she wore gloves

when she picked up the t-shirt rag and placed it in a plastic bag that she subsequently

gave to the responding officer. See tr. 540-541, 1090-1092. Accordingly, Brown

knew where, when, and how the t-shirt was found, recovered, and transferred to

police custody during his trial, and thus he was not unavoidably prevented from

timely discovering this evidence for purposes of moving for a new trial.

Brown also contends that he was unavoidably prevented from

discovering the DNA report that disclosed that the t-shirt rag contained not only his

DNA, but also the DNA of several unknown individuals. Not only is this information

non-Brady material, but the information was disclosed at trial during BCI forensic

scientist Kelly Rees’s testimony wherein she testified while reading from exhibit No.

50 that the DNA profile taken from the t-shirt rag contained DNA from Brown, as a

major contributor, and “at least two unknown individuals.” Tr. 947. Accordingly,

Brown knew about the DNA testing and the results at the time of his trial, and thus

he was not unavoidably prevented from timely discovering this evidence for

purposes of moving for a new trial.

Finally, Brown contends that he is entitled to a new trial because he

discovered through public records requests that certain evidence has since been

destroyed and thus, he is unable to obtain independent DNA analysis on those items.

In support, he relies on cases that address denials of petitions for postconviction

DNA testing pursuant to R.C. 2953.71 et seq. or cases that involve an allegation that

the State destroyed, failed to preserve, or lost evidence prior to trial. Those cases

are inapposite because Brown is not appealing from a denial for postconviction DNA

testing and the evidence Brown alleges that has been destroyed (the pry bar and

buccal swabs) were available and, in fact, presented during trial and thus not Brady

material.2

Based on the foregoing, we agree with the trial court that Brown failed

to withstand his burden of proving by clear and convincing evidence that he was

unavoidably prevented from discovering the evidence or that the State suppressed

this evidence to grant him leave to move for a new trial. Because we find no abuse

of discretion in the trial court’s decision denying him leave, we summarily overrule

his third assignment of error challenging the merits of his motion for new trial.

Hatton, 2022-Ohio-3991, at ¶ 30, and Bethel, 2022-Ohio-783, at ¶ 41. Brown’s

second and third assignments of error are overruled.

C. Denial of Postconviction Petition

Brown’s fourth assignment of error states:

2 Whether certain public records or evidence was not preserved or retained in

accordance with retention policies, rules, or laws is not part of this appeal.

The trial court erred in denying pro se prisoner’s petition for

postconviction relief (under R.C. 2953.21, R.C. 2953.71, R.C.

2953.23(A)(1)) [regarding] claims of ineffective assistance of counsel

and independent re-testing of DNA evidence which is contrary to

controlling authorities of law and the Sixth and Fourteenth

Amendments to the U.S. Constitution.

A petition for postconviction relief is a collateral civil attack on a

criminal judgment, not an appeal of the judgment. State v. Lenard, 2020-Ohio-

1502, ¶ 8 (8th Dist.), citing State v. Steffen, 70 Ohio St.3d 399, 410 (1994). To prevail

on a petition for postconviction relief, a defendant must establish a violation of his

constitutional rights that renders the judgment of conviction void or voidable. R.C.

2953.21. A petition for postconviction relief is a means to reach constitutional issues

that would otherwise be impossible to reach because the evidence supporting those

issues is outside the record of the petitioner’s criminal conviction.

R.C. 2953.23 governs untimely and successive petitions for

postconviction relief. R.C. 2953.23(A) prohibits a trial court from entertaining an

untimely petition unless the petition meets two conditions. First, the petitioner

must show either that he was unavoidably prevented from discovering the facts

upon which he relies in the petition or that the United States Supreme Court has

recognized a new federal or State right that applies retroactively to the petitioner.

Second, the petitioner must show by clear and convincing evidence that a reasonable

factfinder would not have found him guilty but for constitutional error at trial. See

R.C. 2953.23(A)(1).

“‘The most significant restriction on Ohio’s statutory procedure for

postconviction relief is that the doctrine of res judicata requires that the claim

presented in support of the petition represent error supported by evidence outside

the record generated by the direct criminal proceedings.’” Lenard, 2020-Ohio-

1502, at ¶ 10 (8th Dist.) quoting State v. Monroe, 2005-Ohio-5242, ¶ 9 (10th Dist.).

Under the doctrine of res judicata, constitutional issues cannot be considered in

postconviction proceedings brought pursuant to R.C. 2953.21 where they have

already or could have been fully litigated by the defendant, either before the

judgment of conviction or on direct appeal from that judgment. State v. Murphy,

2021-Ohio-3925, ¶ 11, citing State v. Perry, 10 Ohio St.2d 175 (1967), paragraph

seven of the syllabus. Issues properly raised in a petition for postconviction relief

are those that could not have been raised on direct appeal because the evidence

supporting such issues is outside the record. Murphy at id., citing State v.

Milanovich, 42 Ohio St.2d 46, 50 (1975). If an issue has or should have been raised

on direct appeal, the trial court may dismiss the petition on the basis of res judicata.

Murphy at id.

Brown premised his untimely petition on claims of ineffective

assistance of trial counsel. Specifically, he contends that he received ineffective

assistance of counsel because counsel (1) did not obtain or present exculpatory

evidence; (2) failed to impeach or challenge the victims’ perjured testimony; (3)

failed to seek independent DNA testing or fingerprint analysis; (4) did not take any

serious efforts in conducting discovery or contest the State’s evidence; and (5) did

not challenge the operability of the firearm used in the robbery or request a jury

instruction about operability. Notwithstanding the effects of res judicata because

these claims could have been raised (and some were in fact raised) in his direct

appeal, we find no abuse of discretion by the trial court in summarily denying his

untimely petition.

Brown does not contend that a new right has been recognized and

retroactively applies to him; he contends that he was unavoidably prevented from

discovering new evidence. The “unavoidably prevented” requirement in R.C.

2953.23(A)(1) mirrors the “unavoidably prevented” requirement in Crim.R. 33(B).

State v. Waddy, 2016-Ohio-4911, ¶ 27 (10th Dist.). See also Bethel at ¶ 59 (“The

‘unavoidably prevented’ requirement in Crim.R. 33(B) mirrors the ‘unavoidably

prevented’ requirement in R.C. 2953.23(A)(1).”).

Brown contends that he did not discover the perjured and

inconsistent testimonies by the victims until his family friend received documents

in 2022-2023 following a public records request. The record demonstrates

otherwise. During the joint trial of Brown and his codefendant, Timothy Willis,

counsel extensively cross-examined all the victims and their differing accounts

regarding the number of “gunmen,” the actions of those gunmen, and what each

victim observed. In fact, when the State provided a mid-trial disclosure of a victim’s

written statement contradicting previous testimony and offering new information,

counsel rightfully moved to sanction the State for both Brady and discovery

violations. Accordingly, the information Brown relies on in support of his petition

for postconviction relief was known at trial. Moreover, Brown challenged these

issues regarding victim credibility and conflicting testimony in his direct appeal. See

Brown, 2013-Ohio-2690 (8th Dist.). Accordingly, for the same reasons stated in

finding no abuse of discretion by the trial court in denying Brown’s motion for leave,

we also find no abuse of discretion in denying his untimely petition for

postconviction relief. His fourth assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY J. BOYLE, J., and

ANITA LASTER MAYS, J., CONCUR