State v. Miller

[Cite as State v. Miller, 2026-Ohio-4454.] IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY STATE OF OHIO, CASE NO. 10-26-03 PLAINTIFF-APPELLEE, v. DOUGLAS E. MILLER, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT. Appeal from Mercer County Common Pleas Court Criminal Division Trial Court No. 25-CRM-024 Judgment Affirmed Date of Decision: November 9, 2026 APPEARANCES: Thomas J. Lucente Jr. for Appellant Peter Galyardt for Appellee Case No. 10-26-03 MILLER, J. {¶1} Defendant-appellant, Douglas E. Miller, Jr. (“Miller”), appeals the January 9, 2026 judgment entry of the Mercer County Court of Common pleas convicting him of felony domestic violence rather than a reduced charge. For the reasons that follow, we affirm. Facts and Procedural History {¶2} On February 22, 2025, Miller was arrested after his stepdaughter1 alleged that he had punched her in the face. Miller denied punching her but admitted spanking her and touching her chin with his finger. The ensuing domestic-violence charge was elevated based on Miller’s prior domestic-violence conviction in Celina Municipal Court Case No. 22CRB00242. {¶3} A Mercer County grand jury indicted Miller on March 20, 2025, on one count of domestic violence in violation of R.C. 2919.25(A) and (D)(3), a fourth-degree felony. The indictment alleged that Miller had knowingly caused or attempted to cause physical harm to a family or household member and that he previously had been convicted of domestic violence. Without the prior conviction, the charged offense would have been a first-degree misdemeanor. {¶4} The prior conviction arose from a June 6, 2022 municipal-court proceeding. Before appearing by video from the Mercer County Adult Detention Center, Miller 1 At the time of the incident, Miller was the boyfriend of the victim’s mother but has since married her. -2- Case No. 10-26-03 watched a prerecorded advisement stating, among other things, that defendants had the right to counsel and, in cases involving a possible jail sentence, the right to appointed counsel if they could not afford an attorney. The video also advised that a defendant entering a guilty or no-contest plea would be required to sign a written waiver of constitutional rights. When Miller’s case was called, the municipal court asked whether he had watched the video and whether he had any questions about his constitutional rights. Miller answered that he had watched the video and had no questions. The court did not separately ask whether Miller wanted counsel, whether he could afford counsel, or whether he understood the consequences of proceeding without counsel. {¶5} The municipal court explained the charge, the available pleas, the potential sentence, and the firearm consequences of a domestic-violence conviction. During the discussion of the available pleas, Miller stated, “I’m not smart enough for this,” and received input from another person in the room whom he did not know. After the court further explained a no-contest plea, Miller entered that plea and signed a written waiver of his constitutional rights stating that he knowingly, intelligently, and voluntarily relinquished his right to retained or appointed counsel. The municipal court found Miller guilty and imposed, among other sanctions, a ten-day jail term that was suspended on Miller’s compliance with certain conditions. {¶6} On March 28, 2025, Miller moved to dismiss the felony indictment or reduce the charge, contending that the 2022 conviction could not support the felony enhancement because he had been unrepresented and had not validly waived counsel. The State opposed -3- Case No. 10-26-03 the motion, relying on the video advisement, the hearing transcript, and the written rights waiver. The parties stipulated that the documents and transcripts from the municipal-court proceeding were accurate copies. {¶7} On July 1, 2025, the trial court denied Miller’s motion. The court found that Miller had made a prima facie showing of constitutional infirmity because the prior conviction was uncounseled and resulted in a suspended jail sentence. It nevertheless concluded that the State had established a knowing, intelligent, and voluntary waiver based on the video advisement, Miller’s signed waiver, and the municipal-court colloquy. {¶8} Miller later moved in limine to exclude the prior conviction and requested permission to present evidence of its alleged constitutional infirmity to the jury. He also proposed jury instructions, verdict forms, and jury interrogatories intended to permit a misdemeanor verdict if the prior conviction could not support the felony enhancement. The trial court denied the motion in limine on September 29, 2025. On October 30, 2025, it denied Miller’s request to present evidence concerning the prior conviction’s constitutional validity, reasoning that it had already resolved that legal question and the jury’s role would be limited to determining whether the State proved the prior conviction as an element of the charged offense. The court also denied Miller’s related requests concerning jury instructions, verdict forms, and interrogatories. On November 17, 2025, Miller entered a no-contest plea to the indicted offense. Following a January 7, 2026 sentencing hearing, the trial court imposed three years of community control and a 180- -4- Case No. 10-26-03 day county-jail term to be served upon notice from Miller’s probation officer. Miller timely appealed on January 20, 2026. {¶9} He raises three assignments of error. First Assignment of Error The trial court erred as a matter of law when it denied Appellant’s motion to dismiss or reduce the charge and permitted the State to use a prior uncounseled misdemeanor domestic-violence conviction to elevate the present offense to a felony, where the record of the prior conviction did not affirmatively demonstrate that Appellant was represented by counsel or knowingly, intelligently, and voluntarily waived counsel. {¶10} In his first assignment of error, Miller contends that the trial court erred in denying his motion to dismiss or reduce the charge. Specifically, he asserts that the prior conviction used to elevate the offense to a felony was unconstitutionally obtained because he was unrepresented by counsel and did not knowingly, intelligently, and voluntarily waive his right to counsel. Standard of Review As this court has recently held: “Whether a defendant knowingly, intelligently, and voluntarily waived the right to counsel is an issue that we review de novo.” State v. Reece, 2019- Ohio-2259, ¶ 14 (6th Dist.). See also [State v. Thompson, 2009-Ohio-185 ¶ 8] (3d Dist.) (“Generally, Ohio courts look to see whether under the totality of the circumstances, the defendant's waiver of his or her right to counsel was voluntarily, knowingly, and intelligently given.”). “In doing so, we must independently examine the record to determine ‘whether the totality of circumstances demonstrates a knowing, intelligent, and voluntary waiver of the right to counsel.’” State v. Smallwood, 2020-Ohio-5556, ¶ 9 (6th Dist.), quoting State v. Guess, 2014-Ohio-771, ¶ 9 (4th Dist.). State v. Medford, 2025-Ohio-140, ¶ 25. -5- Case No. 10-26-03 Relevant Law {¶11} The Sixth Amendment guarantees the right to counsel in any prosecution that results in confinement, including a suspended sentence of confinement. Alabama v. Shelton, 535 U.S. 654, 662 (2002). “[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). “A conviction obtained against a defendant who is without counsel, or its corollary, an uncounseled conviction obtained without a valid waiver of the right to counsel, has been recognized as constitutionally infirm.” State v. Brooke, 2007-Ohio-1533, ¶ 9, citing State v. Brandon, 45 Ohio St.3d 85, 86 (1989), and Nichols v. United States, 511 U.S. 738, 743 (1994). In cases where the prior conviction enhances the degree of the offense, the prior conviction is an essential element the State must prove beyond a reasonable doubt. Id. at 8; see also Medford at ¶ 8. {¶12} ‘“Where questions arise concerning a prior conviction, a reviewing court must presume all underlying proceedings were conducted in accordance with the rules of law and a defendant must introduce evidence to the contrary in order to establish a prima- facie showing of constitutional infirmity.”’ Brooke at ¶ 11, quoting Brandon at syllabus. When a defendant makes this prima-facie showing, the burden shifts to the State to prove the right to counsel was validly waived. Id.; State v. Thompson, 2009-Ohio-314, ¶ 6-7. In the present case, the trial court found in its July 1, 2025 judgment entry that Miller made -6- Case No. 10-26-03 the prima facie showing that Miller’s “prior conviction was uncounseled and resulted in a sentence of 10 days in jail.” The state does not dispute that this is a valid prima facie showing. Therefore, the central question is whether the state met its burden to establish that Miller’s right to counsel was validly waived.2 {¶13} The Rules of Criminal Procedure distinguish between “serious” and “petty” offenses. A serious offense is “any felony, and any misdemeanor for which the penalty prescribed by law includes confinement for more than six months”; a petty offense is any other misdemeanor. Crim.R. 2(C), (D). Miller’s prior conviction was for domestic violence under R.C. 2919.25(B), a first-degree misdemeanor carrying a maximum of 180 days of incarceration. R.C. 2919.25(D)(2); R.C. 2929.24(A)(1). Therefore, it was a petty offense. In petty-offense cases, “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.” Crim.R. 44(B). Further, the waiver “shall be in open court and the advice and waiver shall be recorded as provided in Rule 22.” Crim.R. 44(C). Unlike a serious offense, a petty offense does not require a written waiver. Brooke at ¶ 23-25; Medford at ¶ 20. In a petty offense case, substantial compliance with Crim.R. 44 waiver of counsel is sufficient. Medford at ¶ 19. ‘“Substantial compliance means that under the totality of the circumstances the defendant subjectively 2 R.C. 2945.75(B)(3), enacted after Brooke, provides that “[i]f the defendant claims a constitutional defect in any prior conviction, the defendant has the burden of proving the defect by a preponderance of the evidence.” Because we conclude that the record affirmatively demonstrates a valid waiver, the result is the same under either allocation of the burden, and we need not decide whether the statute displaces Brooke’s burden-shifting framework. Furthermore, both parties conceded the Brooke framework in their briefs. -7- Case No. 10-26-03 understands the implications of his plea and the rights he is waiving.’” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990). {¶14} “In order to establish an effective waiver of right to counsel, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.” State v. Gibson, 45 Ohio St.2d 366 (1976), paragraph two of the syllabus. “For a petty offense, voluntary and knowing waiver may be shown through the court’s colloquy with the defendant.” Brooke at ¶ 54. However, neither the Supreme Court of Ohio nor the United States Supreme Court has “prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel.” Iowa v. Tovar, 541 U.S. 77, 88 (2004); see also, State v. Johnson, 2006-Ohio-6404, ¶ 101; State v. Godley, 2018-Ohio-4253, ¶ 11 (3d Dist.); Medford at ¶ 23. “The information a defendant must possess in order to make an intelligent election . . . will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” Tovar at 88. {¶15} Tovar mirrors the posture of the present case, as it addressed a waiver of counsel at the plea stage of a misdemeanor case later used for enhancement to a felony. Id. at 85. The Tovar Court held that the Sixth Amendment “is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.” Id. at 81. The Court expressly rejected a requirement that the defendant be -8- Case No. 10-26-03 told that counsel might identify defenses or that waiving counsel entails the risk of overlooking a viable defense. Id. at 81, 92-93. {¶16} Finally, although a written waiver is not required for a petty offense, a written waiver is not irrelevant. In Brooke, the court upheld a petty-offense waiver where the municipal court asked the defendant only whether she wanted an attorney, had her sign a written waiver, and asked whether she had read and understood it. Brooke at ¶ 27-39. The court characterized that questioning as “minimal” but held that because the transcript was “supplemented by the written waiver expressly stating that Brooke waives the presence of an attorney,” the record showed “an intelligent and voluntary waiver of the right to counsel.” Id. at ¶ 39, 53. The court likewise upheld a second petty-offense waiver for which no transcript existed at all, relying on a signed and filed waiver entry reciting that the defendant had been advised of the right to counsel and wished to waive it, explaining that “the court speaks through its journal entries. Here the entry has recorded what occurred during the plea hearing of this misdemeanor.” (Citations omitted.) Id. at ¶ 47. We applied the same reasoning in Medford, observing that ‘“in a petty offense case, even in the absence of a hearing transcript, a waiver of counsel form signed by the judge and the defendant at the plea hearing and filed with the court may be sufficient.’” Medford at ¶ 29, quoting State v. Combs, 2007-Ohio-7035, ¶ 16 (9th Dist.); see also Parma v. Romain, 2006-Ohio-3952, ¶ 13 (8th Dist.) (“[T]here is clear evidence of a form signed by appellant waiving his constitutional right to counsel, with no evidence of fault with that waiver. Therefore, his -9- Case No. 10-26-03 2004 OVI conviction cannot be held to have been uncounseled, and it was entirely proper for the trial court to have considered that prior conviction for enhancement purposes.”). Analysis {¶17} Before his case was called, Miller viewed a recorded advisement in which the municipal judge explained that each defendant had “a right to counsel,” had “a right to be represented by an attorney, even if you intend to plead guilty,” could “request a continuance, so that you can have more time to speak with an attorney,” and, in any case “involving a possible jail sentence,” had “the right to have an attorney represent you, even if you cannot afford the attorney.” The advisement explained the mechanism for obtaining appointed counsel and stated that “if you qualify, I will appoint an attorney to represent you.” It explained the three available pleas and their effect, the maximum penalty for a first-degree misdemeanor, and that before accepting a guilty or no-contest plea the court would require a signed waiver of constitutional rights, which it advised the defendant to “[p]lease read this carefully, so that you understand these rights and what you’re giving up by entering a plea today of either guilty or no contest.” {¶18} When Miller’s case was called, the court confirmed that Miller had reviewed the video “with regard to your constitutional rights” and asked whether he had “any questions with regard to your constitutional rights.” (June 6, 2026 Tr. at 2). Miller replied “no” indicating that he had watched the video and had no questions. The court then personally explained the nature of the charge, including the specific factual allegation, the statutory code section, and the family member relationship element; the maximum penalty -10- Case No. 10-26-03 of six months in jail and a $1,000 fine; the absence of any mandatory minimum; and the federal firearm disability attendant to a domestic-violence conviction. Miller stated that he understood each. The court explained the three pleas, and, when Miller struggled with the terminology of a no-contest plea, re-explained each plea in plain terms. Miller demonstrated his comprehension of the choice before him (“Guilty is saying I did it. Not guilty is saying I didn’t do it.”), and, once the court clarified the meaning of “no contest,” Miller entered that plea. (Id. at 6-7). The court then advised Miller that to enter a no- contest plea he would “have to waive your constitutional rights in writing with the form that the officer has there.” Id. at 8. Miller said, “Okay,” signed the form, and the court found on the record that he was “knowingly, intelligently, and voluntarily waiving his constitutional rights in this matter.” Id. {¶19} The form Miller signed was not a generic acknowledgment. It recites that “I have the right to have assistance of an attorney to assist me in all legal proceedings relative to the charges”; that “I waive and knowingly, intelligently and voluntarily disclaim any right or desire to be represented by an attorney or lawyer to claim being indigent and entitled to be furnished an attorney by the Court free of charge”; and that “I hereby voluntarily waive my right to have an attorney, private or Court appointed, present at the time of my plea of no contest or guilty to criminal charges and my sentencing on those charges.” The operative waiver language is materially identical to the form the Supreme Court held sufficient in Brooke. Compare Brooke, 2007-Ohio-1533, at ¶ 38. The form is dated, signed by Miller, and countersigned by the acting judge. -11- Case No. 10-26-03 {¶20} Measured against Tovar, this record establishes each of the three things the Sixth Amendment requires at the plea stage. (1) Miller was informed of the nature of the charge (by the court, in detail), (2) of his right to be counseled regarding his plea (by the video, by the form, and by the court’s confirmation that he had watched the video and had no questions about his rights), and (3) of the range of allowable punishments (by the video and, again, by the court). Tovar, 541 U.S. at 81 (“The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.”). Measured against Crim.R. 44 and Brooke, the waiver was made in open court, was recorded, and, though no writing was required, was reduced to a signed and filed written instrument that expressly waives the right to retained or appointed counsel at plea and sentencing. The totality of the circumstances therefore demonstrates that Miller ‘“was offered counsel but intelligently and understandingly rejected the offer.”’ Brooke at ¶ 25, quoting State v. Wellman, 37 Ohio St.2d 162 (1974), paragraph two of the syllabus. {¶21} Miller’s arguments to the contrary are not persuasive. He first contends the municipal court never personally asked him whether he wanted a lawyer or could afford one. But no particular question is required. Tovar at 88. Indeed, the record shows that the question was asked and answered in the written waiver, which Miller signed after the court told him what signing it meant and after a recorded advisement that told him appointed counsel was available if he qualified. The municipal court’s inquiry whether Miller had -12- Case No. 10-26-03 “any questions with regard to your constitutional rights,” immediately after confirming that he had viewed the advisement, was a direct invitation to raise the matter, which Miller declined. That is more than the single question regarding whether the defendant wanted an attorney that the Supreme Court in Brooke found adequate for a petty offense. Brooke at ¶ 39. {¶22} Miller next argues that a recorded, generalized advisement cannot substitute for an individualized colloquy. We agree that a video alone could not establish a waiver. However, the video did not stand alone. The video was followed by the in-person portion of the proceeding, which included the court’s confirmation that Miller had viewed the advisement and had no questions, its detailed explanation of the charge and penalty, its patient clarification of the pleas, and its instruction regarding the written waiver. Nothing in Crim.R. 44 or Brooke forbids a municipal court from conveying the general content of a defendant’s rights by a recorded video advisement, so long as the court confirms on the record that the defendant received it, had no questions about his or her rights and the waiver itself is made in open court and recorded. Indeed, in Brooke the Supreme Court was willing to “presume from [a] written and filed entry” that the court had “accurately explained” the right to counsel where no transcript existed at all. Brooke at ¶ 47. Here we need not presume, because the advisement was transcribed and is before us. {¶23} Miller also relies on his statement that he was “not smart enough for this” and on the presence of an unidentified person offering him advice. (June 6, 2026 Tr. at 5-6). Read in context, Miller’s remark concerned the labels attached to the three pleas, not his -13- Case No. 10-26-03 understanding of the right to counsel, and the court’s response was to instruct him to disregard the other person, re-explain each plea, and confirm his understanding before proceeding. Miller’s own words establish that he grasped the substance of the choice (“Guilty is saying I did it. Not guilty is saying I didn’t do it.”). Id. at 7. Here, the municipal court addressed the one point of confusion that surfaced. The record does not reflect any confusion about the right to counsel, which Miller had been told of twice before the court invited his questions. {¶24} Nor does State v. Ebersole, 107 Ohio App.3d 288 (3d Dist. 1995), compel a different result as Miller contends. There, the defendant never purported to waive counsel; the trial court refused his request for new appointed counsel by treating a boilerplate forfeiture clause in an indigency affidavit as a waiver, and he was made to try his case to a jury alone. Id. at 291-292. We reversed because the record showed no waiver in open court, the judge never asked whether the defendant understood the clause, and the clause said nothing about self-representation or its dangers. Id. at 293-294. None of that is present here. The instrument Miller signed was not an indigency form but a constitutional rights waiver executed for the express purpose of entering his plea, and its counsel provisions were explicit. He was told the purpose of the form before he signed it, and he had twice been advised by way of the video advisement and the waiver form that appointed counsel was available. And because Miller waived counsel at the plea stage rather than for a jury trial, the warnings about the hazards of self-representation that Ebersole found lacking are not constitutionally required. See Tovar, 541 U.S. at 81, 92-93. Ebersole itself recognizes -14- Case No. 10-26-03 that substantial compliance with Crim.R. 44(C) suffices, stating that (“[i]f the record reflects substantial compliance with the procedural rule, a waiver is deemed to have taken place. Thus, pursuant to Crim. R. 44(C), a waiver may be express or implied.” (Citations omitted.) Id. at 293. Thus, Ebersole condemns denying counsel to a defendant who asks for it, while in the present case Miller was offered counsel and declined. {¶25} Having independently reviewed the record, we conclude that the totality of the circumstances demonstrate that Miller knowingly, intelligently, and voluntarily waived his right to counsel before entering his no-contest plea. The trial court substantially complied with Crim.R. 22 and 44, and the State carried its burden under Brooke. The prior conviction was therefore available to elevate the present offense under R.C. 2919.25(D)(3), and the trial court did not err in denying Miller’s motion to dismiss the indictment or reduce the charge. {¶26} Miller’s first assignment of error is overruled. Second Assignment of Error The trial court violated Appellant’s constitutional right to present a defense by prohibiting him from introducing evidence that the prior conviction was constitutionally infirm. Third Assignment of Error The trial court erred by refusing Appellant’s requested jury instructions, verdict forms, and interrogatories necessary to determine whether the prior conviction could lawfully elevate the offense to a felony. -15- Case No. 10-26-03 {¶27} Because Miller’s second and third assignments of error rest on the same premise, we address them together. Miller contends that the trial court erred by denying his motion to permit him to present evidence to the jury that his prior conviction was constitutionally infirm and by likewise denying his motion to provide instructions, verdict forms, and interrogatories that would have permitted the jury to decide that issue. Both arguments erroneously assume that the constitutional validity of the prior conviction had to be submitted to the jury. It did not. {¶28} When a prior conviction elevates the degree of an offense, the existence of that conviction is an element the State must prove beyond a reasonable doubt, and the factfinder must find that element. Brooke, 2007-Ohio-1533, at ¶ 8; R.C. 2945.75(B)(1). A collateral challenge alleging that the prior conviction was obtained in violation of the right to counsel presents a distinct legal issue. R.C. 2945.75(B)(3) places on the defendant the burden of proving a claimed constitutional defect by a preponderance of the evidence. The statute does not expressly identify the decision maker, and the assignment of a preponderance burden does not, by itself, establish whether the court or the jury must decide the issue. {¶29} But we need not determine whether every factual dispute underlying such a collateral challenge must invariably be resolved by the court. Here, the parties stipulated to the record of the prior municipal-court proceeding, and Miller’s challenge turned on whether that record demonstrated a valid waiver of counsel. Ohio courts have treated that inquiry as a preliminary matter for judicial determination. See Brooke at ¶¶ 3-4, 54. -16- Case No. 10-26-03 Because the relevant historical record was stipulated, its legal effect presented a legal question for the court. Miller cites no authority requiring a jury to determine the constitutional validity of a prior conviction under these circumstances. {¶30} The trial court followed that procedure. Before trial, it considered Miller’s challenge, reviewed the stipulated record of the municipal-court proceeding, and determined that the waiver was valid. We have affirmed that determination under Miller’s first assignment of error. Once the court rejected the collateral challenge, the issue remaining for the jury on the enhancement element was whether Miller had, in fact, been convicted of the prior offense. Evidence and instructions directed solely to the constitutional validity of that conviction were therefore irrelevant to any issue the jury was required to decide. {¶31} Nor did excluding that material violate Miller’s right to present a complete defense. That right remains subject to reasonable restrictions, including ordinary rules governing relevance. See Crane v. Kentucky, 476 U.S. 683, 689-690 (1986). It did not entitle Miller to present to the jury a collateral challenge that the trial court had already considered and rejected on the stipulated evidence. The requested interrogatories, which would have asked the jury to determine whether the prior conviction was “constitutionally firm,” were properly refused for the same reason. {¶32} Accordingly, the trial court did not err by excluding evidence concerning the constitutional validity of the prior conviction. Nor did the trial court err by refusing to instruct the jury on this issue, or utilize the requested verdict forms, and interrogatories that -17- Case No. 10-26-03 would have submitted that issue to the jury. In light of this conclusion, we need not address the State’s alternative argument that Miller’s challenges did not survive his no-contest plea under Crim.R. 12(I). {¶33} Miller’s second and third assignments of error are overruled. Conclusion {¶34} For the foregoing reasons, the appellant’s assignments of error are overruled. Having found no error prejudicial to the defendant-appellant in the particulars assigned and argued, the judgment of the Mercer County Common Pleas Court is affirmed. Judgment Affirmed WILLAMOWSKI, and WALDICK, J. J., concur. -18- Case No. 10-26-03 JUDGMENT ENTRY For the reasons stated in the opinion of this Court, the assignments of error are overruled and it is the judgment and order of this Court that the judgment of the trial court is affirmed with costs assessed to Appellant for which judgment is hereby rendered. The cause is hereby remanded to the trial court for execution of the judgment for costs. It is further ordered that the Clerk of this Court certify a copy of this Court’s judgment entry and opinion to the trial court as the mandate prescribed by App.R. 27; and serve a copy of this Court’s judgment entry and opinion on each party to the proceedings and note the date of service in the docket. See App.R. 30. Mark C. Miller, Judge John R. Willamowski, Judge Juergen A. Waldick, Judge DATED: /jlm -19-