IN THE SUPREME COURT OF OHIO

State of OhioAppellee,

V.

Case No.:

On Appeal from the SummitCounty Court of Appeals,Ninth Appellate District

Vincent M. Niepsuj Court of AppealsAppellant. . Case No.: 23929

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT VINCENT M. NIEPSUJ

Vincent M. Niepsuj (COUNSEL OF RECORD)175 East Market StreetAkron, Ohio 44308(330) 643-2804SELF-REPRESENTING APPELLANT

Richard KasayAssistant Summit County ProsecutorSummit County Safety Building53 University Avenue.Akron, Ohio 44308(330)643-2800Reg. No. 0013952COUNSEL FOR APPELLE

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TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC INTERESTAND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION .....................3

STATEMENT OF THE CASE AND FACTS ............................................................................7

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ................................................9

Proposition of Law No. I: Criminal prosecution based on an jurisdictionally invalid 9order issued by a collateral Civil (Domestic Relations) Court is not a lawful act.

Proposition of Law No. II: Criminal prosecution that may assume an aggravating 10factor of Civil domestic violence based on an jurisdictionally invalid order issued bya collateral Civil (Domestic Relations) Court is not a lawful act

CONCLUSION ...........................................................................................................................12

PROOF OF SERVICE ...............................................................................................................12

APPENDIX Appx.

pgl

Decision and Journal Entry of the Summit County Court of Appeals (March 12, 2008).......1

2

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC INTERESTAND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION

There is a clear constitutional due process infringement weighing against any criminal

defendant, and in this instance the Appellant, when prosecution of alleged violations of an R.C.

3113.31 protective order, occurred when the jurisdiction of the Criminal Court was not estab-

lished, insofar as the jurisdictional stature of the Civil Domestic Relations Court remained con-

troversial at all times during said prosecution.

As Appellant stated in his Ninth District Appellant Brief (December 26, 2007), pp 24-25:

"It appears that there is a serious constitutional infringement here were the Domestic Rel-ations Court of Summit County spoke through no journal entry to either appoint or swearit magistrate to support the Ohio and U.S. Constitutions, and yet the Appellant wouldbe subject to prosecution with respect to a Consent (permit) Agreement (comply) CPOwhich was never approved per that Court's Loc. R. 7.04(B), or for that matter even locat-ed (the portion signed by the Appellant) particularly via an attempt right to the OhioSupreme Court (case 06-1329) during the pendancy of Appellant's criminal case (CR2006-03-1036) ...

Appellant's Consent Agreement led to all types of intense prosecutionfor behavior that would otherwise be considered quite civil."

Appellant specifically stated in his Reply Brief (February 4, 2008):

"Appellant places focus in the criminal venue, that which remained of importance in the

Domestic Relations venue: the jurisdictional stature of several persons in magisterialroles: Significantly:

"The iurisdiction of any court exercising authority over a subject may beinquired into in every other court when proceeding in the former are reliedupon and brought before the latter by a party claiming benefit of suchproceedings".

Williamson v. Berry L.Ed. 1170

(underlining and bold added by Appellant)

Very importantly the Ninth District Court of Appeals stated in its Decision and Journal

Entry (March 12, 2008), referenced this Court in State v. Fitzpatrick (2004), 102 Ohio St.3d 321:

3

"A defendant who enters a knowing, voluntary, and intelligent guilty plea waives allnoniurisdictional defects for the purpose of future proceedings"

However this Court actually stated in Sate v. Fitzpatrick:

"A defendant who enters a knowing, voluntary, and intelligent guilty plea waives allnonjurisdictional defects in prior stages of proceedings"

See also this Court's holding in State v. Spates (1992) 64 Ohio St.2d 269, 271-273.

Of course Appellant's assertions have focus exactly on jurisdictional issues, not

noniurisdictional ones, and indeed those matters found defective in prior (see State v Fitz-

patrick, above), different (see State v. Bush below), and in the instant matter: former (see

Williamson v. Berry above) or foundational ones.(procP,C^/~ys) ,

Appellant has shown in his Amended Post Conviction Petition (April 9, 2007) that the

Court of ori inal jurisdiction lacked the same with regard to any issuance of a protective order

or magisterial approval of a bilateral Consent Agreement to any protective order. And on appeal,

Appellant has indicated in his Reply Brief (February 4, 2008) this Court's position that post

conviction relief pursuant to R.C.2953.21 is considered a collateral attack on a judgment.

State v. Calhoun, 86 Ohio St. 3d 279.

In particular, Appellant in his Application for Reconsideration (March 24, 2008), repeats

this Court's view that a collateral attack is an "attack on a judgment entered in a different

proceeding". State v. Bush, 96 Ohio St.3d 235.

Appellant, from the outset of his criminal prosecution, challenged not only the fact that

the magistrate present, during the original civil Consent Agreement proceeding in November of

2001, was never appointed until March of 2005, but that such appointment - even if retroactive -

does not remedy the fact that the magistrate did not comply with the Ohio constitutional (Art

15, Sec 7) requirement to be sworn in. Only upon submitting to such an oath or affirmation of

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the undeniable public office of Domestic Relations Magistrate, does such magistrate

consummate qualification for such public office. That is:

"Title to public office is vested by appointment and acceptance and qualification. Anappointee accepts the appointment and qualifies for the position by taking an oathof office and entering upon the discharge of the duties thereof'.

Steiniger v. Bd of Commsrs of Butler County 573 N.E.2d 1212, Syllabus:1213

Importantly, this Ohio Supreme Court has indicated nunc pro tunc orders are prospective

only. Fogle v. Steiner, 74 Ohio St.3d 158 (1995). Furthennore, any such nunc pro tunc order is

to be based upon a pre-existinE iudicial entry. Showcase Homes, Inc. v. Ravenna Savings

Bank, 710 N.E. 2d 347 (1988). There was no pre-existing appointment of the magistrate in the

Appellant's case, and therefore any oath of office even if considered prospectively, based at least

on the invalidly issued nunc pro tunc appointment order, must itself be invalid. But, certainly,

any oath of office that may have been taken on March 8, 2005 (when the nunc pro tunc ap-

pointment orders were issued for court employees Kleckner, Matz, Collins, and Carter) could

not be regarded as applying to the Consent Agreement proceeding of November 7, 2001 in

Summit County case DR 2001-10-03960, particularly for Janet L. Kleckner who was the

court officer, wearing a robe and presiding over such proceeding on that day.

The kicker here, is that there has been NO VITAL OATH OF PUBLIC OFFICE, at all

for those Summit County Magistrates, which Appellant contended in both his Amended Post

Con-viction Petition and each of his Ninth District Court of Appeals submissions.

Only if the magistrate was both properly appointed and properly sworn in, could the

magistrate have had legitimate standing to facilitate the issuance of a protective order, or be

instrumental in the approval of a Consent Agreement (to such a protective order) between the

parties (here the Appellant and his former spouse), and signed by the parties.

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The appellant has made it clear in his criminal prosecution, that the verbal (orally or in

writing) approval of such Consent agreement was never accomplished by any magistrate, let

alone the Summit County court employee Janet L. Kleckner. The Appellant stated three times

during the plea bargain proceeding (to one violation of the Consent Agreement) that the

Consent Agreement was not agproved .(See STATEMENT... below). This was required both

by the Summit County Domestic Relations Court local rule 7.04(B), and for the indictment to be

valid both in form and substance.

While the lower criminal court seems to have acknowledged Ms. Kleckner in terms of the

allegations as to her lack of jurisdictional standing (see its September 2007 decision in Summit

County case CR 2006-03-1036) , the higher Ninth District Appellate Court has whole circum-

vented the matter by merely referring to a Magistrate and not acknowledging the lack of validity

of a nune pro tune order issued by the Summit County Domestic Relations Court on March 8,

2005 which sought to retroactively appoint this employee to the public office of Magistrate.

The Ninth District Court has also over-looked the nexus between appointment and oath,

and accordingly circumvented the Ohio Constitutional issue of the proper oath/affirmation/

rp omise of public office, which is still evidently lacking. Appellant has checked with the

Summit County Clerk of Courts in mid April 2008.

This central constitutional question is (or certainly ought to be) a matter of public and

great general interest. It is substantial combined constitutional questionds to a collateral

Domestic Relations Court's lack of authority (Ohio Const.) as such impacts the due process

jurisdictional question of the Appellant's prosecution (U.S. Const ) in Summit County case CR

2006-03-1036, or any other respondent/defendant so situated.

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STATEMENT OF THE CASE AND FACTS

This matter arose via a criminal indictment in Summit County case CR 2006-03-1036 on

Apri14, 2006, greatly expanding on the single charge R.C. 3113.31 Consent CPO charge that

was presented at a municipal preliminary hearing on or about March 11, 2006. A plea agreement

was offered in April of 2006 of straight probation on one R.C. 3113.31 Consent CPO violation

charge and one county of Menacing by Stalking loosely presumed to have occurred concurrent

with the life of the CPO (originally issued on November 28, 2001 in Summit County case DR

2001-10-03960). Appellant declined, based on the knowledge that magistrates in the Domestic

Relations Court appeared to have lacked authority in the first place, and that it appeared that he

was possibly being prosecuted in a retaliatory act for bringing out this information to previous

lawyers he had, and various professionals with whom he had dealt pursuant to several court

cases.In June of 2006 Appellant filed three (3) mandamus requests with this Ohio Supreme

Court (under case 06-1329) as to the authority of the Domestic Relations magistrates in connec-

tion with Ohio Civ. R. 53. At this point the criminal court was put on notice that the jurisdiction-

al issue of several Summit County Domestic Relations magistrates was very much at play in

criminal case CR 2006-03-1036. A competency hearing was set for this Appellant (for ro clearly

supported reason) in the criminal venue, while in camera interviews were set for Appellant's

beloved three (3) sons in the domestic relations venue. Judge Judith Hunter found the Appellant

competent (somewhat in contradiction to the conclusions of the Court Psychologists); while

Magistrate Deborah Matz postponed the in-camera interviews until after the criminal proceed-

ings. Related to this Summit County attorney John Manley moved for the quashing of a subpoe-

na for Magistrate Matz (whose very authority was in question), and this was literally shown in

the docket as being filed the day after the potential trial on eight (8) felony (i.e of Sept. 8, 2006)co^ds

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On September 7, 2006 Appellant accepted a plea bargain as to the CPO and Menacing

with the understanding from his attorney and the prosecutor that early judicial release would

potentially be available to the Appellant, if he had acceptable behavior at the prison institution,

and if he did not contact the person who originally petitioned for the CPO in 2001.

Appellant agreed to the terms presented but emphasized that the Consent CPO was

never approved. This was meant to reinforce the earlier discussion that day as to Appellant's

contention that Magistrate Kleckner was never sworn in as a Domestic Relations magistrate.

And this was stated in light of the case still in front of this Supreme Court treating the various

magistrates back-dated (four years) orders of appointment, and lack of oaths. Appellant also

stated that he had remaining questions about the Menacing by Stalking charge, although (and

despite the competency findings of the Court Psychologists) Judge Hunter summarily found

that the Appellant understood such charge (He never has, in any meaningful relevant way )

At the time of the plea bargaining, Appellant was advised that he could not appeal the

issues concerning the charges which he was tentatively pleading to, so he did not appeal them as

he has stated in his Reply Brief (February 4, 2008) despite State v. Idowu (1s` Dist. No. C-

010646, 2002-Ohio-3302) where that Court stated:

"In this case, the alleged Crim.R. I 1(C) violation could have been raised directly on appeal.Idowu failed to file a direct appeal of his conviction. "A Crim.R. 11(C) violation that appearson the face of the record but is never directly appealed is not per se susceptible to collateralattack by way of a post-conviction proceeding pursuant to R.C. 2953.21. Under the doctrineof res judicata the Crim.R. 11(C) question merged with the judgment of conviction and thedefendant cannot now relitigate the issue."

After the pleas session, and the inception of Appellant's incarceration, his attorney wrote

his re^)tives stating that he would be granted judicial relese "in all likelihood"; but such was

essentially reneged upon, and Appellant's appeal of the denial of judicial release was dismissed

(for lack of a final appealable order).

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Appellant thus filed his Amended Post Conviction Petition, at the end of which he states

the conduct that led to the several charges against him (which without the CPO, would all have

been considered quite civil - if not admirable - fatherly acts of a devoted dad - "Pappa Vince")

This appeal arose from the denial in the Ninth District Court of the denial of relief (and

via a hearing as to post conviction relief) in the lower criminal court. As can be seen in the

EXPLANATION section above there was a serious mistake made as to:

A defendant who enters a knowing, voluntary, and intelligent guilty pleawaives all noniurisdictional defects in prior stages of proceedings"

and thus the appeal to this highest Court in Ohio,

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: Criminal prosecution based on an jurisdictionally inval-id order issued by a collateral Civil (Domestic Relations) Court is not a lawful act

The Ninth District Court of Appeals referenced State v. Woodhouse (6`h Dist. No. S-04-004, 2004-Ohio, at ¶ 16)

"To prevail on a petition for postconviction relief, the petitioner must demonstrate adenial or infringement of his rights in the proceedings that resulted in his conviction thatrendered that conviction void or voidable under the Ohio Constitution or the UnitedStates Constitution. R.C. 2953.01(A)(1)(a). In order to obtain a hearing on a petition forpostconviction relief, the petitioner has the burden of establishing that there aresubstantive grounds for relief based upon the petition, supporting affidavits, and the filesand records in the case. R.C. 2953.21(C), State v Calhoun (1999) 86 Ohio St.3d 279,

714 N.E.2d 905, paragraph two of the syllabus."

Appellant originally showed in his verified Amended Post Conviction Petition (Apri19,

2007) substantive grounds based on clear operative jurisdictional facts. And recently Appellant

set forth in his Application for Reconsideration (March 24, 2008):

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"Previously, Appellant's assigned attorney had argued that:

`Basically, there is an issue as to whether or not the Magistrate had authority to presideover the hearing on November 7, 2001, or in any other proceedings, and to make find-ings and render decisions in cases brought before her by parties. Last year (Appellant]became aware that the Magistrate that presided over his CPO hearing was never dulyappointed by the Domestic Relations Court. After he brought this issue to the attentionof the Court, a Nunc Pro Tunc was filed appointing Janet Kleckner as a Magistrate [seecertified exhibit 95 - which was part of Exhibit 6 in the original Petition sub judicel.

The Ohio Revised Code, Sections 3.22_ and 3.23 provides that judges and others ap-pointed to an office are to take an Oath of Office. Section 3.23 of the Ohio RevisedCode sets forth the substance of the oath. The appointment of a Magistrate through aNunc Pro Tunc does not remedy the fact that an oath was not administered to thatMagistrate before assuming the duties as a Magistrate and presiding over hearings in theDomestic Relations Court ... [in this] matter, if the Magistrate had no authority to pre-side over matters in the Domestic Relations Court, then she had no authority to issue aCPO against the [Appellant], or to make any other decisions in case number [DR] 2001-10-03960, which would make the CPO void in that case. Further, if the CPO is found tobe void or invalid, then the [Appellant] cannot be charged with violating the [ConsentAgreement] CPO.

The [Appellant] moves for the dismissal of the indictment in the above captioned matterbased upon the fact that the Magistrate was not duly appointed and had not been sworninto office according to law [including Ohio Const. Art 15, Sec 7] thereby renderingthe CPO that is time stamped November 28, 2001 void and invalid' "

Accordingly the criminal prosecution based on anjurisdictionally invalid order issued by

the collateral Civil (Domestic Relations) Court was an unlawful act in Summit County case CR

2006-03-1036, and in any other similar case in that County or other Ohio Counties where magis-

trates in the Domestic Relations Court operated without the requisite properly conferred judicial

authority, i.e. jurisdiction.

Proposition of Law No. II: Criminal prosecution that may assume an aggravatingfactor of Civil domestic violence based on an jurisdictionally invalid order issued bya collateral Civil (Domestic Relations) Court is not a lawful act.

In Appellant's case he was indicted for Menacing by Stalking (R.C.2903.21 1) involving a

confusing collection of conjoined and disjoined aggravating factors for which no specific facts

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were ever presented to the lower Court in case CR 2006-03-1036, via any certified complaint,

bill of information, indictment or bill of particulars. Any or all of these factors determined a

felony vs. misdemeanor level prosecution and potential conviction. The deemed victim was

indicated as Appellant's former spouse, although the dates of the alleged stalking or menacing

were exactly on the dates involving previous (2004) of R.C. 2903.211 for which a Summit

County Grand Jury issued a no true bill relative to a previously alleged victim: The Mayor of

Tallmadge Ohio (and thus Appellant offered an Alford like plea on September 7, 2006 to that

charge, for which the key witness (Marie Reiter) passed away in 2007).

However to the extent that the original indictment for R.C. 2903.211 - encompassing

also the dates of the existence of the R.C. 3113.31 Consent Agreement CPO in DR 2001-10-

03960 - did indeed reflect the facts and conduct leading to such Consent CPO, then for the

reasons expressed in the Proposition of Law No. I above, any assumption of Civil domestic

violence, as an aggravating factor, must be ruled out still in the Criminal proceeding. As it was

no civil domestic violence was ever found or admitted to via the Consent Agreement proceeding

of November 7, 2001 in Summit County case DR 2001-10-03960.

Therefore Criminal prosecution that may presume an aggravating factor of Civil dom-

estic violence based on an jurisdictionally invalid order issued by a collateral Civil (Domestic

Relations) Court is not a lawful act. And any similar case where domestic violence may have

been erroneously presumed to elevate a misdemeanor level criminal violation to felony level

one, ought to be right viewed as an abuse of discretion, and reviewed de novo.

This appeal serves a primary purpose of attempting forestall subsequent cross jurisdic-

tional problems in any county, but specifically in Summit County where authority was lacking

yet still serves to potentially enhance misdemeanor prosecution wrongfully to the felony level.

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CONCLUSION

For the reasons discussed in EXPLANATION ... and ARGUMENT... sections above,

this case involves a matter of public and great general interest, and a substantial combined cons-

titutional question is to a collateral Domestic Relations Court's lack of authority (Ohio Const.)

as such impacts the due process jurisdictional question of the Appellant's prosecution (U.S.

Const ) in Summit County case CR 2006-03-1036. The Appellant requests that this Court accept

jurisdiction in this case so that the important issues presented will be reviewed upon the merits.

Respectfully submitted,

Vincent M. Niepsuj, Counsel of Record

Certficate of Service

I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary

pre-posted U.S. mail to counsel for Appellee, Richard Kasay, Assistant Summit County Pro-

secutor, at the Summit County Safety Building, 53 University Ave., Akron, Ohio 44308, on

Apri128, 2008.

Respectfully submitted,

Vincent M. Niepsuj, Counsel of Record

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COPY

STATE OF OHIO

COUNTY OF SUMMIT

STATE OF OHIO

Appellee

V.

VINCENT M. NIEPSUJ

Appellant

ca ;; r;:: ;ra^_n^si.fiOtHE COURT OF APPEALSN NTH JUDICIAL DISTRICT1^ Il.i 9

;i^ LFi?I< Oi° C^UN ^ No. 23929au- ^-

APPEAL FROM JUDGMENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF SUMMIT, OHIOCASE No. CR 06 03 1036

DECISION AND JOURNAL ENTRY

Dated: March 12, 2008

This cause was heard upon the record in the trial court. Each error assigned

has been reviewed and the following disposition is made:

SLABY, Judge.

{11} Defendant-Appellant, Vincent Niepsuj, appeals the judgment of the

Summit County Court of Common Pleas that dismissed his petition for

postconviction relief. We affirm.

{¶2} Defendant pled guilty to charges of menacing by stalking, a violation

of R.C. 2903.211(A), and violating a protection order, a violation of R.C. 2919.27.

The trial court sentenced him to consecutive prison terms of fifteen and six

months, respectively. Defendant did not appeal his conviction or sentence to this

Court. On April 9, 2007, Defendant filed a timely petition for postconviction

Court of Appeals of Ohio, Ninth Judicial District

COPY2

relief with the trial court. The trial court denied his petition, and this appeal

followed.

ASSIGNMENT OF ERROR I

"The trial court abused its discretion by denying post-convictionrelief from [Defendant's] conviction of violating an approved R.C.3113.31 Consent CPO, without such court actually treating theargument supplied in Ground 1 and Statement of the Caseconcerning Magistrate Klechner's non-existing oath of office asshould inform the validity of Appellant's conviction."

ASSIGNMENT OF ERROR II

"The trial court abused its discretion by denying post-convictionrelief from [Defendant's] conviction of menacing by stalking,without actually responding to the discussion supplied in Ground 2concerning any element of aggravation, sufficient to make suchconviction of a felonious (vs. misdemeanor) nature."

{¶3} Defendant maintains on appeal that the trial court erred by

dismissing his petition for postconviction relief. We disagree.

{114} After setting forth a summary of the history of Defendant's domestic

relations matters involving his wife and minor children of approximately twenty

pages in length, Defendant's petition for postconviction relief appeared to assert

two grounds for relief: (1) that a magistrate who heard a portion of Defendant's

domestic relations case in 2001 had not taken an oath of office; and (2) that his

conviction for menacing by stalking is not supported by sufficient evidence.

Assuming that Defendant's petition sets forth constitutional claims, the trial court

did not err by denying his petition without a hearing.

Court of Appeals of Ohio, Ninth Judicial District

COPY3

{¶5} This Court reviews a trial court's resolution of a petition for

postconviction relief for an abuse of discretion. State v. Stallings, 9th Dist. No.

21969, 2004-Ohio-4571, at ¶5. Under this standard, we must determine whether

the trial court's decision was arbitrary, unreasonable, or unconscionable - not

merely an error of law or judgment. See State v. Adams (1980), 62 Ohio St.2d

151, 157.

{¶6} R.C. 2953.21(A)(1)(a) provides:

"Any person who has been convicted of a criminal offense *** andwho claims that there was such a denial or infringement of theperson's rights as to render the judgment void or voidable under theOhio Constitution or the Constitution of the United States*** mayfile a petition in the court that imposed sentence, stating the groundsfor relief relied upon, and asking the court to vacate or set aside thejudgment or sentence or to grant other appropriate relief. Thepetitioner may file a supporting affidavit and other documentaryevidence in support of the claim for relief."

Unless a petitioner establishes that there are substantive grounds for relief with

reference to the petition, supporting affidavits, and the records in the case, a

petition for postconviction relief may be denied without an evidentiary hearing.

State v. Calhoun (1999), 86 Ohio St.3d 279, paragraph two of the syllabus.

{1[7} A defendant who enters a knowing, voluntary, and intelligent guilty

plea waives all nonjurisdictional defects for the purpose of future proceedings.

State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, at ¶78. The waiver is

effective both for direct appeal and collateral attack of a conviction, See, e.g.,

State v. Woodhouse, 6th Dist. No. S-04-004, 2004-Ohio-6160, at ¶16; State v.

Court of Appeals of Ohio, Ninth Judicial District

4

Idowu, 1st Dist. No. C-010646, 2002-Ohio-3302, at ¶25-26, holding abrogated on

other grounds, State v. Bush (2002), 96 Ohio St.3d 235, 2002-Ohio-3993.

Defendant waived his right to challenge the sufficiency of the evidence underlying

his conviction by pleading guilty, and the trial court properly dismissed his

petition on that basis.

{¶8} The trial court also properly denied his petition with respect to his

claim that the magistrate in his previous domestic relations case was not properly

sworn. As the trial court observed, the only evidence in the record on this claim

are two nunc pro tunc journal entries that appoint domestic relations court

magistrates. Defendant has not demonstrated a substantive ground for relief on

this claim.

{¶9} The trial court did not err by dismissing Defendant's petition for

postconviction relief without a hearing, Defendant's assignments of error are

overruled, and the judgment of the trial court is affirmed.

Judgment affirmed.

The Court finds that there were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court

of Common Pleas, County of Summit, State of Ohio, to carry this judgment into

Court of Appeals of Ohio, Ninth Judicial District

COPYI 5

execution. A certified copy of this journal entry shall constitute the mandate,

pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the

journal entry of judgment, and it shall be file stamped by the Clerk of the Court of

Appeals at which time the period for review shall begin to run. App.R. 22(E).

The Clerk of the Court of Appeals is instructed to mail a notice of entry of this

judgment to the parties and to make a notation of the mailing in the docket,

pursuant to App.R. 30.

Costs taxed to Appellant.

CARR, P. J.MOORE, J.CONCUR

APPEARANCES:

VINCENT M. NIEPSUJ, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY,Assistant Prosecuting Attorney, for Appellee.

Court of Appeals of Ohio, Ninth Judicial District