IN THE SUPREME CO

State of Ohio,

^laintiff-Appellee

David Zion

Iâ efer^^ant-A.pysellant

of Appeals,Noe 0'A®09v.92819

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT DAVID ZION SHIE

David Zion Sb;.eIcamate W A483-604Mansfield Correctional 7fnstitns€.ionP.mW Box 788Mansfield, 0B 44901-0788

COUNSEL FOR APPELLANT,IN PRO SE

W1.17.iam V MasonCuyahoga County ProsecutorThe Justice Center, 8th F1>1200 Ontario St.Cleveland, OIl 44113

9

of A^.9pea1s^ EighthAppellate District

Cuyahoga CountyOn Ap

GLL; ( l K or coiJ R r

RF:fUIF C;OlJ R 1` OF 0 1110

COUNSEL FOR APPELLEE

TAPSLE 4F Ct$NTEN'PS

EXPLANATION OF WiiY THIS FELONY CASE SiifACCEPTED AS A DaSC:iCE1'SOiitS';;Y APPEAL BIS A C,s4Sf_. OF E'ilI3LIC OR (,itl'': T CEflF,RAt: .AND .f?tVGI.,Vf?f A >?iBS`f'AIvTYAL ;.;ONS'1'I'i'f3T'1'{

STATEMENT OF THE CASE AND FACTS

zlRC.titirll'r IN SUPPORT OF PR()t'CST'I'I

PlgR®allioen csf3.aw

of the Adam Wa1.b§x Act to casesific c; i: :F pS$ laYed te9 x° eli:s in

Plea agreement to be subject to px°ov;.s:icanK ofthe iicgun°s Law Act under 0,noL:o 2950, T€^sul4:s

in a breach a nd =vtacesnstiR:uY.itsnal. impairmentu/inr3r_rM1. t4 ss^p^traet law agd the Ohio and U.S.Lt'J.^F:JS.EC.^.7A..^.EA^Y pxonema.evoomeounouoaonvxo^ao&oa

fIQn!S0t

A motion to w':.¢'hi9 x'aw grai.l.

6

6

enforce p2.ea contract can be used to address abreach of a plea agreement afteT .,entenc.:inga f a.' ex the co sa v yct:f o ss i;ai firmed on d:y. r€s z: fi

Cf?PiCL•:fS7O!d _ m o o.. o= s o® o s.n n: o e a o s e o= a.« a a e o a.^. o o: s ar,

PiiCiOF CF SERVICE .AOas.aeasm.avam.a.e...mae4,<m

APE,Is'idDIti Az Pa

Judgement Entry ar t; Opi srir}n of the C:uyart?;tt;t-sCo€aaatu Court of Appyals C II / a/ 0f39; a a a a... l^

epted for Review by Ohio Supreme CourtCase Alos 2049-9086 ( 9/30/2E3419)a, 09

EXPLANATION GF WHY THIS FELONY

^YS^^ _̂^E®^i^^^^^^ARMBP CAtI9ftIT IS A ^A^^ ^F ^^1t3^IC Wid^377-b0i

12d^6LVES A S-01SfAN'TIWI --^t^I^STI ^`^1®^AL lâ ^S^Y^^

'1his Court should accept this case a^o a discretionary

appeal under State-j® A2dyke pending before this Court in Case

Noo 2008-2502, because Shie's appeal involves the same issue

B®Alky regax-diDg the impact and effect of the application

of the Ada® t1a1sBx Let (Sapa 10)("AWA") upon plea agreements

made under the (1ijn 18fl)(MA")5 which is

an issue of public sae9d/or

':L3lV{DlV6_`.s a 9iSitF3t833iY;Yc3,-

This Court has a1re

I441YR, including GXlds

gencral Mcre

itutional qua:yYiozxA

iy accepted 223 cases to date taPcier

sleeve Statsin Scip, Cr® Case No,

2009-108E; on 9/13/20439 ( Append3x I9)a

In the decision of the Eighth D:ivta•a.r_t Court

that Shie is appealing in the case at bar (Appea

court raslied on Gl.ldersleevt to overrule the Appellant's

argument that the application of the AWA results in a breach

of his plea contract with the State of t)hs.rrd See

®tl^ ^ Shiie (Ohio Pppo

at #12®14 iAppendz.x 1--18)4

10i>2/2009), 2009 WL 3387483

Therefore, since the Appellant challenges derrloese

in the instant appea1, and Glldessicive was accepted by tbl..s

Court as a discretionary appeal, this Court should

appeal for consideration with Gi2.ders1eeve and 13®dgkS.

Shiv's appeal s^aises that h3,v plea contract was hreacbn:d

and impaired by the application of the AWA, in vicel:3t:s".saa of

Section 28, Article IT Constitution aud Section

10, Ayticle i of the 3.l®fi, G;onstitiatiorao

Cha17.eang;Qs to C1hio°, version of the AWA are currently of

public and/or great general interest at this t37rse because some

of the lower Ohio courts are in conflict as to whether its

application violates the Ohio and U.S. constitutions on various

legal theories, and this Court has not yet decided

these 3.ssxned e

In fact, the Eleventh District hag ruled that plea ccrntracs:,_

made uDeieg• tlao MLA tae4`®Ye the effective d€nte of the AWA, are

breached and impaired by the application of the AWA in violation

of the Ohacn and I70« constitutions, i n State ®. Ettyygyl (Ohio

Appy 11 Dist,), 7009-Ohdo...3515 at

However, the Eighth Distyic.t, in conflict with l3ttyre^^gr

boids that the AWA has no impact

Gildersleeve and in Shi

The ps- oiro 2esn aifi_

ncat address the

aesr plea agreements

subject of this ap;ne*a1},

of Gildersleeve is-------------

d,ranat hoving a plea ag:ceesnes?t

that contains definite and specific telran:, where the State and

feadanrnfi agree and stipulate to an execut®rKA plea contract

the requirements of OaR,CA 2950 under the MLA, as

Shie's plea contract, as €nvidennn:cd in his

fl°xatnscr:i.pt of proceedings the trial court's judgement

€=.Hna:r-ieso

2

It is certainly of public and/or great general interest

tttat. a contract made exan̂dex the ^nv at the time it is €uade not

be vaslaae subsequent changes of the la.r^ that if otaplieda

materially alters and modifies the terms of the contract without

the cnratent of both parties, but unjustly i:oeaefiting one of

the partiess

The Ohio and U.S.'constitutions provides tosutrssctassl

protections against such impairment and th^Be

constitutional coutr.°acct pranci^les apply to plea agseemena°.u®

because a plea agreement is g d by contract law principles,

97 SXto 1621 at. 1629-1630; If^S-

arsRA^^d^1^fi^ {fith Cia`a 2000), 230 F,3c9 243 at 24%

Therefore, this explanation compels an acceptance of this

STATEMENT OF T

open ca}nvt on 4i 617,?C?5a

int ot s) an t t'fY <`i

CASE .4NID FACTS

i at Y!

5jS i.' C 2 i]. G q L'. ie`s1 _C , i: il d

executory nature,

s_ilt:r' plea agreement, he voult1 agree

2=?50

;Yd' (}nira to tse> subject to and comply with 0.,R,G®

MLA after he completed his sentence, for a

lYSd t14' i5:is 3.1fE`m

Osa8j14/20sJ6, as a result of the plea contract to charges

y unckex 0,t,,Ce 2907A03 (A)('v), the ApDae1?_aaat

was ci...:.;;:if:lec3 an a °`:7c:xc3a3 Predator" under the Mi.A in the

Cuyahoga County Court of Common Pleas is' Caa ,e W

CR--()fc- 4589:i^'^--A e

On Aj25J700E3a the Appellant received from the State of

Ohio's Attorney ' s o fo i c. ega n otice that

being applied by them to Meg

olassii'icat ica" and s

&

is

ing him to different atssi more onerous

nag zeqUi,ome7ats than he had agreed to with the State of Oh:ic)

when he entered iesto his agreed

plea eonrcY°acCe

of his

On 9;24i1008, ih:ie filed a motion to withdraw his guilty

plea ;%asrr,u:ant: to Crima.rea.i. Rule 32>2 asking to renegotiate his

plea agreement, and €an 10/30/2008, the Appellant. filed a mot:i€zn

to enforce his tlea contract pursuant to this Court's Seikbert

rule, in the trial court, arguing that the State of Ohio as

to the eontraus: effectively breached the contract whesa

it applied the AWA to bim and modafying the a

was made between Ship and the State of Ohio, thereb

him to withdraw bis plea agreement, or alternatively, that

the trial court must order enforcement of the terms of the

plea contract that it judicially :sanz:i:ion.oel,

eles to change without the consent of Sh3r*a

the

The trial court overruled i}cath motions s tating that it

had no jurisdiction to hear them because

his convict ion and because the

e'. wva. l ae. t: boE% s sa9 C'. h 2

y appealed

he raised xo a

4

The Appellant appealed this dec.asiosr by the trial court

to the Eighth District Court of Appeals, which decided that

Rule 32®1 governed both the motion to withdraw and

enforce, and that neither can be used because the fact Shie

took an appeal divested the trial court of jurisdlction to

hear i_hema and furtFser, even 3f the motions could have been

emplo}ed , no breach of z:xiagetxari: occurred because the State

an cY y gser4:oy€ncd their respec.f.i•un parts undc.r the

contracti'iy the time the AWA was enacted, and the agreement

would be unenforceable because the state prosecutors nor t?i

judiciary possess the authority to enter :s.estca any agreemeBt

that would abrogate ?-he right of the state leg

the classification

This rularig ignores

portion of the

be fulfilled until bgs death

aznt:il he has

s

igFe:tf:acarst pc+:irats, First, the

regarding 9„Rm0 2950 will not

and will not even begin to be

rved his prison Eae:ntenc:ea iea..oa3d,

j) S.t:s t. li x€;'. has s TS S) th1

C,ngis.?rxt-8are".s prswox to esnei,

ter do with the Ohio

laws, but

that i t lacks g'(?rle3' to authorize state €}e.,eYltg to

laws that impair contracts eestcrez3 under

to a.°.orsst=tuta.aatts.L contract lcaws

law, pursuant

The P.ppo11a.xi now appeals to t`'.-is C6uY`Y pres€e9Ztie3g tklts

(2) propositions of 3.aa.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PS9 09 ^.$IL®YH iEf 1 8

The application of the Adam Walsh Act to cases that

7..Y1e',7l&d? specific stipulated terms in a plea agreement

to be ,aibja.ci, to provisions of the M€:yap'x Law Act

under O.R.C. 2450, iesuLts in a breach ani

esncon,,titaatioesai impairment under contract law and

the Ohio and U.S. Constitution

Plea agreements are governed and interpreted according

to contract law pri.ncipI.ea. 13^^^^1Qg,.̂ .,_j_^^^isen (1977),

97 S.C:t. 1621 at I629-153Q. The law at the time of the

execution s,k the contract becomes a part of .>u

enter .rmo a part of

Ohio St. 236 a

Ohio St. 410 at 452;

`; t ,

1954), I61 Ohio

i'arsanns (Ohio. Swit

1 o Any subsequent chaesge

<:ommr. (Ohio

law cannot

retrospectively alter a parties' agrowrnent, Ohio Pa. and W.

®ab Cxx, v. !'aex4zqqadle_K, QEp, (6th € a.r„ 1997), 120 F.3d

i

party, or amounts to

or

rights

ions accruing by cantract, is

repugnant to the Ohio Constitution

ion under

impairs f.lte rights Oi e.ithez•

28, Art-,icle

10, Article T.

6

Coleman (Ohio 1986)fl 28 Ohio St^?d 259 at 263,

apply changes in a law

by the Legislature to modify a judgement of a Court

xenderedo (Ohio 1992), 67 Ohio St^ 144;

Cov« State ex seY Donovan (Ohio 1€320), 101 Ohio Sao 3879

ttv, Okia (Ohio 1905), 7 3 ahlo Str, 54 at 50 Tn fact,

under Oat2®f:, 3(?€?m08y the gZa°ooecutcsr, as an agent

entering 3nto the plea ccrsni_rar,

Appellee bound all agencies of the State,

to the provi

Ohio Adult Parole A

to S17_`.€' b.}c:au

made ntl

to be e:+ es: xa

impairs (" pi:! obl iga t ions of ihe c.i'P7nt.T.'ELC'.t an d :Y

the o>?>t;cs-a

for `ata;i::'.;

(Ohio Apj

TtP e$'efoa'F; rs the

Bd,

the plea c•.erntrnct. See ^.-C

(Ohio 2002), 97 Ohio A0 3d 346;

aro1e Authority (Ohio App, 2 T3istq)s

Y tt `{3. c3

a2: tsaraa e.,,

S13ic to b€s subject to

AWA

MLA for lizo

f: h€> m pa- :i c-: on e This a

,.

the contract was final, binding, and sec

See T'rumbaall C

government

its attorney

re

on

51s 9,

W?.`.1 £'. Cb 67 t%' "r,I l, t

r:igbF'. to his ccerFi.:e'ac-i=

and his

SXt u 2`3 4 3e

Yz°ucw<as4 Mahry--V. Johnson

7

withdraw a guilty plea or a motion t:_o

enforce a plea contract can

a breach of a plea

st°aic!'.zcta2

The

address a

t apy4ieaY.

led a motion to taithd:rt±w his guilty

pursuant to Criminal Rule 32,10 and a motion to enloree his

plea contract pu

(Ohio 3994)£ 60 Ohio Qv3s9 3€39 and Saeatssbe3lo

(:1931)g 92 S,.C;f.m 495,

Pursuant to the remedy establ ished in -14

Sautzabell®, the trial court had iiâ

breach of contract that occurred after the Appellant'

+,awt?:y plea was affirmed on direct appeal, because the

alR:i.rm€arac:e of the plea has no rela

the terms of the plea three ytsvr;>

Stat.

Moreover, Cv:a.m:i.tsal Rule e32,1 - atnt€, not govern a mea9'i

enforce a plea catttxae.t that has been 1t;c°^ached, 1rctL° a-Ga'}ther,

=tuch motion i4 governed by S.e3kbert and Sant®bel.3ct> Therefore,

the F`. gPF t.'f

State ex

i.€sts°ict:':> a

=-^.^chga-l J

94 to find : 3?,1 motio

yed by Sha.c are barred is incorre

In facY:b this Ccaurt has recog t

ate v« B®swell (0ha.o 2009), 121 4)n3o St®3d 575

.^^d^s^^®u^^ ^f C

this Ct51FA`2 °::S T`4ii_E' in

8

a 3: , 1 ni <s t. < ou to x• ectif y a ',' TT t; i svu e, €; vert

appeal was tak¢>nm The Appellant proposes that

that rule ;; :rbees a plea convras.:9:

i.., breached years after it was made and an appeal taar> been

taken on different 3.=;sdresa

The ApTaella srart to accept this prop

in order to set forth a rule expanding on Seikhert to apply

to the present

ThexeT'oa8g the Appellant employed

rectify the breach of his plea cont'razctg a c•. an

6`aear this came even though a.t was not presented in an O6T?aQ

2950 AWA petitiana

CONCLUSION

The fsa>pclinzxt's plea, contract mu:;t

must be allowed to renegotiate his plea agreement under the

AWA in accordance with due praarzessd

GJT9T;REFC)YT°:, this Court should accept this case to 13c*

heard with I®si TtS and CiAders1ewve.

PROOF OF SERVICE

Fi

It?RI-i;I)l:t;T7(`M was sHnt by t;ndina=;

Ap lsel9-es rF1 i' 1. j aw 17 m

Tia : Justice f:ent

011 44113, ,;ia 11/ 9

1200 f)r-t

10

A p p E N D I x

Ourt f p edY'q vEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 92819

I\1OV °- 2 2009

STATE OF OHIO

PLAI NTIFI+'-AP PELLE E

vs.

DAVID ZION SHIE

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Cominon Pleas

Case No. CR-458959 I

BEFORE: Dyke, J., Stewart, P.J., and Jones, J.

RELEASED: October 22, 2009

JOURNALIZED:

FOR APPELLANT

David Zion Slzie, Pro SeNo. A483-604Mansfield Correctional Inst.P.O. Box 788Mansfield, Ohi.o 44901

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.Cuyahoga County ProsecutorBy: Mary McGrath, Esq.Assistant County Prosecutor1200 Ontario StreetCleveland, Ohio 44113

•,^I ^` c 6a iIla

OCT22r009CA09092819 60019143

111111111111 Hill liiiiiiiiIihI Iill IIII C9'r-Ft,:

11 i -.m._..

Ui; TI

N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and26(A); Loc.App.R. 22. This decision will be journalized and will become the judgmentand order of the court pursuant to App.R. 22(C) unless a motion for reconsiderationwith supporting brief, per App.R. 26(A), is filed within ten (10) days of theannouncement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this courts announcement

of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

i^y 1

- ^:jr 'v.) 3 i.l4(' n^^

^:j ^' ' - 8

ANN DYKE, J.:

Defendant-appellant, David Zion Shie ("appellant"), appeals the trial

court's denial of his motion to withdraw his guilty plea and his motion to enforce

a plea contract. For the following reasons, we affirm.

On Apri16, 2005, appellant pled guilty to four amended counts of sexual

battery and agreed to be classified as a sexual predator. On April 27, 2005, the

trial court sentenced appellantto four years imprisonment on each of the counts,

to be served consecutively, for a total of sixteen years imprisonment. On May 11,

2006, this coiut affirmed appellant's convictions in State u. Shie, CuyahogaApp.

No. 86464, 2006-Ohio-2314, but remanded the matter to the trial court for

resentencing. Id., appeal not allowed by 111 Ohio St.3d 1416, 2006-Ohio-5083,

854 N.E.2d 1994.

On August 9, 2006, the trial court resentenced appellant per the directives

of this court, imposing the same 16 year prison sentence as before. Appellant

was also reclassified as a sexual predator. We affirmed appellant's sentences in

State v. Shie, Cuyahoga App. No. 88677, 2007-Ohio-3773, appeal not allowed by

116 Ohio St.3d 1440, 2007-Ohio-6518, 877 N.E.2d 991.

Subsequently, the Ohio legislature enacted Senate Bill 10, which

implemented the federal Adam Walsh Child Protection and Safety Act of 2006

E1 9

-2-

("AWA").' The new law went into effect in Ohio on January 1, 2008.

Accordingly, appellant, who had previously been classified as a sexual predator

under H.B. 180, Ohio Megan's Law (former R.C. Chapter 2950), was then re-

classified as a Tier III offender under S.B. 10.2

In light of the new classification and the registration and. notification

requirements associated with that classification, appellant filed a motion to

withdraw his guilty plea on September 24, 2008. Additionally, on October 30,

2008, appellant filed a motion to enforce a plea contract. The trial court denied

both motions on January 28, 2009. Appellant now appeals and presents the

following assignment of error for our review:

"The Trial Court abused its discretion by unreasonably denying

Appellant's motions to withdraw guilty plea and enforce plea contract based on

a decision clearly and convincingly contrary to law."

Here, appellant argues that the state of Ohio breached its plea agreement

with him when the AWA imposed new obligations and terms previously not

agreed to with regard to his sexual predator classification. For the following

reasons, we find appellant's argument without merit.

' 42 U.S.C. § 16901 (2006).

2 Hereinafter, for purposes of this appeal, the AWA and S.B. 10 will be usedinterchangeably throughout this opinion.

I;i„ c: `) 3 7^+^i i 9 0

-3-

First, we agree with the trial court that it lacked jurisdiction to entertain

appellant's motions, although we reach this conclusion for a different reason. A

trial court does not have jurisdiction to consider a motion to withdraw a guilty

plea once the conviction has been affirmed on appeal. State ex rel. Special

Prosecutors v. Judges, Costrt of Common Pleas (1978), 55 Ohio St.2d 94, 97-98,

378 N.E.2d 162. The general rule is that a trial court loses its jurisdiction when

the appeal is taken, and, absent a remand, it cannot regain jurisdiction

subsequent to the court of appeals' decision. Id. at 97. The Supreme Court of

Ohio explained:

"While Crim.R. 32.1 apparently enlarges the power of the trial court over

its judgments without respect to the running of the court term, it does not confer

upon the trial court the power to vacate a judgment which has been affirmed. by

the appellate court, for this action would affect the decision of the reviewing

court, which is not within the power of the trial court to do." Id. at 98.

Even if the trial court had jurisdiction to entertain the motions, we would

nevertheless reject appellant's argument that the application of the AWA

breaches his plea agreement. There is no dispute that plea agreements are

contracts between the state and criminal defendants. Santobello v. New York

(1971), 404 U. S. 257, 262, 92 S. Ct. 495, 30 L.Ed.2d 427. "Accordingly, if one side

breaches the agreement, the other side is entitled to either rescission or specific

"L. ^ C 3 r'u.:1 1 ^ I

-5-

performance of the plea agreement." State v. Walker, Lucas App. No. L-05-1207,

2006-Ohio-2929, at ^ 13, citing Sa,ntobello, supra. In this case, however, the plea

agreement between appellant and the state had already been performed by each

party at the time of the enactment of the AWA. Ohio courts have previously

determined that once a defendant enters his guilty plea and the trial court

imposes a sentence, a breach of contract can no longer occur because both sides

have fully performed their respective parts under the contract. Ball U. State,

Lake App. No. 2008-L-053, 2009-Ohio-4099. See, also, State u. Pointer,

CuyahogaApp. No. 85195, 2005-Ohio-3587; Slagle v. Sta.te,145 Ohio Misc.2d 98,

114-115, 2008-Ohio-593, 884 N.E.2d 109. The court in Ball, supra, explained

with the following:

"Because the registration and notification requirements of the new law,

just as in former R.C. Chapter 2950, are merely remedial conditions imposed

upon offenders after their release from prison and not additional punisbment,

they do not affect any plea agreement previously entered into between the

offender and the state." Ball, supra.

Moreover, we note that any alleged agreement would be unenforceable

because neither the state prosecutors, nor the judiciary, possess the authority

to enter into any agreement that would abrogate the right of the state legislature

to revise the classification scheme. In Gi,ldersl,eeve v. State, Cuyahoga App. Nos.

^^^ , ?`,'' p i^.) i 9 2

-6-

91515, 91519, 91521, 91532, 2009-Ohio-2031, we provided that:

"ln fact, `the classification of sex offenders into categories has always been

a legislative mandate, not an inherent power of the courts. Without the

legislature's creation of sex offender classifications, no such classification would

be warranted. Therefore, * * * we cannot find the sex offender classification is

anything other than a creation of the legislature, and therefore, the power to

classify is properly expanded or limited by the legislature."' Id., quoting In re

Smith, 3d Dist. No. 1-07-58, 2008-Ohio-3234, appeal not allowed by 120 Ohio

St.3d 1416, 2008-Ohio-61.66, 897 N.E.2d 652.

Finally, with respect to the issue of breach of contract, we recognize that

our decision conforms with that of this court's in Gildersleeve, supra, albeit for

different reasons. Consequently, we affirm the trial court's denial of appellant's

motion to withdraw his guilty plea and motion to enforce plea contract.

Appellant's sole 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. The defendant's

conviction having been affirmed, any bail pending appeal is terminated. Case

u :. I 33

-7-

remanded to the trial court for execution of sentence.

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

Rule 27 of the Rules of Appellate Procedure.

MELODY J. STEWART, P.J., andLARRY A. JONES, J., CONCUR

i t 2 2009%tLEJ €i. rUERcTiHF CnU,^7 OF nPFI:AIS

^ 3 -44YLtL`..1 ^..1 ..^ l fl^tt)iU. U -) 0 1 10 1'

Supreme Court of Ohio

GildersleeveV.

StateNO. 2009-1086

September 30, 2009

APPEALS ACCEPTED FOR REVIEW

Cuyahoga App. Nos. 91515, 91516, 91517, 91518, 91519, 91521, 91522, 91523, 91524, 91525, 91526, 91527, 91528,91529, 91530, 91531, and 91532, 2009-Oliio-2031. Discretionary appeal accepted; appeal held for the decision in 2008-2502, State v. Bodyke, I-Iuron App. Nos. H-07-040, H-07-041, and H-07-042, 2008-Ohio-6387; and briefing schedulestayed as to the appeal.

Discretionary cross-appeal accepted. Briefing on the cross-appeal shall proceed in accordance with the Rules ofPractice of the Supreme Court of Ohio.

Ohio 2009,Gilderslcevc v. State123 Ohio St.3d 1406, 914 N.E.2d 204 (Table), 2009 -Ohio- 5031