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                             -OFFICE += THE ATTORNEY GENERAL OF TEXAS
                           .,’ .SI
                              ._..‘.           AU5TlN

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            Honoruble George 11. Bheppard
            co~ptrollcr of Pilblio accounts
            Austin, Texas

            the question                           as
            payPant   Pas                         per
            at the StGt0

                                                                       e    on such a contraot on8 that
                                                                           not ho p3ssch for pay.asnt.

             Syete3, addsessed to you3?Self, and advisins th:lt.tho equip:ao~t
             coverca by the contract    can be roooved an3 rotumcd to the
             .Ca3x?ronCan Z::achiaery Cozqany.  i,e understand him to mzan by
             this that the :mAj.nery incltallsd    under the contract iS Such
             that 5.t OGu’be removed ad returned d.thOut inju::y to my of
             thz othsr property belonging to tho 3~~s I"rison Syntsn, in
             Pact I&, ~l).ingoon hss verbally   ac?vlucd w that such 1s trua.
                                                                   .
                                                                            :
                                                                                .

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                                ’
,y-

            ,. lionp$%blc George H. Sheppard, Page 2
                       .'I
                   _ ..'
                    ,. I ;
                        ~'*,.,
                               Icn the case of Salt Creek T. P. vs. King Iron
               Bridge'.and Manufacturing Co., 33 Pac. 303, the Supreme
               Co& ;OP Kansas was construing. a contract wherein the Salt
               Creck township had contracted with the King Iron &id&e and
               Wnufaoturing         Coqany Par the erection     of a bridge along
               the‘h;,ighway of said oity.        The court held that the oontract
               was.vo?d because the city did not have the authority            to oon-
               tract ,for the erection       of the bridGe.     The COWS aid 8tb3
               as ,:.-'y,-,
                   f ollow3,
                           ., :~hoiwv*r :
                               n* * .*   Of course, as the bridge was
                    '. constructed'upon     the highway with the per-
                       mission of the authorities,       the colapmy my
                       p~~ovg the sme.       AS the tovmhip rifuses      to
                       pay for the bridge,      it can have no interest
                       or right to keep it.       All- the parties acted
                       without any statutosy      authority."
                           ‘In the case OS E'loyd -County +s. Owe~o Bxiclge Co.,
                 137 8, Yl. 237, the Court of appeals of Kentucky was constru-
      f-         ing a contraot entered @to between a county and a bridge
                 company for the emotion   of three bridges.   The court held
                 the oontraots to be void. because the agents of the county
                 who had .eutered into the contracts  were without authority    '
                 to mks such agreeinent.   The. oourt coiwludod as follovis:
                                 "HoIor;ever, there is a rule which is ap-
                          plicable   to this case,     as was sa:id by the
                          S~pr%r@~ Court of the United States,       in Marsh
                          v, Pulton County, I.0 W3110 676, I.9 L. Ed,
                          1040; tho obligation      to do justloe  rests
                          upon all persons, natural and nrtificial;
                          and ii a county obt&.ns ffionoy ‘or proprty
                          of others without authority,       the law, in-
                          dependent of any statute,      will compel resti-
                          tutlon or oornponsation.      Under this rule,
                          Floyd coilntg will not be pcrxitted       to ye-
                          tain the bridges md not pay l"or them. Ap-
                         'pellant having declined to pay for the bridaes,
                          appellee will be pcwitted       to xemwe the
                          briaees and ell the mtcrinl        which it fur-
                          nished in their construction.        This is the
                                                                           , ,
                                                                           r&
              :

     I ~onok&io George H. Sheppard, Page 3
,p            -. ..-
        . _.~
      _
              only reiaedy the law affords uppellcc.    city
           ‘. of ,j%.rdwell v. Southern Engine & Boiler
              Yiorks , 139 Ky. 222, 113 S.Vf. 97, 20 L.R.A.
          ,.: (H.S.) 110; Floyd County v. Allen, 137 Ky.
           ,: 555, 126 S. ii’. 124, 27 L.R.A. (H.S.) 1125.”
             ;s     In the case of Lee vs. Board of Cormiosioners   of
        ZoiPoe County, 114 Fed., 744, the county commissioners had
        entered into four contracts    with the bridge coznpsny for the
        construction   of bridges across the streams in the county,
        The court held that    the commissioners weI’e unauthorized to
        enter into such contracts    and that such contracts  were void,
      : The question before the tour t was whether or not the bridge
     ! co~pxiy had the right to re;?ove the bridges and xhether or
     j not such bridges belonged to the county or to said cozoany.
        The court stated the proposition     and answered the same as
        follo~;~s:
                   nThe provisions  of the statutes of the
            state of Chio relating    to the purchase and
            erection   of bridges were not coz@ied     with by .,
            the county co.@soioners     before entering into
            the contracts    with the Canton Bridge Coagany,
            and it is conceded by both purties to this
            suit that they were invalid,      and no recovery
            could be had upon them, nor upon the warrants
            given in paylxent, for agy*p;rt     of the p~urchsse
            price of the bridges.           .
                  “T t * .
                   n* * 2.. But while the law affords no
            re:&dg, equity,     althou&   it will not enfmce
            the contmct     or create -a contract between the
            parties on sccount of the sccegtance ana re-
            tention of the property,      when the property is
            in existence,     and in the handn of the defendant,
            ~$11. not ;illolS it to retsin that to which it
            has no title    whatever, and grevcnt the owner
            from reclaim:nS     it.   The case presented by the.
            bill shorn no aoral turpitude       in the transaction,
            and, althouf;h the bridge cornpay should h;:ve
            ascertained    vihether each step provided by the
            st%tutes    hd   bean pyoRerly tciken, the 1~ placed
            upon the defendant the duty of takinS those:
            steps.    It wan necessary for it to co.@y with
                    ..-.
:,e        :_     .-. ,.
                  .       ‘.
                     ..,’
            ‘Honorable Geor$e.H.          Sheppard,   Page 4

                 ..~&ery provision   of the statutes in that behalf
                  :before entering into these contracts,     and it
                 ,.repi+esentcd to the bridge com?ang that it had
                .-YIO complied, and thue misled the bridge c~nigany
                   Into entering   into the agree.rsent, the carrying
                   out of .whioh alaced these bridges in the hands
                   of the defendant.    The complainant has no rexuedy,
                   at lm, rind, to deny him equitable rel.ief would
                   be to enforce the contract    on the part of the
                  .brid&e cornpony, rotI to allow the defendant to
                   repudiate its part of the same contract,      Andy’
                   thereby aopropriute,   without compensation,
                   property to whiah it had no legal or equitable
                   right . It VIESsaid by the’ federal supreme
                   court in the case of Eaxsh v, Fulton Co., 10
                   Wall, 676, 684, 19 I... Ed. 1040, 1049:
                        **The obligation    to do justice   rests. upck .’
                 all, person3, natural or artificial;       ana, if a
                 county obtains the money ‘or psopcrty OS others
                 vrithout authority,     the Law, indoyendent of any
                 statute,   will colm>el restitution     or oom~cnoa-
                 tion ,l
                       “If’ there wan any fraudulent purpose of
                 the bridge company, or connivanoe on its part
                 at the action of the defendant in disregarding
                 the previsions    of the statutes,    BO that the
                 purpose for which those provisions       were enaoted
                 should be thwarted, then neither the bridge
                 oompany nor this congl.ainant could come into a
                 court of equity    sod ask p.ny relief,   as they
                 could not cor*_e into court with olean hands;         :
                 and the relief    would be denied for that reason,
                 and.n,ot on the doctrine   of the yublio policy
                 0% the stzte.     There is no public policy reC-
                 ~gn;ni~.edby th.e courts Which allows ally person,
                 naturcl ct’ artificicl,   to take the psopcrty of
                 another, and appropriate     it to it3 own use, and
                 d&y to the person who, is ionoc.ent of fraud the
                 right to reclaim it: * * f.‘l
                           No rulejustice
                                     of   requires that  the State
      ,F    should retain this machinery cud never p.sy for ibLr If
            tho machinery can be rculovcd without injury to any of

                                                                             .
:    .!               1. ’

                 -    .. .
i-         &orable.~Ceo~~e                 X. Sheppard,   PaSe 5
                 3;   !”   (   .,
                                            .
                                    :.

            the other,property     belonging to the State, as we are lnforzied
            and OSSUXI the ass6 to be, equity and natural justice would
            see;? to,rcguire    that it be retuxcd,       Under such clrcmstances
            to hoM.othcrwisc,       in effect,   would be to otiorce   the contract
          :as ag&lnst the Coa~any but to relieve          the State of its obliga-
            tions uilder it.     Slnco the cont:act.waa     void, tis held in our
            Opini6ti No. O-2505,     Y:O do not belicvo   that it can bo enforced
            asagainst     elthcr party, atd in equity the property should be
            and my be returned.         To that end it is our opinion that tho
            General Xansger of the Texm Prison Systo.3 my pemit agents
            of the company to entcr,the        pre;?ises and take its property,
            injury-or   dazeg.e to any property of tho State to bo Gtriotly
            guard63d~agRiQSt.
                                                                   Your8 very truly

           GX.:RS                        APPROVEDDEC
                                                   4.     1940

                                         ATTORNEY
                                                GENERASY
                                                      03 TR%AS


122 F.2d 848 (1941)
LOGAN COAL & TIMBER ASS'N
v.
HELVERING, Com'r of Internal Revenue.
No. 7642.
Circuit Court of Appeals, Third Circuit.
September 24, 1941.
*849 Charles S. Jacobs and E. Spencer Miller, both of Philadelphia, Pa. (William R. Spofford, of Philadelphia, Pa., and Ballard, Spahr, Andrews & Ingersoll, of Philadelphia, Pa., on the brief), for petitioner.
A. F. Prescott, Sp. Asst. to Atty. Gen. (Samuel O Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to Atty. Gen., on the brief), for respondent.
Before BIGGS, MARIS, and JONES, Circuit Judges.
MARIS, Circuit Judge.
This case raises the question whether the income of the taxpayer for the years 1934, 1935, 1936 and 1937, upon which the Commissioner seeks to impose a surtax as undistributed income of a personal holding company, constituted rents or mineral royalties. If it constituted rents it was not subject to the surtax by virtue of the express provisions of Section 351 of the Revenue Act of 1934, 26 U.S.C.A.Int.Rev. Acts, page 757, and Sections 351, 352 and 353 of the Revenue Act of 1936, as amended by the Revenue Act of 1937, 26 U.S.C.A. Int.Rev. Acts, pages 936, 938, 939, since it comprised more than 50% of the taxpayer's gross income for each of the years in question. If on the other hand it constituted mineral royalties it was subject to the surtax under the language of both acts, the taxpayer's deductions under Section 353(h) not constituting 15% of its gross income. The Board of Tax Appeals held the income to be mineral royalties and therefore taxable. The taxpayer thereupon brought the case here for review.
The facts are fully set out in the findings and opinion of the Board (42 B.T.A. 529) and need not be detailed here. Suffice it to say that the income in question constituted monthly payments made to the taxpayer by the lessees of its coal lands, which payments, in accordance with the terms of the leases, were computed on a tonnage basis for the coal mined during the preceding month. While the leases provided for certain minimum annual royalties all payments in excess of the amounts due for coal actually mined might be applied to coal mined in subsequent years. The leases contained the usual provisions authorizing the lessees to mine coal, to manufacture coke and other products of coal, and to conduct a general mercantile business on the leased land, with the privilege of using the surface of the land and so much of the timber, stone, sand, clay and water found thereon as might be necessary in connection with the operations contemplated by the leases. The lessees were also given the right to transport through and under the leased land coal of the lessees *850 mined on adjacent properties. The lessees carried on coal mining operations on the leased lands as contemplated and in connection therewith also transported through the leased lands coal from adjoining mines.
We think that the Board of Tax Appeals was right in holding the income in question to be mineral royalties rather than rents. While the word "rent" is often used, as it was in the leases here involved, in a sense broad enough to include such payments, it must be remembered that we are here dealing with a statutory provision which differentiates rents from royalties. We must, therefore, look for the distinction which Congress intended to make between the two words. That distinction is, we think, the commonly accepted one that rent is a compensation for the right to use property which is fixed and certain in amount and payable periodically over a fixed period regardless of the extent of the use of the property,[1] while royalty is a compensation for the use of property which is based as to amount entirely upon the use actually made of the property.[2] As applied to coal mining property the difference between leases providing for the two types of compensation was well stated in Vandalia Coal Co. v. Underwood, 60 Ind.App. 675, 111 N.E. 329, 330, as follows: "The coal industry, however, seems to recognize two general classes of mining leases: First, the lease which requires the lessee to pay the lessor a certain amount of money at stated intervals as a `dead rent,' irrespective of the productiveness of the mine; second, the payment of royalty on the quantity of mineral mined, with the requirement that a stipulated amount be mined within a stated period of time, or, upon failure to do so, to pay a certain amount of money equal to the income that would have been received by the landowner had the mineral been mined." See also Raynolds v. Hanna, 6 Cir., 55 F. 783, at page 800, in which Circuit Judge Jackson said that "`royalty' * * * is perhaps the most appropriate word where rental is based upon the quantity of coal or other mineral that is or may be taken from the mine."
Stratton's Independence v. Howbert, 231 U.S. 399, 34 S.Ct. 136, 58 L.Ed. 285; Von Baumbach v. Sargent Land Co., 242 U.S. 503, 37 S.Ct. 201, 61 L.Ed. 460; and United States v. Biwabik Mining Co., 247 U.S. 116, 38 S.Ct. 462, 62 L.Ed. 1017, cited by the taxpayer, are not authority for its contention that its income constituted rents and not royalties. As pointed out in Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199, they dealt with the question whether payments of the character involved here were income to the lessor or a return of capital to him. In determining that question it made no difference whether they were considered as rents or as royalties, since either would be income to the lessor.
The taxpayer points out that in addition to the right to mine coal the leases gave its lessees the right to use the surface of the leased lands in connection with their mining operations and to transport other coal through and under the leased lands. It urges that a portion, at least, of the income received from the lessees must be held to be rental for these uses. No separate rental was stipulated for these rights, however, and they, therefore, constituted merely an additional consideration for the payment by the lessees of the royalties for the coal mined which, for the reasons we have indicated, must be held to be royalties and not rents.
We are not impressed with the taxpayer's argument that its case does not come within the spirit of those provisions of the Revenue Acts which levy the surtax upon the undistributed net income of personal holding companies. The test laid down by Section 353(h) of the Revenue Act of 1936, as amended, for a corporation in the situation of the taxpayer is whether its allowable expense deductions, other than compensation for personal services rendered by shareholders, constituted at least 15% of its gross income. If so it is to be regarded as an operating rather than a holding company. The taxpayer was unable to meet this test.
The taxpayer having failed to file a return as a personal holding company on *851 Form 1120H as required by Article 351(8) of Treasury Regulations 86 and 94, the Commissioner imposed upon it the penalty of 25% provided for by Section 291 of the Revenue Acts of 1934 and 1936, 26 U. S.C.A.Int.Rev. Code, § 291. The taxpayer urges that since it acted in good faith it should not be subjected to this penalty. The penalty is made applicable to personal holding companies by Section 351(c) of both acts, which section also supports the regulations requiring the return. Under the law and regulations the imposition of the penalty was mandatory and the Board of Tax Appeals was right in so deciding. O'Sullivan Rubber Co. v. Commissioner, 2 Cir., 120 F.2d 845. Our recent case of Girard Investment Co. v. Commissioner, 3 Cir., 122 F.2d 843, is not authority to the contrary, since in that case the taxpayer did file a return on Form 1120H which, although late, was filed before the penalty was imposed.
The decision of the Board of Tax Appeals is affirmed.
NOTES
[1]  Western Union Tel. Co. v. American Bell Tel. Co., 1 Cir., 125 F. 342, 348; Miller v. Carr, 137 Fla. 114, 188 So. 103, 106; National Subway Co. v. City of St. Louis, 169 Mo. 319, 69 S.W. 290, 294.
[2]  Western Union Tel. Co. v. American Bell Tel. Co., supra; Miller v. Carr, supra; Riley Stoker Corp. v. Jeffrey Mfg. Co., 62 Ohio App. 199, 23 N.E.2d 519. 521.


552 So.2d 857 (1987)
Johnny HARRIS
v.
STATE.
1 Div. 695.
Court of Criminal Appeals of Alabama.
January 27, 1987.
Rehearing Denied February 24, 1987.
Certiorari Denied May 29, 1987.
On Return to Remand December 8, 1987.
Rehearing Denied January 26, 1988.
Death Sentence Vacated and Reduced to Life Sentence June 16, 1989.
*858 Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery, and Ruth A. Bourquin and Gary S. Guzy of Kaye, Scholer, Fierman, Hays & Handler, Washington, D.C., for appellant.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 86-763.
BOWEN, Presiding Judge.
This matter comes before this Court on a "motion for remedy for unavailability of transcripts," under Rule 10, Alabama Rules of Appellate Procedure, filed by Johnny Harris pursuant to Rule 27, A.R. A.P. We remand this cause to the trial court for further proceedings.

I
In 1975, Harris, who was serving life sentences for rape and four robberies, was convicted for the murder of a prison guard during a 1974 riot at Atmore Prison. Death was the mandatory punishment. Title 14, § 319, Alabama Code 1940. That conviction was affirmed on appeal, Harris v. State, 352 So.2d 460 (Ala.Cr.App.1976), affirmed, Ex parte Harris, 352 So.2d 479 (Ala.1977), but set aside in June of 1981 when the trial court granted Harris' petition for writ of error coram nobis and ordered a new trial on the ground that Harris had been denied constitutional due process in that the State had failed to disclose evidence impeaching one of its principal witnesses at Harris' trial and because exculpatory defense witness Jessie Jett was unavailable at the time of Harris' trial.
*859 Harris was retried and reconvicted in July of 1983 on the original indictment. In October of 1983, after a hearing on a motion for new trial, the trial court ordered the transcription of the trial proceedings. The trial transcript was completed and filed with the circuit court in April of 1984.
In June of 1984, Harris, represented by new counsel, requested, and the trial court ordered that the record on appeal be supplemented with the transcripts of the pretrial proceedings. Those proceedings consist of: hearings in (1) February (12th and 26th) of 1982, (2) October of 1982, and (3) January of 1983; (4) the arraignment and hearing of June 20, 1983; and (5) the evidentiary hearing in June of 1978 conducted in connection with the coram nobis petition and concerning the composition of the grand jury which indicted Harris in 1975. In ordering that the record on appeal be supplemented with these five proceedings, the trial court specifically stated the coram nobis hearing in June of 1978 had been "incorporated into the record for the instant appeal and formed the basis for this Court's denial of Mr. Harris' repeated motions to quash the indictment and this Court's October 24, 1983, ruling on the Opinion and Judgment of the Court on motion for judgment of acquittal and/or motion for new trial." In that same order, the trial court noted "that the State of Alabama has no opposition to the granting of said motions of defendant-appellant Johnny Harris and consents to the granting of the same."
In July of 1985, transcripts of the proceedings we have labeled above as (2) and (3) were filed with the circuit court. Subsequently, it was discovered that the court reporter's notes for proceedings numbered (1), (4), and (5) could not be located.
In June of 1986, Harris, through counsel, filed, pursuant to Rule 10, A.R.A.P., a motion for a new trial or, in the alternative, a motion for acceptance of substitutes for unavailable transcripts. Counsel submitted affidavits as substitutes for the missing portions of the record and argued that any remedy for the unavailability of the transcripts other than quashing the indictment would be inadequate, in part because of the search the record rule and plain error doctrine standards of appellate review in death cases.
On the 12th of August of 1986, a hearing was held on this motion. The trial court denied Harris' requests for a new trial or to quash the indictment. The trial court accepted the affidavits of Harris' former counsel (William Allison and Donald Bolton, Jr.) as substitutes for the missing records of hearings (1) and (4). The Attorney General objected to accepting the affidavit of another former attorney for Harris, W. Clinton Brown, Jr., as a substitute for the missing record of hearing (5) on the grand jury issue. The Attorney General objected to Brown's affidavit as "merely an incomplete, hearsay recollection of the testimony of other witnesses" and because it was not a "complete recitation of the facts." The trial court refused to accept Brown's affidavit. The effect of his ruling leaves Harris without any relief from the fact that he has no record or alternative evidence of the coram nobis proceedings described as number (5).
On November 7, 1986, Harris filed a "motion for remedy for unavailability of transcripts" before this Court. The Attorney General filed his response on December 12, 1986. Harris replied on December 17, 1986. The Attorney General filed a second response on December 23, 1986. In their pleadings before this Court, both Harris and the Attorney General have filed affidavits which were not presented to the trial court.

II
Because Harris was convicted and sentenced to death, he had a right to appeal and the review of his conviction and sentence was "automatic." Evans v. Britton, 472 F.Supp. 707 (S.D.Ala.1979), reversed on other grounds, 628 F.2d 400 (5th Cir.1980), rehearing denied, 639 F.2d 221 (5th Cir. 1981), reversed, Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), cert. denied, Evans v. Alabama, 462 U.S. 1110, 103 S.Ct. 2461, 77 L.Ed.2d 1339 (1983); Alabama Code 1975, § 12-22-150. *860 "In death cases this court has a standard of review stricter than that for other criminal convictions." Cox v. State, 50 Ala.App. 339, 340, 279 So.2d 143 (1973); Echols v. State, 47 Ala.App. 23, 26, 249 So.2d 639 (1971); Gore v. State, 45 Ala.App. 146, 148, 227 So.2d 432, cert. denied, 284 Ala. 729, 227 So.2d 435 (1969), cert. denied, Gore v. Alabama, 397 U.S. 966, 90 S.Ct. 1002, 25 L.Ed.2d 258 (1970). Our review in death cases is governed by the plain error doctrine which imposes on this Court "the duty to examine the entire record to determine whether any error exists prejudicial to the defendant." Watters v. State, 369 So.2d 1272, 1273 (Ala.1979), overruled on other grounds, Beck v. State, 396 So.2d 645 (Ala.1980); Alabama Code 1975, § 12-22-241; A.R.A.P., Rule 45A. Furthermore, in this particular case, it must be noted that "discrimination in the grand jury undermines the structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review." Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986). A conviction does not "cure the taint attributable to a charging body selected on the basis of race." Hillery, 474 U.S. at 264, 106 S.Ct. at 624. Once it is determined that there was discrimination in the selection of a grand jury, it is "mandatory" and "imperative" that the indictment be quashed and any conviction reversed. Id. Furthermore, racial discrimination in the selection of jurors is not a novel allegation. Compare Preston v. Mandeville, 479 F.2d 127 (5th Cir.1973).
Because Harris has a right to appeal and because he is indigent, the State must afford a "`record of sufficient completeness' to permit proper consideration of [his] claims." Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 781, 9 L.Ed.2d 899, cert. denied, 374 U.S. 850, 83 S.Ct. 1914, 10 L.Ed.2d 1070, cert. denied, 374 U.S. 852, 83 S.Ct. 1919, 10 L.Ed.2d 1073 (1963). However, "[i]t is well established that the lack of a verbatim transcript is not a constitutional defect when a suitable alternative is provided." Harris v. Estelle, 583 F.2d 775, 777 (5th Cir.1978), citing among other cases Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414-415, 30 L.Ed.2d 372 (1971). "Alternative methods of reporting trial proceedings are appropriate particularly where state appellate rules provide a procedure for reconstruction of the trial record, and indigents and nonindigents are treated the same." Harris, 583 F.2d at 777.
It is undisputed that the trial court relied on the evidence and proceedings in the coram nobis hearing in denying certain motions at Harris' second trial, and, further, that the trial court ordered those proceedings included in the record on appeal without objection or protest from the Attorney General. It is also undisputed that the court reporter's notes of the coram nobis proceedings have either been lost or destroyed. Although the Attorney General argues before this Court that Harris did not make a timely request for a transcription of the coram nobis proceedings, an alternative argument has not been advanced that Harris is not entitled to a record of the coram nobis proceedings even if his request for transcription was timely. From the arguments presented to this Court, it appears undisputed that Harris is entitled to some reasonable and sufficient alternative to a transcript of the evidence and proceedings of the 1978 coram nobis hearing, providing he was not at fault in requesting a transcription of those proceedings. Ex parte Steen, 431 So.2d 1385 (Ala. 1983); Pope v. State, 345 So.2d 1385 (Ala.), on remand, 345 So.2d 1388 (Ala.Cr.App. 1976), cert. dismissed, 345 So.2d 1390 (Ala. 1977).
The issue of whether Harris made a timely request for a transcription of the coram nobis hearing has not been fully litigated in the trial court. Even Harris recognizes that his request for a transcription of the 1978 coram nobis proceedings was only made "[a]s early as February 12, 1982." See Harris' "Reply to the State's Response to Defendant's Motion for Remedy for Unavailability of Transcripts," p. 3 (filed in the Alabama Court of Criminal Appeals on December 17, 1986).
This issue of the timeliness of the request for the transcription is best resolved in the trial court. The same supernumerary *861 circuit court judge has presided over all the proceedings in this case from Harris' first trial in 1976 until the present. During this time, both Harris and the State have been represented by different attorneys. It appears that the judge and Harris himself are the only participants who have been continually and consistently involved in the criminal prosecution and conviction of Harris for his alleged actions in the Atmore Prison riot of 1974. Moreover, if the trial court determines that Harris made a timely request for a transcript, it will be in the best position to re-create that record. "Disputes about the content of the record are best resolved by the trial court, before the judge who heard the evidence and is likely to recall what was said and done. Appellate courts are at a disadvantage in confronting claims of incorrect trial records because they have little or no basis upon which to determine what happened below." Vaughn v. Britton, 740 F.2d 833, 836 (11th Cir.1984), cert. denied, 469 U.S. 1163, 105 S.Ct. 920, 83 L.Ed.2d 932 (1985); Perkins v. Perkins, 465 So.2d 414, 415 (Ala.Civ.App. 1984).
If the trial court finds that Harris was not at fault in requesting a record of the coram nobis proceedings, it must then either provide Harris with a sufficient alternative to a transcript, grant him a new trial, Steen, supra, or quash the indictment. Sutton v. Lash, 576 F.2d 738, 745 (7th Cir.1978); Pate v. Holman, 341 F.2d 764, 777 (5th Cir.), opinion modified, 343 F.2d 546 (5th Cir.1965). If the trial court endeavors to provide Harris with a record, the burden will be on the State to provide an "effective alternative." "[W]here the grounds of appeal, ... make out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript or an `alternative' will suffice for an effective appeal on those grounds." Mayer, 404 U.S. at 195, 92 S.Ct. at 415. "A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight." Britt v. North Carolina, 404 U.S. 226, 230, 92 S.Ct. 431, 435, 30 L.Ed.2d 400 (1971). The State's burden in this case will be substantial because of the stricter standard of review in death cases and because Harris is represented by new appellate counsel who did not participate in the prior proceedings. United States v. Upshaw, 448 F.2d 1218, 1223 (5th Cir.1971), cert. denied, Upshaw v. United States, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972).
Here, Harris has exercised his duty to either submit a correct record on appeal or call the court's attention to any omission or error in the trial record. Vaughn, 740 F.2d at 836; Welch v. State, 455 So.2d 299 (Ala. Cr.App.1984). If the Attorney General objects to Harris' "statement of the evidence or proceedings from the best available means, including his recollection," pursuant to A.R.A.P., Rule 10(d), and does not "propose amendments thereto" but merely objects so that the trial court is unable to "settle" anything and reconstruct the record, Harris must be afforded a new trial or the indictment must be quashed. Rule 10(d) anticipates that the State's "objections or proposed amendments" to the appellant's statement of the evidence will enable the trial court to create a correct and accurate record. The provision of Rule 10(f) that "any difference ... as to whether the record truly discloses what occurred in the trial court" shall be submitted to and settled by the trial court contemplates this same result. Reduced to its simplest terms, the facts are that, if Harris is entitled to a record of the 1978 coram nobis hearing and a record of that hearing cannot be reconstructed, then Harris is at least entitled to a new trial.
We do not sanction the Attorney General's recommendation that on remand Harris be allowed to present evidence that the grand jury which returned the indictment against him was unconstitutionally selected. That relief is not authorized by Rule 10, which exists to allow the record on appeal to be conformed to what happened, not to what did not. See United States v. Smith, 493 F.2d 906, 907 (5th Cir.1974). As it applies to this case, the rule does not authorize the creation of a new record, but *862 merely the re-creation, or reconstruction, of a record of past proceedings.
This cause is remanded for an evidentiary hearing consistent with the dictates of this opinion. A record shall be made of that hearing and the trial court shall state its findings and conclusions in a written order. The transcript of the hearing and the court's written order shall then be made a part of the record on appeal in the case of Harris v. State, 1 Div. 695.
REMANDED WITH DIRECTIONS.
All Judges concur.

ON RETURN TO REMAND
BOWEN, Presiding Judge.
On January 27, 1987, this court remanded this cause for an evidentiary hearing and directed the trial court to determine whether the defendant made a timely request for the transcription of a 1978 coram nobis proceeding concerning the composition of the grand jury which indicted him in 1975. We directed the trial court, if it determined that the defendant was not at fault in requesting a record of the coram nobis proceedings, to "provide Harris with a sufficient alternative to a transcript, grant him a new trial, ... or quash the indictment." See page 861 (citations omitted).
Before the trial court conducted a hearing pursuant to our remand, the United States Supreme Court, on June 22, 1987, decided the case of Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987), holding that a mandatory death sentence imposed upon a prison inmate who is convicted of murder while serving a life sentence without possibility of parole violates the Eighth and Fourteenth Amendments. Prior to the September 30, 1987, hearing held pursuant to our remand, defense counsel filed with the trial court a motion "for relief in light of the decision of the United States Supreme Court in Sumner v. Shuman."
At the September 30 remand hearing, the trial court did not rule on the timeliness of the defendant's request for a transcript or make any findings regarding the specific issues which were the subject of the remand from this court. Instead, the trial court entered the following order:
"The Court having conducted a hearing and the Defendant, Johnny Harris, being present and his attorneys being present, and the State being represented by its attorney, on the Motion for Relief in Light of the Unconstitutionality of Section 319, it is the determination that the sentence of death of Johnny Harris should be set aside. It is hereby ordered by the Court that Johnny Harris' sentence to death has been set aside and he is now returned to prison or penitentiary for such action by the prison authorities of Alabama as may be consistent with this order. Dated this 30th day of September, 1987."
After the court announced its order setting aside the defendant's death sentence, the following occurred:
"MS. BOURQUIN [Defense Counsel]: I gather that your opinion would be that there's no need to get to the question of the lost transcripts in light of the order that you just entered.
"MR. WASDEN [Assistant Attorney General]: That was the matter that the Court of Criminal Appeals directed us to consider here today, Your Honor. The only matter. Unless Mr. Harris' counsel is representing to the Court that his appeal of that conviction is going to be dropped then I would think that it would necessarily not be moot.
"MS. BOURQUIN: Well, I think it would be very difficult for us to make a decision at this point on whether or not we will appeal just the conviction and that we would be ready to proceed on the transcript questions if Your Honor was so inclined, but it may be that it makes as much sense for the defendant's counsel to have time to evaluate whether or not there would be an intent to continue with the appeal on the question of the conviction and the indictment before getting to the question of the lost transcript.
"THE COURT: As I stated I think that the Court is of the opinion that Johnny *863 Harris should not suffer the death penalty and he shall not suffer the death penalty, but that he will be returned to the prison authorities for their proper handling.
"Now, are you opposed to any of that? "MR. GUZY [Defense Counsel]: No, Your Honor, we would just like to preserve for the record our rights to go ahead and continue to raise challenges to the missing transcripts if it ever becomes necessary for us to challenge the indictment and conviction itself.
"THE COURT: I don't guess the State has any objection.
"MR. GUZY: Is that acceptable to Your Honor?
"MR. WASDEN: It's constitutional, Your Honor. No objection to it.
"THE COURT: Anything else by anybody?
"MR. GUZY: No, Your Honor. (End of proceedings.)"
The transcript of the September 30 hearing was then certified and transmitted to this court on return to remand.
The defendant argues that the trial court's September 30 order setting aside his death sentence is final, unappealable and not subject to review by this court on return to remand. He maintains that "[t]his Court's jurisdiction over this case at the time of its Remand Order was and is now limited to the missing transcript issues," and he argues that, "Jurisdiction with respect to the remainder of the case still resides in the Circuit Court, pending transcription and transmission of a complete record on appeal." Brief of Defendant in Support of Motion to Quash Return to Remand Order at 9. This court's jurisdiction, however, was invoked on July 26, 1983, when the notice of appeal was filed. See Rules 3(a)(2) and 4(b), A.R.A.P.; Johnson v. State, 421 So.2d 1306, 1314 (Ala.Cr. App.1982) (on rehearing). Once notice of appeal has been filed, the trial court retains jurisdiction only for limited purposes, see Ala.Code 1975, § 12-22-133; Johnson v. State, supra.
The State argues that the trial court's order setting aside the defendant's death sentence was improper because it was not within the specific mandate of this court's remand on the transcript issues. We find that although the trial court's order setting aside the defendant's sentence was outside the specific issue directed to be resolved on remand, it was not inconsistent with the directions from this court on remand, and, therefore, not improper. "On remand, the trial court may consider and decide any matters left open by the appellate court and is free to make any order or direction in further progress of the case, not inconsistent with the decision of the appellate court, as to any question not presented or settled by such decision." 5 Am.Jur.2d Appeal and Error § 992 at 419-20 (1962).
In the interest of judicial economy, however, we will not order a further remand for the resolution of the transcript issues for two reasons. First, given defense counsel's stated desire "to have time to evaluate whether or not there would be an intent to continue with the appeal on the question of the conviction and the indictment before getting to the question of the lost transcript," it is possible that such a resolution might not be necessary. Second, as the State points out, the Alabama Supreme Court has consented to answer a question of state law certified to it by the United States District Court for the Southern District of Alabama which will undoubtedly have a direct bearing on any re-indictment or retrial of the defendant, should such a retrial be necessary in the event of the unavailability of the transcripts in question.
The Alabama Supreme Court has agreed to answer the question, in Donald Thigpen v. Morris Thigpen, et al., No. 82-0456 (S.D.Ala.) (pending), whether in light of Sumner v. Shuman, supra, a life-term inmate convicted of murder and given a mandatory death sentence under the same statute as defendant was convicted and sentenced under, may be capitally resentenced according to the procedures outlined in Beck v. State, 396 So.2d 645 (Ala.1980), superceded on other grounds, Magwood v. *864 State, [Ms. 4 Div. 838, August 18, 1987] (Ala.Cr.App.1987), or must simply have his sentence reduced to life imprisonment.
We express no opinion regarding the order entered by the trial court on September 30, 1987. We direct that all further proceedings relating to the defendant's conviction and sentence pursuant to title 14, § 319 (including the transcripts of a coram nobis proceeding challenging the grand jury which indicted him) be held in abeyance pending the answer of the Alabama Supreme Court to the question certified in Donald Thigpen v. Morris Thigpen, et al., No. 82-0456 (S.D.Ala.) (pending).
OPINION EXTENDED;
CAUSE HELD IN ABEYANCE.
All Judges concur.

ON MOTION FOR REMEDY FOR UNAVAILABILITY OF TRANSCRIPTS
BOWEN, Judge.
This opinion is a sequel to our opinions of January 27, 1987, and December 8, 1987, involving Johnny Harris's conviction for murder and sentence to death. This matter is presently before this Court on Harris's "motion for remedy for unavailability of transcripts" pursuant to Rule 10, A.R.A.P.

I
In our opinion of January 27, 1987, this Court remanded this cause to the circuit court with instructions that an evidentiary hearing be held to determine whether Harris made a timely request for a transcript of the coram nobis proceedings, and, if that request were timely, that the circuit court either provide Harris with a sufficient alternative to a transcript, order a new trial, or quash the indictment. On remand, the circuit court did not comply with our request, but set aside Harris's sentence of death.
On December 8, 1987, this Court, on return to remand, entered an order directing that all further proceedings in this case be held in abeyance pending the answer of the Alabama Supreme Court to the certified question from the United States District Court for the Southern District of Alabama in the case of Donald Thigpen v. Morris Thigpen, Commissioner, Alabama Department of Corrections, et al. (Civil Action No. 82-0456-BH). At the hearing held in circuit court on September 30, 1987, in response to our order of January 27, 1987, the assistant attorney general recognized the Thigpen case as being "determinative of [some of] the issues" presented in Harris's case.
On May 10, 1989, the Alabama Supreme Court answered the certified question and held that Donald Thigpen's sentence to death under Title 14, § 319, Ala. Code 1940 (Recompiled 1958), for a conviction of murder in the first degree while serving a sentence of life imprisonment "[u]ndeniably ... must be vacated." Thigpen v. Thigpen, 541 So.2d 465 (Ala.1989). In reaching that result, the court relied on the opinion of the United States Supreme Court in Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987), which held that the Eighth and Fourteenth Amendments to the Constitution of the United States prohibit the imposition of a mandatory death sentence, without consideration of mitigating factors, on a prisoner who, while serving a life term for first degree murder, murders a fellow inmate.
In Thigpen, the Alabama Supreme Court held that "under the clear, absolute mandate of the Alabama constitution, Thigpen cannot be resentenced to death."
"Section 319 was the only death penalty law established and promulgated prior to Thigpen's offense and still in effect at that time. Because § 319 is unconstitutional [under Sumner], it cannot be `legally applied' to impose the death penalty on Thigpen. See art. 1, § 7, of the Alabama Constitution [`no person shall be punished but by virtue of a law established and promulgated prior to the offense and legally applied']." Thigpen, 541 So.2d at 467.
In Thigpen, the Alabama Supreme Court also held that Thigpen could be resentenced to life imprisonment.
"At the time of Thigpen's offense and trial, § 314 defined the offense of first degree murder and §§ 318 and 319 specified *865 the available punishments therefor. Of those punishments, only the life sentence provided for in § 318 is still valid. Therefore, assuming Thigpen's challenge to his conviction is ultimately unsuccessful, an order similar to that issued in Hubbard [v. State, 290 Ala. 118, 274 So.2d 298 (1973)] could presumably be appropriately entered by a court having jurisdiction of the cause." Thigpen [on application for rehearing], 541 So.2d at 468.
Harris's sentence to death is unconstitutional and cannot stand even if his conviction for murder is later affirmed. We perceive no reason for delay. Therefore, on authority of Sumner and Thigpen, it is the order of this Court that the sentence of death imposed on defendant Harris on July 26, 1983, be vacated and reduced to a sentence of life imprisonment.

II
As noted in Part I of this opinion, the circuit court did not follow the instructions of this Court in its order of January 27, 1987, and make a determination of whether or not Harris filed a timely request for a transcript of his 1978 coram nobis proceedings. Despite that omission, we reject the Attorney General's recommendation that this Court again remand this case so that the circuit court can now make that determination.
Although the circuit court did not answer the question we posed, the parties did enter into a stipulation of the facts surrounding this issue. That stipulation appears in the record before this Court as follows:

"STIPULATION
"The following facts are hereby stipulated by and between undersigned counsel for Defendant/Appellant Johnny Harris and Plaintiff/Appellee State of Alabama. These facts relate to the issue of the timeliness of Mr. Harris's request for a copy of the now missing transcript of the coram nobis proceedings discussed in the decision issued on appeal in this case (1 Div. 695) by the Alabama Court of Criminal Appeals on January 27, 1987 on Mr. Harris's Motion for Remedy for Unavailability of Transcripts:
"1. The 1978 evidentiary hearing concerning the alleged underrepresentation of blacks and women in the pool from which the grand jury that indicted Mr. Harris was drawn, which was incorporated into the record of this case and which is now unavailable, was conducted in conjunction with Mr. Harris's petition for writ of error coram nobis following his 1975 conviction. This Court's decision on that petition was not filed until July 1, 1981three years after the hearing in question was conducted. The petition was granted in part and denied in part, resulting in the invalidation of Mr. Harris's 1975 conviction and death sentence. (See Exhibit A hereto).
"2. On August 3, 1981, the State of Alabama filed a Notice of Appeal from this Court's partial grant of Mr. Harris's petition for writ of error coram nobis. That appeal was dismissed on August 12, 1981. On August 26, 1981, the State filed an Application for Rehearing of the dismissal of that appeal. That Application was overruled on August 27, 1981. On September 9, 1981, the State filed a Petition for Writ of Certiorari with the Alabama Supreme Court. That Petition was pending until November 6, 1981, when it was denied. (See Exhibit B hereto).
"3. This Court [circuit court] first ordered that Mr. Harris be retried in an Order filed on December 28, 1981, which set the first pretrial hearingMr. Harris's arraignmentfor February 12, 1982. (See Exhibit C hereto).
"4. On February 12, 1982, at that first pretrial hearing, Mr. Harris filed a motion requesting a copy of a transcript of the coram nobis hearing. (See Exhibit D hereto).
"Stipulated this 30th day of September, 1987:"
This stipulation was signed by an assistant attorney general as "Counsel for Plaintiff/Appellee State of Alabama" and both "Counsel for Defendant/Appellant Johnny *866 Harris." The stipulation was not signed by the trial judge.
A primary consideration of this Court in remanding this case to the circuit court on January 27, 1987, for a determination of the timeliness of Harris's request for a transcript was the personal knowledge and participation of Supernumerary Circuit Court Judge Leigh M. Clark, to whom this case was assigned and who had presided over all of the judicial proceedings arising from the criminal prosecution of Harris since 1974. As we observed in that opinion, "It appears that the judge and Harris himself are the only participants who have been continually and consistently involved in the criminal prosecution and conviction of Harris for his alleged actions in the Atmore Prison riot of 1974." Harris, at p. 861.
Since our order on return to remand on December 8, 1987, Judge Clark has suffered a serious physical illness rendering his further participation in this cause, in any capacity and to any degree, whether as judge or witness, absolutely impossible. A remand of this cause for any reason would necessitate the appointing of a new circuit court judge. That judge would have no personal knowledge of the lengthy proceedings in this case. That judge's decision on the timeliness of Harris's request for a transcript would of necessity be based on the argument of the attorneys and on the records of the past proceedings. In this particular matter, he would be in no better position than this Court to decide the issues and would, in fact, be at a serious disadvantage.
Harris was convicted (for a second time) in 1983. Still, in 1989, on the direct appeal of that 1983 conviction, the case has yet to be submitted to this Court for a decision on the merits. Now, Harris insinuates that he may not wish to pursue this appeal. Appellant's brief filed May 2, 1989, pp. 6-7. The Attorney General argues that this Court should again remand this cause so that compliance can be had with our directions of January 27, 1987. Under the circumstances present, that would be a very slow, arduous, and difficult task for any judge unfamiliar with the tangled procedural history and present posture of this case. This case cries out for some degree of finality. Both the State, represented by the Attorney General, and Harris himself deserve some decision on the merits as soon as reason and justice will permit. Therefore, based on all of the above circumstances and especially on the inability of the original trial judge to shed any light on the issues presented, this Court is of the opinion that this matter should not be remanded for an evidentiary hearing in the circuit court. Instead, in fairness to all the parties, this Court hereby orders that briefs be filed on the issues of the timeliness of Harris's request for a copy of the transcript of the coram nobis proceedings, and the remedy available to Harris if this Court should find that his request was timely. Harris shall file his brief within 21 days from the date of this opinion. The Attorney General shall file his brief within 21 days from the date Harris files his brief with this Court.
Done this the 16th day of June 1989.
Order issued.
All Judges concur.


71 F.3d 868
76 A.F.T.R.2d 95-7707, 95-2 USTC  P 50,633
FAIRCHILD INDUSTRIES, INCORPORATED, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee.
No. 94-5116.
United States Court of Appeals,Federal Circuit.
Nov. 29, 1995.As Modified Feb. 23, 1996.

Albert G. Lauber, Jr., Caplin & Drysdale, Chartered, Washington, D.C., argued for plaintiff-appellant.  With him on the brief were Ralph A. Muoio and Julie W. Davis.
Steven I. Frahm, Attorney, Department of Justice, Washington, D.C., argued for defendant-appellee.  With him on the brief were Loretta C. Argrett, Assistant Attorney General, Gary R. Allen and Jonathan S. Cohen, Attorneys.
Alexander Zakupowsky, Jr. and Alan I. Horowitz, Miller & Chevalier, Chartered, Washington, D.C., were on the brief for the Amicus Curiae, Aerospace Industries Association of America, Inc.
Before RICH, NEWMAN, and SCHALL, Circuit Judges.
NEWMAN, Circuit Judge.

1
This case requires interpretation of the statute governing research tax credits under section 44F of the Internal Revenue Code of 1954, as applied to certain of the research costs incurred by Fairchild Industries, Inc. in a fixed-price incentive contract with the government.  On Fairchild's appeal of the decision of the United States Court of Federal Claims,1 we conclude that the court erred in its interpretation of the statute and regulations.

THE RESEARCH TAX CREDIT

2
The research tax credit was established by the Economic Recovery Tax Act of 1981, Pub.L. No. 97-34, Sec. 221(a), 95 Stat. 172, 241.2  Section 44F provides a tax credit of 25% of increased research expenditures compared with a baseline measured by the previous three years' research expenditures:

3
GENERAL RULE--There shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to 25 percent of the excess (if any) of--

4
(1) the qualified research expenses for the taxable year, over

5
(2) the base period research expenses.

6
I.R.C. Sec. 44F(a);  26 U.S.C. Sec. 44F(a).  Section 44F(d) defines "qualified research":

7
QUALIFIED RESEARCH--For purposes of this section the term "qualified research" has the same meaning as the term research or experimental has under section 174, except that such term shall not include--

8
(1) qualified research conducted outside the United States,

9
(2) qualified research in the social sciences or humanities, and

10
(3) qualified research to the extent funded by any grant, contract, or otherwise by another person (or any governmental entity).

11
The tax code does not define "funded" as the term is used in Sec. 44F(d)(3).  However, Treasury Regulation Sec. 1.41-5(d)(1), 26 C.F.R. Sec. 1.41-5(d)(1), sets the criterion for "funded" on which this case turns, viz. whether payment for the research is "contingent on [its] success":

12
In general.   Research does not constitute qualified research to the extent it is funded by any grant, contract, or otherwise by another person (including any governmental entity).  All agreements (not only research contracts) entered into between the taxpayer performing the research and other persons shall be considered in determining the extent to which the research is funded.  Amounts payable under any agreement that are contingent on the success of the research and thus considered to be paid for the product or result of the research (see Sec. 1.41-2(e)(2)) are not treated as funding.

13
The regulations contain "mirror image" rules for determining when the customer for the research, rather than the researcher, is entitled to claim the tax credit.  In accordance with Treasury Regulation Sec. 1.41-2(e)(2) the contractual arrangement is the factor that determines who is entitled to the tax benefit, for the customer may claim the credit only if the agreement requires the customer to pay for the research even if it is unsuccessful.  If, however, the customer need not pay unless the research is successful, the customer has "paid for the product or result rather than the performance of the research" and can not claim the tax credit because it has assumed no risk.  Id.  Thus, the regulations implement allocation of the tax credit to the person that bears the financial risk of failure of the research to produce the desired product or result.

14
Congress intended that the research tax credit would provide an incentive to American industry to invest in research.  The overarching purpose was to "reverse [the] decline in research spending by industry" and to induce companies "to bear the significant costs ... which must be incurred to initiate or expand research programs in a trade or business."   Staff of Jt.Comm. on Taxation, 97th Cong., 1st Sess., General Explanation of the Economic Recovery Tax Act of 1981 120-21 (Jt.Comm.Print 1981).  The House Report further explained that:

15
The committee believes that a substantial tax credit for incremental research and experimental expenditures will overcome the resistance of many businesses to bear the significant costs of staffing, supplies, and certain computer charges which must be incurred in initiating or expanding research programs.

16
H.R.Rep. No. 201, 97th Cong., 1st Sess. 111 (1981).

17
The legislative evolution of I.R.C. Sec. 44F records the care with which this provision was written, from an initial bill that exempted all research "performed for another person," to the later bill that as amended and enacted contained the "funded" qualification.  The Joint Committee Print recognized the substantive change whereby the bill as enacted denied the credit only when research was "funded" by another, whether or not it was performed for another.  Moreover, the implementing regulations explicitly state that the credit is available even when another entity pays for the research, provided that the payment is contingent on the success of the research.  Treas.Reg. Sec. 1.41-5(d)(1).

18
The issue is the application of I.R.C. Sec. 44F and implementing regulations to Fairchild's contract with the Air Force.

THE FIXED-PRICE INCENTIVE CONTRACT

19
In July 1982 Fairchild and the Air Force entered into a fixed-price incentive contract3 whereby Fairchild would design and produce the T-46A aircraft, a "next generation trainer" (NGT) intended for use in training new pilots.  The T-46A contract included a full-scale development (FSD) phase and a production phase.  In the FSD phase Fairchild was to develop and deliver two prototype aircraft and all necessary support systems.  In the production phase, Fairchild was to produce and deliver a target quantity of fifteen additional aircraft.  The tax credits at issue relate solely to the FSD phase.

20
The contract contained over 1,000 pages of technical specifications that required Fairchild to meet specific design, construction, quality, and performance standards.  Fairchild was to bear "total system responsibility" for the installation and integration of all T-46A aircraft elements, described in the contract as follows:

21
Total System Responsibility is the responsibility for the installation and integration of the NGT system elements, i.e., its systems, subsystems, components, support equipment, and software/data;  including the responsibility for undertaking any and all actions necessary to assure that the total system will meet all requirements as defined in the system specification, 210S100001 dated 21 Apr 82, the Air Vehicle Prime Item Development Specification, 210S310001 dated 21 Apr 82 and the Support Equipment General Specification, 210S1200001 dated 21 Apr 82, all as identified in Section J of this contract.  The contractor hereby accepts Total System Responsibility for the NGT System, whether or not its elements are fabricated, manufactured, or assembled by the Prime Contractor, Subcontractor, Vendor/Supplier, or furnished as GFP.

22
The T-46A aircraft contract provided that the Air Force was obligated to pay for the research only if Fairchild produced results that met the contract specifications, in accordance with certain provisions of the Defense Acquisition Regulations (DAR).  Fairchild was entitled to payment only for work product delivered and accepted.  DAR 7-302.2 (1976).  The contract contained quality assurance procedures whereby the Air Force would evaluate Fairchild's work.  If the work was deemed unacceptable, the Air Force could either (1) reject the work, (2) require Fairchild to correct the work at its own expense, or (3) accept the work subject to an equitable price reduction.  DAR 7-302.4 (1976).  The contract provided that the Air Force could terminate the contract either for default or for the convenience of the government.  DAR 7-302.9(a) (1976) (termination for default);  DAR 7-103.21(b) (1976) (termination for convenience).

23
The financing provisions of the contract provided that, if Fairchild was making satisfactory progress, the Air Force would pay bimonthly refundable advances, termed "progress payments," calculated as a percentage of the expenditures Fairchild actually incurred.  DAR 7-104.35(a) (1981).  Fairchild had no right to retain the progress payments unless the contract line items to which they applied were delivered and accepted.  DAR 7-104.35(a), (b) (1981).  After formal acceptance of a specific contract line item the progress payment was "liquidated" by crediting it against the total fixed price.  In the event the Air Force terminated the contract for default, the contract provided that all unliquidated progress payments were repayable to the Air Force.  DAR 7-104.35(h) (1981).

24
The amended total ceiling price for the FSD phase was $133,485,885.  The work was subdivided into eleven contract line items that were separately priced.  During 1982-86 Fairchild spent $216,056,000 for the FSD phase of the T-46A contract.  By the time Congress cancelled the T-46A program in late 1986, the Air Force had paid Fairchild $53.0 million for successfully completed work and another $60.8 million in progress payments that remained unliquidated.  Fairchild and the Air Force agreed to termination for convenience terms.  An Air Force audit showed that Fairchild had successfully completed 90% of the FSD work and was entitled to payment of $120.6 million.  The $53.0 million in liquidated progress payments and the $60.8 million in unliquidated progress payments were applied to this obligation, and the remaining $6.8 million was paid.

25
On its 1982-1985 federal income tax returns Fairchild reported a total of $109.4 million of qualified research expenses related to the FSD phase.  The Internal Revenue Service disallowed approximately $19.6 million of the reported expenses for reasons not related to this appeal.  Of the remaining $89.8 million the Service disallowed 55.8%, or $50.3 million, as having been "funded" by the Air Force within the meaning of I.R.C. Sec. 44F(d)(3).  This 55.8% figure represents the ratio of the FSD costs the Air Force ultimately paid ($120.6 million) to Fairchild's total FSD costs ($216.1 million).  As a consequence of its decision that the Air Force "funded" 55.8% of Fairchild's research, the Service disallowed $5.8 million in research tax credits claimed by Fairchild for the 1983 and 1984 tax years.4

DISCUSSION

26
The interpretation of a statute and regulations is subject to plenary review.  Kane v. United States, 43 F.3d 1446, 1448 (Fed.Cir.1994).  The question is whether Fairchild's research expenses were correctly deemed "funded" within the meaning of I.R.C. Sec. 44F(d)(3) and the Treasury regulations.  The Court of Federal Claims so held, based on its interpretation that the availability of the tax credit turns on the likelihood that the Air Force would pay Fairchild for the research conducted under the contract.  The court stated that Fairchild expected that it would be paid and was paid for the research.  The court held that since Fairchild "did not itself incur" the research expenses because the expenses were "funded" by the government, it was not entitled to the tax credit.  30 Fed.Cl. at 850-51.

27
* Fairchild's position is that the Air Force "funded" no part of the research because Fairchild's right to payment was "contingent on the success of the research," within the text and intent of the statute and Treasury Regulation Sec. 1.41-5(d)(1).  Fairchild argues that research is not "funded" by the customer, here the Air Force, if both (1) payment to the researcher is contingent on the success of the research and (2) the researcher retains substantial rights in the research.  We need not decide if this is the correct test in all circumstances, for in this case the parties agree that Fairchild meets the second prong of this proposed test.  Thus the only issue is whether payment was contingent on the success of the research.

28
The government's position is that the determination of whether research is "funded" does not depend on whether the contract reserves to the government the right not to pay for unsuccessful research.  The government states in its brief that payment for the research must be "unexpected or surprising" in order for the contractor to claim the credit;  that the credit depends on the "relative likelihood that the sponsor ... will pay";  and that "payment [is] the benchmark in determining whether a sponsor or researcher is entitled to the credit."   The Court of Federal Claims correctly held that the availability of the credit does not depend on whether the researcher is in fact paid;  it depends, as stated in Treasury Regulation Sec. 1.41-5(d)(1), on whether, by the terms of the research agreement, payment is contingent upon development of a specified "product or result," to be paid "contingent on the success of the research."

29
However, the Court of Federal Claims erred in holding that Fairchild "did not itself incur" the research expenditures because Fairchild received payments under the contract as its research progressed.  The court concluded that because the Air Force advanced money to Fairchild in the form of progress payments and Fairchild expected that it would be paid for the research, "Fairchild's right to payment was not 'contingent' on success as that term is used in the regulation."  30 Fed.Cl. at 850.  The court held that it was not controlling that the contract provided for return of the progress payments if the project were not successful, because through the progress payments Fairchild "was spending the government's money to conduct the T-46A research, not its own."  30 Fed.Cl. at 850.

30
The Court of Federal Claims incorrectly construed the contract between Fairchild and the Air Force.  The court concluded that although Fairchild argued that it assumed the risk under the contract, "[t]he facts state otherwise."  30 Fed.Cl. at 849.  We disagree.  That many of the line items would be successfully produced, such that the progress payments for those items would be liquidated, was not known until the work was successfully done and was accepted by the Air Force.  It is incorrect for the court to change, upon successful completion of the contract, the allocation of risk that was established in the contract and was present throughout its performance.

31
Treasury Regulation Sec. 1.41-5(d)(1) provides that for the researcher to claim the credit, the amounts payable under the agreement must be contingent on success.  The inquiry turns on who bears the research costs upon failure, not on whether the researcher is likely to succeed in performing the project.  When payment is contingent on performance, such as the successful research and development of a new product or process, the researcher bears the risk of failure.  Whatever risk Fairchild was bearing, the Air Force bore none of it, for the Air Force was liable for payment only when the work, line item by item, succeeded and was accepted.

32
The contract explicitly placed solely on Fairchild the risk of failure of every line item of FSD.  The items to be produced were not commodities:  all required research, development, and testing, to meet complex contract specifications.  DAR 7-302.4(a) (all work subject to inspection and testing before acceptance);  DAR 7-302.2 (payment under the contract made only after acceptance).  Fairchild had no right to payment until it fully succeeded in each phase of the project.  Undoubtedly Fairchild did not expect to fail in many of these items, perhaps in none of them;  and as each line item was successfully completed and accepted and the progress payments for that item liquidated, Fairchild's total exposure was reduced.  However, Fairchild remained at risk for each line item until the research was successfully completed and the product of the research was accepted.

33
That Fairchild received "advances" or "progress payments" during the course of performance did not alter the contract provision that Fairchild was not entitled to retain any such payments if it did not successfully produce the product to which the payment related.  A progress payment does not commit the agency to accept unsuccessful performance, or to make full or partial payment if the product is not successfully produced.  Marine Midland Bank v. United States, 231 Ct.Cl. 496, 687 F.2d 395, 398, 401 (1982) (progress payments are loans from the government, to be repaid from the contract price on full performance;  progress payments are not partial purchases), cert. denied, 460 U.S. 1037, 103 S.Ct. 1427, 75 L.Ed.2d 788 (1983).  See Nuclear Research Corp. v. United States, 814 F.2d 647, 651 (Fed.Cir.1987) (requiring return of unliquidated progress payments).

34
The Court of Federal Claims placed weight on whether the researcher itself provided the cash to pay the bills as the work proceeded, in which case the court deemed that the researcher was "assuming the risk that the sponsor will not pay," 30 Fed.Cl. at 849, and thus would be entitled to the credit.  Since the Air Force "advanced" funds to Fairchild by way of progress payments, the court denied the credit.  The court did not distinguish between "funding," as that term is used in the statute, and the mechanics of financing.  However, the contractual relationship that establishes the "funding" also controls who is entitled to the credit, for the contract controls who bears the financial risk of failed research.  Treas.Reg. Sec. 1.41-5(d).  The government may choose to make progress payments as opposed to having the contractor obtain commercial financing, for the government has the lowest cost of borrowing (thus reducing the contract price), and this arrangement gives the government a priority security interest in the contractor's work product.  See 10 U.S.C. Sec. 2307(a)(1) & (d) (authorizing agency heads to make advance, partial, progress, or other payments only if the contractor gives adequate security);  Marine Midland Bank, 687 F.2d at 399 ("the government takes a security interest in the contractor's inventory, to secure the funds loaned to the contractor through progress payments").

35
The system of progress payments does not change their character from a loan to an unrecoverable partial payment.  Id.  Whether or not a congenial "relationship between the parties" might lighten the contractor's risk, as the Court of Federal Claims suggests, the contract itself does not reflect this possibility.  Indeed, the record before the Court of Federal Claims was that the Air Force several times reduced the progress payments, and that Fairchild had incurred unrecovered research costs in excess of $95 million in the FSD phase.  An amicus curiae cites McDonnell Douglas Corp. v. United States, 25 Cl.Ct. 342, 345 (1992), wherein the government demanded that General Dynamics and McDonnell Douglas return more than $1.35 billion in unliquidated progress payments, and Boeing Co. v. United States, 25 Cl.Ct. 441 (1992), rev'd on jurisdictional grounds, 991 F.2d 811 (Fed.Cir.1993) (Table), reporting that the government had demanded return of over $605 million in progress payments.  Both cases have been vigorously litigated and neither is reported as having been resolved.

B

36
The government takes the position that only under unusually risky and uncertain fixed-price incentive contracts might the researcher be entitled to the tax credit.  The government concludes that in almost all situations the credit will not be available because the contractor expects to perform as the contract contemplates, especially when contracting with a governmental body.  The government's position is that availability of the credit need not (and can not) be decided until the project is over and the magnitude of the researcher's risk of nonpayment is known.  This theory contravenes the declared intent of Congress, for the statute and regulations make none of these distinctions.

37
This is an incentive statute, designed to divert additional resources to research by reducing the cost of that additional research.  Thus the tax credit must be a known factor when making decisions to commit money to research.  In harmony with the incentive purpose, the regulations state that the research agreement must be "entered into prior to the performance of the qualified research."   Treas.Reg. Sec. 1.41-2(e)(2)(i).

38
The statute is designed so that those who will bear the risk of financial loss can include the tax credit in their calculation of investment risk.  The tax credit can not be an effective incentive if its availability is unknown until after the research money is spent.  The government emphasizes what it calls the "wait and see" regulation, Treasury Regulation Sec. 1.41-5(d)(5), which states that:

39
If at the time the taxpayer files its return for a taxable year, it is impossible to determine to what extent particular research performed by the taxpayer during that year may be funded, then the taxpayer shall treat the research as completely funded for purposes of completing that return.  When the amount of funding is finally determined, the taxpayer should amend the return ... to reflect the proper amount of funding.

40
The government argues that this regulation means that if research "is arguably close to the line of not funded" the taxpayer must pay the full tax and wait and see whether the customer chooses to pay for the research.  That is not, however, the focus of this regulation.  This regulation by its terms applies only when it is not possible to determine the precise extent of funding at the time the researcher's tax return is filed, for example in joint-venture and other situations illustrated in Treasury Regulation Sec. 1.41-5(d)(6).  The regulation does not relate to whether there is "argument" about who provided the funding, but to when the taxpayer obtains the information needed to allocate the credit.

41
The "wait and see" provision has no impact on Fairchild's fixed-price incentive contract, for that contract expressly authorizes the government to decline payment if the research is not successful.  Thus such research is not "funded" as that term is defined in the statute and regulations.

Conclusion

42
Fairchild's qualified research expenses under the T-46A aircraft contract were not "funded," as that term is used in Sec. 44F of the Internal Revenue Code of 1954 and Treasury Regulation Sec. 1.41-5(d).  Fairchild is entitled to the research tax credit.  The decision of the Court of Federal Claims is reversed.  The case is remanded to the Court of Federal Claims for further proceedings to determine the amount of Fairchild's qualified research expenses.

Costs

43
Costs are taxed in favor of Fairchild.

44
REVERSED.

1
 Fairchild Indus., Inc. v. United States, 30 Fed.Cl. 839 (1994)

2
 The Tax Reform Act of 1984, Pub.L. No. 98-369, Secs. 471(c), 474(i)(1), 98 Stat. 494, 826, 831 redesignated Sec. 44F as Sec. 30 of the Internal Revenue Code of 1984.  The Tax Reform Act of 1986, Pub.L. No. 99-514, Sec. 231(d)(2), 100 Stat. 2085, 2178 redesignated Sec. 30 as Sec. 41 of the Internal Revenue Code of 1986.  We shall continue to refer to Sec. 44F, the designation in effect for the tax years at issue

3
 A fixed-price incentive contract is described at 48 C.F.R. Sec. 16.403(a) (1994) as:
a fixed-price contract that provides for adjusting profit and establishing the final contract price by application of a formula based on the relationship of total final negotiated cost to total target cost.  The final price is subject to a price ceiling, negotiated at the outset.

4
 Because of carryover and carryback effects, the disallowance affects only the 1983 and 1984 tax years


[Cite as State v. Torres, 2020-Ohio-3691.]

STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.       19CA0076-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ANGEL L. TORRES                                       COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   16CR0361

                                  DECISION AND JOURNAL ENTRY

Dated: July 13, 2020

        TEODOSIO, Judge.

        {¶1}     Appellant, Angel L. Torres, appeals from the judgment of the Medina County Court

of Common Pleas, denying his motion to withdraw his no contest plea. This Court affirms.

                                                 I.

        {¶2}     This Court has previously summarized the facts and procedural history of this case

in a prior appeal:

        On June 21, 2016, Trooper Baker of the Ohio State Highway Patrol stopped Torres
        for having excessively dark window tint. During the stop, Trooper Baker
        conducted an exterior sniff of Torres’ vehicle using his canine partner. The canine
        alerted to the passenger-side door. During a search of the vehicle, troopers
        discovered 110 grams of cocaine inside the vehicle.

        The Medina County Grand Jury subsequently indicted Torres on one count of
        possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(f), a felony of the
        first degree. The indictment included a major drug offender specification pursuant
        to R.C. 2941.1410 and a forfeiture specification pursuant to R.C. 2981.04. Torres
        pleaded not guilty and the matter proceeded through the pretrial process.

        Torres ultimately filed a motion to suppress the evidence seized and any statements
        made by Torres as a result of the traffic stop. Following a hearing, the trial court
                                                  2

       denied the motion. Torres changed his plea to no contest to the sole charge in the
       indictment and the related specifications. The trial court then found Torres guilty
       of the charge and specifications and sentenced him according to law.

State v. Torres, 9th Dist. Medina No. 17CA0038-M, 2018-Ohio-1173, ¶ 2-4. On appeal, Mr.

Torres challenged the trial court’s denial of his motion to suppress, and we affirmed. Id. at ¶ 6-

16. Mr. Torres filed an application to reopen the appeal pursuant to App.R. 26(B), which was

denied. State v. Torres, 9th Dist. Medina No. 17CA0038-M (Sept. 4, 2018). He also appealed to

the Supreme Court of Ohio, but the high court declined to accept jurisdiction. State v. Torres, 154

Ohio St.3d 1422, 2018-Ohio-4496. Mr. Torres then filed a motion to withdraw his no contest plea,

which the trial court denied pursuant to the doctrine of res judicata.

       {¶3}    Mr. Torres now appeals from the trial court’s judgment and raises four assignments

of error for this Court’s review. Because our analysis is dispositive of the appeal as a whole, we

have consolidated all four assignments of error and will address them together.

                                                 II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT IMPROPERLY APPLIED THE DOCTRINE OF RES JUDICATA
       TO BAR APPELLANT FROM RAISING HIS INEFFECTIVE CLAIMS RAISED IN HIS
       MOTION TO WITHDRAW HIS NO-CONTEST PLEA.

                               ASSIGNMENT OF ERROR TWO

       TRIAL COUNSEL CAMPBELL’S PERFORMANCE WAS DEFICIENT BECAUSE
       COUNSEL FAILED TO OBJECT TO TROOPER BAKER’S TESTIMONY AS TO
       WHAT SGT. LAUGHLIN WAS DOING DURING THE TRAFFIC STOP, IN
       VIOLATION OF APPELLANT’S SIXTH AMENDMENT RIGHT TO EFFECTIVE
       ASSISTANCE OF TRIAL COUNSEL AND IN VIOLATION OF THE
       CONFRONTATION CLAUSE UNDER THE SIXTH AMENDMENT TO THE U.S.
       CONSTITUTION.

                             ASSIGNMENT OF ERROR THREE

       TRIAL COUNSEL CAMPBELL AND DOWNING WERE BOTH DEFICIENT IN
       VIOLATION OF APPELLANT’S SIXTH AMENDMENT RIGHT TO EFFECTIVE
                                                    3

          COUNSEL UNDER THE U.S. CONSTITUTION, BECAUSE NEITHER COUNSEL
          ADVISED APPELLANT ABOUT THE STATE’S BURDEN OF PROOF TO
          “ACTUAL” AND “CONSTRUCTIVE” POSSESSION OF THE CONTRABAND.

                                ASSIGNMENT OF ERROR FOUR

          TRIAL COUNSEL CAMPBELL’S PERFORMANCE WAS DEFICIENT BECAUSE HE
          FAILED TO REQUEST AN INDEPENDENT WEGHING (SIC) OR WEIGHING OF
          THE CONTRABAND AT ISSUE IN VIOLATION OF HIS SIXTH AMENDMENT
          RIGHT TO EFFECTIVE COUNSEL UNDER THE U.S. CONST.

          {¶4}   In his assignments of error, Mr. Torres argues that (1) the trial court erred in relying

on res judicata to deny his motion to withdraw his plea of no contest and (2) he received ineffective

assistance of trial counsel.

          {¶5}   Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court after

sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her

plea.” Because a motion to withdraw a plea of guilty or no contest is entrusted to the discretion of

the trial court, this Court reviews the trial court’s determination for an abuse of discretion. State

v. Bloodworth, 9th Dist. Summit No. 29025, 2019-Ohio-1222, ¶ 9. “The term ‘abuse of discretion’

connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying an abuse of discretion standard, a reviewing court is precluded from simply substituting

its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621

(1993).

          {¶6}   The Supreme Court of Ohio has stated: “The general rule of law is that the trial

court loses jurisdiction to take action in a cause after an appeal has been taken and decided.” State

ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97 (1978). The

trial court only retains jurisdiction over issues not inconsistent with that of the appellate court to
                                                 4

review, affirm, modify or reverse the appealed judgment. Id. The granting of a motion to withdraw

a guilty plea and an order to then proceed with a new trial would be inconsistent with the judgment

of the appellate court affirming the trial court’s conviction premised upon that guilty plea. Id.

Because the judgment of the appellate court is controlling upon the trial court as to all matters

within the compass of the judgment, the trial court loses its jurisdiction when an appeal is taken

and, absent a remand, does not regain jurisdiction subsequent to the appellate court’s decision. Id.

Thus, there is a “total and complete want of jurisdiction” by the trial court to grant a motion to

withdraw a plea of guilty and to proceed with a new trial following an affirmance by the appellate

court. Id. at 98.

        {¶7}    This Court has recognized that Special Prosecutors also applies to a motion to

withdraw a no contest plea. State v. Davie, 9th Dist. Summit No. 27961, 2016-Ohio-2816, ¶ 12,

citing State v. Hillman, 9th Dist. Wayne No. 15AP0031, 2016-Ohio-870, ¶ 9. There is no dispute

that Mr. Torres pled no contest and was convicted in this matter. Torres, 2018-Ohio-1173, at ¶ 4.

This Court then affirmed his conviction on direct appeal. Id. at ¶ 16. Afterward, Mr. Torres filed

a motion to withdraw his no contest plea in the trial court. Pursuant to Special Prosecutors,

however, the trial court did not have authority to consider that motion. Special Prosecutors at 97-

98. Accordingly, we cannot say that the trial court abused its discretion or committed reversible

error by denying Mr. Torres’ motion to withdraw his no contest plea, regardless of the court’s

reasoning behind its decision.

        {¶8}    To the extent Mr. Torres claims ineffective assistance of trial counsel, those

arguments could have all been raised on direct appeal. State v. Guy, 9th Dist. Summit No. 29496,

2020-Ohio-3011, ¶ 25. “Res judicata bars claims that were either raised or could have been raised

on direct appeal.” Id. As Mr. Torres failed to raise his ineffective assistance claims in his direct
                                                 5

appeal, he is now barred from raising them in a subsequent appeal by the doctrine of res judicata.

Id.

       {¶9}    Mr. Torres’ first, second, third, and fourth assignments of error are all overruled.

                                                III.

       {¶10} Mr. Torres’ assignments of error are all overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.

       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 Medina, State of Ohio, to carry this judgment into 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(C). 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.

                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
                                                 6

CALLAHAN, P. J.
CONCURS.

CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶11} I concur in judgment only as I would overrule Torres’s assignments of error solely

on the basis of res judicata. While I am mindful that this Court has applied the Supreme Court of

Ohio’s holding in State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio

St.2d 94 (1978), in a variety of scenarios, I would decline to apply that precedent in this case. As

noted by the majority, the trial court denied Torres’s motion for a new trial on the basis of res

judicata. I would overrule his assignments of error on the same basis.

APPEARANCES:

ANGEL L. TORRES, pro se, Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.