State v. Becraft

[Cite as State v. Becraft, 2017-Ohio-1464.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-9
:
v. : Trial Court Case No. 2012-CR-511A
:
RICHARD E. BECRAFT, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 21st day of April, 2017.

...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45502
Attorney for Plaintiff-Appellee

S. TODD BRECOUNT, Atty. Reg. No. 0065276, 115 North Main Street, Urbana, Ohio
43078
Attorney for Defendant-Appellant

.............

WELBAUM, J.
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{¶ 1} Defendant-appellant, Richard E. Becraft, Jr., appeals from the sentence he

received during his resentencing for aggravated robbery in the Clark County Court of

Common Pleas, which we ordered on remand in State v. Becraft, 2d Dist. Clark No. 2013-

CA-54, 2015-Ohio-3911. Becraft also appeals from the trial court’s decision denying his

motion to withdraw guilty plea that he filed on remand prior to resentencing. For the

reasons outlined below, the portion of Becraft’s sentence ordering him to pay the victim

restitution in the amount of $1,200 will be modified to $583.33. In all other respects, the

trial court’s judgment will be affirmed.

Facts and Course of Proceedings

{¶ 2} On May 2, 2013, Becraft pled guilty to one count of aggravated robbery in

violation of R.C. 2911.01(A)(1), a felony of the first degree. The offense stemmed from

allegations that Becraft and two of his companions, Jeremy Dover and Laune Dozier,

followed a woman from inside a Kroger’s bank branch and robbed her in the parking lot.

During this time, Dover was alleged to have pulled a gun on the victim while Becraft

grabbed her purse and fled the scene with both Dover and Dozier.

{¶ 3} In exchange for Becraft’s guilty plea, the State agreed to stay silent at his

sentencing hearing and to stipulate that Becraft did not have a firearm during the offense.

Following his plea, Becraft was sentenced to nine years in prison and ordered to pay

$2,000 in restitution to the victim for the amount of her economic loss.

{¶ 4} Approximately 30 days after sentencing, Becraft filed a pro se motion to

withdraw his guilty plea on grounds that his trial counsel falsely promised that he would
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only receive a five-year prison sentence. The trial court overruled the motion, which

Becraft did not appeal. However, on June 26, 2013, Becraft did appeal from his

conviction and sentence. In his appeal, Becraft raised ineffective assistance claims,

challenged aspects of his sentence, and disputed the knowing, intelligent, and voluntary

nature of his guilty plea.

{¶ 5} While his appeal was pending, in February 2014, Becraft filed a pro se

petition to set aside his conviction and sentence in which he again requested to withdraw

his guilty plea. In support of withdrawing his plea, Becraft once again argued that his

counsel falsely promised that he would receive a maximum prison sentence of five years.

Becraft also argued that his trial counsel withheld the discovery packet from him.

{¶ 6} Over the next three months, Becraft filed several more pro se motions,

including an additional motion to withdraw his guilty plea filed in May 2014. In that

motion, Becraft raised a similar argument claiming his trial counsel rendered ineffective

assistance by falsely promising that he would get no more than three to five years in

prison and would be granted judicial release in six months. On May 6, 2015, the trial

court dismissed the motion, finding it lacked jurisdiction due to the pending appeal with

this court.

{¶ 7} In ruling on Becraft’s direct appeal, we reversed the trial court’s decision

ordering Becraft to pay $2,000 in restitution on grounds that there was nothing in the

record supporting that amount as the victim’s economic loss.1 Becraft, 2d Dist. Clark No.

1 During Becraft’s direct appeal, the victim did not testify regarding her economic loss and
no victim impact statement was provided to this court as part of the record. Becraft at ¶
7, fn. 2. Accordingly, we found no evidence supporting the trial court’s decision to order
$2,000 in restitution. However, in the instant appeal, the victim impact statement was
included as part of the presentence investigation report, and it indicates the victim’s
 -4-

2013-CA-54, 2015-Ohio-3911 at ¶ 31-32. We also reversed the remainder of Becraft’s

sentence on grounds that his trial counsel rendered ineffective assistance in failing to

object to certain unsupported findings made by the trial court during sentencing.

Specifically, we found that the trial court incorrectly determined that Becraft threatened

the victim with a deadly weapon. Id. at ¶ 27-32. However, we found no ineffective

assistance during the plea proceedings and ultimately concluded that Becraft knowingly,

intelligently, and voluntarily entered his guilty plea. Id. at ¶ 15, 19, 26. Accordingly, we

affirmed all aspects of Becraft’s conviction, but remanded the matter for the limited

purpose of resentencing. Id. at ¶ 32.

{¶ 8} On January 4, 2016, the trial court held its first hearing on remand for

resentencing. During that hearing, Becraft indicated he wanted to move to withdraw his

guilty plea based on information in the victim impact statement, which he claimed he had

just recently received. The trial court then decided to continue the hearing to allow the

parties to obtain and provide the court with documentation pertinent to sentencing and to

allow Becraft to file a motion to withdraw his guilty plea.

{¶ 9} Two days later, defense counsel filed a motion to withdraw guilty plea on

Becraft’s behalf. A hearing on the motion was held shortly thereafter on January 15,

2016. At the hearing, Becraft argued he should be permitted to withdraw his guilty plea

because this court had determined in his direct appeal that his prior trial counsel had

rendered ineffective assistance. He additionally argued that his trial counsel was

ineffective in failing to provide him with the victim impact statement. Becraft further

economic loss was $2,000 and that the victim suffered psychological harm as a result of
the offense.
 -5-

argued that the results of his polygraph test, which he claims were favorable, had not

been made available to him. Becraft claimed that had he been able to view that

information earlier, he would not have pled guilty.

{¶ 10} After hearing both parties’ arguments on the plea withdrawal issue, as well

as admitting several exhibits in support of Becraft’s motion, the trial court denied the

motion and scheduled the matter for resentencing on January 29, 2016. At the January

29th hearing, Becraft expressed confusion as to whether the trial court had already

rendered its decision on the motion to withdraw his plea, so the trial court allowed Becraft

to further argue the motion to withdraw and to admit additional exhibits. The trial court,

nevertheless, denied the motion a second time, and proceeded to resentencing.

{¶ 11} During the resentencing portion of the proceedings, the parties advised the

trial court that they had stipulated to the victim’s economic loss being $1,200, despite the

State previously arguing that her loss was $2,000. The State explained that the victim

advised $1,750 was stolen from her at the time of the robbery and that $550 of that

amount did not belong to her, but to a defunct social club. Accordingly, the State

conceded that awarding the full $1,750 would provide the victim with a windfall. The

State also advised the trial court that no other restitution had been paid to the victim, but

noted that one of Becraft’s co-defendants, Dozier, had been ordered to pay $583.33 in

restitution.

{¶ 12} Following the discussion on restitution, the trial court heard arguments from

Becraft and his counsel with regards to sentencing. As it had done previously, the State

provided no argument per the plea agreement. The trial court then considered various

factors, including that one of Becraft’s co-defendants used a firearm to threaten the victim,
 -6-

but specifically noted that Becraft himself did not have a firearm. The trial court further

considered that the victim was not physically harmed and that the court believed Becraft

did not expect to cause any physical harm to her. However, the court indicated that it

placed great weight on the psychological impact the offense had on the victim, as the

victim impact statement in the presentence investigation report noted that the victim was

severely frightened, continues to be affected by the incident, and is seeing a therapist.

{¶ 13} In addition to these factors, the trial court also considered the fact that

Becraft has a history of criminal convictions, including a prior offense of violence. The

court further found that Becraft has not responded favorably to previous sanctions and

that he showed a lack of remorse for the instant offense. The trial court also considered

Becraft’s behavior during his incarceration for the offense, indicating that he had no

history of disciplinary problems. According to the court, this demonstrated that Becraft

was attempting to change his life for the better.

{¶ 14} After making the foregoing considerations, the trial court imposed an eight-

year prison term and ordered Becraft to pay $1,200 in restitution to the victim. Becraft

now appeals from that decision, as well as the trial court’s decision denying his motion to

withdraw guilty plea, raising three assignments of error for our review.

First Assignment of Error

{¶ 15} Becraft’s First Assignment of Error is as follows:

BECRAFT’S SENTENCE WAS CLEARLY AND CONVINCINGLY

CONTRARY TO LAW.

{¶ 16} Under his First Assignment of Error, Becraft contends his sentence is
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contrary to law because the trial court’s order of restitution in the amount of $1,200

provides the victim with a windfall over the amount of her economic loss in violation of

R.C. 2929.18. Becraft also challenges his sentence on grounds that the trial court

allegedly failed to reconsider his sentence in light of the stipulation that he did not have a

firearm. Becraft further claims that the trial court’s finding that he lacked remorse is

unsupported by the record.

{¶ 17} As a preliminary matter, we note that the Supreme Court of Ohio recently

held that when reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. State

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7, 10. Under R.C.

2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may

vacate the sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or (2) that the

sentence imposed is contrary to law. Id. at ¶ 9.

Restitution

{¶ 18} Becraft first contends that the trial court’s order of restitution in the amount

of $1,200 is contrary to law because it provides the victim with a windfall over the amount

of her actual economic loss. “We review errors regarding orders of restitution using the

same standard of review as any other sentencing issue.” Becraft, 2d Dist. Clark No.

2013-CA-54, 2015-Ohio-3911 at ¶ 11. Therefore, instead of applying an abuse of

discretion standard, as we have previously done in restitution cases prior to Marcum, the

proper standard of review for analyzing the imposition of restitution as a part of a felony
 -8-

sentence is whether it complies with R.C. 2953.08(G)(2)(b), i.e., whether it is clearly and

convincingly contrary to law. State v. Geldrich, 12th Dist. Warren No. CA2015-11-103,

2016-Ohio-3400, ¶ 6.

{¶ 19} R.C. 2929.18 governs the imposition of financial sanctions and allows for

restitution to be paid by an offender to a victim “in an amount based on the victim’s

economic loss.” R.C. 2929.18(A)(1). “[T]he court may base the amount of restitution it

orders on an amount recommended by the victim, the offender, a presentence

investigation report, estimates or receipts indicating the cost of repairing or replacing

property, and other information, provided that the amount the court orders as restitution

shall not exceed the amount of the economic loss suffered by the victim as a direct and

proximate result of the commission of the offense.” (Emphasis added.) Id.

{¶ 20} Although R.C. 2929.18 does not require apportionment of restitution among

co-defendants, the statute does not prohibit apportionment. Becraft at ¶ 30, citing State

v. Kline, 3d Dist. Henry No. 7-12-03, 2012-Ohio-4345, ¶ 12. However, “there is no

requirement that co-defendants receive equal sentences. Each defendant is different

and nothing prohibits a trial court from imposing two different sentences upon individuals

convicted of similar crimes.” (Citation omitted.) State v. Kosak, 2d Dist. Greene No.

2013 CA 67, 2014-Ohio-2310, ¶ 21. “We have held that where co-defendants act in

concert in committing the same offense that causes economic harm to the victim, holding

one of the defendant[s] responsible for the full amount of restitution is permissible and

consistent with established principles of tort liability[.]” (Citations omitted.) State v.

Dawson, 2d Dist. Montgomery No. 21768, 2007-Ohio-5172, ¶ 13.

{¶ 21} Nevertheless, “double recovery would amount to an impermissible
 -9-

economic windfall for the victim[;] the evidence introduced to demonstrate the actual

economic loss suffered by the victim must take account of any offsets to the victim’s

economic loss and any mitigation of damages in the form of compensation received for

the loss[.]” State v. Bowman, 181 Ohio App.3d 407, 2009-Ohio-1281, 909 N.E.2d 170,

¶ 12 (2d Dist.), citing R.C. 2929.18(A)(1). Again, R.C. 2929.18 specifically limits an order

of restitution to the victim’s economic loss suffered as a result of the offense; therefore,

“the victim is not entitled to double recovery from multiple offenders.” Becraft, 2d Dist.

Clark No. 2013-CA-54, 2015-Ohio-3911 at ¶ 30.

{¶ 22} In State v. Quick, 8th Dist. Cuyahoga No. 91120, 2009-Ohio-2124 and State

v. Cicerchi, 182 Ohio App.3d 753, 2009-Ohio-2249, 915 N.E.2d 350 (8th Dist.), co-

defendants Quick and Cicerchi were both ordered to pay restitution to the victim for the

full amount of the victim’s $56,212 economic loss without indicating that the court was

imposing joint and several liability. Instead, the trial court indicated that the co-

defendants were both responsible for the full loss, and the sentencing entry in each case

ordered the co-defendants to pay $56,212 without regard to whether their combined

payments would exceed the victim’s economic loss. In both cases, the Eighth District

Court of Appeals held that the trial court’s order of restitution provided the victim with

double compensation for her loss and resulted in an economic windfall. Quick at ¶ 60;

Cicerchi at ¶ 36. Accordingly, the court remanded the case for the trial court to conduct

a hearing to determine the proper amount of restitution. Quick at ¶ 62; Cicerchi at ¶ 38.

{¶ 23} The instant case is similar to Quick and Cicerchi with the exception that in

those cases there was no stipulation as to the amount of the victim’s economic loss. In

this case, the record is clear that for purposes of resentencing, Becraft and the State
 -10-

stipulated that the victim’s total economic loss was $1,200. Before making its order of

restitution, the trial court inquired and learned that no restitution had been paid by

Becraft’s co-defendant, Dozier, who was ordered to pay $583.33 in restitution. The court

then ordered Becraft to pay the full $1,200 in restitution without imposing joint and several

liability and without regard to the restitution already ordered to be paid by Dozier.

Therefore, the court essentially ordered the payment of $1,783.33 to the victim when it

was stipulated that the victim’s actual economic loss was only $1,200.

{¶ 24} We note that while the State initially argued that $2,000 was stolen from the

victim, the State later confirmed at the January 29, 2016 hearing that $1,750 was stolen

and that $550 of that amount did not belong to the victim, but to a defunct social club,

thus making the victim’s actual economic loss $1,200. Therefore, restitution in the

amount of $1,783.33 not only exceeds the victim’s economic loss, but also the total

amount the State alleged was on the victim’s person at the time of the robbery. Like in

Quick and Cicerchi, the order of restitution at issue provides the victim with a windfall over

the amount of her agreed economic loss of $1,200, which is prohibited by R.C.

2929.18(A)(1). While the trial court could have ordered the $1,200 to be paid jointly and

severally, it did not do so here, accordingly, the order of restitution is contrary to law.

{¶ 25} Becraft’s argument regarding the restitution portion of his sentence is

sustained.

Firearm Stipulation

{¶ 26} Becraft next contends that his resentencing is contrary to law because the

trial court disregarded the stipulation in the plea agreement that he did not have a firearm
 -11-

during the robbery. In support of this claim, Becraft alleges the trial court failed to

resentence him in light of the firearm stipulation and incorrectly found that his use of a

firearm warranted the eight-year prison term at issue. We disagree.

{¶ 27} “Courts consider a broad range of information when imposing sentence[s].”

State v. Winstead, 2015-Ohio-5391, 55 N.E.3d 477, ¶ 20 (2d Dist.), citing State v. Bowser,

186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 13 (2d Dist.). This includes

information obtained from the record, sentencing hearing, presentence investigation

report, and victim impact statement. R.C. 2929.19(B)(1). “ ‘The evidence the court may

consider is not confined to the evidence that strictly relates to the conviction offense

because the court is no longer concerned, like it was during trial, with the narrow issue of

guilt.’ ” Winstead at ¶ 20, quoting Bowser at ¶ 14, citing Williams v. New York, 337 U.S.

241, 246-247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

{¶ 28} Contrary to Becraft’s claim otherwise, there is nothing in the record

indicating that the trial court disregarded the firearm stipulation and considered that

Becraft had a firearm during the robbery when it resentenced him. Although there

appears to have been some confusion during the direct appeal of this matter as to whether

the trial court made such a consideration when imposing the original sentence,2 the trial

court clarified at the resentencing hearing that when it imposed Becraft’s original

2 The original sentencing entry provided that “[i]n committing the offense, the defendant
made an actual threat of physical harm to a person with a deadly weapon.” Judgment
Entry of Conviction (May 30, 2013), Clark County Court of Common Pleas Case No. 12-
CR-0511A, Docket No. 29, p. 2. While we held in Becraft’s direct appeal that the
aforementioned finding was unsupported by the record, we also held that “nothing in the
record indicates that the trial court’s sentencing decision was influenced by whether or
not Becraft had possession or control of a firearm during the course of the offense.”
Becraft, 2d Dist. Clark No. 2013-CA-54, 2015-Ohio-3911 at ¶ 21, 27.
 -12-

sentence, it never actually considered the fact that Becraft had a firearm during the

robbery and never meant for any of its statements to be interpreted that way. Rather,

the trial court explained that it had considered the fact that Becraft participated in the

robbery with a person who used a firearm to threaten the victim. During the resentencing

proceeding, the trial court confirmed that this was the circumstance it was considering

when sentencing him, not that Becraft possessed a firearm himself. We do not find that

such a consideration was improper or contrary to law, as it does not disregard the parties’

stipulation and it is supported by the information in the presentence investigation report.

{¶ 29} Becraft’s argument regarding the firearm stipulation is overruled.

Lack of Remorse

{¶ 30} For his third argument, Becraft contends that the trial court’s finding that he

expressed no remorse for his offense is unsupported by the record given that he read an

apology letter to the victim on the record at his original sentencing hearing. In reaching

its decision that Becraft showed no remorse, the trial court explained the following at the

resentencing hearing:

At the original disposition, I found no genuine remorse because in his

statement he denied any involvement whatsoever in the robbery. That

may have changed now. I don’t know. I didn’t hear anything directly as

to a change in that statement. He seems to be remorseful for his current

situation, nothing regarding the robbery itself or the harm to the victim, even

though he did have an opportunity earlier to review the victim’s statement

as to the harm this caused.
 -13-

(Emphasis added.) Hearing Trans. (Jan. 29, 2016), p. 20.

{¶ 31} At the resentencing hearing, Becraft generally stated that he regretted

everything he had done and being around the co-defendants. However, his statement

indicates that his regret stems from the nine-year prison sentence he originally received.

As the trial court noted, Becraft never specifically regretted being involved in the robbery.

Although it does appear from the record that Becraft read an apology letter to the victim

at the original sentencing hearing, the court indicated its lack of remorse finding was

based on Becraft denying his involvement in the offense. Since Becraft’s statements at

resentencing do not indicate that his position on his involvement in the robbery has

changed, we do not find that the trial court’s lack of remorse finding is unsupported by the

record. Therefore, Becraft’s argument regarding the trial court’s lack of remorse finding

is overruled.

{¶ 32} Having found merit in Becraft’s argument regarding the restitution imposed

at resentencing, Becraft’s First Assignment of Error is sustained only as to that argument.

Second Assignment of Error

{¶ 33} Becraft’s Second Assignment of Error is as follows:

THE STATE OF OHIO BREACHED THE PLEA AGREEMENT BY FAILING

TO REMAIN SILENT AT SENTENCING.

{¶ 34} Under his Second Assignment of Error, Becraft contends the State

breached the plea agreement by speaking out at his resentencing hearing. There is no

dispute that, as part of the plea agreement, the State agreed to remain silent at sentencing

and acknowledged that said agreement remained in full force and effect during the
 -14-

resentencing proceedings. Becraft claims the breach occurred following the remand for

resentencing when the State argued its position on restitution at the hearing held on

January 15, 2016. Becraft specifically points to the following portion of the record:

COURT: Counsel, anything further?

STATE: The victim provided a victim-impact statement. She testified

at a trial of the codefendant. She was out $2,000. That’s

the bottom line. If this Defendant wants to have a restitution

hearing, then he needs to follow the proper procedure for that.

But at this time the victim has stated over and over she’s out

$2,000.

Hearing Trans. (Jan. 15, 2016), p. 13.

{¶ 35} “When a prosecutor induces a defendant to plead guilty based upon certain

promises, the prosecutor has a duty to keep those promises.” State v. Simpson, 158

Ohio App.3d 441, 2004-Ohio-4690, 816 N.E.2d 609, ¶ 14 (2d Dist.), citing Santobello v.

New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Upon a breach of the

agreement, the defendant is entitled to either specific performance by the State or

withdrawal of the plea. Id. Accord State v. Dowler, 4th Dist. Athens No. 15CA7, 2015-

Ohio-5027, ¶ 22; State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 11. “To

determine whether a plea agreement has been breached, courts examine what the

parties reasonably understood at the time the defendant entered his guilty plea; that is,

we must identify the terms of the plea agreement before we can determine if the state

breached the agreement.” Dowler at ¶ 23, citing State v. Walsh, 5th Dist. Licking No.

14-CA-110, 2015-Ohio-4135, ¶ 18.
 -15-

{¶ 36} Contrary to Becraft’s claim otherwise, a review of the record indicates that

the State made the comment at issue while the parties were presenting arguments in

relation to Becraft’s motion to withdraw his guilty plea, not during resentencing. See

Hearing Trans. (Jan. 15, 2016), p. 7-15. The comment at issue was made by the State

on January 15, 2016, and Becraft was not resentenced until January 29, 2016. As a

result, we find that the State did not breach its agreement to remain silent at resentencing

when it made the comment at issue.

{¶ 37} Even if we found that the State had breached the plea agreement by making

the comment at issue, such a breach would not warrant a reversal. Given that Becraft

failed to object to the State’s comment, we are limited to a plain-error review of the issue,

and Becraft cannot establish plain error. See State v. Kline, 2d Dist. Champaign No.

2009-CA-02, 2010-Ohio-3913, ¶ 5; Puckett v. United States, 556 U.S. 129, 129 S.Ct.

1423, 173 L.Ed.2d 266 (2009) (holding that a plain-error review is appropriate in the

context of failing to object to the government’s breach of a plea agreement).

{¶ 38} “To establish plain error, [Becraft] must point to an obvious error that

affected the outcome of the proceedings below.” Kline at ¶ 5, citing State v. Rohrbaugh,

126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6. “Reversal is warranted only

if the outcome ‘clearly would have been different absent the error.’ ” Id., citing State v.

Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). In applying this standard, we are

mindful that notice of plain error “is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 39} Because the State’s comment at issue revolves around the amount of the
 -16-

victim’s economic loss, the question is whether the trial court’s finding as to economic

loss would have been different absent the alleged breach of the plea agreement.

Becraft, however, cannot establish that the economic loss finding would have been

different but for the alleged breach because after the State made its comment (stating

that the victim’s economic loss was $2,000), the parties later stipulated that the victim’s

economic loss was $1,200, and the trial court awarded restitution in that amount.

Therefore, regardless of the State previously advising the court that the victim’s economic

loss was $2,000, the victim’s economic loss would still have been set at $1,200 per the

stipulation. Although the actual award of $1,200 in restitution to the victim was an

inappropriate windfall due to Becraft’s co-defendant also being ordered to pay $583.33 in

restitution, the fact remains that, because of the stipulation, the amount of the victim’s

economic loss would have been determined to be $1,200 regardless of the alleged

breach. This is not an exceptional circumstance presenting a manifest miscarriage of

justice, as the alleged breach did not prejudice Becraft in any way given the stipulation.

{¶ 40} As part of his reply brief, Becraft also argues that the trial court breached

the plea agreement by considering the use of a firearm when sentencing him. However,

as discussed under Becraft’s First Assignment of Error, the trial court made it clear at the

January 29th hearing that it considered the fact that one of Becraft’s co-defendants used

a firearm to threaten the victim, not that Becraft had a firearm himself. Accordingly, we

fail to see how the trial court’s consideration breached the specific plea agreement at

issue, as the agreement did not include a prohibition on considering the use of a firearm

by Becraft’s co-defendant, but only that Becraft did not possess a firearm during the

offense.
 -17-

{¶ 41} Becraft’s Second Assignment of Error is overruled.

Third Assignment of Error

{¶ 42} Becraft’s Third Assignment of Error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT’S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY

PLEA.

{¶ 43} Under his Third Assignment of Error, Becraft characterizes his motion to

withdraw guilty plea filed on remand for resentencing as a presentence motion and argues

that the trial court abused its discretion in denying the same. The State does not dispute

the presentence nature of the motion, but instead claims the trial court lacked jurisdiction

to consider the motion given that Becraft’s conviction had already been affirmed by this

court in his direct appeal. In the alternative, the State argues that even if the trial court

had jurisdiction to consider Becraft’s motion, it was appropriate for the trial court to

overrule it. We agree with the State.

{¶ 44} Appellate courts review trial court decisions on motions to withdraw pleas

for abuse of discretion. State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977),

paragraph two of the syllabus. “ ‘Abuse of discretion’ has been defined as an attitude

that is unreasonable, arbitrary or unconscionable.” (Citation omitted.) AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990). “It is to be expected that most instances of abuse of

discretion will result in decisions that are simply unreasonable, rather than decisions that

are unconscionable or arbitrary.” Id. “A decision is unreasonable if there is no sound
 -18-

reasoning process that would support that decision.” Id.

{¶ 45} Pursuant to Crim.R. 32.1: “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.” A presentence motion to withdraw a guilty plea “should be

freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715

(1992). The presentence standard is more lenient than the “manifest injustice” standard,

which is applicable to postsentence motions. State v. Fugate, 2d Dist. Montgomery No.

21574, 2007-Ohio-26, ¶ 10. Nevertheless, even under the presentence standard, the

right to withdraw a plea is not absolute, and a trial court retains discretion to overrule a

presentence motion to withdraw a plea. Xie at 527.

{¶ 46} As noted above, both parties agree that the presentence standard applies

to the motion at issue. However, regardless of the standard, the State argues that

pursuant to State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio

St.2d 94, 97-98, 378 N.E.2d 162 (1978), the trial court lacked jurisdiction to consider

Becraft’s motion to withdraw his plea.

{¶ 47} In Special Prosecutors, the Supreme Court of Ohio explained that:

Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and

determine a motion to withdraw the guilty plea subsequent to an appeal and

an affirmance by the appellate court. 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
 -19-

this action would affect the decision of the reviewing court, which is not

within the power of the trial court to do.

Id. at 97-98.

{¶ 48} The defendant in Special Prosecutors pled guilty to murder, the court of

appeals affirmed his conviction, and the defendant thereafter moved to withdraw his plea,

which the trial court granted. Id. at 94. The State did not appeal, but, before the

defendant’s case could proceed to trial, it filed a complaint for a writ of prohibition, seeking

to prevent the trial from taking place. Id. The State argued that the trial court did not

have jurisdiction to let the defendant withdraw his plea. The Supreme Court granted the

writ because it concluded that a trial court does not have jurisdiction to consider a motion

to withdraw a plea after an appellate court has affirmed the defendant’s conviction. Id.

at 98. Specifically, the Supreme Court noted that “the trial court lost its jurisdiction when

the appeal was taken, and, absent a remand, it did not regain jurisdiction subsequent to

the Court of Appeals’ decision.” (Emphasis added.) Id. at 97. Accord State v.

McFarland, 2d Dist. Montgomery No. 24418, 2013-Ohio-2019, ¶ 8-11; State v. Byrd, 2d

Dist. Montgomery No. 25591, 2013-Ohio-3751, ¶ 10-12; State v. Laster, 2d Dist.

Montgomery No. 19387, 2003-Ohio-1564, ¶ 9.

{¶ 49} Becraft contends the State’s reliance on Special Prosecutors is misplaced

because the instant matter was remanded back to the trial court for de novo sentencing.

Although Special Prosecutors did not specifically discuss whether a trial court could

consider a motion to withdraw guilty plea on remand, in State v. Ketterer, 126 Ohio St.3d

448, 2010-Ohio-3831, 935 N.E.2d 9, the Supreme Court applied the holding in Special

Prosecutors to a case where the defendant filed his motion to withdraw plea on remand
 -20-

for resentencing.

{¶ 50} In Ketterer, the defendant’s conviction was affirmed on direct appeal and

the sentence was later remanded for the limited purpose of resentencing. Id. at ¶ 61-62.

Thereafter, on remand, the defendant filed a motion to withdraw his guilty plea and the

Supreme Court held that pursuant to Special Prosecutors the trial court had no authority

to consider the motion because the underlying conviction had been affirmed during the

direct appeal and the remand was for the limited purpose of resentencing. Id. at ¶ 62.

Subsequently, in State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381,

the Supreme Court held that “[i]n a remand based only on an allied-offenses sentencing

error, the guilty verdicts underlying a defendant’s sentences remain the law of the case

and are not subject to review.” (Emphasis added.) Id. at ¶ 15, citing State v. Whitfield,

124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 26-27.

{¶ 51} The foregoing case law indicates that a trial court lacks jurisdiction to

consider a motion to withdraw guilty plea filed on remand for the limited purpose of

resentencing when the underlying conviction was affirmed on direct appeal. This is

appropriate because even “if the case is reviewed and partially remanded for some aspect

of resentencing, the appellate court nevertheless affirmed the underlying conviction and

the lower court no longer has jurisdiction to reconsider matters dealing with that

conviction, such as whether the plea should be vacated.” State v. Smith, 7th Dist.

Mahoning No. 14 MA 65, 2015-Ohio-4809, ¶ 5, citing State v. Triplett, 4th Dist. Lawrence

No. 11CA24, 2012-Ohio-4529 and Special Prosecutors, 55 Ohio St.2d at 97-98, 378

N.E.2d 162. “Indeed, if a trial court were to grant a defendant’s post-remand motion to

withdraw his plea, the trial court’s order would essentially undo the entire appeal.” State
 -21-

v. O’Neal, 9th Dist. Medina No. 10CA0140-M, 2012-Ohio-396, ¶ 8, quoting State v.

O’Neal, 9th Dist. Medina No. 07CA0050-M, 2008-Ohio-1325, ¶ 11. See also State v.

Simon, 12th Dist. Butler No. CA2015-05-081, 2015-Ohio-4448, ¶ 20; State v. Caston, 6th

Dist. Erie No. E-11-077, 2012-Ohio-5260, ¶ 8-11; State v. Craddock, 8th Dist. Cuyahoga

No. 87582, 2006-Ohio-5915, ¶ 8-10.

{¶ 52} Becraft also claims that Special Prosecutors does not apply to this case

because his motion to withdraw guilty plea was partially based on newly discovered

evidence that was disclosed to him for the first time on remand, i.e., the victim impact

statement and polygraph test results. Becraft cites no authority for this position;

however, after Ketterer, the Supreme Court held that “a trial court retains jurisdiction to

decide a motion for a new trial based on newly discovered evidence when the specific

issue has not been decided upon direct appeal.” (Emphasis added.) State v. Davis,

131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 37. In so holding, the Supreme

Court clarified that “the holding in Special Prosecutors does not bar the trial court’s

jurisdiction over post-trial motions permitted by the Ohio Rules of Criminal Procedure.”

Id.

{¶ 53} Although the instant case does not involve a motion for new trial, even if we

were to assume that, in light of Becraft’s newly discovered evidence, Special Prosecutors

does not bar the trial court from exercising jurisdiction over his presentence/post-remand

motion to withdraw guilty plea, we still do not find that the trial court abused its discretion

in overruling the motion. In evaluating whether a trial court has abused its discretion in

overruling a presentence motion to withdraw a plea, this court has adopted the following

nine factors set forth in State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st
 -22-

Dist.1995):

(1) whether the accused is represented by highly competent counsel, (2)

whether the accused was given a full Crim.R. 11 hearing before entering

the plea, (3) whether a full hearing was held on the motion, (4) whether the

trial court gave full and fair consideration to the motion, (5) whether the

motion was made within a reasonable time, (6) whether the motion sets out

specific reasons for the withdrawal, (7) whether the accused understood the

nature of the charges and possible penalties, (8) whether the accused was

perhaps not guilty of or had a complete defense to the charge or charges,

and (9) whether the state is prejudiced by withdrawal of the plea.

State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29, quoting State v.

Massey, 2d Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 11. (Other citation

omitted.)

{¶ 54} “In considering these factors, the trial court employs a balancing test; no

single factor is dispositive.” Id. at ¶ 30, citing State v. Preston, 2d Dist. Montgomery No.

25393, 2013-Ohio-4404, ¶ 20. However, “[t]he ultimate question for the trial court is

whether there is a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” Id.,

quoting Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715.

{¶ 55} In this case, Becraft provided the trial court with specific reasons for wanting

to withdraw his guilty plea, but his reasons do not provide a reasonable, legitimate basis

for the withdrawal. Becraft first claimed that he should be able to withdraw his plea

because this court had determined in his direct appeal that his prior trial counsel had

rendered ineffective assistance. Yet, in making this argument, Becraft overlooks the fact
 -23-

that our ineffective assistance holding was confined to his trial counsel’s failure to make

certain objections during the sentencing proceedings. Becraft, 2d Dist. Clark No. 2013-

CA-54, 2015-Ohio-3911 at ¶ 27. In fact, we specifically held that his trial counsel did not

render ineffective assistance during the plea proceedings, and thus affirmed his plea and

conviction. Id. at ¶ 25-26, 32.

{¶ 56} Becraft next argued that he should be able to withdraw his plea because his

trial counsel was ineffective in failing to provide him with the victim impact statement,

which he claims he did not get to review until after his sentence was remanded.

However, during the January 29, 2016 hearing on his motion, Becraft admitted that his

trial counsel’s failure to show him the victim statement did not affect his plea since the

victim impact statement was not prepared and presented until after the plea proceedings.

In other words, the failure to show him the victim impact statement could not have affected

the knowing, intelligent, and voluntary nature of his plea. Rather, Becraft advised the

trial court that the failure to show him the victim impact statement delayed his decision to

file the motion to withdraw his plea, which he claimed he would have filed earlier had he

known the contents of the statement. Therefore, the victim impact statement provides

no real basis for withdrawing Becraft’s plea, but only serves as an excuse for the motion

being filed over two and a half years after his plea and original sentence.

{¶ 57} Becraft’s final argument in support of his motion is that his trial counsel was

ineffective in failing to provide him with his “favorable” polygraph test results, which

Becraft claims was not made available to him until after his sentence was remanded.

Becraft claims that had he known about these “favorable” test results he would not have

pled guilty. Becraft, however, did not submit a copy of the polygraph test results in
 -24-

support of his motion. Rather, Becraft simply told the court that he only failed one

question—whether he received any amount from the robbery. We do not see how such

a result exonerates him, as the State specifically advised the trial court at the January

29th hearing that Becraft did not pass the polygraph test. Furthermore, the record

indicates that the parties entered into a “Stipulated Polygraph Agreement” wherein the

State agreed to dismiss the case against Becraft if the polygraph examiner determined

that he was truthful in denying involvement in the offense. It is hard to believe that the

results were favorable to Becraft since his trial counsel, who the record indicates received

the results, never demanded a dismissal based on the parties’ stipulation. Accordingly,

we do not find that the polygraph results are a legitimate basis for the withdrawal of his

plea, as the record indicates the test results were not favorable as Becraft claims.

{¶ 58} In support of his motion to withdraw guilty plea, Becraft also raises

additional arguments in his appellate brief regarding his trial counsel’s ineffectiveness that

were not raised in his post-remand motion or argued at the hearings on remand.

Because the trial court was not given the opportunity to consider these claims, they will

not be addressed for the first time on appeal. Pflum v. Waggoner, 2d Dist. Montgomery

No. 24907, 2012-Ohio-3391, ¶ 12.

{¶ 59} In addition to providing no reasonable, legitimate basis for withdrawing his

plea, the record establishes that Becraft was given a full Crim.R. 11 hearing prior to

entering his plea. Becraft claims otherwise on grounds that the parties’ firearm

stipulation prevented the facts he admitted to at the hearing from establishing all elements

of aggravated robbery, specifically the element requiring the possession or control of a

deadly weapon. However, it is undisputed that Becraft’s co-defendant, Dover, used a
 -25-

firearm during the robbery at issue. In Becraft’s direct appeal, we held that even though

the facts establish that Becraft did not possess or utilize a firearm in the course of the

offense, as an accomplice, Becraft is criminally culpable to the same degree as the

principal offender, and may be prosecuted for the principal offense even though Becraft

himself did not have a deadly weapon. Becraft, 2d Dist. Clark No. 2013-CA-54, 2015-

Ohio-3911 at ¶ 18-19. In turn, we ultimately concluded his Crim.R. 11 hearing was

adequate and that his plea was knowingly, intelligently, and voluntarily entered. Id. at ¶

4, 9, 12-15, 16-19, 32.

{¶ 60} The record also establishes that Becraft was given a full hearing on his

motion to withdraw guilty plea. Becraft claims otherwise because the trial court rebuffed

his efforts to explain the reasons he wanted to withdraw his plea during the January 4,

2016 hearing. However, at the time of that hearing, Becraft had not yet filed the motion

to withdraw guilty plea at issue. When Becraft attempted to make his argument at the

hearing, the trial court stopped him and specifically advised that: “We haven’t gotten to

that point yet. * * * If you want to try a motion now to withdraw the plea, that is fine. That

can be filed.” Hearing Trans. (Jan. 4, 2016), p. 10. Two days later, defense counsel

filed a motion to withdraw guilty plea on Becraft’s behalf and both parties were given the

opportunity to gather evidence and prepare an argument on the plea withdrawal issue.

The issue was thereafter discussed at two separate hearings on January 15 and 29, 2016.

At those hearings, Becraft’s counsel was given a full opportunity to explain Becraft’s

reasons for wanting to withdraw his plea and to admit various exhibits in support of the

motion. Becraft never attempted to speak on the matter and was never prevented by the

trial court from doing so. Accordingly, his claim that he was foreclosed from a full hearing
 -26-

on the motion is belied by the record.

{¶ 61} The record further indicates that Becraft understood the nature of the

charges and possible penalties at the time of his plea, as we already decided in his direct

appeal that his plea was knowingly, intelligently, and voluntarily entered. Becraft at ¶ 12-

19. Moreover, the record does not indicate that Becraft had a complete defense to the

aggravated robbery charge. While Becraft has consistently denied being involved in the

robbery and provided various exhibits with his motion to withdraw purportedly indicating

that he was unaware of his co-defendants’ plan to rob the victim, there are nevertheless

multiple witness statements placing Becraft with his co-defendants at the scene of the

crime with the victim herself identifying Becraft as the man who grabbed her purse.

There is also the polygraph test, which, the record indicates Becraft failed.

{¶ 62} Finally, there is sufficient information in the record to support a finding that

the State would be prejudiced by the withdrawal of Becraft’s guilty plea. Specifically,

Becraft’s offense occurred more than four years ago, which would likely make it difficult

for the State to relocate and compel witness testimony for a new trial. Accordingly, the

record does not clearly and convincingly demonstrate that the State would not suffer any

prejudice from the plea withdrawal. We further note that the trial court may have

considered the interests of the victim, who suffered psychological harm, to have to relive

the offense through her testimony at trial.

{¶ 63} Although Becraft’s motion was filed within a reasonable time given that he

only recently discovered the information on which his motion is based, timeliness alone

is insufficient as a matter of law to support the withdrawal of a plea. State v. Chatman,

2d Dist. Montgomery No. 25766, 2014-Ohio-134, ¶ 10. Here, the majority of the factors
 -27-

in Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788, do not support Becraft withdrawing

his plea. Accordingly, we do not find that the trial court abused its discretion in overruling

Becraft’s presentence/post-remand motion to withdraw guilty plea, placing great weight

on the fact that Becraft provided no reasonable, legitimate basis for the withdrawal.

{¶ 64} Becraft’s Third Assignment of Error is overruled.

Conclusion

{¶ 65} Having partially sustained Becraft’s First Assignment of Error, the portion of

Becraft’s sentence ordering $1,200 in restitution to the victim is modified to $583.33. We

note that it would also be appropriate to order Becraft to pay $1,200 jointly and severally,

but for the sake of being consistent with the order of restitution imposed on Becraft’s

codefendant, restitution shall be modified to $583.33. Having overruled Becraft’s other

two assignments of error, the remainder of the trial court’s judgment is affirmed.

.............

HALL, P.J., concurs.

DONOVAN, J., dissenting:

{¶ 66} I disagree. The trial court cannot now disavow the finding which it made in

its original judgment entry, to-wit: “in committing the offense, the defendant made an

actual threat of harm to a person with a deadly weapon.” The majority suggests there

was some “confusion” during the direct appeal. There was no “confusion” whatsoever

as the trial court speaks through its judgment entry, State v. Rainwater, 2d Dist.

Montgomery No. 24136, 2011-Ohio-872, ¶ 17, and this finding is unequivocal. In my

view, the trial court appears not to have exercised its discretion in light of the reversal of
 -28-

the judgment, but, in effect to have sought merely to justify the original sentence. The

State of Ohio likewise called our prior decision “erroneous.” If such is the view of the

prosecuting attorney, the State should have sought Supreme Court review. It did not.

{¶ 67} The court’s apparent attitude about our reversal and remand appears to

have bled over into a lack of meaningful consideration of Becraft’s motion to withdraw his

plea. Becraft was entitled to a full evidentiary hearing on his motion, including an

opportunity for Becraft himself to speak and/or testify which did not occur. This is

evidenced by the following:

DEFENDANT: I would just like to talk about - -

THE COURT: Just a moment, please.

DEFENDANT: Oh.

THE COURT: We haven’t gotten to that point yet.

DEFENDANT: I apologize.

Hearing Trans. (Jan. 4, 2016), p. 10.

{¶ 68} It is clear that Becraft desired to speak to the trial court directly and articulate

his rationale for wanting to withdraw his plea. The trial court’s refusal to allow Becraft to

address the court on the merits of his motion establishes that the hearing fell short of the

full and impartial hearing that the law requires. Defense counsel attempted to secure

Becraft’s right to address the court, stating “I would ask the court to let Mr. Becraft speak

on his behalf, Your Honor”. Hearing Trans. (Jan. 4, 2016), p. 9. However, this effort

also was rebuffed. The only time the Defendant was permitted to address the court was

at Sentencing, after the Motion to Withdraw was already denied.

{¶ 69} Furthermore, the content of Defendant’s Exhibit P, a 911 recording reveals,
 -29-

“We think we just saw two guys steal a purse.” There is, in this initial call, no reference

to a third individual. This report is consistent with Becraft’s defense. This 911 call

comports with co-defendant Dozier’s written statement identified as Defendant’s Exhibit

A, which buttresses Becraft’s claim of innocence. In addition, Exhibit W, an affidavit from

an inmate, avers that co-defendant Jeremy Dover revealed to him that Becraft was

“innocent.”3 These exhibits were, in fact, admitted at Becraft’s limited motion to withdraw

his plea hearing and hence should have been considered, not ignored.

{¶ 70} I’d also note although the written results of the polygraph are not part of our

record, the transcript suggests Becraft failed one question on the issue of whether he

received any money from the aggravated robbery. The printed transcript suggests the

court was in possession of the complete report raising the concern as to whether it was

considered. Ostensibly, a singular failed question may establish receiving stolen

property but is not necessarily evidence Becraft was an accomplice in or planned the

aggravated robbery itself.

{¶ 71} Accordingly, I would reverse and vacate the sentence and grant Becraft’s

motion to withdraw his plea.

..........

Copies mailed to:

Megan M. Farley
S. Todd Brecount
Hon. Richard J. O’Neill

3 It is significant to note that Becraft’s post-conviction relief petition filed December 2,
2013 was never decided on the merits. It was dismissed on May 6, 2015 because the
direct appeal was pending. Hence, Becraft may still be able to pursue this avenue of
relief.