[Cite as State v. Smith, 2021-Ohio-4028.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. 21CA3739 

 

 v. : 

 

CIERA M. SMITH : DECISION AND JUDGMENT ENTRY 

 

 Defendant-Appellant. : 

_________________________________________________________________ 

 APPEARANCES: 

Scott P. Wood, Lancaster, Ohio for appellant.1 

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. 

Wells, Assistant Prosecuting Attorney, Chillicothe, Ohio, for 

appellee. 

_________________________________________________________________ 

CRIMINAL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED:11-8-21 

ABELE, J. 

{¶1} This is an appeal from a Ross County Common Pleas Court 

judgment of conviction and sentence. The trial court found Ciera 

M. Smith, defendant below and appellant herein (1) guilty of 

second-degree aggravated possession of methamphetamine and imposed 

a prison sentence, and (2) denied her request to withdraw her 

guilty plea. 

{¶2} Appellant assigns the following errors for review: 

1

 Different counsel represented appellant during a portion of 
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2

 FIRST ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ABUSED ITS DISCRETION IN NOT 

ALLOWING APPELLANT TO WITHDRAW HER GUILTY PLEA 

PRIOR TO SENTENCING.” 

SECOND ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED IN SENTENCING 

APPELLANT.” 

{¶3} On December 6, 2019, a Ross County Grand Jury returned an 

indictment that charged appellant with one count of aggravated 

possession of drugs in violation of R.C. 2925.11. 

{¶4} On April 20, 2020, appellant agreed to plead guilty to 

aggravated drug possession as charged in the indictment. At the 

change of plea hearing, the trial court noted that the state, 

defense counsel and appellant negotiated the plea, including a twoyear minimum sentence, and agreed that the trial court accurately 

recited the terms of the plea agreement. After the court asked 

appellant if she understood she would be making a complete 

admission to the allegations contained in the indictment, she 

responded affirmatively. The court further asked appellant if she 

understood that a guilty plea waives her right to a jury trial, her 

right not to testify against herself, her right to confront 

witnesses, her right to compulsory process, and her right to 

require the state to prove her guilt beyond a reasonable doubt. 

the trial court proceedings. 
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Appellant responded that she did so understand. 

{¶5} The trial court thereupon reviewed the maximum penalty 

and informed appellant that this offense has (1) a mandatory 

sentence between two and eight years, and (2) a fine up to $15,000, 

one-half of which is mandatory. The court also addressed court 

costs, post-release control and advised appellant that she would 

not be eligible for judicial release. 

{¶6} Defense counsel pointed out that, because of appellant’s 

pregnancy and upcoming due date, appellant may need ongoing medical 

care arising from pregnancy complications. A discussion then 

ensued concerning whether appellant should deliver her child before 

or after entering prison, and whether appellant could be eligible 

for the prison nursery program. The trial court stated that it 

would be willing to wait until after the birth to impose sentence 

because, once it sentenced appellant, “I don’t have the ability to 

even judicial her. I can’t do anything * * * I can’t modify it.” 

After counsel indicated that he had explained this situation to 

appellant, the court accepted appellant’s guilty plea, but did not 

immediately schedule a sentencing hearing. 

{¶7} On August 20, 2020, appellant, through new counsel, filed 

a motion to withdraw her guilty plea. In particular, appellant 

claimed that, because she did not have the ability to review 

discovery materials until after her plea, her recent review of 
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discovery materials revealed her co-defendant’s admission of 

ownership of the methamphetamine. Thus, appellant reasoned, this 

information provided her with a good faith defense. Appellant 

further argued that, at the time she entered her plea, she believed 

she would enter prison nursery program so that she could be with 

her child during her incarceration. 

{¶8} On October 13, 2020, the trial court held a hearing to 

address appellant’s motion to withdraw her guilty plea and 

appellant’s sentence. At the hearing, appellant testified that, 

when she entered her guilty plea, she had not reviewed her 

discovery packet because her high-risk pregnancy precluded her from 

visiting her counsel’s office. Appellant further explained that, 

after her child’s birth, she visited counsel’s office, reviewed 

discovery, and learned that her co-defendant admitted that he owned 

the drugs. Consequently, appellant now believed she had a good 

faith defense and she wished to change her plea. Appellant also 

testified that, when she entered her guilty plea, she thought she 

was “gonna be able to go into the prison nursery program with my 

child. I would not have to leave her and then she was born two 

months early and since I’m now that’s not possible.” Appellant 

claimed that when she entered her plea, she also understood that 

she would receive two years, but “I could go into a prison nursery 

program * * * before I had my child and even with the medical stuff 
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going on * * * that it was fine.” Appellant stated that “the only 

reason I even took the deal [was] because I just didn’t want to be 

separated from my child that is my biggest concern.” Appellant did 

acknowledge, however, that the trial court informed her that 

acceptance into the prison nursery program was not a certainty, but 

appellant said, “I thought it was.” Appellant also stated that she 

had been drug-free for two years, sees a psychologist and is 

married to her baby’s father. 

{¶9} Appellant also admitted that during her and her codefendant’s 2018 traffic stop, she possessed methamphetamine in her 

pants. Nevertheless, appellant maintained that the discovery 

materials proved that she did not own the drugs and that fact would 

have impacted her decision to plead guilty. Appellant conceded, 

however, that she could have entered prison, and possibly the 

prison nursery program, when she pleaded guilty, but she chose not 

to be sentenced that day. Instead, at her request the trial court 

twice continued her sentencing hearing. 

{¶10} At the motion hearing the state called Attorney Matthew 

O’Leary to testify. O’Leary represented appellant at her December 

23, 2019 arraignment. He also stated that he received all of the 

discovery materials. Although O’Leary recalled that appellant had 

several medical appointments related to her high-risk pregnancy and 

that this fact made meetings at his office difficult, he stated, 
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we had discussed extensively the nature of the discovery 

both prior to that plea. I think one of the initial 

appointments in the office * * * where I did have the 

discovery and then throughout that case over the phone, 

over email um, again a large portion being, I could not 

physically provide her copies because I am unable to do 

that and I know that was communicated in writing via 

email. 

O’Leary further testified that appellant visited his office in midJuly and reviewed documents and portions of a video. O’Leary also 

recalled the April 20, 2020 change of plea hearing and appellant’s 

guilty plea. 

{¶11} Additionally, at the motion hearing the trial court asked 

whether appellant’s substitute counsel had received discovery. 

When the court learned that he had not, the court continued the 

hearing so that new counsel could have an opportunity to review the 

discovery materials. The court stated: 

My notes from all of the pre-trials in this. The first 

one was the defendant said, ‘not her dope.’ She would be 

willing to plea to an F3. She indicated, or no, in 

chambers she argued it was her boyfriend’s dope. She was 

given a week then to file motions and then we started 

discussing moving the case in to April and that sort of 

thing. So, I was at least a prior to then that was what 

she was saying and I tend to, I get your argument if 

there is something in the discovery that indicates that 

her boyfriend had said ‘it was mine.’ If you believe she 

didn’t know that, then yes that would be a significant 

factor. So, that’s what I kind of would like to know is 

whether discovery actually said, makes those statements. 

The trial court then continued the hearing to allow appellant’s 

counsel time to review the discovery materials and determine 
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whether the co-defendant’s statement concerning the ownership of 

the methamphetamine appeared in those materials. 

{¶12} Subsequently, counsel reviewed the discovery materials, 

including a video, and the co-defendant stated that he owned the 

drugs. Concerning appellant’s contention that she pleaded guilty 

based on her belief that she could be with her child during her 

incarceration, the trial court observed that the court informed 

appellant at her plea hearing that, although that could be the 

ideal situation, the court could not promise that would actually 

occur. 

{¶13} Consequently, concerning appellant’s contention that when 

she entered her guilty plea she did not have the opportunity to 

review discovery materials and that she did not know about her codefendant’s admission, the trial court concluded: 

Quite frankly, I believe she was aware that he made those 

statements and that in fact that was her defense the 

entire of that, it wasn’t hers or difficulty, it clearly 

was, it was on her person. And two people can obviously 

possess one item. As such it sounds more like buyer’s 

remorse than it does anything else. So, I’m going to 

deny the motion to withdraw plea. 

 

{¶14} Therefore, the trial court (1) overruled appellant’s 

motion to withdraw her guilty plea, (2) sentenced her to serve an 

indefinite prison term of two to three years of mandatory time, (3) 

imposed a mandatory $7,500 fine, and (4) imposed a three-year 

mandatory post-release control term, and (5) denied appellant’s 
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motion to stay execution of sentence pending appeal. This appeal 

followed. 

I. 

{¶15} In her first assignment of error, appellant asserts that 

the trial court’s denial of her motion to withdraw her guilty plea 

constitutes an abuse of discretion. In particular, appellant 

contends that when she entered her guilty plea, she did not know 

that her co-defendant had admitted that he owned the 

methamphetamine found on her person. 

{¶16} Crim.R. 32.1 provides: “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.” “While trial courts should ‘freely and 

liberally’ grant a presentence motion to withdraw a guilty plea, a 

defendant does not ‘have an absolute right to withdraw a guilty 

plea prior to sentencing.’” State v. Howard, 2017-Ohio-9392, 103 

N.E.3d 108, ¶ 21 (4th Dist.), quoting State v. Xie, 62 Ohio St.3d 

521, 527, 584 N.E.2d 715 (1992). Instead, “[a] trial court must 

conduct a hearing to determine whether there is a reasonable and 

legitimate basis for the withdrawal of the plea.” Xie at paragraph 

one of the syllabus; Howard, supra. 
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{¶17} While a trial court may possess discretion to determine 

whether to grant or to deny a presentence motion to withdraw a 

guilty plea, the court does not have the discretion to determine if 

a hearing is required. Howard at ¶ 22, citing State v. Wolfson, 

4th Dist. Lawrence No. 02CA28, 2003-Ohio-4440, ¶ 15. Furthermore, 

because a trial court has broad discretion to grant or to deny a 

presentence motion to withdraw a plea, an appellate court will not 

reverse a court’s decision absent an abuse of discretion. State v. 

Delaney, 4th Dist. Jackson No. 19CA9, 2020-Ohio-7036, ¶ 19, citing 

State v. Brown, 4th Dist. Ross No. 16CA3544, 2017-Ohio-2647 at ¶ 

11, citing Xie at ¶ 2 of the syllabus. “The term ‘abuse of 

discretion’ implies that the court’s attitude is unreasonable, 

unconscionable, or arbitrary.” Brown at ¶ 12, citing State v. 

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). 

{¶18} Courts have identified nine factors that appellate courts 

should consider when reviewing a trial court’s decision regarding a 

pre-sentence motion to withdraw a guilty plea: 

(1) whether “highly competent counsel” represented the 

defendant; (2) whether the trial court afforded the 

defendant “a full Crim.R. 11 hearing before entering 

the plea”; (3) whether the trial court held “a full 

hearing” regarding the defendant’s motion to withdraw; 

(4) “whether the trial court gave full and fair 

consideration to the motion”; (5) whether the defendant 

filed the motion within a reasonable time; (6) whether 

the defendant’s motion gave specific reasons for the 

withdrawal; (7) whether the defendant understood the 

nature of the charges, the possible penalties, and the 
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10

consequences of his [or her] plea; (8) whether the 

defendant is “perhaps not guilty or ha[s] a complete 

defense to the charges”; and (9) whether permitting the 

defendant to withdraw his [or her] plea will prejudice 

the state. 

 

Howard at ¶ 24, citing State v. McNeil, 146 Ohio App.3d 173, 176, 

765 N.E.2d 884 (1st Dist.2001), citing State v. Peterseim, 68 Ohio 

App.2d 211, 214, 428 N.E.2d 863 (8th Dist. 1980). This list is 

“non-exhaustive” and “‘[c]onsideration of the factors is a 

balancing test, and no one factor is conclusive.’” State v. 

Ganguly, 2015-Ohio-845, 29 N.E.3d 375, ¶ 14 (10th Dist.), citing 

State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio4087, ¶ 13. Thus, the ultimate question is whether a “reasonable 

and legitimate basis for the withdrawal of the plea.” Xie, 62 Ohio 

St.3d at 527, 584 N.E.2d 715. “A mere change of heart is not a 

legitimate and reasonable basis for the withdrawal of a plea.” 

Howard at ¶ 24, citing State v. Campbell, 4th Dist. Athens No. 

8CA31, 2009-Ohio-4992, ¶ 7, State v. Harmon, 4th Dist. Pickaway No. 

4CA22, 2005-Ohio-1974, ¶ 22; Delaney at ¶ 21. 

{¶19} Although appellant points to the nine-factor test 

highlighted above, she does not appear to apply all of the test 

factors to her particular case. Instead, appellant submits that 

she believes that she had a reasonable and legitimate basis to 

withdraw her plea, namely, that before her plea she did not have 

the opportunity to review discovery materials, but after her 
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review, she learned that her co-defendant had admitted ownership of 

the drugs. This, appellant argues, supports her defense that the 

drugs were “thrown at her” during the traffic stop. We begin our 

analysis with a review of the nine court-recognized factors. 

1 

Highly Competent Counsel 

{¶20} Courts begin with the presumption that a defendant had 

competent counsel. Delaney at ¶ 25, citing State v. Shifflet, 

2015-Ohio-4250, 44 N.E.3d 966, ¶ 37 (4th Dist.). Further, as we 

also noted in Delaney, appellant in the case sub judice did not 

raise an ineffective assistance of counsel claim. The state, 

however, called appellant’s plea counsel as a witness and he 

testified that he met with appellant several times before her 

guilty plea. 

{¶21} Our review of the record reveals that appellant’s plea 

counsel requested, and received, the discovery materials. Finally, 

at the plea hearing the trial court asked appellant if she was 

satisfied with the “advice [and] counsel of your attorney” to which 

appellant replied, “yes.” 

{¶22} Thus, we believe the first factor weighs in appellee’s 

favor. 
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2 

Crim.R. 11 Hearing 

{¶23} Appellant takes no issue with the requirement that she 

receive a full Crim.R. 11 hearing. The April 20, 2020 hearing 

transcript reveals that the trial court afforded appellant a full 

Crim.R. 11 hearing before it accepted her guilty plea. 

Additionally, the court engaged in the appropriate colloquy with 

appellant to ensure that she understood the constitutional and nonconstitutional implications of her guilty plea. 

{¶24} Thus, we believe the second factor weighs in appellee’s 

favor. 

3 

Full Hearing 

{¶25} The third factor asks whether appellant received a full 

and meaningful hearing on her motion to withdraw her plea. As 

indicated above, although a trial court may possess discretion to 

determine whether to grant or to deny a presentence motion to 

withdraw a guilty plea, the court does not have discretion to 

determine if a hearing is required. Howard at ¶ 22; see also 

Wolfson at ¶ 15, Harmon at ¶ 17. Instead, a court has a mandatory 

duty to hold a hearing to consider a presentence motion to withdraw 

a guilty plea. Xie at paragraph one of the syllabus; State v. 

Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, ¶ 50; 
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State v. Burchett, 4th Dist. Scioto No. 11CA3445, 2013-Ohio-1815, ¶ 

13; Wolfson at ¶ 15. In Wolfson, we explained that, although a 

trial court “must afford the defendant meaningful notice and a 

meaningful opportunity to be heard,” the court nonetheless retains 

discretion to define the scope of the hearing to “reflect the 

substantive merits of the motion.” Wolfson at ¶ 16. 

{¶26} In the case sub judice, the trial court held a hearing on 

appellant’s motion. The court heard testimony from appellant, as 

well as her plea counsel. In fact, the court reconvened on a 

second date to allow appellant’s counsel, after having an 

opportunity to review discovery, to present any additional 

testimony or argument. 

{¶27} Thus, we believe that this factor weighs in appellee’s 

favor. 

4 

Full and Fair Consideration 

{¶28} The fourth factor examines whether a trial court fully 

and fairly considered the motion to withdraw a guilty plea. As 

noted above, the record in this case reveals that the trial court 

gave full and fair consideration to appellant’s motion. For 

example, on October 13, 2020 the trial court held a hearing and 

heard testimony from appellant and her plea counsel. In addition, 
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the court continued the hearing to allow new counsel to adequately 

review discovery. 

{¶29} Thus, we believe the fourth factor weighs in appellee’s 

favor. 

5 

Reasonable Time 

{¶30} The fifth factor asks whether the appellant requested to 

withdraw the plea within a reasonable time. In the case sub 

judice, appellant filed her motion four months after her plea and 

eight months after prior counsel received discovery. Also, 

appellee points out that appellant received two continuances of her 

sentencing date before she filed her motion to withdraw her plea. 

This is not unreasonable, in view of the fact that appellant’s new 

counsel needed time to review and prepare the case. Thus, four 

months elapsed between appellant’s guilty plea and her request to 

withdraw her plea. 

{¶31} Based on the foregoing, we believe that appellant filed 

her motion within a reasonable time and the fifth factor weighs in 

appellant’s favor. 
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6 

Specific Reasons for Withdrawal 

{¶32} The sixth factor asks whether the appellant sufficiently 

outlined specific reasons for her plea withdrawal request. Here, 

appellant’s motion asserted that she would not have pleaded guilty 

if (1) she could have reviewed discovery materials, and (2) she 

would have known that she would not be admitted into the prison 

nursery program. However, with respect to the alleged merits of 

the prison nursery program, we conclude that, although appellant 

cites a specific reason for her motion, this reason lacks merit. 

As the trial court aptly pointed out, the court could not guarantee 

appellant’s acceptance into that program. We will address the 

discovery issue under our discussion of the eighth factor. 

{¶33} Consequently, this factor weighs in appellee’s favor. 

7 

Nature of the Charges and the Possible Penalties 

{¶34} The seventh factor asks whether the appellant understood 

the nature of the charges and possible penalties. In the case at 

bar, the trial court conducted a thorough Crim.R. 11 plea hearing. 

The court asked appellant if she understood her plea and its 
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consequences, to which appellant replied that she did. Further, as 

appellee points out, appellant did not indicate at either hearing 

on her motion that she did not understand the consequences of her 

plea or the possible penalties. 

{¶35} Thus, we believe this factor weighs in appellee’s favor. 

8 

Possible Defenses or Innocence 

{¶36} The eighth factor asks us to examine whether appellant 

had possible defenses to the charge. “In weighing [this] factor, 

‘the trial judge must determine whether the claim of innocence is 

anything more than the defendant’s change of heart about the plea 

agreement.’” State v. Davis, 5th Dist. Richland No. 15CA6, 2015-

Ohio-5196, ¶ 19, quoting State v. Davison, 5th Dist. Stark No. 

2008-CA-00082, 2008-Ohio-7037, ¶ 45. As noted in Harmon, a mere 

change of heart is not a reasonable basis for a defendant to 

withdraw a guilty plea. Harmon at ¶ 33; see also Sarver at ¶ 44; 

State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th 

Dist.1988). However, in this inquiry “the balancing test only asks 

whether the defendant has possible defenses. Whether the appellant 

will be successful in those defenses is for a jury to decide.” 

State v. Jones, 10th Dist. Franklin No. 15AP-530, 2016-Ohio-951, ¶ 
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10; Harmon at ¶ 33. 

{¶37} This factor encapsulates the crux of appellant’s argument 

in the case sub judice. Appellant argues that, at the time of her 

plea, she did not know about her co-defendant’s statement 

concerning his ownership of the methamphetamine. 

{¶38} Appellee, however, points out that appellant actually 

made this argument at the time of her guilty plea - that she was 

only “holding” the methamphetamine. Appellee further points out 

that the testimony adduced at the motion hearing showed that, 

although appellant may not have personally read the discovery 

materials before she entered her plea, her attorney fully informed 

her about the nature of the discovery. In addition, appellee notes 

that appellant admitted to officers that she knew the identity of 

the substance that she had concealed in her pants. Thus, appellee 

argues that appellant has, and had, no defense to the charge. 

{¶39} As the trial court indicated, two or more persons may 

have joint constructive possession of the same object. State v. 

Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19, citing 

State v. Riggs (Sept. 13, 1999), Washington No. 98CA39, 1999 WL 

727952, at *4; State v. Cole, 2d Dist. Montgomery No. 26576, 2015-

Ohio-5295, ¶ 34. Further, appellant admitted that she possessed 

the methamphetamine. Additionally, as the trial court points out, 
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the evidence reveals that appellant knew about the ownership issue 

at the time she entered her guilty plea, 

{¶40} Thus, we believe this factor weighs in appellee’s favor.

 

9 

Prejudice to the State 

{¶41} The final factor asks us to examine whether the 

withdrawal of appellant’s plea would prejudice appellee. The state 

opposed the motion and argues, in addition to the general 

contention that over time memories fade and witnesses relocate, 

this case is over three years old and the chemist has retired from 

the lab, which would require the state to make special 

arrangements. Thus, appellee argues that the state will suffer 

prejudice if appellant is permitted to withdraw her plea. 

{¶42} While the record does not indicate why it took eight 

months for the state to obtain lab results, and why it took nine 

more months for the grand jury to consider appellant’s case, we 

acknowledge that the state would suffer some degree of prejudice if 

appellant withdraws her plea three years after the offense 

occurred. 
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{¶43} Thus, we believe this factor weighs in appellee’s favor.

 

Conclusion 

{¶44} After our review in the case sub judice, we agree with 

the trial court’s conclusion that under these circumstances 

appellant’s attempt to withdraw her guilty plea amounts to “buyer’s 

remorse,” or a change of heart, neither of which constitutes a 

legitimate basis to grant a pre-sentence motion to withdraw a plea. 

State v. Palmer, 4th Dist. Highland No. 02CA9, 2002-Ohio-6345, ¶ 6; 

Sarver at ¶ 44; Harmon at ¶ 36. After our review of the various 

factors that courts use to evaluate whether a motion to withdraw a 

plea should be granted, we believe that the factors weigh heavily 

in appellee’s favor. Thus, we believe that the trial court acted 

properly and reasonably and its denial of appellant’s motion to 

withdraw her guilty plea does not constitute an abuse of 

discretion. 

{¶45} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s first assignment of error. 

II. 

{¶46} In her second assignment of error, appellant asserts that 
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the trial court erred when it imposed an indefinite sentence 

pursuant to R.C. 2929.14(A)(2)(a) when, instead, it should have 

imposed a definite sentence under R.C. 2929.14(A)(2)(b). 

{¶47} R.C. 2953.08 provides for appeals based on felony 

sentencing guidelines. Pursuant to R.C. 2953.08(G)(2), an 

appellate court may increase, reduce, modify, or vacate and remand 

a challenged felony sentence if the court clearly and convincingly 

finds either “that the record does not support the sentencing 

court’s findings” under the specified statutory provisions, or “the 

sentence is otherwise contrary to law.” State v. Watson, 4th Dist. 

Meigs No. 18CA20 & 18CA21, 2019-Ohio-4385, ¶ 11, quoting State v. 

Mitchell, 4th Dist. Meigs No. 13CA13, 2015-Ohio-1132, ¶ 11; State 

v. Brewer, 4th Dist. Meigs No. 14CA1, 2014-Ohio-1903, at ¶ 37. 

{¶48} Appellant committed her offense on July 28, 2018 and the 

grand jury returned an indictment on December 6, 2019. The trial 

court sentenced appellant under the Reagan Tokes Act, which became 

effective March 22, 2019. Here, appellant argues, and appellee 

concedes, that appellant should have been sentenced under the 

former sentencing guidelines. Thus, appellant should be sentenced 

under the proper statute. 

{¶49} Accordingly, based upon the foregoing reasons, we sustain 

appellant’s second assignment of error. 
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 III. 

{¶50} Therefore, based upon the foregoing reasons (1) we affirm 

the trial court’s judgment concerning the denial of appellant’s 

motion to withdraw her plea, and (2) reverse the sentence that the 

trial court imposed and remand this matter for re-sentencing. 

JUDGMENT AFFIRMED, IN PART, 

REVERSED, IN PART, 

CONSISTENT WITH THIS 

OPINION, AND MATTER 

REMANDED FOR RESENTENCING. 
ROSS, 21CA3739

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JUDGMENT ENTRY 

 It is ordered that the judgment be affirmed, in part, and 

reversed, in part, consistent with this opinion. We remand this 

matter for re-sentencing. Appellant shall recover of appellee the 

costs herein taxed. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court 

directing the Ross County Common Pleas Court to carry this judgment 

into execution. 

 If a stay of execution of sentence and release upon bail has 

been previously granted by the trial court or this court, it is 

temporarily continued for a period not to exceed 60 days upon the 

bail previously posted. The purpose of a continued stay is to 

allow appellant to file with the Supreme Court of Ohio an 

application for a stay during the pendency of the proceedings in 

that court. If a stay is continued by this entry, it will 

terminate at the earlier of the expiration of the 60-day period, or 

the failure of the appellant to file a notice of appeal with the 

Supreme Court of Ohio in the 45-day appeal period pursuant to Rule 

II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. 

Additionally, if the Supreme Court of Ohio dismisses the appeal 

prior to expiration of 60 days, the stay will terminate as of the 

date of such dismissal. 

 A certified copy of this entry shall constitute that mandate 

pursuant to Rule 27 of the Rules of Appellate Procedure. 

 Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion 

 For the Court 

 

 BY:___________________________ 

 Peter B. Abele, Judge 

 

 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a 

final judgment entry and the time period for further appeal 

commences from the date of filing with the clerk.