[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Azeen, Slip Opinion No. 2021-Ohio-1735.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2021-OHIO-1735

THE STATE OF OHIO, APPELLANT, v. AZEEN, APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Azeen, Slip Opinion No. 2021-Ohio-1735.] 

Criminal law—In the absence of a negotiated plea agreement showing an express 

or implied reservation by the state of the right to file additional charges and 

that a defendant had been induced into offering a guilty plea, the state may 

pursue additional charges when a victim of a crime later dies of the injuries 

sustained in the crime—State was entitled to file aggravated-murder 

charges when victim later died of injuries suffered years earlier—No plea 

agreement was entered on the record when defendant was initially charged 

with attempted murder—Inference of a plea agreement was not supported 

by facts in evidence.

(No. 2020-0143—Submitted January 27, 2021—Decided May 25, 2021.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 108072, 2019-Ohio-4677. 

_______________________ 
SUPREME COURT OF OHIO

2

DEWINE, J.

{¶ 1} In 1987, Abdul Azeen pleaded no contest to attempted murder after 

shooting a young man in the neck on a playground basketball court. Some 27 years 

later, the victim died, allegedly as a result of injuries from the shooting. The state 

reindicted Azeen, this time charging him with aggravated murder. Azeen claims 

that his earlier plea prevents the state from prosecuting him again. We must decide 

whether the murder case may go forward. 

{¶ 2} In arguing that further prosecution is barred, Azeen relies on a prior 

decision of this court, State v. Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66 (1993). 

There, we applied principles of contract law to hold that when a court “has accepted 

a negotiated guilty plea to a lesser offense and the victim later dies of injuries 

sustained in the crime” (emphasis added), the state is precluded from prosecuting 

the defendant for murder “unless the state expressly reserves the right to file 

additional charges on the record at the time of the defendant’s plea.” Id. at syllabus; 

see State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 11 (“The

holding in Carpenter is essentially a synthesis of contract and criminal law in a 

particular factual setting”). 

{¶ 3} By its terms, Carpenter applies to negotiated pleas. Here, there is no 

evidence that Azeen’s 1987 plea was the product of negotiations between the state 

and Azeen. As a consequence, the rule announced in Carpenter does not prevent 

the state from prosecuting Azeen on the new murder charge. We therefore reverse 

the contrary judgment of the court of appeals and remand this case to the trial court 

for further proceedings. 

I. The criminal proceedings related to the shooting 

A. The 1987 case 

{¶ 4} In 1987, Azeen opened fire on a group of young men taking part in a 

playground basketball game. Azeen shot Danuell Jackson in the neck, leaving him 

paralyzed from the waist down. Azeen then took aim at Herman Jackson, Danuell’s 
January Term, 2021 

3

brother, shooting him in his groin. Azeen ultimately pleaded no contest to all the 

counts in the indictment: the felonious assault of Herman and the attempted murder 

of Danuell, both with gun specifications, as well as a charge of having a weapon 

while under a disability.1 

{¶ 5} The trial court opened the plea hearing by confirming that Azeen 

intended to enter a no-contest plea and advising him of the possible sentencing 

range for each of the offenses. Following that portion of the colloquy, the trial court 

judge informed Azeen of the sentence he intended to impose: “I have indicated to 

your attorney that you will expect, under the circumstances presented here, I’m 

going to sentence you to three years actual incarceration and on top of that I’m 

going to sentence you to five to twenty-five years.” 

{¶ 6} By this exchange, the trial court conveyed to Azeen that it would 

impose 3 years for the gun specifications followed by an indefinite term of 5 to 25 

years. This 8-to-25-year term amounted to the minimum sentence available on the 

attempted-murder count. See former R.C. 2923.02(E), Am.H.B. No. 651, 140 Ohio 

Laws, Part II, 4345, 4348; former R.C. 2929.11(B)(1)(a), Am.H.B. No. 284, 141 

Ohio Laws, Part II, 3101, 3102; former R.C. 2929.71, Am.S.B. No. 261, 140 Ohio 

Laws, Part I, 583, 601. 

{¶ 7} The trial court then reviewed Azeen’s constitutional rights and

accepted his no-contest pleas. At that point, the prosecutor summarized the facts 

supporting the charges, and the victims addressed the court. The prosecutor 

informed the court that Danuell’s condition “will probably not improve,” 

explaining that “[i]f anything, it will deteriorate slowly.” No one suggested that 

Danuell’s injuries might be fatal, and the state did not address the possibility of 

bringing additional charges in the event that Danuell were to die from his injuries. 

 

1. At the time, Azeen was known as Lloyd Harris and was prosecuted under that name. This opinion 

will refer to Azeen by his current name. 
SUPREME COURT OF OHIO

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{¶ 8} The court pronounced Azeen guilty and proceeded directly to 

sentencing. The trial court imposed a prison term of 8 to 15 years for the feloniousassault charge with the attendant gun specification; a term of 8 to 25 years on the 

attempted-murder charge, also including the associated gun specification; and a 

definite sentence of one and a half years for having a weapon while under a 

disability. The prosecutor then engaged in the following exchange with the court: 

 [Prosecutor]: To be served how? 

 The court: To be served concurrently. 

 [Prosecutor]: The first two counts to be served concurrently, 

or all three? 

 The court: All three served concurrently. 

All in, the trial court sentenced Azeen to an aggregate prison term of 8 to 25 years. 

And by ordering Azeen’s sentences to be served concurrently, the trial court 

imposed the minimum prison term authorized for his offenses. 

B. The 2016 case 

{¶ 9} Danuell died in 2014. The autopsy examiner opined that his death 

was caused by infections that had developed as a result of an ulcer in his pelvis and 

upper leg, which the examiner attributed to his paraplegia. The examiner therefore 

ruled the death a homicide, and in 2016, the state indicted Azeen for the aggravated 

murder of Danuell based on the 1987 shooting. 

{¶ 10} Azeen filed a motion to dismiss the 2016 indictment on the grounds 

that it violated the terms of a negotiated plea agreement that Azeen claimed he had 

entered into with the state in 1987. His argument was premised on this court’s 

decision in Carpenter. There, this court held, “the state cannot indict a defendant

for murder after the court has accepted a negotiated guilty plea to a lesser offense 

and the victim later dies of injuries sustained in the crime, unless the state expressly 
January Term, 2021 

5

reserves the right to file additional charges on the record at the time of the 

defendant’s plea.” Carpenter, 68 Ohio St.3d at 62, 623 N.E.2d 66. Azeen 

contended that because the state had not reserved its right to bring additional 

charges at the time of his plea, the state was barred from prosecuting him for 

Danuell’s death. The state countered that there had not been a negotiated plea, so 

Carpenter did not apply. 

{¶ 11} During the hearing on the motion to dismiss, Azeen conceded that 

no explicit plea agreement appeared on the record. Nonetheless, Azeen maintained 

that the transcript of the 1987 plea hearing demonstrated that the parties had entered 

into a sentencing agreement prior to going on the record. Azeen argued that “there 

had to be some negotiation” between the parties because the trial court told Azeen 

what his sentence would be before he entered his no-contest pleas. Counsel for 

Azeen also touted the capabilities of the lawyer who had represented Azeen in 

1987, saying that “there’s no way [Azeen’s former lawyer] walked into a courtroom 

without knowing his client was going to get the minimum and pled no contest.” 

{¶ 12} In response, the state pointed out that the trial court’s statement about 

the sentence Azeen could expect demonstrated only that the judge had made a 

decision about the sentence he would impose; it did not show that that sentence was 

the product of an agreement. Because the record contained no evidence of a 

negotiated plea agreement between Azeen and the state, Azeen could not have 

reasonably believed that the state had—in exchange for Azeen’s plea—agreed not 

to bring any additional charges related to the matter. 

{¶ 13} The trial court granted Azeen’s motion to dismiss, venturing that “all 

the elements of a contract are supported in the transcript” of the 1987 plea hearing. 

The trial court agreed that Azeen had been “assigned a zealous advocate” in the 

earlier case and that as a result, Azeen must have received “a significant benefit to 

induce him into entering a no contest plea.” The court therefore surmised that 

Azeen’s sentence was “a direct result of the discussions” that had taken place off 
SUPREME COURT OF OHIO

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the record. And because the prosecutor had “remained silent when the Court 

outlined this benefit,” the court reasoned that the state had “in effect acquiesced to 

the agreement.” 

{¶ 14} The Eighth District Court of Appeals affirmed the trial court’s

dismissal of the aggravated-murder charge. It reasoned, “Had there not been offthe-record negotiations and an agreement on the sentence, the trial judge would not 

have stated Azeen’s sentence as the first course of business at the change-of-plea 

hearing.”2

 2019-Ohio-4677, 143 N.E.3d 162, ¶ 27. The court of appeals further 

relied on the fact that the trial court had proceeded directly to sentencing as proof 

that the sentence had already been negotiated. Id. And the court of appeals also 

found it significant that counsel for Azeen had “informed the court” at the hearing 

on the motion to dismiss that the attorney who had represented Azeen in the 1987 

case was “a seasoned criminal defense attorney who fought hard for his clients.” 

Id. at ¶ 26. 

{¶ 15} The state presents two arguments in its appeal to this court. Its first 

proposition of law asserts that this court’s decision in Carpenter does not apply 

retroactively to pleas entered before that case was decided. And in its second 

proposition of law, the state contends that irrespective of the retroactivity question, 

Carpenter does not apply to unnegotiated no-contest pleas like the one in this case. 

 

 

2. It is worth noting that the Eighth District’s account of the 1987 plea hearing contains some 

inaccuracies. The court of appeals described the trial court’s sentencing advisement this way: “At 

the opening of the plea hearing, the trial court told Azeen ‘when you plead no contest, you can 

expect to receive this sentence: Three years for the firearm specification, and then the 5 to 25 

indeterminate for the attempted murder. The other offenses are concurrent.’ ” 2019-Ohio-4677, 

143 N.E.2d 162, at ¶ 24. But that language appears nowhere in the transcript of the plea hearing; 

rather, the Eighth District is quoting defense counsel’s summation during the hearing on the motion 

to dismiss. Nor was the trial court’s statement regarding Azeen’s sentence its “first course of 

business” at the opening of the plea hearing. See id. at ¶ 27. Instead, it appears on the tenth page 

of the plea transcript, after the trial court had fully advised Azeen of the potential sentencing ranges 

for his crimes. 
January Term, 2021 

7

II. The Carpenter decision 

{¶ 16} When a defendant has entered a plea to a nonhomicide offense and 

the victim later dies as a result of the conduct that gave rise to the offense, the state 

may bring charges for homicide without running afoul of the constitutional 

prohibitions against double jeopardy. State v. Dye, 127 Ohio St.3d 357, 2010-Ohio5728, 939 N.E.2d 1217, ¶ 20, fn. 2. This is because the Double Jeopardy Clauses 

of the Fifth Amendment to the United States Constitution and Article I, Section 10 

of the Ohio Constitution bar second prosecutions for the same offense. A defendant 

who has entered a plea to a lesser offense prior to the victim’s death has not yet 

been placed in jeopardy for homicide; an essential element of any homicide 

offense—the death of the victim—has not yet occurred. Dye at ¶ 20, fn. 2, citing 

Diaz v. United States, 223 U.S. 442, 449, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (only 

when the victim had died “was it possible to put the accused in jeopardy” for a 

homicide offense). Because “a fact necessary to the commission of [the homicide 

offense] occurs after the defendant has been convicted of another offense, multiple 

prosecutions are not barred by the Double Jeopardy Clause.” State v. Thomas, 61 

Ohio St.2d 254, 262, 400 N.E.2d 897 (1980), overruled on other grounds, State v. 

Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990), superseded by statute as stated 

in State v Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23. 

{¶ 17} Nevertheless, when a defendant has entered into a plea agreement 

with the state with respect to an offense and the victim later dies as a result of that 

offense, principles of contract law may be applied to prevent a prosecution for 

homicide. The idea is that a plea agreement sometimes may reflect a mutual 

understanding between the prosecutor and the defendant that the plea will finalize 

the entire prosecution related to a criminal incident. In such a situation, the 

defendant’s plea is induced by the prosecutor’s promise—either express or 

implied—not to further prosecute the defendant should the victim die. 
SUPREME COURT OF OHIO

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{¶ 18} This court first considered the question whether a plea agreement 

barred a subsequent prosecution related to the same incident in Carpenter. In that 

case, the defendant and the state had negotiated a plea agreement under which the 

state would reduce the defendant’s felonious-assault charge in exchange for a guilty 

plea. Carpenter, 68 Ohio St.3d at 61-62, 623 N.E.2d 66. At the time of the plea, 

the state was aware that the victim was in a coma and would “very probably die.” 

Id. at 60. A little over a year later, that eventuality came to pass, and the state 

brought murder charges against the defendant. 

{¶ 19} This court concluded that the plea agreement barred any further

prosecution of the defendant for crimes stemming from the assault. We noted that 

the state had chosen to enter into a plea agreement with the defendant even though 

it had known that the victim’s death was likely. Id. at 61. This court explained that 

under those circumstances, the defendant had reasonably expected that his plea 

would resolve the matter entirely and the prosecutor had been fully aware that that 

was the defendant’s understanding. Id. at 62. We therefore reasoned that had the 

state wanted to retain the option of bringing additional charges in the event of the 

victim’s death, it should have made that an explicit part of the agreement. Id. 

{¶ 20} As we later explained, the concern in Carpenter had been “to avoid 

the breaking of promises made by the prosecutor in the original plea agreement.” 

Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, at ¶ 22. Thus, 

“ ‘when a plea rests in any significant degree on a promise or agreement of the 

prosecutor, so that it can be said to be a part of the inducement or consideration, 

such promise must be fulfilled.’ ” Id., quoting Santobello v. New York, 404 U.S. 

257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). We noted that this principle formed 

the basis for the rule in Carpenter that “effect must be given to the intention of the 

state and the defendant in their plea bargain, and courts should enforce what they 

perceive to be the terms of the original plea agreement.” Dye at ¶ 22. We therefore 

held, “In order for a guilty plea to be a ‘negotiated guilty plea’ within the meaning 
January Term, 2021 

9

of State v. Carpenter, the record must show the existence of the elements of a 

contract (the plea agreement).” Id. at ¶ 23. 

{¶ 21} This court found evidence of such a contract in Dye. The defendant 

in that case had been charged with aggravated vehicular assault after he hit a 13-

year-old boy with his truck. Id. at ¶ 3. The child later died from complications 

from injuries sustained in the accident, and the state charged the defendant with 

aggravated vehicular homicide. Though it was “a close question,” this court 

ultimately determined that the original plea had been negotiated, based in part on 

the state’s dismissal of charges and the prosecutor’s statements on the record 

referring to an agreement between the parties. Id. at ¶ 24. 

{¶ 22} This court then turned to the scope of the plea agreement. As in 

Carpenter, we emphasized that the record had contained testimony indicating that 

the child’s death from the injuries was foreseeable. Id. at ¶ 26. The Dye court 

concluded, “On this record, the evidence of plea negotiations and the parties’ 

awareness of the gravity of the victim’s injuries, together with the state’s failure to 

reserve the right to prosecute for any later homicide charge, justify the conclusion 

that the state agreed to forgo further prosecution * * *.” (Emphasis added.) Id. at 

¶ 25. 

{¶ 23} The takeaway from these cases is that whether the state may bring 

additional charges against someone who has entered into a negotiated plea 

agreement depends on the scope of the agreement. In making that determination, 

we consider what matters both parties reasonably understood to be included in the 

agreement. See Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542 

(holding that there could be no reasonable expectation that a plea to a misdemeanor 

charge of driving while under the influence, in violation of a city code, would bar 

a felony charge of aggravated vehicular assault that arose out of the same 

accident—a charge over which neither the municipal court nor the city prosecutor 

had authority). 
SUPREME COURT OF OHIO

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III. The record does not show the existence of a plea agreement in this case 

{¶ 24} We begin by taking up the state’s second proposition of law, which 

we find to be dispositive of this appeal. The state contends that for the rule in 

Carpenter to apply, the terms of a plea agreement must be placed on the record, 

and courts may not infer the existence of an agreement by speculating about the 

contents of an off-the-record conversation. The state maintains that the record does 

not show that a negotiated agreement existed between the parties. If there was no 

negotiated plea agreement between Azeen and the state in 1987, then the state is 

not barred on that ground from bringing additional charges. 

{¶ 25} In this case, the parties did not put any plea agreement on the record. 

And as we will explain, the inferences drawn by the trial court in support of its 

determination that there had been an off-the-record agreement are not supported by 

the facts in evidence. We therefore conclude that the record fails to establish the 

existence of a plea agreement. 

{¶ 26} The lower courts determined that Azeen’s plea had been negotiated 

with the state based largely on the fact that an off-the-record conversation had taken 

place prior to the plea hearing. We agree that the record demonstrates that the court 

had spoken with the parties before the hearing: this is apparent from the judge 

informing Azeen, “I have indicated to your attorney that you will expect, under the 

circumstances presented here, I’m going to sentence you to three years actual 

incarceration and on top of that I’m going to sentence you to five to twenty-five 

years.” (Emphasis added.) But this advisement shows only that the judge had told 

the parties what sentence he intended to impose; it does not support an inference 

that Azeen had entered into any agreement with the state regarding his sentence. 

{¶ 27} It is not unusual in criminal cases for attorneys to approach the judge 

to get an idea of what sentence the judge is likely to impose if their client enters a 

plea to an offense. Some judges are upfront about what they are inclined to do, 

believing that candor about possible sentencing decisions promotes informed 
January Term, 2021 

11 

decisionmaking.3 See, e.g., State v. Warner, 762 So.2d 507, 514 (Fla.2000); People 

v. Cobbs, 443 Mich. 276, 284, 505 N.W.2d 208 (1993). In this case, the judge 

presiding over the 1987 plea hearing appropriately put that conversation on the 

record: he told Azeen, “I have indicated to your attorney” that “I’m going to 

sentence you” to what amounted to the minimum aggregate prison term for Azeen’s 

offenses. But we cannot assume that the state and Azeen agreed to the sentence 

simply because the judge decided to impose it. That line of thinking wrongly 

implies that a trial court has no discretion to impose a sentence without the state’s 

approval. 

{¶ 28} The lower courts also speculated that there was an agreement based 

on the state’s decision not to object to the sentence or to argue for a harsher sentence 

on the record. The trouble with that approach is that there are all kinds of other, 

equally plausible reasons why the state may have chosen to be silent at sentencing. 

Maybe the prosecutor made an argument in chambers against the sentence, but 

chose not to reargue it on the record because he considered it futile or because he 

did not want to upset the victims. It could be that the prosecutor did not argue for 

a different sentence on the record because he personally thought the sentence was 

appropriate, even if he had not been authorized to enter into any agreement on 

sentence. Perhaps the prosecutor simply thought it prudent to defer to the court on 

sentencing. Because the record contains no evidence regarding the reason for the 

prosecutor’s decision not to argue for a harsher sentence, the prosecutor’s lack of 

argument does not support the existence of a plea agreement. 

 

3. We do not suggest that trial judges should “float a possible sentence as an inducement to obtain 

a defendant’s plea.” First dissenting opinion at ¶ 51. But it is not inherently coercive for a judge to 

provide “a clear statement of information” in response to a request by a party. People v. Cobbs, 443 

Mich. 276, 284, 505 N.W.2d 208 (1993). “Coercion is avoided when a judge does not initiate a 

discussion of the sentence, and when a judge does not speculate on the sentencing consequences of 

future procedural contingencies.” Id. 
SUPREME COURT OF OHIO

12 

{¶ 29} Moreover, the state was not entirely silent on the matter. After the 

court imposed the sentences, the prosecutor asked, “To be served how?” And 

although the trial court responded that they were to be served concurrently, the 

prosecutor nevertheless pressed further, asking, “The first two counts to be served 

concurrently, or all three?” The court of appeals characterized this exchange in the 

following way: “the assistant prosecuting attorney asked the court to confirm that 

the sentences on the underlying offenses were to be served concurrently” and “[t]he 

trial court confirmed that was correct.” 2019-Ohio-4677, 143 N.E.2d 162, at ¶ 25. 

But that’s not what happened. Rather, the prosecutor posed an open-ended question 

regarding how the court was imposing the sentences. Far from indicating that the 

sentence imposed by the trial court was the product of an agreement between Azeen 

and the state, this exchange suggests the opposite. Indeed, under the law at the 

time, the sentences would have been treated as concurrent by default, unless the 

trial court ordered them to be served consecutively. See former R.C. 2929.41(A) 

and (B), Am.S.B. No. 210, 140 Ohio Laws, Part I, 583, 598-599. Had the 

prosecutor truly believed that the parties had agreed that the sentences would be 

imposed concurrently, he would not have needed to say anything at all. 

{¶ 30} The court of appeals also took the fact that the trial court proceeded 

to sentencing without obtaining a presentence-investigation report as evidence that 

the sentence “had already been negotiated.” 2019-Ohio-4677, 149 N.E.3d 162, at 

¶ 27. This inference was incorrect. There may be any number of reasons that the 

prosecutor did not ask for a presentence investigation: perhaps the prosecutor 

wanted to save the victims another trip to the courthouse for a sentencing hearing 

or maybe he wanted to ensure that Azeen did not change his mind and move to 

withdraw his plea prior to sentencing. And it certainly would not have made sense 

for defense counsel to request one, given that the judge had already indicated he 

would give Azeen the minimum sentence. 
January Term, 2021 

13 

{¶ 31} Equally misplaced was the lower courts’ reliance on statements 

made by Azeen’s current counsel during the hearing on the motion to dismiss that 

“there’s no way” Azeen’s former attorney would have permitted him to enter a plea 

without knowing the sentence. Counsel’s statements at the hearing regarding his 

opinion of Azeen’s 1987 attorney are not evidence, nor is it proper for a court to 

make factual assumptions about what happened in a case based merely on an 

attorney’s reputation. But even assuming that the speculation is correct, it still falls 

short: if it is true that this particular defense attorney would not have advised his 

client to enter a no-contest plea without knowing what the sentence would be, that 

merely supports an inference that the defense attorney took efforts to find out what 

sentence the judge would impose. It does nothing to demonstrate that the state 

agreed to it. 

{¶ 32} The second dissenting opinion looks beyond the arguments raised in 

the briefs and the evidence relied on by the trial court and finds its own evidence 

of a plea agreement. It says that “the transcript from the plea hearing shows that 

the prosecutor suggested that the trial court could delete a clause beginning with 

the word ‘furthermore’ ” from an unidentified document and speculates “what 

could [that document] be other than the plea agreement?” Second dissenting 

opinion at ¶ 54. 

{¶ 33} The plea hearing began with the trial court confirming that Azeen 

understood that by entering a no-contest plea, he would be admitting to the facts 

contained in the indictment. The trial court then reviewed the three counts in the 

indictment and informed Azeen of the possible penalties for each. Apparently 

reading directly from the indictment, with respect to the third count, the court 

explained, “Under the third count of the indictment, this is having a weapon while 

under a disability, * * * [t]his is a felony of the fourth degree, that definite 

sentence.” The prosecutor responded, “If you want to strike the furthermore clause, 

it has to be a definite sentence.” 
SUPREME COURT OF OHIO

14 

{¶ 34} Based on that context, it seems apparent that the document to which 

the parties were referring was not a plea agreement, but the indictment itself. 

Unfortunately, the indictment was not admitted as an exhibit during the hearing on 

the motion to dismiss. Thus, there is no evidence before us of what the 

“furthermore clause” said or whether the charge to which Azeen entered a plea had 

been amended. This exchange therefore fails to support the idea that Azeen’s plea 

was the result of a negotiated agreement. 

{¶ 35} The dissenting opinions accuse us of substituting the trial court’s 

factual findings with our own. We do no such thing. In this case, the trial court did 

not make factual findings. There was no evidence to be weighed; the facts 

established by the 1987 plea-hearing transcript were undisputed. The problem here 

is that the trial court drew inferences that were unsupported by those facts. The 

second dissenting opinion contends that we are engaged in our own speculation 

rather than “a limited review of the evidence to determine whether the evidence is 

subject to reasonable inference.” Second dissenting opinion at ¶ 69. But we do not 

decide that the alternative explanations outlined above necessarily reflect what 

happened off the record. The point is that we don’t know what happened off the 

record, and it is improper to hypothesize that a plea agreement existed without some 

evidentiary support. Indeed, as the caselaw cited by the second dissenting opinion 

explains, “We are not justified in inferring, from mere possibilities, the existence 

of facts.” State v. Jameison, 421 P.3d 463, 471 (Wash.App.2018), citing Gardner 

v. Seymour, 27 Wash.2d 802, 810-11, 180 P.2d 564 (1947); see Hurt v. Charles J. 

Rogers Transp. Co., 164 Ohio St. 329, 332, 130 N.E.2d 820 (1955), quoting Indian 

Creek Coal & Mining Co. v. Calvert, 68 Ind.App. 474, 120 N.E. 709 (1918), 

denying rehearing, 68 Ind.App. 474, 119 N.E. 519 (1918) (“ ‘For the purpose of 

supporting a proposition, it is not permissible to draw an inference from a deduction 

which is itself purely speculative and unsupported by an established fact’ ”). 
January Term, 2021 

15 

{¶ 36} In contrast to the speculation engaged in by the dissents and the 

courts below, the record in this case is completely devoid of any reference to a 

negotiated plea agreement. This court’s criminal rules have long required parties 

to make a record of a negotiated plea agreement: “When a negotiated plea of guilty 

or no contest to one or more offenses charged or to one or more other or lesser 

offenses is offered, the underlying agreement upon which the plea is based shall be 

stated on the record in open court.” Crim.R. 11(F). This rule took effect in 1973, 

well before Azeen entered his plea in 1987. See former Crim.R. 11(F), 34 Ohio 

St.2d xliv (containing substantially the same language as the current rule); see also

State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), fn. 1 (Crim.R.

11(F) “requires the underlying agreement, in cases where there is a negotiated plea, 

to be stated on the record in open court”); State v. Cunningham, 10th Dist. Franklin 

No. 73AP-472, 1974 WL 183898 (Apr. 30, 1974) (“A ‘plea bargain’ in a felony 

case must be clearly and easily ascertainable under this new rule”). The present 

case makes the necessity of placing information on the record abundantly clear. 

{¶ 37} Each of the reasons cited by the dissents and the lower courts for 

finding the existence of an agreement is premised on speculation about what had 

been said off the record and unsupported assumptions about why the parties chose 

to do what they did on the record. Without a record “show[ing] the existence of 

the elements of a contract,” see Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 

N.E.2d 1217, at ¶ 23, we are unable to conclude that the state entered into any plea 

agreement with Azeen. 

IV. Conclusion 

{¶ 38} The transcript of the plea hearing indicates that an off-the-record 

conversation took place regarding Azeen’s sentence. As to the content of that 

conversation, we can only guess. Nothing on the record demonstrates that the state 

had entered into any plea agreement with Azeen. And in the absence of an 

agreement demonstrating that Azeen had been induced into offering his plea by a 
SUPREME COURT OF OHIO

16 

promise from the state (express or implied) not to further pursue the matter, the 

state is not barred on that ground from prosecuting Azeen for aggravated murder. 

{¶ 39} We therefore reverse the judgment of the court of appeals and 

remand this case to the trial court for further proceedings. Based on our resolution 

of this case, it is unnecessary for us to decide whether Carpenter should be applied 

retroactively, so we leave that question for another day. 

Judgment reversed 

and cause remanded. 

O’CONNOR, C.J., and KENNEDY, FISCHER, and PIETRYKOWSKI, JJ., concur. 

STEWART, J., dissents, with an opinion. 

BRUNNER, J., dissents, with an opinion. 

MARK L. PIETRYKOWSKI, J., of the Sixth District Court of Appeals, sitting 

for DONNELLY, J. 

_________________ 

STEWART, J., dissenting. 

{¶ 40} We accepted this appeal to consider two propositions of law: (1) 

whether State v. Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66 (1993), can be applied 

retroactively and (2) whether Carpenter applies to unnegotiated no-contest pleas. 

Appellant, the state of Ohio, charged appellee, Abdul Azeen, with several felony 

counts, including attempted murder, after he shot Danuell Jackson in 1987. Azeen 

entered a no-contest plea to those counts. Nearly 30 years later, two years after 

Jackson died from his injuries, the state indicted Azeen for Jackson’s murder. The 

trial court dismissed the indictment, concluding that the state could not bring 

additional charges under the test laid out in Carpenter, because the 1987 plea 

agreement would have caused Azeen to believe that all criminal proceedings 

stemming from the shooting had been finally resolved. The Eighth District Court 

of Appeals determined that the state forfeited its retroactivity argument because it 

had failed to raise that issue to the trial court. 2019-Ohio-4677, 143 N.E.3d 162, 
January Term, 2021 

17 

¶ 30. The state does not deny that it did not raise retroactivity in the lower court, 

so I believe that we have improvidently accepted jurisdiction over the first 

proposition of law. 

{¶ 41} The majority does not address the first proposition of law, because 

it determines that there is no evidence to show that Azeen, entered into a negotiated 

plea agreement with the state. To reach that conclusion, the majority violates a 

cardinal principle: this court will not weigh evidence. Nor should we engage in 

error correction on an issue that will not likely reoccur. Carpenter is 28 years old, 

and cases like it—in which the state seeks further prosecution many years after the 

initial conviction—will be rare. We should also dismiss the second proposition of 

law as improvidently accepted. 

{¶ 42} “Plea agreements are an essential and necessary part of the 

administration of justice.” Carpenter at 61, citing Santobello v. New York, 404 U.S. 

257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). “Plea bargaining flows from ‘the 

mutuality of advantage’ to defendants and prosecutors, each with his own reasons 

for wanting to avoid trial.” Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 

663, 54 L.Ed.2d 604 (1978), quoting Brady v. United States, 397 U.S. 742, 752, 90 

S.Ct. 1463, 25 L.Ed.2d 747 (1970). Those reasons include the defendant’s certainty 

that the criminal prosecution will terminate and the efficiency in resolving a 

criminal case without a trial. That said, the benefits of certainty and efficiency 

work “only if dispositions by [a] plea are accorded a great measure of finality.” 

Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); see 

also State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, 

¶ 41 (in plea bargains, “each side bargains away its desired outcome for the benefit 

of certainty”). “If plea bargaining is to fulfill its intended purpose, it must be 

conducted fairly on both sides and the results must not disappoint the reasonable 

expectations of either.” State v. Thomas, 61 N.J. 314, 321, 294 A.2d 57 (1972). 
SUPREME COURT OF OHIO

18 

{¶ 43} The majority finds that Azeen failed to show the requisite elements 

of an agreement because there is no evidence in the record that the parties 

negotiated in exchange for Azeen’s no-contest plea. 

{¶ 44} The majority overemphasizes the importance of negotiation. 

“Because the defendant’s constitutional rights are at stake in the plea process, the 

concerns underlying a plea agreement differ from and go beyond those of 

commercial contract law.” State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 

N.E.2d 1217, ¶ 21, citing Carpenter, 68 Ohio St.3d at 61, 623 N.E.2d 66. Plea 

agreements are “unique contracts” that implicate “the defendant’s right to 

fundamental fairness under the Due Process Clause.” United States v. Ingram, 979 

F.2d 1179, 1184 (7th Cir.1992). A defendant should reasonably expect a plea to 

terminate the criminal prosecution unless the state specifically reserves the right “to 

file additional charges based upon the contingency of the death of the alleged 

victim.” Carpenter at 61. 

{¶ 45} So, what did Azeen reasonably expect about future prosecution 

when he pleaded no contest? Start with the uncontroverted fact that the state failed 

to affirmatively reserve its right to prosecute Azeen for murder should the victim 

die. “[A] defendant’s subjective expectations regarding a * * * plea are formed by 

the state’s conduct.” State v. Anderson, 8th Dist. Cuyahoga No. 106304, 2018-

Ohio-3051, ¶ 11. This was the basis of our decision in Carpenter: a defendant’s 

expectation of finality in entering a plea requires the state to reserve the right to 

further prosecute the defendant if the victim later dies. 

{¶ 46} Next, consider that the trial court determined that the sentencing 

judge had conducted off-the-record discussions with the parties before Azeen 

entered his no-contest plea. Those discussions included the sentencing judge’s 

representation that Azeen could expect a minimum sentence should he enter a plea. 

The record does not show that the state objected to the sentence, although it did ask 

the court to clarify whether Azeen would serve certain prison terms concurrently. 
January Term, 2021 

19 

The limited record before us thus shows both that Azeen would have reasonably 

expected his plea to fully terminate the criminal prosecution and that he agreed to 

enter his plea based on the sentencing judge’s very specific representation of what 

sentence he would impose should Azeen plead and forgo a trial. 

{¶ 47} The majority wrongly disregards Azeen’s subjective expectation 

because it determines that the sentencing judge’s representation of what sentence 

he would impose indicated only the judge’s thoughts, not that Azeen and the state 

had a firm agreement. However, a plea agreement “is basically an implied promise 

on the part of the state not to prosecute the defendant for any further offenses that 

may arise out of the same incident.” State v. Zima, 102 Ohio St.3d 61, 2004-Ohio1807, 806 N.E.2d 542, ¶ 11. As an implied contract, it is “ ‘shown by the 

surrounding circumstances which make it inferable that the contract exists as a 

matter of tacit understanding.’ ” Rice v. Wheeling Dollar Savs. & Trust Co., 155 

Ohio St. 391, 397, 99 N.E.2d 301 (1951), quoting Hummel v. Hummel, 133 Ohio 

St. 520, 525, 14 N.E.2d 923 (1938). 

{¶ 48} This case thus presents a mixed standard of review: on contested 

factual issues relating to the elements of an agreement, we accept the facts as found 

by the trial court if supported by some competent, credible evidence, but on the 

application of those facts, we independently review the court’s legal conclusions. 

{¶ 49} Here, the trial court found as a matter of fact that the state, by its 

silence, “in effect acquiesced to the agreement.” When sitting as the court of last 

resort, we do not weigh the evidence. State v. Wilson, 30 Ohio St.2d 199, 204, 283 

N.E.2d 632 (1972); State v. Bradley, 3 Ohio St.2d 38, 42, 209 N.E.2d 215 (1965). 

And even if we could weigh the evidence, that does not mean that we should 

substitute our judgment for that of the trier of fact. When a reviewing court 

considers whether a factual finding is against the manifest weight of the evidence, 

it reviews the entire record, “ ‘weighs the evidence and all reasonable inferences, 

considers the credibility of witnesses and determines whether in resolving conflicts 
SUPREME COURT OF OHIO

20 

in the evidence, the jury clearly lost its way.’ ” (Emphasis added.) State v. 

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. 

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶ 50} The trial court inferred that a contract existed—and that the parties 

negotiated its terms—based on (1) off-the-record discussions by the sentencing 

judge and the parties in which the sentencing judge described the sentence that 

Azeen could expect if he entered a no-contest plea and (2) the state’s silence on the 

sentence suggested by the sentencing judge. These were reasonable inferences, as 

the court of appeals concluded. It is a basic principle of law that a trier of fact is 

free to rely on common sense and experience. State v. Allen, 73 Ohio St.3d 626, 

636, 653 N.E.2d 675 (1995). The trial court could have reasonably inferred that 

Azeen had no incentive to enter a plea if he thought that the state could later file 

additional, more serious charges. It would be illogical to conclude that Azeen 

would have agreed to serve the minimum prison term if he believed that it was 

“perhaps only the first installment on a lengthier term to be imposed.” State v. 

Nelson, 23 Conn.App. 215, 220, 579 A.2d 1104 (1990). 

{¶ 51} The majority says that it is not unusual for a trial judge to float a 

possible sentence as an inducement to obtain a defendant’s plea. This conclusion 

flouts our admonitions that trial judges should avoid injecting themselves into the 

plea-bargaining process lest the defendant see it as a form of coercion. See State v. 

Byrd, 63 Ohio St.2d 288, 292, 407 N.E.2d 1384 (1980). And the majority’s view 

wrongly penalizes Azeen for the consequences of off-the-record plea discussions 

held through no apparent fault of his own. 

{¶ 52} On the issue of the state’s silence to the sentence outlined by the 

sentencing judge, the majority offers the explanation that the assistant prosecuting 

attorney may have thought it prudent to defer to the sentencing judge’s suggested 

sentence as a reason for remaining silent when the sentencing judge outlined the 

sentence that Azeen could expect. But it is equally plausible that the state had some 
January Term, 2021 

21 

say in that sentence, given that the trial court found that the state was part of the 

off-the-record discussions with the sentencing judge before Azeen entered his plea. 

One would expect the state to have objected to a minimum sentence had it 

disagreed. There are two plausible theories of what happened off the record. 

Therefore, this court cannot say, within the confines of a manifest-weight-of-theevidence review, that the trial court lost its way by determining that the state 

implicitly agreed to the sentence offered by the sentencing judge. 

{¶ 53} We avoid accepting jurisdiction over cases in which a party is asking 

this court to review a lower court’s application of specific facts to a settled legal 

principle. Such cases—like this one—are “factbound.” Cavazos v. Smith, 565 U.S. 

1, 16, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011) (Ginsburg, J., dissenting). The majority 

opinion announces no rule of law, nor does it clarify an existing rule of law. 

Deciding this appeal thus serves no real purpose. Rather than engage in error 

correction where we weigh the evidence and substitute our assessment of the 

evidence for that of the trial court, we should dismiss this appeal as improvidently 

accepted. 

_________________ 

BRUNNER, J., dissenting. 

Overview 

{¶ 54} I agree with the first dissenting opinion that there is competent, 

credible evidence in the record that supports the conclusion that defendantappellee, Abdul Azeen, entered into a plea agreement at the time of his change-ofplea hearing in 1987. In addition to the evidence identified and relied on by the 

trial and appellate courts, the transcript from the plea hearing shows that the 

prosecutor suggested that the trial court could delete a clause beginning with the 

word “furthermore.” The trial court agreed. The transcript does not indicate what 

document the prosecutor was referring to, but what could it be other than a plea 

agreement? This evidence contradicts the majority’s assertion that the record is 
SUPREME COURT OF OHIO

22 

“completely devoid of any reference to a negotiated plea agreement.” Majority 

opinion at ¶ 36. When the prosecutor’s statement is viewed alone or with the 

evidence relied on by the trial and appellate courts, it was more than reasonable for 

the trial and appellate courts to conclude that Azeen and the state had entered into 

a plea agreement before Azeen’s change of plea. And because there is no evidence 

that the state reserved the right to pursue future prosecution if the victim were to 

die, the state impliedly agreed to forgo pursuing homicide charges against Azeen if 

the victim later died from his injuries. State v. Carpenter, 68 Ohio St.3d 59, 623 

N.E.2d 66 (1993). Because competent, credible evidence of a plea agreement was 

presented to the trial court in this matter, I join the first dissenting opinion in full. 

{¶ 55} I write separately to raise concerns about several other substantial 

problems I perceive with the majority opinion’s analysis. First, there is a 

conspicuous absence of an enunciated standard of review, which leaves the 

impression that the focus of the court seems to be to ensure that a heinous act is 

punished until no more punishment can be meted out. The majority opinion’s 

analysis—which meanders through hypothetical scenarios addressing whether 

there was a plea agreement rather than addressing whether competent, credible 

evidence was presented on which a fact-finder could find that an agreement was 

reached—leaves readers scratching their heads. Is Carpenter now to be applied on 

a case-by-case basis, with particular facts cementing the framework for legal 

analysis? 

{¶ 56} The majority says that it is applying well-established law, Carpenter, 

to the unique facts of the case, and it finds no evidence that Azeen’s 1987 plea was 

the product of negotiations between the state and Azeen. As a consequence, the 

majority finds that “the rule announced in Carpenter does not prevent the state from 

prosecuting Azeen on the new murder charge.” Majority opinion at ¶ 3. There are 

two major concerns here: first, the standard of review used by the majority, and 

second, whether this court is merely performing error correction in applying a 
January Term, 2021 

23 

second appellate review when no cogent proposition of law has been posited to 

clarify how Carpenter should apply in a particular situation. Our review, then, 

involves error correction and no more, and this appeal should therefore be 

dismissed as improvidently accepted. 

{¶ 57} Although the majority opinion does apply Carpenter and 

acknowledge that it is well-established law, it reaches conclusions on the facts of 

this case—recognizing them as unique—that are different from the trial and 

appellate courts. However, just because the facts of a case are recognized as unique 

does not mean that our jurisdiction can be used to make sure the appeal is decided 

in a way we might think the public would want it to be decided. Since the majority 

chooses not to dismiss this appeal as improvidently accepted, other issues need to 

be explored to alert future litigants of the pitfalls of the conclusions reached in the 

majority opinion. 

Standard of review 

{¶ 58} Our task on appellate review is a nuanced one: Appellate courts do 

not perform the same function as the trial court and should not determine anew 

whether or not a plea agreement existed. Rather, appellate courts must simply 

examine the record to determine whether competent, credible evidence exists that 

supports the finding made by the fact-finder, the trial court, that a plea agreement 

did in fact exist. Azeen filed a motion to dismiss the second indictment for the 

same criminal activity. While appellate review of a Crim.R. 12(C) motion to 

dismiss an indictment is de novo, see, e.g., State v. Baker, 3d Dist. Seneca No. 13-

20-12, 2021-Ohio-1004, ¶ 19, in the context of a motion to dismiss a subsequent 

indictment under Carpenter, the analysis involves “ ‘a synthesis of contract and 

criminal law in a particular factual setting.’ ” State v. Dye, 127 Ohio St.3d 357, 

361, 2010-Ohio-5728, 939 N.E.2d 1217, ¶ 20, quoting Carpenter, 68 Ohio St.3d at 

61, 623 N.E.2d 66. 
SUPREME COURT OF OHIO

24 

{¶ 59} Thus, applying Carpenter and Dye, we must decide whether “a close 

examination of the record supports the conclusion that a negotiated plea existed 

within the meaning of Carpenter.” Id. at ¶ 24. This synthesized contract- and 

criminal-law review, then, appears to be more akin to other challenges to an 

indictment, such as speedy-trial challenges, which involve mixed questions of fact 

and law. Thus, a reviewing court should defer to the trial court’s factual findings 

as long as they are supported by competent, credible evidence. See, e.g., Dye at 

¶ 15. We also noted this standard in our recent decision in State v. Long, ___ Ohio 

St.3d ___, 2020-Ohio-5363, ___ N.E.3d ___, ¶ 15. Questions of law must be 

reviewed de novo. De novo review is “ ‘independent, without deference to the 

lower court’s decision.’ ” Baker at ¶ 19, quoting State v. Hudson, 3d Dist. Marion 

No. 9-12-38, 2013-Ohio-647, ¶ 27. The core issue is whether a negotiated plea 

agreement existed that precludes further prosecution, but this legal conclusion must 

be based on an evaluation of the evidence. 

{¶ 60} The trial court’s conclusion that Azeen and the state had entered into 

a plea agreement before Azeen’s change-of-plea hearing must be based on 

competent, credible evidence appearing in the record. To obtain a reversal on 

appeal based on Carpenter and Dye, the state must show that there is no competent, 

credible evidence supporting the trial court’s legal conclusion. It is then the task of 

the reviewing court to thoroughly examine the record to determine whether such 

competent, credible evidence exists. When an appellate court does this, it considers 

whether the evidence is competent and credible, examining the evidence for its 

value to the question at hand, without resolving inferences in favor of one side or 

the other; if the trial court’s decision falls short, such as by entirely disregarding 

certain evidence or the lack thereof, when measured by this standard, there is cause 

to reverse the decision. See State v. Stutzman, 9th Dist. Wayne No. 19AP0050,

2021-Ohio-995, ¶ 24-25 (Callahan, J. dissenting). 
January Term, 2021 

25 

{¶ 61} Here, if competent, credible evidence exists in the record that

supports the trial court’s factual finding of an agreement, even if that evidence was 

not relied on by the trial court, our work is done. State v. Welch, 8th Dist. Cuyahoga 

No. 105158, 2017-Ohio-7887, ¶ 24. That is, even if there is a question as to whether 

the evidence relied on by either the trial or appellate court was sufficient to support 

a finding that a plea agreement existed, we should affirm if we find the requisite 

evidence elsewhere in the record. See id. (trial court does not abuse its discretion 

in determining the actual loss suffered by defendant’s actions for purposes of 

restitution, if “competent, credible evidence support[s] its determination”). 

{¶ 62} The record here strongly indicates that there was competent, credible 

evidence to support a finding that a plea agreement had been reached and to affirm 

the trial court on other grounds. In Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 

N.E.2d 1217, the victim was hit by the defendant, who was driving his vehicle while 

under the influence of alcohol, rendering the victim a quadriplegic. The victim later 

died from complications attributed to his quadriplegia. However, when Dye was 

sentenced for convictions based on new charges brought after the victim’s death, 

this court vacated the sentence, finding competent, credible evidence existed from 

which an inference could be drawn that a negotiated plea agreement had been 

reached at the time of the original trial. This court found competent, credible 

evidence that supported as a matter of law that the state and the defendant had 

entered a plea agreement. We explained: 

 

Although the record is limited regarding the plea 

negotiations in Dye’s first case, the transcript of the plea hearing 

reflects that some form of communication occurred before that 

hearing during which Dye notified the state that he would plead

guilty to [the charges].
SUPREME COURT OF OHIO

26 

Id. at ¶ 24. 

{¶ 63} Here, the discussion with the trial judge before the plea about

deleting the word “Furthermore” should, under Dye, be deemed competent, 

credible evidence that supports a conclusion that a negotiated plea agreement 

existed, as found in Carpenter. It appears that the majority has decided that it does 

not like the way both the trial and appellate courts analyzed the evidence in the 

record, and instead, it engages in what amounts to error correction with no 

particularized standard of review. Without basis, the majority takes on the roles of 

both the trial and appellate courts, examining the record as an appellate court would 

for competent, credible evidence, but then pivoting to trial-court posture to draw its 

own inferences before applying Carpenter and Dye. The majority leans into its 

view of what inferences are reasonable, thereby stepping on the scale to deem some 

inferences less reasonable and others more reasonable. It is not this court’s role to 

perform the truth function of a fact-finder that the public heavily relies on from trial 

courts and juries. And setting aside for the moment that we also seem to be 

performing the role of the court of appeals, which is error correction, even if our 

jurisdiction were appropriate, our role is to determine, like the court of appeals did, 

whether there is competent, credible evidence in the record that supports a 

reasonable inference that a negotiated plea agreement existed. 

{¶ 64} What is a reasonable inference? The following language from a 

Washington state court is instructive. 

We struggle in the abstract with what assay to employ when 

adjudging what reasonable inferences we may deduce from 

established facts. Therefore, we first comb for definitions and 

synonyms for our key word “inference.” Our state high court has 

defined an “inference” as a logical deduction or conclusion from an 

established fact. Fannin v. Roe, 62 Wash.2d 239, 242, 382 P.2d 264 
January Term, 2021 

27 

(1963). State v. Aten, 130 Wash.2d 640, 658, 927 P.2d 210 (1996) 

refers to a “reasonable and logical” inference, again suggesting that 

a permissible inference must be logical. A foreign court wrote that 

a reasonable inference may be defined as a process of reasoning

whereby, from facts admitted or established by the evidence or from 

common knowledge or experience, a trier of fact may reasonably 

conclude that a further fact is established. Stambaugh v. Hayes, 

1940-NMSC-048, 44 N.M. 443, 103 P.2d 640, 645. 5 West’s 

Encyclopedia of American Law 396 (2d ed.2005) partly defines 

“inference[s]” * * *: 

“Inferences are deductions or conclusions that with reason 

and common sense lead the jury to draw from facts which have been 

established by the evidence in the case.” 

Based on these definitions, we must summon logic, common 

sense, and experience in surmising additional or circumstantial facts 

from already established or direct facts. We hope that our 

experience coincides with common sense and our common sense 

abides logic. 

* * * [A] verdict does not rest on speculation or conjecture 

when founded on reasonable inferences drawn from circumstantial

facts. State Farm Mutual Insurance Company v. Padilla, 14 

Wash.App. 337, 339-40, 540 P.2d 1395 (1975). This proposition 

conversely suggests that an inference is not reasonable if based on 

speculation or conjecture. This observation, however, only begs the 

question of what constitutes speculation and conjecture. 

A court occasionally faces the question of whether the trier 

of fact may infer only those facts that necessarily or always follow 

from established circumstances, whether the trier of fact may deduce 
SUPREME COURT OF OHIO

28 

those facts likely to have occurred as a result of the underlying 

circumstances, or whether the trier of fact may even employ 

inferences that exist as one of many possible inferences. We 

conclude that any reasonable inference must likely, but not 

necessarily, follow from an underlying truth. 

When evidence is equally consistent with two hypotheses, 

the evidence tends to prove neither. Stambaugh v. Hayes, 103 P.2d 

at 645 (1940). We will not infer a circumstance when no more than 

a possibility is shown. Brucker v. Matsen, 18 Wash.2d 375, 382, 

139 P.2d 276 (1943). We are not justified in inferring, from mere 

possibilities, the existence of facts. Gardner v. Seymour, 27 

Wash.2d 802, 810-11, 180 P.2d 564 (1947). Some of the decisions 

we cite entail civil appeals, but the law should demand stricter 

controls on use of inferences in a criminal case. 

* * * Some cases teach that, when drawing inferences, the 

trier of fact should not isolate discrete facts but instead draw 

reasonable inferences only after viewing the evidence as a whole. 

State v. Sanchez, 2017 MT 192, 388 Mont. 262, 399 P.3d 886, 890; 

State v. Stull, 403 N.J.Super. 501, 506, 959 A.2d 286 

(App.Div.2008). 

(Emphasis added.) State v. Jameison, 421 P.3d 463, 470-471 (Wash.App.2018). 

This lengthy but informative passage from Jameison directs us to consider five 

concepts in viewing the evidence in the record before us when applying Carpenter 

and Dye. 

{¶ 65} First, an inference based on logic must be related to an underlying 

truth. Second, an inference is not reasonable if it is based on speculation or 

conjecture. Third, when there are two equally consistent hypotheses, the evidence 
January Term, 2021 

29 

tends to prove neither. Fourth, the law should demand stricter use of inferences in 

the criminal context. And fifth, reasonable inferences should be drawn after 

viewing the evidence as a whole. See also State v. Gantz, 106 Ohio App.3d 27, 35, 

665 N.E.2d 239 (10th Dist.1995) (“ ‘we consider the evidence as a whole, and 

“viewing the evidence in this manner it may be truly said that the total may be a 

sum greater than its parts.” ’ United States v. Fooladi (C.A.5, 1983), 703 F.2d 180, 

184 [quoting United States v. Flynn, 664 F.2d 1296, 1304 (5th Cir.1982)]”).

{¶ 66} Unfortunately, the majority opinion steps into an area of factual 

analysis this court should not be assuming. Compounding that mistake, the 

majority opinion employs a divide-and-conquer approach whereby each 

evidentiary item from which an inference can be drawn is dismissed one-by-one if 

that item does not prove—on its own—that Azeen and the state had entered into a 

plea agreement. 

{¶ 67} To illustrate, consider the majority’s discussion of the original trial 

judge’s statement, “I have indicated to your attorney that you will expect, under 

the circumstances presented here, I’m going to sentence you to three years actual 

incarceration and on top of that I’m going to sentence you to five to twenty-five 

years.” (Emphasis added.) The majority insists that this statement can only be 

understood to convey a literal meaning. It then dismisses this statement on the 

ground that its literal meaning, on its own, “fails to establish” the existence of an 

agreement between Azeen and the state. Majority opinion at ¶ 25. The majority 

errs by failing to allow for a reasonable interpretation of the statement in accordance 

with Dye and by failing to consider the statement in connection with other evidence. 

{¶ 68} The majority then states that relying on that statement, and the trial 

court’s imposition of the minimum sentence, “wrongly implies that a trial court has 

no discretion to impose a sentence without the state’s approval.” Majority opinion 

at ¶ 27. But that is not a reasonable or even the only inference that can be drawn 

from the statement. It would also be reasonable to infer that the trial court made 
SUPREME COURT OF OHIO

30 

that statement and imposed only a minimum sentence because it had learned in its 

off-the-record discussion with counsel that Azeen and the state had entered into a 

plea agreement, and it approved of that agreement. In fact, that inference is entirely 

consistent with the majority opinion’s observation, based on case law not from Ohio 

but stretching to Michigan and Florida, that “[i]t is not unusual in criminal cases 

for attorneys to approach the judge to get an idea of what sentence the judge is 

likely to impose if their client enters a plea to an offense.” Majority opinion at ¶ 27. 

Cf. Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 

(1962) (“A guilty plea, if induced by promises or threats which deprive it of the 

character of a voluntary act, is void”). The majority opinion should recognize this 

reasonable inference derived from even its own sources. 

{¶ 69} The majority speculates that the trial court proceeded immediately 

to sentencing without requesting a presentence-investigation report for reasons 

other than that Azeen and the state had entered into a plea agreement before the 

hearing. But considering the evidence, without actually reaching a conclusion for 

one side or the other, is precisely what allows us to examine what inferences may 

be made and thereby determine whether competent, credible evidence exists to 

support the trial court’s conclusion that a plea agreement did exist. See Stutzman, 

2021-Ohio-995, at ¶ 24-25 (Callahan, J., dissenting). Here, the majority opinion 

uses speculation to help decide what theory it wants to believe, in order to determine 

to its own satisfaction whether there was a plea agreement. Speculation abounds 

concerning the prosecutor’s failure to object to the sentence: the majority posits 

that the prosecutor may not have objected because the prosecutor believed the 

minimum sentence was appropriate or because the prosecutor had already 

unsuccessfully argued for a higher sentence in the off-the-record discussion. All of 

this is speculation, not a limited review of the evidence to determine whether the 

evidence is subject to reasonable inference. Id.; Jameison, 421 P.3d at 470-471. 

The majority’s belief that nothing in the record indicates that the victim’s injuries 
January Term, 2021 

31 

had the potential to be fatal is erroneous. The victim was rendered a paraplegic 

when he was shot by Azeen, and as the majority opinion recognizes, “[t]he 

prosecutor informed the court that [the victim’s] condition ‘will probably not 

improve,’ explaining that ‘[i]f anything, it will deteriorate slowly,’ ” majority 

opinion at ¶ 7. Based on this statement alone, it is fair to infer that the state could 

reasonably have foreseen that the victim might later die of his injuries and that 

Azeen reasonably believed that his plea agreement would resolve all charges that 

could arise from the shooting, even if the victim later died from his injuries. 

No evidence of state’s reservation of right to file additional charges 

{¶ 70} This court has previously stated that “[t]he essence of [the 

Carpenter] holding is to require the state ‘to reserve its right to file additional 

charges based upon the contingency of the death of the alleged victim.’ ” State v. 

Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 9, quoting 

Carpenter, 68 Ohio St.3d at 61, 623 N.E.2d 66. As a practical matter, then, 

whenever there is a plea agreement in a case in which the victim might later die 

from injuries caused by the defendant, the state must reserve its right to bring future 

charges. 

{¶ 71} In this appeal, there is no dispute over whether the state reserved its 

right to bring future charges—no one argues that it did so. The issue is whether 

there was a plea agreement at all. The trial court found that Azeen met his burden 

of showing that a plea agreement existed; the appellate court agreed, holding that 

there was competent, credible evidence in the record of such an agreement. Even 

if it were the role of this court to review that record anew, the majority’s conclusion 

that there is no evidence of an agreement would be erroneous. Inferences are 

permissible, and here, there exists evidence in the record, especially when 

considered as a whole, that permitted the trial court to conclude that a negotiated 

plea agreement existed. 

 
SUPREME COURT OF OHIO

32 

This case should be dismissed as improvidently accepted 

{¶ 72} As the majority opinion makes clear, nothing in this appeal involves 

the consideration of a disputed or unclear issue of law. Instead, the entirety of the 

majority opinion is devoted to determining whether well-established law was 

correctly applied to the unique facts of this case. In short, this appeal seeks error 

correction. But our precedent is clear that we do not take cases presenting pure 

error correction. See Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 

480, 492, 727 N.E.2d 1265 (2000) (Cook, J., concurring) (“According to Section 2, 

Article IV of the Ohio Constitution, this court sits to settle the law, not to settle 

cases”). I would therefore dismiss this case as improvidently accepted. 

Conclusion

{¶ 73} By not recognizing or attending to any enunciated standard of 

review, the majority opinion fails to afford sufficient deference to the careful work 

of the trial court in this case. The result of the majority’s de novo review also means 

there was no point to having an intermediate appellate court review this case. That, 

apparently, was unnecessary. 

{¶ 74} Intermediate appellate courts reviewing arguments based on 

Carpenter in particular should not view today’s opinion as granting a license to 

review a trial court’s factual conclusions on a de novo basis. Rather, those courts, 

under Carpenter and Dye, should simply review the record for competent, credible 

evidence from which an inference may be drawn concerning the existence of a 

negotiated plea agreement. The rule of Carpenter is not simply a matter of civil 

contract law. It is applied in criminal cases, cases in which important due-process 

concerns are implicated—a fact that is apparent in the charge to courts’ jurisdiction 

established by the Ohio Constitution and statute: 
January Term, 2021 

33 

Rules of criminal procedure and sections of the Revised 

Code providing for criminal procedure shall be construed so as to 

effect the fair, impartial, speedy, and sure administration of justice. 

R.C. 2901.04(B); see Ohio Constitution, Article IV. The inquiry into whether a 

plea agreement exists must be focused on a consideration of the totality of the 

circumstances, following a thorough review of the record for competent, credible 

evidence to support a court’s factual findings. Only by following these wellestablished rules can trial and appellate courts give full effect to the decision of 

Carpenter, thereby ensuring that a state’s implied promise is enforced and that the 

defendant’s plea ends the matter, even if the victim later dies. Absent the state’s 

reservation of the right to bring new charges for the later death of the victim from 

the act or acts punished, the original plea and sentence end the matter. 

{¶ 75} For these reasons, I respectfully dissent. 

_________________ 

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and 

Katherine E. Mullin, Assistant Prosecuting Attorney, for appellant. 

Mark Stanton, Cuyahoga County Public Defender, and Erica Cunliffe, 

Assistant Public Defender, for appellee. 

_________________