[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Azeen , Slip Opinion No. 2021-Ohio-1735.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2021-O HIO -1735
T HE S TATE OF O HIO , A PPELLANT , v . A ZEEN , A PPELLEE . [Until this opinion appears in t he Ohio Official Reports advanc e 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 Janua ry 27, 2021—Decided May 25, 2021. )
A PPEAL from the Court of Appeals for Cuyahoga County, No. 108072, 2019-Ohio-4677.

_______________________S UPREME C OURT OF O HIO

2 D E W INE , J. {¶ 1} In 1987, Abdul Azeen pleaded no contest to attempted murder aft er shooting a young man in the neck on a playground basketball cou rt. 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 a gain. 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 in juries sustained in the crime” (emphasi s added), the state is preclude d from prosecuting the defendant for murder “unless the state expressly reserves t he 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 Azee n on the new murder charge. We therefore reverse the contrary judgment of the c ourt of appeals and remand this c ase to the trial court for further proceedings. I. The criminal proceeding s 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. Az een shot Danuell Jackson in the neck, leaving him paralyzed from the waist down. Azeen then took aim at Herman J ackson, Danuell’sJanuary Term, 2021

3 brother, shooting him in his groin. Azeen ultimately pleaded n o contest to all the
counts in the indictment: the fe lonious assault of Herman and t he attempted murder of Danuell, both with gun specifications, as well as a charge o f having a weapon while under a disability. 1 {¶ 5} The trial court opened the plea hearing by confirming that Azee n intended to enter a no-contest plea and advising him of the pos sible 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 pre sented here, I’m going to sentence you to three years actual incarceration and o n top of that I’m going to sentence you to five to twenty-five years.” {¶ 6} By this exchange, the trial cour t conveyed to Azeen that it wou ld impose 3 years for the gun specifications followed by an indefi nite 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. A t that point, the prosecutor s ummarized the facts supporting the charges, and the victims addressed the court. T he prosecutor informed the court that Danuell’s condition “will probably not improve,” explaining that “[i]f anything, it will deteriorate slowly.” N o one suggested that Danuell’s injuries might be fatal, and the state did not addres s the possibility of bringing additional charges in t he event that Da nuell were to d ie from his injuries.

1. At the time, Azeen was known as Lloyd Harris and was prosecu ted under that name. This opinion will refer to Azeen by his current name.S UPREME C OURT OF O HIO

4 {¶ 8} The court pronounced Azeen guilty and proceeded directly to sentencing. The trial court im posed a prison term of 8 to 15 y ears 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 spec ification; and a definite sentence of one and a half years for having a weapon w hile under a disability. The prosecutor then e ngaged in the following excha nge with the court:

[Prosecutor]: To be served how?
The court: To be ser ved 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, th e 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 dea th was caused by infections that had developed as a result of an u lcer in his pelvis and upper leg, which the examiner attributed to his paraplegia. Th e examiner therefore ruled the death a homicide, and in 2016, the state indicted Aze en for the aggravated
murder of Danuell ba sed on the 1987 shooting. {¶ 10} Azeen filed a motion to dismi ss the 2016 indictment on the grou nds
that it violated the terms of a n egotiated 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 ple a to a lesser offense and the victim later dies of injuries sustained in the crime, u nless the state expresslyJanuary Term, 2021

5 reserves the right to file additi onal 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 pros ecuting 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 tha t 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. Azee n argued that “there had to be some negotiation” between the parties because the tri al court told Azeen what his sentence would be before he entered his no-contest ple as. Counsel for Azeen also touted the capabilities of the lawyer who had repres ented Azeen in 1987, saying that “there’s no way [Azeen’s former lawyer] walke d into a courtroom without knowing his client was going to get the minimum and ple d no contest.” {¶ 12} In response, the state pointed out that the trial court’s state ment about the sentence Azeen could expect demonstrated only that the judg e had made a
decision about the sentence he w ould impose; it did not show th at that sentence was the product of an agreement. Bec ause the record contained no e vidence of a negotiated plea agreement between Azeen and the state, Azeen co uld 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 th at “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 therefo re surmised that
Azeen’s sentence was “a direct result of the discussions” that had taken place offS UPREME C OURT OF O HIO

6 the record. And because the pros ecutor had “remained silent wh en 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 t here not been offthe-record negotiations and an agreement on the sentence, the t rial 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 f urther 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 c ourt” 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 tha t this court’s decision in Carpenter does not apply retroactively to pleas entered before that case was decided. A nd in its second proposition of law, the state cont ends 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 ‘wh en you plead no contest, you can expect to receive this sentence: Three years for the firearm sp ecification, 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 summat ion during the hearing on the motion to dismiss. Nor was the trial court’s statement regarding Azee n’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 an d
the victim later dies as a resu lt of the conduct that gave rise to the offense, the state may bring charges for homicide without running afoul of the con stitutional 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 U nited States Constitution and Ar ticle 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 a ny 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 defenda nt has been convicted of anoth er 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 h as entered into a plea agreemen t 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 refl ect a mutual understanding between the prosecu tor 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 t he defendant should the victi m die.S UPREME C OURT OF O HIO

8 {¶ 18} This court first considered the q uestion whether a plea agreeme nt barred a subsequent prosecution rela ted to the same incident in Carpenter . In that case, the defendant and the state had negotiated a plea agreeme nt 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 “ve ry 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 pl ea agreement barred any further prosecution of the defendant for crimes stemming from the assau lt. We noted that
the state had chosen to enter i nto a plea agreement with the de fendant even though it had known that the victim’s death was likely. Id. at 61. This court explained that under those circumstances, the def endant had reasonably expecte d that his plea
would resolve the matter entir ely and the prosecutor had been f ully 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 charge s in the event of the victim’s death, it should have mad e that an explicit part of th e 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 induceme nt 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 t his principle formed
the basis for the rule in Carpenter that “effect must be giv en to the intention of the state and the defendant in their plea bargain, and courts shoul d 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 pl ea’ within the meaningJanuary 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 negotiate d, based in part on the state’s dismissal of charges and the prosecutor’s statement s 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 indicat ing 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 a nd the parties’ awareness of the gravity of the victim’s injuries, together wit h the state’s failure to reserve the right to prosecute for any later homicide charge, j ustify 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 bri ng additional charges against some one who has entered into a negot iated plea agreement depends on the scope of the agreement. In making tha t determination, we consider what matters both pa rties 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 p lea 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 th e city prosecutor had authority).S UPREME C OURT OF O HIO

10 III. The record does not show the existence of a plea agreemen t in this case {¶ 24} We begin by taking up the state’s second proposition of law, wh ich we find to be dispositive of this appeal. The state contends t hat 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 specu lating about the
contents of an off-the-record c onversation. The state maintain s that the record does not show that a negotiated agreement existed between the partie s. 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 a re not supported by
the facts in evidence. We therefore conclude that the record f ails to establish the existence of a plea agreement. {¶ 26} The lower courts determined that Azeen’s plea had been negotiat ed 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 demo nstrates that the court had spoken with the parties befo re the hearing: this is apparen t 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 thre e years actual incarceration and on top of that I’m going to sentence you to f ive to twenty-five years.” (Emphasis added.) But this advisement shows only that the judge had told the parties what sentence he int ended to impose; it does not su pport an inference
that Azeen had entere d into any agreement with the state regarding his sentence. {¶ 27} It is not unusual in criminal cases for attorneys to approach t he judge to get an idea of what sentence the judge is likely to impose i f their client enters a plea to an offense. Some judges are upfront about what they ar e inclined to do, believing that candor about possi ble sentencing decisions promo tes informedJanuary 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 hear ing appropriately put that con versation 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 th inking wrongly implies that a trial court has no discretion to impose a senten ce without the state’s approval. {¶ 28} The lower courts also speculated that there was an agreement ba sed on the state’s decision not to obj ect to the sentence or to arg ue for a harsher sentence
on the record. The trouble with t hat approach is that there ar e all kinds of other, equally plausible reasons why the state may have chosen to be s ilent at sentencing. Maybe the prosecutor made an argument in chambers against the s entence, 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 prosec utor did not argue for a different sentence on the record because he personally though t the sentence was appropriate, even if he had not been authorized to enter into a ny 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 argu e for a harsher sentence, the prosecutor’s lack of argument does not support the exi stence of a plea agreement.

3. We do not suggest that trial judges should “float a possibl e 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 req uest by a party. People v. Cobbs , 443 Mich. 276, 284, 505 N.W.2d 208 (1993). “Coercion is avoided wh en 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

.S UPREME C OURT OF O HIO

12 {¶ 29} Moreover, the state was not entirely silent on the matter. Aft er the court imposed the sentences, the prosecutor asked, “To be serve d how?” And although the trial court responde d that they were to be served concurrently, the prosecutor nevertheless pressed further, asking, “The first two counts to be served concurrently, or all three?” T he court of appeals characterize d this exchange in the following way: “the assistant prosecuting attorney asked the co urt to confirm that the sentences on the underlying offenses were to be served conc urrently” and “[t]he
trial court confirmed tha t 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 i ndicating that the sentence imposed by the trial court was the product of an agree ment between Azeen and the state, this exchange suggests the opposite. Indeed, un der the law at the time, the sentences would have been treated as concurrent by de fault, unless the
trial court ordered them t o 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 th e fact that the trial court pr oceeded to sentencing without obtaining a presentence-investigation rep ort as evidence that the sentence “had already been negotiated.” 2019-Ohio-4677, 14 9 N.E.3d 162, at ¶ 27. This inference was incorr ect. There may be any number o f reasons that the prosecutor did not ask for a pre sentence investigation: perhaps the prosecutor
wanted to save the victims anothe r 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 al ready 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 motio n to dismiss that “there’s no way” Azeen’s former attorney would have permitted h im to enter a plea without knowing the sentence. C ounsel’s statements at the hear ing regarding his opinion of Azeen’s 1987 attorney are not evidence, nor is it pr oper for a court to make factual assumptions about wha t happened in a case based me rely on an attorney’s reputation. But eve n assuming that the speculation is correct, it still falls short: if it is true that this particular defense attorney woul d not have advised his client to enter a no-contest plea without knowing what the sent ence would be, that merely supports an inference that the defense attorney took eff orts to find out what sentence the judge would impose. It does nothing to demonstrat e 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 fi nds its own evidence of a plea agreement. It says that “the transcript from the ple a hearing shows that the prosecutor suggested that th e trial court could delete a cl ause beginning with the word ‘furthermore’ ” from an unidentified document and spec ulates “what could [that document] be other than the plea agreement?” Secon d dissenting opinion at ¶ 54. {¶ 33} The plea hearing began with the trial court confirming that Aze en understood that by entering a no- contest plea, he would be admi tting 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 eac h. Apparently reading directly from the indictment, with respect to the third count, the court explained, “Under the third count of the indictment, this is ha ving a weapon while under a disability, * * * [t]his is a felony of the fourth degr ee, that definite sentence.” The prosecutor responded, “If you want to strike th e furthermore clause,
it has to be a definite sentence.”S UPREME C OURT OF O HIO

14 {¶ 34} Based on that context, it seems apparent that the document to w hich the parties were referring was not a plea agreement, but the in dictment itself. Unfortunately, the indictment was not admitted as an exhibit du ring 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 the refore fails to support the ide a that Azeen’s plea was the result of a negotiated agreement. {¶ 35} The dissenting opinions accuse us of substituting the trial cou rt’s factual findings with our own. We do no such thing. In this c ase, the trial court did not make factual findings. There was no evidence to be weighed ; the facts established by the 1987 plea-hear ing transcript were undisputed . The problem here
is that the trial court drew i nferences that were unsupported b y those facts. The second dissenting opinion contends that we are engaged in our o wn speculation
rather than “a limited review of the evidence to determine whet her the evidence is subject to reasonable inferen ce.” Second dissenting opinion at ¶ 69. But we do not
decide that the alternative ex planations outlined above necessa rily 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 secon d dissenting opinion explains, “We are not justified in inferring, from mere possibi lities, 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 infe rence from a deduction which is itself purely specula tive and unsupported by an establ ished fact’ ”).January Term, 2021

15 {¶ 36} In contrast to the speculation engaged in by the dissents and t he courts below, the record in this case is completely devoid of a ny reference to a negotiated plea agreement. This court’s criminal rules have lo ng required parties to make a record of a negotiated plea agreement: “When a negoti ated 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 pl ea is based shall be stated on the record in open cour t.” 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 substantia lly the same language as the c urrent 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 ru le”). The present case makes the necessity of pl acing information on the record a bundantly clear. {¶ 37} Each of the reasons cited by the dissents and the lower courts for finding the existence of an agreement is premised on speculatio n 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-re cord conversation took place regarding Azeen’s sentence. As to the content of that conversation, we can only guess. N othing on the record demonst rates that the state had entered into any plea agreement with Azeen. And in the abs ence of an agreement demonstrating that Azeen had been induced into offeri ng his plea by aS UPREME C OURT OF O HIO

16 promise from the state (express or implied) not to further purs ue the matter, the state is not barred on that ground fro m prosecuting Azeen for a ggravated murder. {¶ 39} We therefore reverse the judgme nt of the court of appeals and remand this case to the trial court for further proceedings. B ased on our resolution of this case, it is unnecessary for us to decide whether Carpenter should be applied retroactively, so we leave th at question for another day. Judgment reversed
and cause remanded.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , and P IETRYKOWSKI , JJ., concur.
S TEWART , J., dissents, with an opinion.
B RUNNER , J., dissents, with an opinion.
M ARK L. P IETRYKOWSKI , J., of the Sixth District Court of Appeals, sitting
for D ONNELLY , J.

_________________ S TEWART , 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, wi th several felony counts, including attempted murd er, after he shot Danuell Jacks on in 1987. Azeen entered a no-contest plea to those counts. Nearly 30 years lat er, two years after Jackson died from his injuries, the state indicted Azeen for Ja ckson’s murder. The
trial court dismissed the indic tment, 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 Eigh th District Court of Appeals determined that the state forfeited its retroactivit y argument because it
had failed to raise that issue to the trial court. 2019-Ohio-4 677, 143 N.E.3d 162,January Term, 2021

17 ¶ 30. The state does not deny that it did not raise retroactiv ity in the lower court, so I believe that we have improvi dently accepted jurisdiction o ver the first proposition of law. {¶ 41} The majority does not address the first proposition of law, bec ause it determines that there is no evidence to show that Azeen, ent ered into a negotiated plea agreement with the state. To reach that conclusion, the m ajority violates a cardinal principle: this court will not weigh evidence. Nor sh ould we engage in
error correction on an issue tha t will not likely reoccur. Carpenter is 28 years old,
and cases like it—in which the s tate seeks further prosecution many years after the
initial conviction—will be rare. We should also dismiss the se cond 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 bargainin g flows from ‘the mutuality of advantage’ to defendants and prosecutors, each wit h 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 d efendant’s certainty that the criminal prosecution will terminate and the efficiency in resolving a
criminal case without a trial. T hat said, the benefits of cert ainty and efficiency work “only if dispositions by [a] plea are accorded a great mea sure 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 sid e bargains away its desired ou tcome for the benefit of certainty”). “If plea bargaining is to fulfill its intended purpose, it must be conducted fairly on both sides a nd the results must not disappo int the reasonable expectations of either.” State v. Thomas , 61 N.J. 314, 321, 294 A.2d 57 (1972).S UPREME C OURT OF O HIO

18 {¶ 43} The majority finds that Azeen failed to show the requisite elem ents 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 t he 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 specificall y 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 murde r should the victim die. “[A] defendant’s subjectiv e 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 t o reserve the right to further prosecute the defendant if the victim later dies. {¶ 46} Next, consider that the trial court determined that the sentenc ing judge had conducted off-the-record discussions with the parties before Azeen entered his no-contest plea. Thos e discussions included the se ntencing judge’s representation that Azeen could expect a minimum sentence shoul d he enter a plea. The record does not show that the state objected to the sentenc e, although it did ask the court to clarify whether Azeen would serve certain prison t erms concurrently.January Term, 2021

19 The limited record before us thus shows both that Azeen would h ave reasonably expected his plea to fully terminate the criminal prosecution a nd that he agreed to enter his plea based on the sentencing judge’s very specific re presentation of what sentence he would impose should A zeen plead and forgo a trial. {¶ 47} The majority wrongly disregards Azeen’s subjective expectation because it determines that the sentencing judge’s representatio n of what sentence he would impose indicated only the judge’s thoughts, not that A zeen 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 “ ‘s hown by the surrounding circumstances which make it inferable that the cont ract 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 conteste d factual issues relating to the elements of an agreement, we acc ept the facts as found by the trial court if supported by some competent, credible evi dence, but on the application of those facts, we i ndependently 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 tha t 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 wei ght of the evidence, it reviews the entire record, “ ‘weighs the evidence and all reasonable inferences , considers the credibility of witnesses and determines whether i n resolving conflictsS UPREME C OURT OF O HIO

20 in the evidence, the jury clearly lost its way.’ ” (Emphasis a dded.) 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 p arties negotiated its terms—based on (1) off-the-record discussions by the sentencing judge and the parties in which t he sentencing judge described t he 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 reasona ble inferences, as the court of appeals concluded. I t 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 reasona bly inferred that Azeen had no incentive to enter a plea if he thought that the s tate could later file additional, more serious charges . It would be illogical to con clude that Azeen would have agreed to serve the minimum prison term if he believ ed that it was “perhaps only the first installment on a lengthier term to be i mposed.” 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 f loat a possible sentence as an inducemen t 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 majo rity’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 prude nt to defer to the sentencing judge’s suggested
sentence as a reason for remaini ng silent when the sentencing j udge outlined the sentence that Azeen could expect. But it is equally plausible that the state had someJanuary 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 Aze en entered his plea. One would expect the state to have objected to a minimum senten ce had it disagreed. There are two plausib le theories of w hat happened o ff the record. Therefore, this court cannot say, within the confines of a mani fest-weight-of-theevidence review, that the trial court lost its way by determini ng that the state implicitly agreed to the sentence offered by the sentencing jud ge. {¶ 53} We avoid accepting jurisdiction over cases in which a party is asking this court to review a lower court’s application of specific fa cts 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., disse nting). The majority opinion announces no rule of law, nor does it clarify an existi ng 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 asses sment of the evidence for that of the trial court, we should dismiss this ap peal as improvidently accepted.

_________________ B RUNNER , J., dissenting.
Overview {¶ 54} I agree with the first dissenting opinion that there is compete nt, credible evidence in the record that supports the conclusion th at defendantappellee, Abdul Azeen, entered i nto a plea agreement at the tim e of his change-ofplea hearing in 1987. In addition to the evidence identified a nd relied on by the trial and appellate courts, the transcript from the plea hearin g shows that the prosecutor suggested that the tri al court could delete a clause beginning with the
word “furthermore.” The trial c ourt agreed. The transcript do es not indicate what document the prosecutor was refe rring to, but what could it be other than a plea agreement? This evidence contradicts the majority’s assertion that the record isS UPREME C OURT OF O HIO

22 “completely devoid of any reference to a negotiated plea agreem ent.” Majority opinion at ¶ 36. When the prosecuto r’s statement is viewed alo ne or with the evidence relied on by the trial and appellate courts, it was mo re than reasonable for the trial and appellate courts to conclude that Azeen and the s tate had entered into a plea agreement before Azeen’s change of plea. And because th ere is no evidence that the state reserved the right to pursue future prosecution if the victim were to die, the state impliedly agreed t o forgo pursuing homicide char ges 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 competen t, credible evidence of a pl ea agreement was presented to the trial court in t his matter, I join the first d issenting opinion in full. {¶ 55} I write separately to raise concerns about several other substa ntial problems I perceive with the maj ority opinion’s analysis. Firs t, there is a conspicuous absence of an enunciat ed standard of review, which leaves the impression that the focus of the court seems to be to ensure th at a heinous act is punished until no more punishment can be meted out. The majori ty opinion’s analysis—which meanders through hypothetical scenarios addressi ng whether there was a plea agreement rather than addressing whether compe tent, credible evidence was presented on which a fact-finder could find that a n 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 frame work 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 betw een 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 a t ¶ 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 correctio n in applying aJanuary Term, 2021

23 second appellate review when no cogent proposition of law has b een posited to clarify how Carpenter should apply in a particular s ituation. Our review, then, involves error correction and no more, and this appeal should t herefore be dismissed as improvidently accepted. {¶ 57} Although the majority opinion does apply Carpenter and acknowledge that it is well-estab lished law, it r eaches conclus ions on the facts of this case—recognizing them as unique—that are different from th e trial and appellate courts. However, just because the facts of a case ar e recognized as unique does not mean that our jurisdic tion can be used to make sure th e 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, o ther issues need to be explored to alert future litigants of the pitfalls of the co nclusions 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 agreemen t existed. Rather, appellate cou rts must simply examine the record to determine whether competent, credible evi dence 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 dism iss 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.S UPREME C OURT OF O HIO

24 {¶ 59} Thus, applying Carpenter and Dye, we must decide whether “a close examination of the record supports the conclusion that a negoti ated 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 cha llenges to an indictment, such as speedy-trial challenges, which involve mixe d questions of fact and law. Thus, a reviewing cour t should defer to the trial cou rt’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 de ference 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 preclude s further prosecution, but this legal conclusion must
be based on an evaluatio n of the evidence. {¶ 60} The trial court’s conclusion that Azeen and the state had enter ed into a plea agreement before Azeen’s change-of-plea hearing must be based on competent, credible evidence appearing in the record. To obtai n 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 le gal conclusion . It is then the task of the reviewing court to thoroughly examine the record to determi ne whether such competent, credible evidence exists. When an appellate court d oes this, it considers whether the evidence is competent and credible, examining the e vidence 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 b y entirely disregarding certain evidence or the lack thereof, when measured by this sta ndard, there is cause
to reverse the decision. See State v. Stutzman , 9th Dist. Wayne No. 19AP0050, 2021-Ohio-995, ¶ 24-25 (Ca llahan, J. dissenting).January Term, 2021

25 {¶ 61} Here, if competent, credible evi dence exists in the record that supports the trial court’s factua l finding of an agreement, eve n if that evidence was not relied on by the trial c ourt, 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 w as 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, credi ble evidence support[s] its de termination”). {¶ 62} The record here strongly indicates that there was competent, cr edible evidence to support a finding that a plea agreement had been re ached 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 vehicl e while under the influence of alcohol, rendering the victim a quadripl egic. The victim later died from complications attributed to his quadriplegia. Howeve r, when Dye was
sentenced for convictions based on new charges brought after th e victim’s death, this court vacated the sentence, finding competent, credible ev idence existed from which an inference could be drawn that a negotiated plea agreem ent had been reached at the time of the original trial. This court found co mpetent, credible evidence that supported as a matter of law that the state and t he 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 he aring
reflects that some form of co mmunication occurred before that hearing during which Dye notified the state that he would plead guilty to [the charges].S UPREME C OURT OF O HIO

26 Id. at ¶ 24. {¶ 63} Here, the discussion with the t rial 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 t he evidence in the record, and instead, it engages in what amounts to error correc tion with no particularized standard of revi ew. 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-co urt 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 ot hers more reasonable. It is n ot this court’s role to perform the truth function of a fact-finder that the public hea vily relies on from trial courts and juries. And setting aside for the moment that we al so seem to be performing the role of the court of appeals, which is error cor rection, even if our jurisdiction were appropriate, our role is to determine, like t he court of appeals did, whether there is competent, cred ible evidence in the record tha t supports a reasonable inference that a negotiated plea agreement existed. {¶ 64} What is a reasonable inference? The following language from a Washington state cour t is instructive.

We struggle in the abstract w ith what assay to employ when adjudging what reasonable inferences we may deduce from established facts. Therefore, we first comb for definitions an d synonyms for our key word “inference.” Our state high court ha s defined an “inference” as a l ogical deduction or conclusion fro m an established fact. Fannin v. Roe , 62 Wash.2d 239, 242, 382 P.2d 264January Term, 2021

27 (1963). State v. Aten , 130 Wash.2d 640, 658, 927 P.2d 210 (1996) refers to a “reasonable and logi cal” inference, again suggestin g 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 be en 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 comm on 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 infe rence is not reasonable if base d on speculation or conjecture. This observation, however, only beg s the question of what c onstitutes speculation and conjecture. A court occasionally faces the question of whether the trier of fact may infer only those facts that necessarily or always f ollow from established circumstances, whether the trier of fact may d educeS UPREME C OURT OF O HIO

28 those facts likely to have occurred as a result of the underlyi ng circumstances, or whether the trier of fact may even employ
inferences that exist as one o f many possible inferences. We conclude that any reasonable in ference 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 t han a possibility is shown. Brucker v. Matsen , 18 Wash.2d 375, 382, 139 P.2d 276 (1943). We are not justified in inferring, from m ere possibilities, the existence of facts. Gardner v. Seymour , 27 Wash.2d 802, 810-11, 180 P.2d 564 (1947). Some of the decision s we cite entail civil appeals, but the law should demand stricte r controls on use of inferen ces in a criminal case. * * * Some cases teach that, when drawing inferences, the
trier of fact should not isolate discrete facts but instead dra w reasonable inferences only after viewing the evidence as a whol e. 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 eviden ce in the record before us when a pplying Carpenter
and Dye. {¶ 65} First, an inference based on logic must be related to an underl ying truth. Second, an inference is not reasonable if it is based o n speculation or conjecture. Third, when there are two equally consistent hypot heses, the evidenceJanuary Term, 2021

29 tends to prove neither. Fourth, t he 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 ma nner 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 factu al analysis this court should not be assuming. Compounding that m istake, the majority opinion employs a divide -and-conquer approach whereby each evidentiary item from which an inference can be drawn is dismis sed one-by-one if that item does not prove—on its own—that Azeen and the state ha d entered into a plea agreement. {¶ 67} To illustrate, consider the majority’s discussion of the origin al 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 f ive to twenty-five years.” (Emphasis added.) The majority insists that this stat ement 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 establis h” the existence of an agreement between Azeen and th e state. Majority opinion at ¶ 2 5. The majority errs by failing to allow for a reasonable interpretation of the statement in accordance
with Dye and by failing to consider the s tatement in conn ection with oth er evidence. {¶ 68} The majority then states that relying on that statement, and th e trial court’s imposition of the minimum sentence, “wrongly implies th at a trial court has no discretion to impose a senten ce without the state’s approval .” Majority opinion at ¶ 27. But that is not a reasonable or even the only inferen ce that can be drawn
from the statement. It would also be reasonable to infer that the trial court madeS UPREME C OURT OF O HIO

30 that statement and imposed only a minimum sentence because it h ad learned in its
off-the-record discussion with c ounsel that Azeen and the state had entered into a plea agreement, and it approved of that agreement. In fact, th at inference is entirely consistent with the majority opinion’s observation, based on ca se law not from Ohio but stretching to Michigan and Florida, that “[i]t is not unusu al in criminal cases for attorneys to approach the judge to get an idea of what sent ence 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 derive d from even its own sources. {¶ 69} The majority speculates that the trial court proceeded immediat ely to sentencing without requesting a presentence-investigation re port for reasons other than that Azeen and the state had entered into a plea agr eement before the hearing. But considering the evidence, without actually reachi ng a conclusion for one side or the other, is precisely what allows us to examine w hat inferences may be made and thereby determine whether competent, credible evide nce exists to support the trial cour t’s conclusion that a plea agreement did exist. See Stutzman , 2021-Ohio-995, at ¶ 24-25 (C allahan, 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. Sp eculation abounds concerning the prosecutor’s failure to object to the sentence: the majority posits that the prosecutor may not have objected because the prosecuto r believed the minimum sentence was appropriate o r because the prosecutor had already unsuccessfully argued for a higher sentence in the off-the-reco rd discussion. All of this is speculation, not a limited review of the evidence to de termine 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 injuriesJanuary Term, 2021

31 had the potential to be fatal is erroneous. The victim was ren dered a paraplegic when he was shot by Azeen, and as the majority opinion recogniz es, “[t]he prosecutor informed the court that [the victim’s] condition ‘wi ll probably not improve,’ explaining that ‘[i]f anything, it will deteriorate s lowly,’ ” majority opinion at ¶ 7. Based on this statement alone, it is fair to i nfer 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 fr om his injuries.
No evidence of state’s reservatio n 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 contingenc y of the death of the alleged victim.’ ” State v.
Zima , 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 9, quoti ng Carpenter , 68 Ohio St.3d at 61, 623 N.E.2d 66. As a practical matter, t hen, whenever there is a plea agreement in a case in which the victi m 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 dis pute over whether the state rese rved its right to bring future charges—no one argues that it did so. Th e issue is whether there was a plea agreement at a ll. The trial court found that Azeen met his burden of showing that a plea agreement existed; the appellate court a greed, 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, t he 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, esp ecially when considered as a whole, that permitted the trial court to conclu de that a negotiated plea agreement existed.S UPREME C OURT OF O HIO

32 This case should be dismissed as improvidently accepted {¶ 72} As the majority opinion makes clear, nothing in this appeal inv olves the consideration of a disputed or unclear issue of law. Inste ad, the entirety of the majority opinion is devoted to de termining whether well-establi shed 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 cas es 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) (“Accor ding to Section 2,
Article IV of the Ohio Constitu tion, this court sits to settle the law, not to settle cases”). I would therefore dismi ss this case as improvidently accepted.
Conclusion {¶ 73} By not recognizing or attending t o any enunciated standard of review, the majority opinion fails to afford sufficient deferen ce 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 re view 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 lic ense 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 ex istence 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 t o 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, sp eedy, 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 thorou gh review of the record for co mpetent, credible evidence to support a court’s factual findings. Only by follow ing these wellestablished rules can trial and appellate courts give full effe ct to the decision of Carpenter , thereby ensuring that a state’s implied promise is enforced a nd 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 dea th of the victim from the act or acts punished, the orig inal plea and sentence end th e matter. {¶ 75} For these reasons, I respectfully dissent.

_________________ Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine E. Mullin, Assistant Prosecuting Attorney, for appell ant. Mark Stanton, Cuyahoga County Public Defender, and Erica Cunlif fe,
Assistant Public Defe nder, for appellee.

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