State v. Smith , 2021 Ohio 4028 ( 2021 )


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  • [Cite as State v. Smith, 
    2021-Ohio-4028
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    ROSS COUNTY
    STATE OF OHIO,                                   :
    Plaintiff-Appellee,                      : CASE NO. 21CA3739
    v.                                       :
    CIERA M. SMITH                                   : DECISION AND JUDGMENT ENTRY
    Defendant-Appellant.                     :
    _________________________________________________________________
    APPEARANCES:
    Scott P. Wood, Lancaster, Ohio for appellant.1
    Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C.
    Wells, Assistant Prosecuting Attorney, Chillicothe, Ohio, for
    appellee.
    _________________________________________________________________
    CRIMINAL APPEAL FROM COMMON PLEAS COURT
    DATE JOURNALIZED:11-8-21
    ABELE, J.
    {¶1}     This is an appeal from a Ross County Common Pleas Court
    judgment of conviction and sentence.                  The trial court found Ciera
    M. Smith, defendant below and appellant herein (1) guilty of
    second-degree aggravated possession of methamphetamine and imposed
    a prison sentence, and (2) denied her request to withdraw her
    guilty plea.
    {¶2}     Appellant assigns the following errors for review:
    1
    Different counsel represented appellant during a portion of
    2
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    FIRST ASSIGNMENT OF ERROR:
    “THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
    ALLOWING APPELLANT TO WITHDRAW HER GUILTY PLEA
    PRIOR TO SENTENCING.”
    SECOND ASSIGNMENT OF ERROR:
    “THE TRIAL COURT ERRED IN SENTENCING
    APPELLANT.”
    {¶3}   On December 6, 2019, a Ross County Grand Jury returned an
    indictment that charged appellant with one count of aggravated
    possession of drugs in violation of R.C. 2925.11.
    {¶4}   On April 20, 2020, appellant agreed to plead guilty to
    aggravated drug possession as charged in the indictment.    At the
    change of plea hearing, the trial court noted that the state,
    defense counsel and appellant negotiated the plea, including a two-
    year minimum sentence, and agreed that the trial court accurately
    recited the terms of the plea agreement.   After the court asked
    appellant if she understood she would be making a complete
    admission to the allegations contained in the indictment, she
    responded affirmatively.   The court further asked appellant if she
    understood that a guilty plea waives her right to a jury trial, her
    right not to testify against herself, her right to confront
    witnesses, her right to compulsory process, and her right to
    require the state to prove her guilt beyond a reasonable doubt.
    the trial court proceedings.
    3
    ROSS, 21CA3739
    Appellant responded that she did so understand.
    {¶5}   The trial court thereupon reviewed the maximum penalty
    and informed appellant that this offense has (1) a mandatory
    sentence between two and eight years, and (2) a fine up to $15,000,
    one-half of which is mandatory.   The court also addressed court
    costs, post-release control and advised appellant that she would
    not be eligible for judicial release.
    {¶6}   Defense counsel pointed out that, because of appellant’s
    pregnancy and upcoming due date, appellant may need ongoing medical
    care arising from pregnancy complications.   A discussion then
    ensued concerning whether appellant should deliver her child before
    or after entering prison, and whether appellant could be eligible
    for the prison nursery program.   The trial court stated that it
    would be willing to wait until after the birth to impose sentence
    because, once it sentenced appellant, “I don’t have the ability to
    even judicial her.   I can’t do anything * * * I can’t modify it.”
    After counsel indicated that he had explained this situation to
    appellant, the court accepted appellant’s guilty plea, but did not
    immediately schedule a sentencing hearing.
    {¶7}   On August 20, 2020, appellant, through new counsel, filed
    a motion to withdraw her guilty plea.   In particular, appellant
    claimed that, because she did not have the ability to review
    discovery materials until after her plea, her recent review of
    4
    ROSS, 21CA3739
    discovery materials revealed her co-defendant’s admission of
    ownership of the methamphetamine.   Thus, appellant reasoned, this
    information provided her with a good faith defense.    Appellant
    further argued that, at the time she entered her plea, she believed
    she would enter prison nursery program so that she could be with
    her child during her incarceration.
    {¶8}   On October 13, 2020, the trial court held a hearing to
    address appellant’s motion to withdraw her guilty plea and
    appellant’s sentence.   At the hearing, appellant testified that,
    when she entered her guilty plea, she had not reviewed her
    discovery packet because her high-risk pregnancy precluded her from
    visiting her counsel’s office.   Appellant further explained that,
    after her child’s birth, she visited counsel’s office, reviewed
    discovery, and learned that her co-defendant admitted that he owned
    the drugs.   Consequently, appellant now believed she had a good
    faith defense and she wished to change her plea.   Appellant also
    testified that, when she entered her guilty plea, she thought she
    was “gonna be able to go into the prison nursery program with my
    child.   I would not have to leave her and then she was born two
    months early and since I’m now that’s not possible.”    Appellant
    claimed that when she entered her plea, she also understood that
    she would receive two years, but “I could go into a prison nursery
    program * * * before I had my child and even with the medical stuff
    5
    ROSS, 21CA3739
    going on * * * that it was fine.”   Appellant stated that “the only
    reason I even took the deal [was] because I just didn’t want to be
    separated from my child that is my biggest concern.”   Appellant did
    acknowledge, however, that the trial court informed her that
    acceptance into the prison nursery program was not a certainty, but
    appellant said, “I thought it was.”   Appellant also stated that she
    had been drug-free for two years, sees a psychologist and is
    married to her baby’s father.
    {¶9}   Appellant also admitted that during her and her co-
    defendant’s 2018 traffic stop, she possessed methamphetamine in her
    pants.   Nevertheless, appellant maintained that the discovery
    materials proved that she did not own the drugs and that fact would
    have impacted her decision to plead guilty.   Appellant conceded,
    however, that she could have entered prison, and possibly the
    prison nursery program, when she pleaded guilty, but she chose not
    to be sentenced that day.   Instead, at her request the trial court
    twice continued her sentencing hearing.
    {¶10} At the motion hearing the state called Attorney Matthew
    O’Leary to testify.    O’Leary represented appellant at her December
    23, 2019 arraignment.    He also stated that he received all of the
    discovery materials.    Although O’Leary recalled that appellant had
    several medical appointments related to her high-risk pregnancy and
    that this fact made meetings at his office difficult, he stated,
    6
    ROSS, 21CA3739
    we had discussed extensively the nature of the discovery
    both prior to that plea. I think one of the initial
    appointments in the office * * * where I did have the
    discovery and then throughout that case over the phone,
    over email um, again a large portion being, I could not
    physically provide her copies because I am unable to do
    that and I know that was communicated in writing via
    email.
    O’Leary further testified that appellant visited his office in mid-
    July and reviewed documents and portions of a video.   O’Leary also
    recalled the April 20, 2020 change of plea hearing and appellant’s
    guilty plea.
    {¶11} Additionally, at the motion hearing the trial court asked
    whether appellant’s substitute counsel had received discovery.
    When the court learned that he had not, the court continued the
    hearing so that new counsel could have an opportunity to review the
    discovery materials.   The court stated:
    My notes from all of the pre-trials in this. The first
    one was the defendant said, ‘not her dope.’ She would be
    willing to plea to an F3. She indicated, or no, in
    chambers she argued it was her boyfriend’s dope. She was
    given a week then to file motions and then we started
    discussing moving the case in to April and that sort of
    thing. So, I was at least a prior to then that was what
    she was saying and I tend to, I get your argument if
    there is something in the discovery that indicates that
    her boyfriend had said ‘it was mine.’ If you believe she
    didn’t know that, then yes that would be a significant
    factor. So, that’s what I kind of would like to know is
    whether discovery actually said, makes those statements.
    The trial court then continued the hearing to allow appellant’s
    counsel time to review the discovery materials and determine
    7
    ROSS, 21CA3739
    whether the co-defendant’s statement concerning the ownership of
    the methamphetamine appeared in those materials.
    {¶12} Subsequently, counsel reviewed the discovery materials,
    including a video, and the co-defendant stated that he owned the
    drugs.   Concerning appellant’s contention that she pleaded guilty
    based on her belief that she could be with her child during her
    incarceration, the trial court observed that the court informed
    appellant at her plea hearing that, although that could be the
    ideal situation, the court could not promise that would actually
    occur.
    {¶13} Consequently, concerning appellant’s contention that when
    she entered her guilty plea she did not have the opportunity to
    review discovery materials and that she did not know about her co-
    defendant’s admission, the trial court concluded:
    Quite frankly, I believe she was aware that he made those
    statements and that in fact that was her defense the
    entire of that, it wasn’t hers or difficulty, it clearly
    was, it was on her person. And two people can obviously
    possess one item. As such it sounds more like buyer’s
    remorse than it does anything else. So, I’m going to
    deny the motion to withdraw plea.
    {¶14} Therefore, the trial court (1) overruled appellant’s
    motion to withdraw her guilty plea, (2) sentenced her to serve an
    indefinite prison term of two to three years of mandatory time, (3)
    imposed a mandatory $7,500 fine, and (4) imposed a three-year
    mandatory post-release control term, and (5) denied appellant’s
    8
    ROSS, 21CA3739
    motion to stay execution of sentence pending appeal.     This appeal
    followed.
    I.
    {¶15} In her first assignment of error, appellant asserts that
    the trial court’s denial of her motion to withdraw her guilty plea
    constitutes an abuse of discretion.     In particular, appellant
    contends that when she entered her guilty plea, she did not know
    that her co-defendant had admitted that he owned the
    methamphetamine found on her person.
    {¶16} Crim.R. 32.1 provides: “A motion to withdraw a plea of
    guilty or no contest may be made only before sentence is imposed;
    but to correct manifest injustice the court after sentence may set
    aside the judgment of conviction and permit the defendant to
    withdraw his or her plea.”    “While trial courts should ‘freely and
    liberally’ grant a presentence motion to withdraw a guilty plea, a
    defendant does not ‘have an absolute right to withdraw a guilty
    plea prior to sentencing.’”   State v. Howard, 
    2017-Ohio-9392
    , 
    103 N.E.3d 108
    , ¶ 21 (4th Dist.), quoting State v. Xie, 
    62 Ohio St.3d 521
    , 527, 
    584 N.E.2d 715
     (1992).    Instead, “[a] trial court must
    conduct a hearing to determine whether there is a reasonable and
    legitimate basis for the withdrawal of the plea.”    Xie at paragraph
    one of the syllabus; Howard, supra.
    9
    ROSS, 21CA3739
    {¶17} While a trial court may possess discretion to determine
    whether to grant or to deny a presentence motion to withdraw a
    guilty plea, the court does not have the discretion to determine if
    a hearing is required.   Howard at ¶ 22, citing State v. Wolfson,
    4th Dist. Lawrence No. 02CA28, 
    2003-Ohio-4440
    , ¶ 15.    Furthermore,
    because a trial court has broad discretion to grant or to deny a
    presentence motion to withdraw a plea, an appellate court will not
    reverse a court’s decision absent an abuse of discretion.   State v.
    Delaney, 4th Dist. Jackson No. 19CA9, 
    2020-Ohio-7036
    , ¶ 19, citing
    State v. Brown, 4th Dist. Ross No. 16CA3544, 
    2017-Ohio-2647
     at ¶
    11, citing Xie at ¶ 2 of the syllabus.   “The term ‘abuse of
    discretion’ implies that the court’s attitude is unreasonable,
    unconscionable, or arbitrary.”   Brown at ¶ 12, citing State v.
    Adams, 
    62 Ohio St.2d 151
    , 157, 
    404 N.E.2d 144
     (1980).
    {¶18} Courts have identified nine factors that appellate courts
    should consider when reviewing a trial court’s decision regarding a
    pre-sentence motion to withdraw a guilty plea:
    (1) whether “highly competent counsel” represented the
    defendant; (2) whether the trial court afforded the
    defendant “a full Crim.R. 11 hearing before entering
    the plea”; (3) whether the trial court held “a full
    hearing” regarding the defendant’s motion to withdraw;
    (4) “whether the trial court gave full and fair
    consideration to the motion”; (5) whether the defendant
    filed the motion within a reasonable time; (6) whether
    the defendant’s motion gave specific reasons for the
    withdrawal; (7) whether the defendant understood the
    nature of the charges, the possible penalties, and the
    10
    ROSS, 21CA3739
    consequences of his [or her] plea; (8) whether the
    defendant is “perhaps not guilty or ha[s] a complete
    defense to the charges”; and (9) whether permitting the
    defendant to withdraw his [or her] plea will prejudice
    the state.
    Howard at ¶ 24, citing State v. McNeil, 
    146 Ohio App.3d 173
    , 176,
    
    765 N.E.2d 884
     (1st Dist.2001), citing State v. Peterseim, 
    68 Ohio App.2d 211
    , 214, 
    428 N.E.2d 863
     (8th Dist. 1980).   This list is
    “non-exhaustive” and “‘[c]onsideration of the factors is a
    balancing test, and no one factor is conclusive.’” State v.
    Ganguly, 
    2015-Ohio-845
    , 
    29 N.E.3d 375
    , ¶ 14 (10th Dist.), citing
    State v. Zimmerman, 10th Dist. Franklin No. 09AP-866, 2010-Ohio-
    4087, ¶ 13.   Thus, the ultimate question is whether a “reasonable
    and legitimate basis for the withdrawal of the plea.”   Xie, 62 Ohio
    St.3d at 527, 
    584 N.E.2d 715
    .   “A mere change of heart is not a
    legitimate and reasonable basis for the withdrawal of a plea.”
    Howard at ¶ 24, citing State v. Campbell, 4th Dist. Athens No.
    8CA31, 
    2009-Ohio-4992
    , ¶ 7, State v. Harmon, 4th Dist. Pickaway No.
    4CA22, 
    2005-Ohio-1974
    , ¶ 22; Delaney at ¶ 21.
    {¶19} Although appellant points to the nine-factor test
    highlighted above, she does not appear to apply all of the test
    factors to her particular case.   Instead, appellant submits that
    she believes that she had a reasonable and legitimate basis to
    withdraw her plea, namely, that before her plea she did not have
    the opportunity to review discovery materials, but after her
    11
    ROSS, 21CA3739
    review, she learned that her co-defendant had admitted ownership of
    the drugs.     This, appellant argues, supports her defense that the
    drugs were “thrown at her” during the traffic stop.     We begin our
    analysis with a review of the nine court-recognized factors.
    1
    Highly Competent Counsel
    {¶20} Courts begin with the presumption that a defendant had
    competent counsel.    Delaney at ¶ 25, citing State v. Shifflet,
    
    2015-Ohio-4250
    , 
    44 N.E.3d 966
    , ¶ 37 (4th Dist.).    Further, as we
    also noted in Delaney, appellant in the case sub judice did not
    raise an ineffective assistance of counsel claim.    The state,
    however, called appellant’s plea counsel as a witness and he
    testified that he met with appellant several times before her
    guilty plea.
    {¶21} Our review of the record reveals that appellant’s plea
    counsel requested, and received, the discovery materials.     Finally,
    at the plea hearing the trial court asked appellant if she was
    satisfied with the “advice [and] counsel of your attorney” to which
    appellant replied, “yes.”
    {¶22} Thus, we believe the first factor weighs in appellee’s
    favor.
    12
    ROSS, 21CA3739
    2
    Crim.R. 11 Hearing
    {¶23} Appellant takes no issue with the requirement that she
    receive a full Crim.R. 11 hearing.     The April 20, 2020 hearing
    transcript reveals that the trial court afforded appellant a full
    Crim.R. 11 hearing before it accepted her guilty plea.
    Additionally, the court engaged in the appropriate colloquy with
    appellant to ensure that she understood the constitutional and non-
    constitutional implications of her guilty plea.
    {¶24} Thus, we believe the second factor weighs in appellee’s
    favor.
    3
    Full Hearing
    {¶25} The third factor asks whether appellant received a full
    and meaningful hearing on her motion to withdraw her plea. As
    indicated above, although a trial court may possess discretion to
    determine whether to grant or to deny a presentence motion to
    withdraw a guilty plea, the court does not have discretion to
    determine if a hearing is required.    Howard at ¶ 22; see also
    Wolfson at ¶ 15, Harmon at ¶ 17.   Instead, a court has a mandatory
    duty to hold a hearing to consider a presentence motion to withdraw
    a guilty plea.   Xie at paragraph one of the syllabus; State v.
    Leonhart, 4th Dist. Washington No. 13CA38, 
    2014-Ohio-5601
    , ¶ 50;
    13
    ROSS, 21CA3739
    State v. Burchett, 4th Dist. Scioto No. 11CA3445, 
    2013-Ohio-1815
    , ¶
    13; Wolfson at ¶ 15.    In Wolfson, we explained that, although a
    trial court “must afford the defendant meaningful notice and a
    meaningful opportunity to be heard,” the court nonetheless retains
    discretion to define the scope of the hearing to “reflect the
    substantive merits of the motion.”     Wolfson at ¶ 16.
    {¶26} In the case sub judice, the trial court held a hearing on
    appellant’s motion.    The court heard testimony from appellant, as
    well as her plea counsel.    In fact, the court reconvened on a
    second date to allow appellant’s counsel, after having an
    opportunity to review discovery, to present any additional
    testimony or argument.
    {¶27} Thus, we believe that this factor weighs in appellee’s
    favor.
    4
    Full and Fair Consideration
    {¶28} The fourth factor examines whether a trial court fully
    and fairly considered the motion to withdraw a guilty plea.        As
    noted above, the record in this case reveals that the trial court
    gave full and fair consideration to appellant’s motion.      For
    example, on October 13, 2020 the trial court held a hearing and
    heard testimony from appellant and her plea counsel.      In addition,
    14
    ROSS, 21CA3739
    the court continued the hearing to allow new counsel to adequately
    review discovery.
    {¶29} Thus, we believe the fourth factor weighs in appellee’s
    favor.
    5
    Reasonable Time
    {¶30} The fifth factor asks whether the appellant requested to
    withdraw the plea within a reasonable time.   In the case sub
    judice, appellant filed her motion four months after her plea and
    eight months after prior counsel received discovery.    Also,
    appellee points out that appellant received two continuances of her
    sentencing date before she filed her motion to withdraw her plea.
    This is not unreasonable, in view of the fact that appellant’s new
    counsel needed time to review and prepare the case.    Thus, four
    months elapsed between appellant’s guilty plea and her request to
    withdraw her plea.
    {¶31} Based on the foregoing, we believe that appellant filed
    her motion within a reasonable time and the fifth factor weighs in
    appellant’s favor.
    15
    ROSS, 21CA3739
    6
    Specific Reasons for Withdrawal
    {¶32} The sixth factor asks whether the appellant sufficiently
    outlined specific reasons for her plea withdrawal request.   Here,
    appellant’s motion asserted that she would not have pleaded guilty
    if (1) she could have reviewed discovery materials, and (2) she
    would have known that she would not be admitted into the prison
    nursery program.   However, with respect to the alleged merits of
    the prison nursery program, we conclude that, although appellant
    cites a specific reason for her motion, this reason lacks merit.
    As the trial court aptly pointed out, the court could not guarantee
    appellant’s acceptance into that program.   We will address the
    discovery issue under our discussion of the eighth factor.
    {¶33} Consequently, this factor weighs in appellee’s favor.
    7
    Nature of the Charges and the Possible Penalties
    {¶34} The seventh factor asks whether the appellant understood
    the nature of the charges and possible penalties.    In the case at
    bar, the trial court conducted a thorough Crim.R. 11 plea hearing.
    The court asked appellant if she understood her plea and its
    16
    ROSS, 21CA3739
    consequences, to which appellant replied that she did.    Further, as
    appellee points out, appellant did not indicate at either hearing
    on her motion that she did not understand the consequences of her
    plea or the possible penalties.
    {¶35} Thus, we believe this factor weighs in appellee’s favor.
    8
    Possible Defenses or Innocence
    {¶36} The eighth factor asks us to examine whether appellant
    had possible defenses to the charge.    “In weighing [this] factor,
    ‘the trial judge must determine whether the claim of innocence is
    anything more than the defendant’s change of heart about the plea
    agreement.’”   State v. Davis, 5th Dist. Richland No. 15CA6, 2015-
    Ohio-5196, ¶ 19, quoting State v. Davison, 5th Dist. Stark No.
    2008-CA-00082, 
    2008-Ohio-7037
    , ¶ 45.    As noted in Harmon, a mere
    change of heart is not a reasonable basis for a defendant to
    withdraw a guilty plea.   Harmon at ¶ 33; see also Sarver at ¶ 44;
    State v. Lambros, 
    44 Ohio App.3d 102
    , 103, 
    541 N.E.2d 632
     (8th
    Dist.1988).    However, in this inquiry “the balancing test only asks
    whether the defendant has possible defenses.   Whether the appellant
    will be successful in those defenses is for a jury to decide.”
    State v. Jones, 10th Dist. Franklin No. 15AP-530, 
    2016-Ohio-951
    , ¶
    17
    ROSS, 21CA3739
    10; Harmon at ¶ 33.
    {¶37} This factor encapsulates the crux of appellant’s argument
    in the case sub judice.   Appellant argues that, at the time of her
    plea, she did not know about her co-defendant’s statement
    concerning his ownership of the methamphetamine.
    {¶38} Appellee, however, points out that appellant actually
    made this argument at the time of her guilty plea - that she was
    only “holding” the methamphetamine.   Appellee further points out
    that the testimony adduced at the motion hearing showed that,
    although appellant may not have personally read the discovery
    materials before she entered her plea, her attorney fully informed
    her about the nature of the discovery.   In addition, appellee notes
    that appellant admitted to officers that she knew the identity of
    the substance that she had concealed in her pants.   Thus, appellee
    argues that appellant has, and had, no defense to the charge.
    {¶39} As the trial court indicated, two or more persons may
    have joint constructive possession of the same object.   State v.
    Brown, 4th Dist. Athens No. 09CA3, 
    2009-Ohio-5390
    , ¶ 19, citing
    State v. Riggs (Sept. 13, 1999), Washington No. 98CA39, 
    1999 WL 727952
    , at *4; State v. Cole, 2d Dist. Montgomery No. 26576, 2015-
    Ohio-5295, ¶ 34.   Further, appellant admitted that she possessed
    the methamphetamine.   Additionally, as the trial court points out,
    18
    ROSS, 21CA3739
    the evidence reveals that appellant knew about the ownership issue
    at the time she entered her guilty plea,
    {¶40} Thus, we believe this factor weighs in appellee’s favor.
    9
    Prejudice to the State
    {¶41} The final factor asks us to examine whether the
    withdrawal of appellant’s plea would prejudice appellee.    The state
    opposed the motion and argues, in addition to the general
    contention that over time memories fade and witnesses relocate,
    this case is over three years old and the chemist has retired from
    the lab, which would require the state to make special
    arrangements.    Thus, appellee argues that the state will suffer
    prejudice if appellant is permitted to withdraw her plea.
    {¶42} While the record does not indicate why it took eight
    months for the state to obtain lab results, and why it took nine
    more months for the grand jury to consider appellant’s case, we
    acknowledge that the state would suffer some degree of prejudice if
    appellant withdraws her plea three years after the offense
    occurred.
    19
    ROSS, 21CA3739
    {¶43} Thus, we believe this factor weighs in appellee’s favor.
    Conclusion
    {¶44} After our review in the case sub judice, we agree with
    the trial court’s conclusion that under these circumstances
    appellant’s attempt to withdraw her guilty plea amounts to “buyer’s
    remorse,” or a change of heart, neither of which constitutes a
    legitimate basis to grant a pre-sentence motion to withdraw a plea.
    State v. Palmer, 4th Dist. Highland No. 02CA9, 
    2002-Ohio-6345
    , ¶ 6;
    Sarver at ¶ 44; Harmon at ¶ 36.   After our review of the various
    factors that courts use to evaluate whether a motion to withdraw a
    plea should be granted, we believe that the factors weigh heavily
    in appellee’s favor.   Thus, we believe that the trial court acted
    properly and reasonably and its denial of appellant’s motion to
    withdraw her guilty plea does not constitute an abuse of
    discretion.
    {¶45} Accordingly, based upon the foregoing reasons, we
    overrule appellant’s first assignment of error.
    II.
    {¶46} In her second assignment of error, appellant asserts that
    20
    ROSS, 21CA3739
    the trial court erred when it imposed an indefinite sentence
    pursuant to R.C. 2929.14(A)(2)(a) when, instead, it should have
    imposed a definite sentence under R.C. 2929.14(A)(2)(b).
    {¶47} R.C. 2953.08 provides for appeals based on felony
    sentencing guidelines.   Pursuant to R.C. 2953.08(G)(2), an
    appellate court may increase, reduce, modify, or vacate and remand
    a challenged felony sentence if the court clearly and convincingly
    finds either “that the record does not support the sentencing
    court’s findings” under the specified statutory provisions, or “the
    sentence is otherwise contrary to law.”   State v. Watson, 4th Dist.
    Meigs No. 18CA20 & 18CA21, 
    2019-Ohio-4385
    , ¶ 11, quoting State v.
    Mitchell, 4th Dist. Meigs No. 13CA13, 
    2015-Ohio-1132
    , ¶ 11; State
    v. Brewer, 4th Dist. Meigs No. 14CA1, 
    2014-Ohio-1903
    , at ¶ 37.
    {¶48} Appellant committed her offense on July 28, 2018 and the
    grand jury returned an indictment on December 6, 2019.     The trial
    court sentenced appellant under the Reagan Tokes Act, which became
    effective March 22, 2019.   Here, appellant argues, and appellee
    concedes, that appellant should have been sentenced under the
    former sentencing guidelines.   Thus, appellant should be sentenced
    under the proper statute.
    {¶49} Accordingly, based upon the foregoing reasons, we sustain
    appellant’s second assignment of error.
    21
    ROSS, 21CA3739
    III.
    {¶50} Therefore, based upon the foregoing reasons (1) we affirm
    the trial court’s judgment concerning the denial of appellant’s
    motion to withdraw her plea, and (2) reverse the sentence that the
    trial court imposed and remand this matter for re-sentencing.
    JUDGMENT AFFIRMED, IN PART,
    REVERSED, IN PART,
    CONSISTENT WITH THIS
    OPINION, AND MATTER
    REMANDED FOR RESENTENCING.
    22
    ROSS, 21CA3739
    JUDGMENT ENTRY
    It is ordered that the judgment be affirmed, in part, and
    reversed, in part, consistent with this opinion. We remand this
    matter for re-sentencing. Appellant shall recover of appellee the
    costs herein taxed.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court
    directing the Ross County Common Pleas Court to carry this judgment
    into execution.
    If a stay of execution of sentence and release upon bail has
    been previously granted by the trial court or this court, it is
    temporarily continued for a period not to exceed 60 days upon the
    bail previously posted. The purpose of a continued stay is to
    allow appellant to file with the Supreme Court of Ohio an
    application for a stay during the pendency of the proceedings in
    that court. If a stay is continued by this entry, it will
    terminate at the earlier of the expiration of the 60-day period, or
    the failure of the appellant to file a notice of appeal with the
    Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
    II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
    Additionally, if the Supreme Court of Ohio dismisses the appeal
    prior to expiration of 60 days, the stay will terminate as of the
    date of such dismissal.
    A certified copy of this entry shall constitute that mandate
    pursuant to Rule 27 of the Rules of Appellate Procedure.
    Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
    For the Court
    BY:___________________________
    Peter B. Abele, Judge
    NOTICE TO COUNSEL
    Pursuant to Local Rule No. 14, this document constitutes a
    final judgment entry and the time period for further appeal
    commences from the date of filing with the clerk.