[Cite as State v. Biggins, 2018-Ohio-1878.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.      17CA0043-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
PAUL W. BIGGINS                                      COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   16CR0723

                                  DECISION AND JOURNAL ENTRY

Dated: May 14, 2018



        TEODOSIO, Judge.

        {¶1}     Defendant-Appellant, Paul Biggins, appeals from the judgment of the Medina

County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     Mr. Biggins was indicted on one count of theft based on his having taken funds

from Medina Creative Housing aka Medina Creative Accessibility aka Medina Creative Living

(“Medina Creative”). He later signed a written plea of no contest. The terms of his plea

provided that the State would not pursue a term of incarceration against him as long as he agreed

to the amount of restitution to be imposed. At the time of the plea hearing, however, the parties

had yet to agree on the exact amount of restitution. The trial court, therefore, accepted Mr.

Biggins’ plea on the theft charge and scheduled the matter for another hearing on restitution.

The scheduled hearing was later cancelled because the parties notified the court that they had

agreed on an amount of restitution.
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       {¶3}    At the sentencing hearing, the court ordered Mr. Biggins to serve two years of

non-residential community control. It further ordered him to pay restitution to Medina Creative,

pursuant to the parties’ agreement. Although there was some discussion about how Medina

Creative’s insurance proceeds would affect Mr. Biggins’ payments, Mr. Biggins and his attorney

repeatedly stated that they were in agreement as to the amount of restitution owed. The trial

court, therefore, ordered restitution in the amount of $23,840.55.

       {¶4}    Mr. Biggins now appeals from the trial court’s judgment, ordering him to pay

restitution in the amount of $23,840.55. He raises one assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       DEFENDANT-APPELLANT’S TRIAL COURT COUNSEL PROVIDED
       INEFFECTIVE ASSISTANCE OF COUNSEL BY NOT REQUESTING A
       CONTINUANCE OF THE SENTENCING HEARING TO HOLD A
       RESTITUTION HEARING, IN ORDER TO DETERMINE THE CORRECT
       AMOUNT OF RESTITUTION, IF ANY, TO BE PAID BY DEFENDANT-
       APPELLANT TO THE THEFT VICTIM, AND DEFENDANT-APPELLANT
       WAS PREJUDICED AS A RESULT BY BEING REQUIRED TO PAY A
       MUCH LARGER AND ERRONEOUS AMOUNT OF RESTITUTION AS A
       PART OF HIS SENTENCE.

       {¶5}    In his sole assignment of error, Mr. Biggins argues that he received ineffective

assistance of counsel.    Specifically, he argues that his attorney should have requested a

continuance at sentencing to clarify the amount of restitution he owed. For the following

reasons, this Court rejects his argument.

       {¶6}    “On the issue of counsel’s ineffectiveness, [an appellant] has the burden of proof

because in Ohio, a properly licensed attorney is presumed competent.” State v. Gondor, 112

Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. To prove ineffective assistance of counsel, an appellant

must establish that: (1) his counsel’s performance was deficient, and (2) the deficient
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performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Counsel’s performance is deficient if it falls below an objective standard of reasonable

representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus.

Meanwhile, prejudice can be shown by proving “there exists a reasonable probability that, were

it not for counsel’s errors, the result of the trial would have been different.” Id. at paragraph

three of the syllabus.

       {¶7}    Mr. Biggins signed a written plea agreement. The agreement he signed provided

that, if the parties stipulated to an amount of restitution, the State would not recommend a jail

sentence. Consistent with that agreement, the prosecutor indicated at sentencing that the State

was not seeking a jail sentence, that Mr. Biggins was “agreeing to pay $23,840.55 and, * * *

with that in mind, * * * that’s why [the State was] making that recommendation * * *.” Defense

counsel responded by confirming that Mr. Biggins was “agreeing on making the restitution in the

amount of [] $23,840.55,” and Mr. Biggins vocalized his assent on the record. Following that

discussion, the court orally announced its order that Mr. Biggins pay Medina Creative restitution

in the amount of $23,840.55.

       {¶8}    After the trial court orally announced its restitution order, defense counsel

interjected that Medina Creative had received $19,980 from its insurance provider to be applied

“towards that money.”     The prosecutor insisted, however, that the insurance proceeds had

already been applied to Medina Creative’s losses, leaving a balance of $23,840.55. In light of

defense counsel’s statement, the court summarized its understanding that Mr. Biggins had taken

$43,222.56 from Medina Creative and the company had received its insurance payment, “leaving

a total to be repaid of $23,840.55.” Defense counsel then responded that the parties were “in

agreement on the $23,840 * * *,” but that the defense believed Medina Creative’s losses had
                                                    4


been reduced as a result of a $20,000 payment from Mr. Biggins rather than the insurance

proceeds. In reply, the prosecutor stated that the parties previously had experienced

       some confusion as to whom restitution is due, but we agreed on the amount of
       restitution, Judge, to 23,000 and it’s due to [Medina Creative]. That’s who the
       money is owed to and I don’t -- even with respect to the momentary disagreement
       or confusion, I don’t think that [defense counsel] or Mr. Biggins is suggesting that
       they want to have a restitution hearing to pay someone else.

       I think we’re all going to agree that’s what happened here, $23,840.55 to [Medina
       Creative].

Defense counsel then once again confirmed that the parties were “in agreement on the amount *

* *” and thanked the court for its consideration.

       {¶9}    Mr. Biggins argues that his attorney engaged in ineffective assistance of counsel

when he failed to request a continuance at the sentencing hearing. He asserts that the parties

were clearly in disagreement about the amount of restitution he owed, so a continuance would

have afforded him the opportunity to request a restitution hearing. According to Mr. Biggins, the

restitution amount the court ordered was erroneous because it failed to account for: (1) the

insurance proceeds Medina Creative received, and (2) the fact that Medina Creative kept his final

paycheck and unused vacation pay. He argues that he was prejudiced by his attorney’s failure to

seek a continuance and a restitution hearing because the court ordered him to pay more

restitution than he actually owed.

       {¶10} On direct appeal, an appellant may not establish ineffective assistance of counsel

based upon evidence outside the record. See State v. Eastridge, 9th Dist. Summit No. 21068,

2002-Ohio-6999, ¶ 20. Moreover, this Court will not consider arguments for the first time on

appeal. See State v. Osorio, 9th Dist. Lorain No. 16CA010999, 2017-Ohio-5837, ¶ 7. To the

extent Mr. Biggins sets forth an argument about his final paycheck and unused vacation pay, the

record reflects that he never raised that argument in the lower court. The only items the parties
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discussed on the record were the final amount of restitution he owed and whether Medina

Creative had already received its insurance proceeds. Because Mr. Biggins failed to present any

evidence or argument about his final paycheck or unused vacation pay in the lower court, he

cannot now rely on those items to establish ineffective assistance. See Eastridge at ¶ 20; Osorio

at ¶ 7.

          {¶11} Upon review, Mr. Biggins has not shown that, had his counsel sought a

continuance at the sentencing hearing, the result in this matter would have been any different.

Bradley, 42 Ohio St.3d 136 at paragraph three of the syllabus. When the parties came before the

court for sentencing, they specifically discussed the insurance proceeds that Medina Creative

received and how those proceeds had been applied towards its losses. Both the prosecutor and

the trial court noted that the insurance proceeds had already been applied to reduce the restitution

payment.      In spite of that discussion, defense counsel confirmed that the parties were “in

agreement on the amount” of restitution to be paid. Moreover, throughout the sentencing

hearing, both defense counsel and Mr. Biggins represented to the court that they were stipulating

to the exact amount of restitution owed. See State v. Turner, 105 Ohio St.3d 331, 2005-Ohio-

1938, ¶ 41, quoting State v. Post, 32 Ohio St.3d 380 (1987) (“‘Agreements, waivers and

stipulations made by the accused, or by the accused’s counsel in his presence, during the course

of a criminal trial are binding and enforceable.’”). At no time did Mr. Biggins note that he

wished to revoke his stipulation.

          {¶12} Notably, Mr. Biggins reaped a benefit from his stipulation, as it kept the State

from recommending that he receive any term of incarceration. Though he now takes issue with

the amount of restitution the court imposed, both he and his counsel expressly agreed that the

exact amount due was the amount the court imposed. Mr. Biggins essentially argues for a
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windfall, as he seeks to both retain the remainder of the money he stole from Medina Creative

(i.e., over $23,000) and avoid any period of incarceration. His stipulation, however, was that he

owed Medina Creative restitution in the amount of $23,840.55. He has not explained how any

additional time he might have gained as a result of a continuance would have changed his

stipulation; particularly, when the State plainly aired its position that Medina Creative’s

insurance proceeds had already been applied. See App.R. 16(A)(7); State v. Bray, 9th Dist.

Lorain No. 03CA008241, 2004-Ohio-1067, ¶ 21 (rejecting claim of prejudice where there was

“no indication in the record that [appellant] pled no contest as a result of the alleged errors

committed by his counsel”). Because Mr. Biggins has not established prejudice as a result of his

counsel’s alleged ineffectiveness, this Court rejects his argument. See Bradley at paragraph two

of the syllabus. Mr. Biggins’ sole assignment of error is overruled.

                                                III.

       {¶13} Mr. Biggins’ assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    THOMAS A. TEODOSIO
                                                    FOR THE COURT



SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
