[Cite as State v. Smith, 2017-Ohio-1155.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104263
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDWARD A. SMITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-88-226041-A
BEFORE: Kilbane, P.J., McCormack, J., and Boyle, J.
RELEASED AND JOURNALIZED: March 30, 2017
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue - Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Brett Hammond
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
Also Listed
Edward A. Smith
Inmate No. R135-659
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Edward A. Smith (“Smith”), appeals from the trial
court’s judgment denying his postsentence motion to withdraw his guilty plea for
aggravated murder. For the reasons set forth below, we affirm.
{¶2} In November 1985, Smith fatally stabbed the victim, while burglarizing the
victim’s home. Smith was 17 years of age at the time. In July 1988, Smith entered into
a plea agreement with the state of Ohio (“State”) in which he pled guilty to aggravated
murder. On the same day of his plea, the trial court sentenced Smith to 20 years to life in
prison. The sentence was ordered to run concurrently to three other cases Smith had
pending at that time.
{¶3} In August 2014, the trial court issued the following entry regarding Smith to
the Ohio Adult Parole Authority:
The court is in receipt of the Ohio Adult Parole Authority’s 08/14/2014
notice of offender’s hearing before the parole board. The court imposed a
sentence after due consideration of all relevant factors and opposes any
reduction or modification of sentence by the Ohio parole board from that
which was imposed. Clerk ordered to send a copy of this order to:
Cynthia Mausser, Parole Board Chair; Adult Parole Authority, 770 West
Broad Street, Columbus, Ohio 43229
{¶4} In January 2015, the Ohio Parole Board held a hearing to determine whether
it would release Smith. The parole board decided not to release Smith because of the
severity of his crime and the serious infractions he committed while incarcerated. The
parole board found that Smith’s release would create either an undue risk to public safety
or be inconsistent with the welfare and security of society.
{¶5} In June 2015, which was approximately five months after the parole board’s
decision and 27 years after his sentence was imposed, Smith filed a motion seeking to
withdraw his previously entered guilty plea. In his motion, he argued the trial court
breached his plea agreement when the trial court submitted a letter to the Adult Parole
Authority opposing his release. Smith contends that as part of his plea agreement, the
trial court would not oppose his release on parole.
{¶6} In February 2016, the trial court held a hearing on Smith’s motion. The
court appointed counsel to assist Smith with his plea challenge. At the hearing, Smith’s
counsel advised the trial court that there is no copy of the 1988 plea and sentencing
transcript and the trial judge and Smith’s defense counsel passed away. Counsel advised
that it was Smith’s understanding at the time of his plea that the trial court would not
oppose parole as part of the plea agreement. The only evidence that the trial court would
not oppose Smith’s release on parole is what Smith averred to in his affidavit. Smith
claims that had he known that 28 years later the court would oppose the parole, he would
not have pled guilty.
{¶7} The State introduced the testimony of the assistant prosecuting attorney who
worked Smith’s case. The prosecuting attorney explained that he had the opportunity to
review the prosecutor’s case file. He had no independent recollection of the case, the
plea, or if the trial court promised to not oppose parole as a condition of the plea. He
stated that “[a]s a prosecutor * * * [h]e never partook in sentencing hearings.” He
further explained that if there “were a condition [of the plea], [he] would have noted it on
the file jacket” because he kept detailed notes. In reviewing this case file, the
prosecuting attorney did not observe anything indicating that the prosecutor’s office
would not oppose parole. He further testified that generally, the prosecutor’s office
would not take a position with respect to whether it would oppose parole. Following the
hearing, the trial court denied Smith’s motion.
{¶8} It is from this order that Smith appeals, with two appellate briefs before us
for review. His appointed appellate counsel filed a brief setting forth the following
single assignment of error. Smith filed a pro se brief setting forth the following five
supplemental assignments of error, which shall be addressed together.
Assignment of Error Filed by Counsel
The trial court committed error when, faced with a manifest injustice caused
by its own breach of a plea agreement, it denied [Smith’s] motion to
withdraw his guilty plea.
Pro Se Supplemental Assignment of Error One
The successor judge abused her discretion by issuing court orders without
reviewing or even possessing the facts of the case in which the successor
judge issued an additional order of judgment.
Pro Se Supplemental Assignment of Error Two
The successor judge lacked jurisdiction to issue “facts of the case and
recommendations” to the parole authority[,] and the issuance of court orders
was an abuse of discretion and a sham legal process.
Pro Se Supplemental Assignment of Error Three
The successor judge abused her discretion when two attorneys were not
appointed to an indigent [Smith] when the record was clear that [Smith] was
in fact charged with aggravated murder with specification and underlying
felonies with specifications.
Pro Se Supplemental Assignment of Error Four
The successor judge’s issuance of a court order was additional to the
Criminal Rule 11 explanatory plea agreement, and facts presented were not
construed in the light most favorable to [Smith].
Pro Se Supplemental Assignment of Error Five
The additional judgment [entry of August 2014] increased the penalty [to]
the authority who provided eligibility for parole, to a unique sentence of life
without parole eligibility, in violation of Eighth and Fourteenth
Amendments that protect against cruel and unusual punishment.
{¶9} Within these assigned errors, Smith argues that the trial court abused its
discretion when it denied his postsentence motion to withdraw his guilty plea. He also
argues the trial court lacked jurisdiction to issue a recommendation, it abused it discretion
in not appointing two attorneys to
represent him, and his “increased sentence” violates his constitutional protection against
cruel and unusual punishment.
{¶10} Under Crim.R. 32.1, the trial court may set aside a judgment of conviction
after it imposes sentence, and may allow the defendant to withdraw his or her plea, only
“to correct a manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d
1324 (1977), citing United States v. Roland, 318 F.2d 406 (4th Cir.1963). The individual
seeking vacation of the plea bears the burden of establishing the existence of a manifest
injustice. Smith at paragraph one of the syllabus. “A manifest injustice has been
defined as a ‘clear or openly unjust act,’ State ex rel. Schneider v. Kreiner, 83 Ohio St.3d
203, 208, 1998-Ohio-271, 699 N.E.2d 83, meaning that a post-sentence withdrawal
motion to withdraw a guilty plea is allowable only in extraordinary cases.” State v.
Conner, 8th Dist. Cuyahoga No. 98084, 2012-Ohio-3579, ¶ 5, citing Smith at 264. On
appeal, we review a trial court’s refusal to allow a postsentence motion to withdraw a
guilty plea for an abuse of discretion. Id., citing State v. Xie, 62 Ohio St.3d 521, 584
N.E.2d 715 (1992); State v. Bankston, 8th Dist. Cuyahoga No. 92777, 2010-Ohio-4496.
{¶11} Smith claims that as part of his plea agreement in 1988, the trial court would
not oppose his release on parole. He claims the trial court honored the agreement in
2002, 2005, and 2012, but breached the agreement in August 2014, when it issued the
following docket entry:
The court is in receipt of the Ohio Adult Parole Authority’s 08/14/2014
notice of offender’s hearing before the parole board. The court imposed a
sentence after due consideration of all relevant factors and opposes any
reduction or modification of sentence by the Ohio parole board from that
which was imposed. Clerk ordered to send a copy of this order to:
Cynthia Mausser, Parole Board Chair, Adult Parole Authority, 770 West
Broad Street, Columbus, Ohio 43229
{¶12} We find the instant case similar to this court’s decision in State v. Aquila,
8th Dist. Cuyahoga No. 103889, 2016-Ohio-5140. In Aquila, the defendant filed a
postsentence motion to withdraw his guilty plea based on his claim that the trial court
breached the plea agreement when it opposed his parole. Id. at ¶6. Aquila appealed the
trial court’s denial of his motion. On appeal, we affirmed the trial court’s decision,
despite agreeing with Aquila that the trial court’s statement to the parole board was a
statement against him. Id. at ¶13. We stated:
Aquila agreed to and was sentenced to “life in prison without the possibility
of parole for 15 years.” According to that sentence, parole was only a
“possibility at 15 years.” We would conclude otherwise if the trial court at
the plea hearing had promised to not oppose parole after 15 years.
However, our review of the plea hearing transcript shows the trial court did
not become involved in the plea agreement and made no representation that
it would recommend parole.
Id. at ¶14.
{¶13} Likewise, in the instant case, the record demonstrates that Smith agreed to
and was sentenced to life in prison without the possibility of parole for 20 years. Based
on that sentence, parole was a possibility after 20 years. Here, the plea and sentencing
transcript was destroyed and the prosecuting attorney does not recall the facts of the case.
As a result, other than Smith’s affidavit, there is no evidence that the trial court agreed
not to oppose his parole after 20 years. “‘Generally, a self-serving affidavit or statement
is insufficient to demonstrate manifest injustice.’” State v. Gibson, 11th Dist. Portage
No. 2007-P-0021, 2007-Ohio-6926, ¶ 32, quoting State v. Wilkey, 5th Dist. Muskingham
No. CT2005-0050, 2006-Ohio-3276, ¶ 25. See also State v. Gray, 11th Dist. Trumbull
No. 2008-T-0114, 2009-Ohio-1925, ¶ 27.
{¶14} Nevertheless, even if we were to agree with Smith that the trial court
promised to not oppose parole, we do not find that the journal entry issued by the trial
court served as a permanent disqualifier to Smith’s release from prison. The journal
entry did not recommend a sentence of life without the possibility of parole. In addition,
the trial court was within its authority to make a recommendation regarding Smith’s
parole under R.C. 2967.03. The parole board has the discretion as to whether to require
Smith to remain incarcerated or release him. Id. Here, the parole board decided not to
release Smith because of the severity of his crime and the serious infractions he
committed while incarcerated. The board found that Smith’s release would create either
an undue risk to public safety or be inconsistent with the welfare and security of society.
The board’s decision does not reference the journal entry of the trial court.
{¶15} Smith also argues that the trial court abused its discretion when it did not
appoint two attorneys to his postsentence motion to withdraw guilty plea. Here, the trial
court assigned Smith one attorney for his hearing. In State v. McNeal, 8th Dist.
Cuyahoga No. 82793, 2004-Ohio-50, we previously examined whether a defendant is
entitled to representation with his postsentence motion to withdraw his guilty plea and
found that the defendant was not automatically entitled to appointed counsel. Id. at ¶ 8.
We reasoned that “[b]ecause [the defendant’s] motion was filed long after the expiration
of his initial right to appeal, he was not automatically entitled to appointed counsel.” Id.
Therefore, the trial court in this case acted within its discretion when it appointed Smith
one attorney to represent him with his postsentence motion to withdraw his guilty plea.
{¶16} Smith further argues that the journal entry issued by the trial court extended
his sentence from life with the possibility of parole to a sentence of life without parole, in
violation of his constitutional rights. However, a review of the record reflects that
neither the trial court nor the parole authority has modified his prison term so that he is
now subject to a sentence of life without the possibility of parole. Even after a prisoner
has met the minimum eligibility requirements, parole is not guaranteed. The parole
authority has wide-ranging discretion in parole matters and may refuse to grant release to
an eligible offender. State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462,
2008-Ohio-3748, ¶ 37, citing Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456,
2002-Ohio-6719, 780 N.E.2d 548. Thus, Smith’s constitutional rights have not been
violated.
{¶17} Based on the foregoing, Smith has not demonstrated that he has suffered a
manifest injustice from the trial court’s denial of his postsentence motion to withdraw his
guilty plea.
{¶18} Accordingly, Smith’s assignments of error are overruled.
{¶19} Judgment is affirmed.
It is ordered that appellee recover of appellant 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 common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
TIM McCORMACK, J., and
MARY J. BOYLE, J., CONCUR