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State v. Smith

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 30, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-88-226041-A

          ATTORNEYS FOR APPELLANT Robert L. Tobik Cuyahoga County Public Defender Jeffrey Gamso Assistant Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Brett Hammond Assistant County Prosecutor Also Listed Edward A. Smith Inmate No. R135-659 Grafton Correctional Institution

          BEFORE: Kilbane, P.J., McCormack, J., and Boyle, 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 ...

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