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State v. Smith

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 18, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JOHNATHAN SMITH, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-620359-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Ryan J. Bokoch, Assistant Prosecuting Attorney, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and Jeffrey Gamso, Assistant Public Defender, for appellant

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶ 1} Defendant-appellant, Johnathan Smith ("appellant"), brings the instant appeal seeking specific performance of a plea agreement that he entered into with the state of Ohio. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶ 2} Appellant, and codefendant Leon Edwards ("Edwards"), were each indicted in a ten-count indictment with various charges related to a drive-by shooting involving a mother and her two children, ages 7 and 4, which occurred on August 6, 2017. As a result of this heinous act, the younger child suffered severe brain injuries from a gunshot wound to the head. One of the bullets entered his brain near his right temple, went through the frontal lobe, and exited the front of his skull.

         {¶ 3} Specifically, appellant and Edwards were charged as follows: Count 1, attempted murder, a first-degree felony in violation of R.C. 2923.02(A) and 2903.02(A); Count 2, felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(1); Count 3, felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(2); Count 4, attempted murder, a first-degree felony in violation of R.C. 2923.02(A) and 2903.02(A); Count 5, attempted felonious assault, a third-degree felony in violation of RC. 2923.02(A) and 2903.11(A)(1); Count 6, felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(2); Count 7, attempted murder, a first-degree felony in violation of R.C. 2923.02(A) and 2903.02(A); Count 8, attempted felonious assault, a third-degree felony in violation of R.C. 2923.02(A) and 2903.11(A)(1); Count 9, felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(2); and Count 10, discharge of a firearm on or near prohibited premises, a first-degree felony in violation of R.C. 2923.162(A)(3). All counts, except for Count 8, had accompanying one-, three-, and five-year firearm specifications.

         {¶ 4} Appellant was arraigned on August 23, 2017. Appellant pled not guilty to the indictment and the matter proceeded through the pretrial proceedings. Although the record is unclear, appellant apparently proffered a statement to the state after his arraignment. After this proffered statement, appellant and the state entered into a plea agreement. The plea agreement provided that appellant would testify truthfully at Edwards's trial. In exchange for appellant's truthful testimony, the state would dismiss various charges and firearm specifications, and appellant would plead guilty to an amended indictment.

         {¶ 5} At appellant's change-of-plea hearing on June 5, 2018, prior to appellant pleading guilty to an amended indictment, the prosecutor stated the plea agreement as follows:

[PROSECUTOR]: Pursuant to the agreement, the [s]tate of Ohio will accept from [appellant] a plea of guilty to the following counts: [p]lead guilty to count 2, felonious assault, a felony of the second degree, as well as a three-year firearms specification on that. We would dismiss the remaining firearms specifications on that count but also plead guilty to count 5, which is attempted felonious assault, a felony of the third degree as indicted, and there are no specifications on that count. Also plead guilty to count 9, which is felonious assault, a felony of the second degree. We move to dismiss all specifications on that count as part of the plea agreement.
Also as part of the plea agreement, [appellant] would agree to testify truthfully and consistently in the prosecution of his co-defendant, and that would be consistent with the proffer statement that he made with the [s]tate of Ohio during the pendency of this case. If [appellant] did so agree to those terms and fulfill those terms, the [s]tate would move to dismiss the remaining counts against the defendant in this matter, and if [appellant] did back up on his end of the deal, the [s]tate would move to revoke this plea and go forward on the full indictment.
There have been no threats or promises made other than just what's been stated in open court, Your Honor.
THE COURT: Thank you. [Appellant's counsel], is this your understanding?
[APPELLANT'S COUNSEL]: Yes, Your Honor.

(Tr. 3-4.) Appellant then entered a guilty plea to the amended indictment that consisted of Count 2, felonious assault, with a three-year firearm specification, Count 5, attempted felonious assault, and Count 9, felonious assault. At the conclusion of the change-of-plea hearing, after accepting appellant's guilty plea, the trial court further explained to appellant that:

THE COURT: Now, [appellant] you heard what [the prosecutor] said. Your plea is contingent upon your cooperation with the [state]. You've already cooperated and you've given your statement. There may come a time that you have to testify in the trials of your co-defendant. Okay? The [state] will have the opportunity, based upon this plea agreement, if you do not testify truthfully and consistent with your prior statement, the [state] can revoke this plea offer. Do you understand that?
[APPELLANT]: Yeah.

(Tr. 18.) The trial court also informed appellant that he would be subject to a mandatory prison term of, at the very least, five years. The trial court further explained to appellant that he could potentially be sentenced to as many as 22 years in prison on the counts in the amended indictment. Appellant stated that he understood the sentencing range. The trial court scheduled a sentencing hearing for June 27, 2018.

         {¶ 6} The trial court then issued a journal entry rescheduling the sentencing hearing for July 12, 2018. On July 12, 2018, the state asked for a continuance so as to have the trial court impose a sentence after Edwards's trial. The following exchange between the parties was had at the scheduled sentencing hearing on July 12, 2018:

[PROSECUTOR]: Part of the terms of his plea agreement was to testify truthfully against his co-defendant whose trial is set for July 23rd. I did have this case set today. I thought it was just set for the pretrial of his co-defendant. I did not realize the sentencing was set. We'd ask that this sentencing be continued until after his full - his end of the bargain in testimony. The [c]ourt would also be able to evaluate that testimony in deciding a proper sentence for [appellant].
THE COURT: Okay. Thank you, [prosecutor]. [Appellant's counsel], would you like to be heard on continuing the sentencing until ...

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