Court of Appeals of Ohio, Eighth District, Cuyahoga
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,
Stanton, Cuyahoga County Public Defender, and Jeffrey Gamso,
Assistant Public Defender, for appellant
JOURNAL ENTRY AND OPINION
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.
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
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
[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
[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
(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
THE COURT: Okay. Thank you, [prosecutor]. [Appellant's
counsel], would you like to be heard on continuing the
sentencing until ...