      [Cite as State v. Smith, 2020-Ohio-3717.]

                                 COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

      STATE OF OHIO,                              :

                       Plaintiff-Appellee,        :
                                                             No. 108727
                       v.                         :

      EDWARD A. SMITH,                            :

                       Defendant-Appellant. :


                                  JOURNAL ENTRY AND OPINION

                       JUDGMENT: AFFIRMED
                       RELEASED AND JOURNALIZED: July 16, 2020


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


                                              Appearances:

              Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
              and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney,
              for appellee.

              Thomas Rein, for appellant.


MICHELLE J. SHEEHAN, J.:

                Defendant-appellant Edward A. Smith appeals from a judgment of

the trial court that resentenced him to life in prison with parole eligibility after

20-years of imprisonment after this court found his original sentence to be void.
Smith argues on appeal that the trial court erred in not allowing him to withdraw

his guilty plea. For the following reasons, we affirm the trial court’s judgment.

Background

              In November 1985, Smith fatally stabbed a victim while burglarizing

the victim’s home. In July 1988, Smith pleaded guilty to aggravated murder

pursuant to a plea agreement with the state and 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.

              In July 2013, Smith filed a “motion to void sentence,” alleging that his

sentence was void and that the trial court lacked subject-matter jurisdiction over his

case. The trial court denied the motion. Later, in November 2013, Smith filed a

“motion to void judgment and correct under Civ.R. 60(B).” Smith repeated the

argument raised in his July 2013 motion, alleging that the trial court lacked

jurisdiction to impose the 20-year-to-life prison term. The trial court again denied

the motion.

              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.

              In January 2015, the Ohio Parole Board held a hearing to determine

whether it would release Smith. The board decided not to release Smith because of
the severity of his crime and serious infractions he committed while incarcerated,

finding that Smith’s release would create either an undue risk to public safety or be

inconsistent with the welfare and security of society.

              Five months later, in June 2015, Smith filed a motion to withdraw his

guilty plea, arguing the trial court breached his plea agreement by submitting a letter

to the Adult Parole Authority opposing his release. He claimed that had he known

the trial court would oppose his parole when he was eligible, he would not have

pleaded guilty. After a hearing, the trial court denied Smith’s motion to withdraw

his guilty plea. This court affirmed the trial court’s judgment in State v. Smith, 8th

Dist. Cuyahoga No. 104263, 2017-Ohio-1155 (“Smith I”).

              In February 2018, Smith filed a “motion to void sentence.” Smith

argued that the trial court imposed a prison term that is not authorized under

R.C. 2929.03(A) and therefore the sentence was void. The trial court denied his

motion.   On appeal, the panel agreed with Smith, vacated his sentence, and

remanded the case for resentencing. State v. Smith, 2019-Ohio-155, 131 N.E.3d 321,

¶ 7 (8th Dist.), appeal not accepted, 155 Ohio St.3d 1438, 2019-Ohio-1536, 121

N.E.3d 409 (“Smith II”).

              At the time Smith was sentenced in 1988 for his conviction of

aggravated murder, the penalty for his offense was provided in R.C. 2929.03(A),

which stated that aggravated murder was punishable by a sentence of “life

imprisonment with parole eligibility after serving twenty years of imprisonment.”

The trial court, however, sentenced Smith to “20 years to life in prison.” The panel
in Smith II rejected the state’s argument that, although the two sentences were

worded differently, they had the same “practical effect.” Id. at ¶ 18. Instead, the

panel contrasted the sentencing statutes for murder and aggravated murder. Under

the sentencing statute for murder, R.C. 2929.02(B), the trial court is to impose “an

indefinite term of fifteen years to life” (unless certain aggravating elements exist),

i.e., a prison range defined by a minimum and maximum term. In contrast, under

the sentencing statute for aggravated murder, R.C. 2929.03 (A), the court is to

impose a prison term of life with parole eligibility after a certain period of time. The

panel found the distinction to be important and held that the trial court exceeded its

authority in sentencing Smith to “20 years to life,” and therefore, the sentence was

void. Because Smith should have been sentenced to “life imprisonment with parole

eligibility after serving twenty years of imprisonment,” the panel remanded the case

for resentencing.1

               On remand from Smith II, released on January 17, 2019, the trial court

appointed counsel for Smith and set his resentencing for May 30, 2019, which was

subsequently continued to June 13, 2019.               A week before the rescheduled




       1 We note that although the Supreme Court of Ohio declined to review Smith II,
the court has since accepted review of both State v. Dowdy, 8th Dist. Cuyahoga
No. 107844, 2019-Ohio-3570, appeal accepted, 01/21/2020 Case Announcements,
2020-Ohio-122, 137 N.E.3d 1200, and State v. Reed, 8th Dist. Cuyahoga No. 108498,
2019-Ohio-4471, appeal accepted, 01/21/2020 Case Announcements, 2020-Ohio-122,
137 N.E.3d 1214. Both Dowdy and Reed relied on the authority of Smith II to vacate the
defendant’s sentence of “20 years to life” and “25 years to life,” respectively, on the ground
that the defendant should have been sentenced in accordance with the statutory language
set forth in R.C. 2929.03(A).
resentencing hearing, on June 6, 2019, Smith filed a pro se motion to withdraw his

guilty plea, claiming that the guilty plea he entered in 1988 was not knowing,

intelligent, or voluntary. At the June 13, 2019 resentencing hearing, Smith stated

the following as the basis for his motion to withdraw the guilty plea:

      Well, what was explained to me is that when I pled guilty, I would get
      a sentence of 20 years to life, and that I would be eligible for parole in
      approximately 14 years and I earned good time on the sentence. Well,
      it’s come to my attention now that I’ve been in prison for over 30
      years, and the sentence doesn’t even provide for the eligibility of
      parole according to the Eighth District Court of Appeals, so it was an
      unknowing, [in]voluntary, and unintelligent plea.

In response, the prosecutor stated that although the trial court’s sentencing entry

in 1988 did not specifically state that parole eligibility was available, Smith has

been considered for parole, and the next parole hearing was to be held in

September 2019.

              The trial court denied Smith’s motion to withdraw his guilty plea and

sentenced him to a sentence of “life imprisonment with parole eligibility after

serving twenty years of imprisonment” in accordance with Smith II.

Instant Appeal

              Smith now appeals, presenting the following assignment of error for

our review:

      I. The trial court erred in not allowing appellant to withdraw his guilty
      plea.

              Smith argues the trial court erred in not allowing him to withdraw his

guilty plea because he pleaded guilty in 1988 based on the representation from his
trial counsel that he would be eligible for parole after 14 years. Smith’s claim is

barred by the doctrine of res judicata.

              Ohio courts have applied res judicata to successive motions to

withdraw a guilty plea.     “[R]es judicata prevents repeated attacks on a final

judgment and applies to issues that were or might have been previously litigated.”

State v. Sneed, 8th Dist. Cuyahoga No. 84964, 2005-Ohio-1865, ¶ 16. “Thus, where

a defendant files a postconviction motion to withdraw and fails to raise an issue that

could have been raised, the defendant is precluded from raising the issue in a

subsequent motion to withdraw.” Id. at ¶ 17. See also, e.g., State v. Bene, 11th Dist.

Lake Nos. 2019-L-070, 2019-L-071, and 2019-L-072, 2020-Ohio-1560, ¶ 12; State

v. Spann, 8th Dist. Cuyahoga No. 108483, 2020-Ohio-272, ¶ 9; and State v.

Gallegos-Martinez, 5th Dist. Delaware No. 10-CAA-06-0043, 2010-Ohio-6463,

¶ 12. A motion to withdraw a guilty plea should be denied when it asserts grounds

for relief that were or should have been asserted in a previous motion to withdraw a

guilty plea. State v. Brown, 8th Dist. Cuyahoga No. 84322, 2004-Ohio-6421.

              Here, the record reflects that in 2015, Smith filed a motion to

withdraw the guilty plea. He alleged that had he known that the trial court would

oppose parole when he was eligible, he would not have pleaded guilty. The trial

court found his claim to be without merit, and this court affirmed the trial court’s

judgment in Smith I. In this instant motion to withdraw the guilty plea, Smith

alleged that when he pleaded guilty in 1988 for aggravated murder, he was told he

would be eligible for parole in 14 years but the recent decision from the Eighth
District (Smith II) indicated his sentence failed to reference parole eligibility after

20 years.

              Although the panel in Smith II held that “20 years to life” is not the

same as “life imprisonment with parole eligibility after serving twenty years of

imprisonment,” and that Smith should be resentenced to the latter to accurately

reflect his sentence under R.C. 2929.03(A), Smith has been treated as eligible for

parole and the parole board has considered him for parole. In any event, the claim

that his understanding regarding his parole eligibility rendered his plea unknowing

or unintelligent should have been raised in his earlier motion to withdraw and is

barred by res judicata.

              Judgment 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. Case remanded to the

trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



____________________________
MICHELLE J. SHEEHAN, JUDGE

ANITA LASTER MAYS, P.J., and
LARRY A. JONES, SR., J., CONCUR
