[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
