A man may be tried for murder based on a shooting that occurred 27 years before the victim’s death because there no was evidence that the defendant's earlier no contest plea to attempted murder was a result of a deal with prosecutors that he wouldn’t be prosecuted further, the Ohio Supreme Court ruled today.

In a 5-2 decision, the Supreme Court ruled that its 1993 opinion setting ground rules for when a criminal defendant who pleads guilty to a lesser offense can be tried later on a more serious charge does not apply to Abdul Azeen.

In 1987, Azeen shot two brothers on a Cleveland elementary school playground basketball court. One victim, shot in the neck and paralyzed from the waist down, survived for 27 years.

Writing for the Court majority, Justice R. Patrick DeWine stated the Court’s State v. Carpenter ruling only applied to “negotiated pleas” and there was no evidence that Azeen’s 1987 no contest plea was the product of negotiation. In reversing the opinion of the Eighth District Court of Appeals, the Court concluded that when Danuell Jackson died in 2014 allegedly from the injuries suffered from the playground shooting, prosecutors were permitted to charge Azeen with aggravated murder.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and Patrick F. Fischer joined Justice DeWine’s opinion, as did Sixth District Court of Appeals Judge Mark L. Pietrykowski. Judge Pietrykowski sat in for Justice Michael P. Donnelly, who did not participate in the case.

In separate dissenting opinions, Justices Melody J. Stewart and Jennifer Brunner maintained the trial court found credible evidence that Azeen’s plea was the product of an off-the-record negotiation and that the Court majority improperly substituted its judgment for that of the lower courts.

Trial Judge Discusses Sentence in Court
In 1987, Azeen, whose name was Lloyd Harris at the time, opened fire on a group of young men playing basketball. Danuell Jackson was shot in the neck. Azeen then shot Danuell’s brother, Herman, in the groin.

Azeen was indicted for the attempted murder of Danuell, and the felonious assault of Herman, both with gun specifications. He also was charged with having a weapon under disability.

He pleaded no contest to the charges. The trial court opened the plea hearing by confirming that Azeen intended to plead no contest and then advised him of the possible sentencing range for each offense. As part of the proceedings, the trial judge stated, “I have indicated to your attorney that you will expect, under the circumstances presented here, I’m going to sentence you to three years of actual incarceration and on top of that I’m going to sentence you to five to 25 years.”

The three mandatory years of incarceration was for the gun specification and the five to 25 years was the minimum sentence available to the trial court in 1987 for attempted murder. The court also sentenced Azeen to prison for felonious assault and the weapons charge. After doing so, the prosecutor asked the judge, “to be served how?” The judge replied that the sentences would be served concurrently.

At the plea hearing the prosecutor summarized the charges and the victims addressed the court. The prosecutor told the court that Danuell’s paraplegia probably would not improve and, more likely, would “deteriorate slowly.” No one at the hearing suggested Danuell’s injuries were fatal, and the prosecution did not address the possibility of bringing additional charges if Danuell died from the injuries.

Murder Charges Added
Danuell died in 2014. An autopsy examiner suggested his death was caused by infections that developed from an ulcer in his pelvis and upper leg, which the examiner attributed to the paraplegia. The examiner ruled the death a homicide. In 2016, Azeen was indicted for aggravated murder based on shooting Danuell in 1987.

Azeen asked the trial court to dismiss the charges, arguing that it violated the terms of his negotiated plea agreement in 1987. His argument was based on the 1993 Carpenter decision, in which the Ohio Supreme Court held that the “the state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim dies of injuries sustained in the crime, unless the state expressly reserved the right to file additional charges on the record at the time of the defendant’s plea.”

Because the state did not reserve the right to bring future charges, he could not be prosecuted for Danuell’s death, Azeen asserted. The Cuyahoga County Prosecutor’s Office maintained that there had not been a negotiated plea agreement in 1987 so the Carpenter decision did not apply.

At a hearing to dismiss the murder charge, Azeen conceded that no explicit plea agreement appeared on the trial court’s record. But Azeen argued there had to be “some negotiation” between the prosecution and his defense attorney because the trial court told Azeen what his sentence would be before he pleaded no contest. Azeen’s attorney in 2016 argued that there was no way Azeen’s experienced criminal defense lawyer at the 1987 proceedings would have “walked into a courtroom without knowing his client was going to get the minimum and pled no contest.”

The prosecutor noted that the statement about the sentence demonstrated only that the judge had told the parties the sentence he would impose, but it did not show the sentence was the product of an agreement with the state. Because there was no negotiated plea agreement, Azeen could not have reasonably believed that in exchange for his plea, the state had agreed not to bring any additional charges related to the matter, the office asserted.

The trial court surmised from the transcript of the 1987 sentencing and the information provided at the murder charge dismissal hearing that Azeen’s sentence was a direct result of discussions that had taken place out of court. When the prosecutor remained silent as the trial judge outlined the sentence, the state “in effect acquiesced to the agreement,” the court concluded.

The judge dismissed the murder charge, and the prosecutor’s office appealed to the Eighth District. The Eighth District affirmed the trial court’s decision. The office appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Evidence of Plea Agreement
The prosecutor argued to the Supreme Court that the 1993 Carpenter decision could not be applied retroactively to a 1987 plea agreement, and that Carpenter does not apply to unnegotiated no-contest pleas such as the one Azeen entered.

Justice DeWine explained the Court did not address the retroactivity claim because the majority agreed with the prosecutor’s office that Carpenter decision does not apply to Azeen’s case. The opinion stated the Carpenter decision arose from circumstances where the state was aware that the victim could potentially die from the injuries suffered during the crime, but chose to enter a plea agreement with the defendant. In such circumstances, Carpenter requires the state to explicitly state as part of the agreement that it wants to retain the right to bring additional charges if the victim dies. The purpose of this ruling is to prevent prosecutors from breaking promises made in the original agreement.

The court explained that the record in this case contained no evidence that Azeen entered into a  plea agreement with the state. The opinion stated the record does demonstrate the trial judge spoke with the parties before the hearing, when the judge noted that he “indicated to” Azeen’s attorney that Azeen could expect to receive a five-to-25-year sentence in addition to a three-year sentence for the gun specification.

“But this advisement shows only that the judge had told the parties what sentence he intended to impose; it does not support an inference that Azeen had entered into any agreement with the state regarding his sentence,” the opinion stated.

The Court majority wrote that it is not unusual in criminal cases for attorneys to approach the judge to get an idea of what sentence a judge is likely to impose if their client pleads to an offense.

“Some judges are up front about what they are inclined to do, believing candor about possible sentencing decisions promotes informed decision making,” the opinion stated.

The Court majority explained that it was not substituting its own judgments about the facts of the case for those made by the trial court. Rather, the opinion stated, the trial court “drew inferences that were unsupported” by the facts presented in the 1987 transcript. The record of the case makes no reference to a negotiated plea agreement, and the rules for Ohio criminal cases since 1973 have required that an agreement leading to a negotiated plea be stated on the record in open court. Without evidence of a negotiated plea agreement, the prosecutor can charge Azeen with murder, the Court concluded.

Expectation That Plea Terminated Case Was Reasonable, Dissent Maintained
In her dissent, Justice Stewart asserted that the majority overemphasizes the importance of negotiation. She stated plea agreements are “unique contracts” and a criminal defendant should reasonably expect a plea to terminate the criminal case unless the state specifically reserves the right to file additional charges if a victim dies.

She wrote the state did not reserve the right to prosecute Azeen for murder. The trial judge represented to Azeen that he conducted off-the-record discussions with the parties before Azeen pleaded no contest, and the state was silent on the sentence suggested by the judge. The trial judge dismissing the murder charge made reasonable inferences, as the appeals court concluded, Justice Stewart wrote.

“It is a basic principle of law that a trier of fact is free to rely on common sense and experience,” the dissent stated.

Case Should Not Have Been Accepted by Court, Dissents Note
Both Justices Stewart and Brunner maintained the Court should have dismissed the case as improvidently accepted. Justice Brunner noted that she agreed with Justice Stewart that it was more than reasonable for the lower courts to conclude that Azeen’s plea was the result of a negotiation. She noted evidence of a discussion between the judge and the state about removal of a word and supporting the inference of a plea agreement that was dismissed by the majority as speculative.

Justice Brunner stressed that the majority was in the improper role of “error correction” and should not be substituting its judgment for that of the lower courts. She stated the justices agree that the facts of Azeen’s case are rather unique, but nothing in the appeal involves a disputed or unclear issue of the law.

“Instead, the entirety of the majority opinion is devoted to determining whether well-established law was correctly applied to the unique facts of this case. In short, this appeal seeks error correction. But our precedent  is clear that we do not take cases presenting pure error correction,” she wrote.

2020-0143. State v. Azeen, Slip Opinion No. 2021-Ohio-1735.

View oral argument video of this case.

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