MAHONING COUNTY Withdrawn offer from prosecutors delays trial in long-pending case

Atty. Louis DeFabio says backing out of the plea agreement is the same as a breach of contract.
YOUNGSTOWN -- A local defense lawyer says prosecutors should have to stick by a plea agreement they made with his client, who is accused of spraying a house with bullets eight years ago, paralyzing one man.
Atty. Louis DeFabio represents Marcus Smith, who was set for trial Wednesday in Mahoning County Common Pleas Court on charges of attempted murder. The case has been pending for years.
About the case
Authorities say Smith fired a hail of bullets at a group of people outside a house on Pennsylvania Avenue in January 1995. Three people were shot, including Terry Greenwood of Howland, then 21, who suffered a spinal cord injury and must use a wheelchair.
In court documents filed Wednesday, DeFabio said prosecutors had offered to reduce the charges from first-degree felonies to either third- or fourth-degree felonies, to which Smith would plead guilty.
He would also plead guilty to one count of firing a weapon into a house.
In exchange, prosecutors would recommend that Judge Jack Durkin sentence Smith to seven years in prison and give Smith credit for time he's already spent in jail awaiting trial. Any remaining sentence would be concurrent with time Smith is serving in a Pennsylvania state prison on unrelated charges.
Smith, 26, of Halleck Street, was convicted of assault and robbery charges in Pennsylvania in August 2000 and was sentenced to 10 to 25 years in prison.
The Mahoning County case was delayed for trial because Smith had gone to Pennsylvania to face the other charges.
Deal removed
DeFabio said Smith had accepted the offer and was prepared to plead guilty to the reduced charges Wednesday. However, he got a letter from assistant prosecutor Lori Shells earlier this week, telling him the deal was pulled off the table.
In her letter, Shells said the agreement was based on the belief that Smith will serve at least 24 years on the Pennsylvania charges. But after checking with Pennsylvania authorities, prosecutors found out Smith could be eligible for parole there in 2005.
"Frankly, without the certainty that [Smith] would do the maximum on the Pennsylvania sentence ... we must withdraw our offer," Shells' letter says.
Believing the case was going to be resolved with a plea, DeFabio had stopped preparing for a trial months ago and had not subpoenaed any witnesses for Wednesday's scheduled trial date, court documents say.
He filed a motion Wednesday afternoon asking Judge Durkin to force prosecutors to honor the agreement. A hearing on the request will be at 1 p.m. Feb. 21.

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