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State v. Austin

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL RESHAN AUSTIN DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-600992-A, CR-16-602395-A, and CR-16-611144-B

          ATTORNEYS FOR APPELLANT Harvey B. Bruner John D. Mizanin, Jr. Harvey B. Bruner & Co.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor John Farley Hirschauer Assistant County Prosecutor

          BEFORE: Stewart, J., Kilbane, P.J., and McCormack, J.

          JOURNAL ENTRY AND OPINION

          MELODY J. STEWART, J.

         {¶1} Defendant-appellant Michael Reshan Austin pleaded guilty in three separate cases: in Cuyahoga C.P. No. CR-15-600992-A, he pleaded guilty to drug trafficking and possession of criminal tools; in Cuyahoga C.P. No. CR-16-602395-A, he pleaded guilty to possession of criminal tools; and in Cuyahoga C.P. No. CR-16-611144-B, he pleaded guilty to drug possession. The court sentenced him to serve concurrent prison terms of 24 and 12 months in CR-15-600992; 12 months in prison in CR-16-602395; and 12 months in prison in CR-16-611144. The sentences imposed in each case were ordered to be served consecutively for a total of four years in prison.

         {¶2} In this direct appeal, we reject Austin's argument that his guilty pleas were involuntary because the court had him plead guilty to the wrong offenses in two of the three cases - the court was made aware of the error and corrected it without objection from Austin before accepting his guilty plea. We do, however, agree with Austin that the court erred by characterizing one of the offenses as requiring mandatory prison time. That error requires resentencing, and moots consideration of Austin's two remaining assignments of error.

         I. Guilty Plea

         {¶3} We first address Austin's claim that his guilty pleas in CR-16-602395 and CR-16-611144 were involuntary because the court misspoke regarding the specific counts to which he would be pleading guilty: in CR-16-602395, the court mistakenly told Austin that he would be pleading guilty to possession of drugs, when in fact, he was pleading guilty to possession of criminal tools; in CR-16-611144, the court mistakenly told Austin that he would be pleading guilty to possession of criminal tools, when in fact, he was pleading to possession of drugs. Austin maintains that these errors meant that he did not have a full understanding of the charges to which he pleaded guilty.

         {¶4} Before accepting a guilty plea, the court must, among other things, determine that "the defendant is making the plea voluntarily, with understanding of the nature of the charges[.]" Crim.R. 11(C)(2)(a). Although the term "nature of the charge" is not defined in the Rules of Criminal Procedure, State v. Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654, ¶ 3, the court must accurately describe the charges that are part of the guilty plea. Absent a correct recitation of the charges forming the plea bargain, there is no meeting of the minds sufficient to form the necessary agreement. State v. Robinson, 8th Dist. Cuyahoga No. 82801, 2004-Ohio-740, ¶ 12.

         {¶5} It appears that the court "mismarked" the specific charges contained under the separate case numbers, causing it to transpose the counts. Nevertheless, the assistant county prosecutor caught the mistake and called it to the court's attention. The court corrected the mistake, and Austin made it clear that he understood the specific charge under CR-16-602395:

THE COURT: Mismarked. Mr. Austin, in 602395, I misspoke when I said that you'll be pleading to possession of drugs. In fact, you'll be pleading to possessing criminal tools in count 2. And that also is a felony of the fifth degree, also punishable by time of incarceration in prison in monthly increments of between 6 and 12 months inclusive and/or a fine of up to $2, 500. Do you understand that?
DEFENDANT AUSTIN: Yes, sir.

         {¶6} The court then asked defense counsel if he would "waive any defect in the sentencing hearing * * * on behalf of Mr. Austin, as to the court misstating the nature of the crime? The court had the correct degree of felony, but not the right crime. It was mismarked." Defense counsel replied, "[y]es." The court then asked, "[d]o I have ...


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