Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeal from the Trumbull County Court of Common
Pleas, Case No. 2017 CR 00524.
Watkins, Trumbull County Prosecutor, Gabriel M. Wildman and
Ashleigh Musick, Assistant Prosecutors, For
B. Cartwright-Jones, For Defendant-Appellant.
Defendant-appellant, Andrew J. Austin, appeals from the
judgment of the Trumbull County Court of Common Pleas,
denying his Motion to Withdraw Guilty Plea. The issue to be
determined in this case is whether a trial court abuses its
discretion in denying a motion to withdraw a guilty plea when
the defendant was not fully advised regarding post-release
control requirements at the plea hearing or sentencing. For
the following reasons, we affirm the decision of the court
On August 10, 2017, Austin was indicted by the Trumbull
County Grand Jury for three counts of Rape, felonies of the
first degree, in violation of R.C. 2907.02(A)(1)(b) and R.C.
2971.03(B)(1)(b) and (c), and three counts of Gross Sexual
Imposition, felonies of the third degree, in violation of
On May 4, 2018, a change of plea and sentencing hearing was
held, at which Austin entered a plea of guilty to the six
charges in the Amended Indictment, which included three
counts of Rape, in violation of R.C. 2907.02(A)(1)(b) and
2971.03(B)(1)(b) and three counts of Gross Sexual Imposition,
in violation of R.C. 2907.05(A)(4). Prior to Austin's entry
of his plea, the court reviewed the potential penalties for
the offenses. It advised him that as to the Rape counts, he
would face mandatory parole, and for the Gross Sexual
Imposition counts, he would receive five years of
post-release control sanctions upon release from prison. The
court explained the rights Austin would waive by pleading
guilty and inquired whether he was entering his plea
voluntarily, to which he responded affirmatively. The State
set forth the factual basis for the crimes, that Austin
engaged in sexual acts with a minor child who was five years
old. The court accepted Austin's plea and entered a
finding of guilt on all six counts. Pursuant to the
State's motion, the trial court ordered a nolle prosequi
on the R.C. 2971.03(B)(1)(c) factual finding that the Rape
offenses were committed by "purposely compel[ing] the
victim to submit by force or threat of force."
During the sentencing portion of the hearing, Austin
apologized and a statement was made by the victim's
representative. Following the statements of the parties, the
court ordered Austin to serve concurrent prison terms of 15
years to life for each count of Rape and five years for each
count of Gross Sexual Imposition, to be served concurrently
with each other and the Rape sentences. He was classified as
a Tier III Sex Offender. Austin was ordered to serve
"mandatory parole" on the Rape counts and
post-release control sanctions for five years on the Gross
Sexual Imposition counts. The court memorialized its
pronouncement of the sentence in a May 8, 2018 Entry on
Sentence, which stated that the post-release control was
mandatory for five years on "all counts" and that
the court had notified Austin of the consequences for
violating post-release control.
Austin moved to file a delayed appeal with this court, which
motion was granted.
On August 1, 2018, Austin filed a Motion to Withdraw Guilty
Plea Pursuant to Criminal Rule 32.1 in the trial court,
asserting that his plea was not entered knowingly and
voluntarily since the court failed to provide proper
post-release control advisements. This court issued a
Judgment Entry remanding to the trial court for it to rule on
the pending Motion to Withdraw.
On February 8, 2019, the lower court held a hearing at which
it resentenced Austin since the court found it had committed
a "technical violation" by failing to notify him of
post-release control on the Rape counts. Austin was given the
same sentence but was advised that he was required to serve a
five-year term of postrelease control for all six of the
offenses. This was memorialized in a February 11, 2019 Entry
on Re-Sentence. The court issued a Judgment Entry on the same
date denying Austin's Motion to Withdraw Guilty Plea.
On appeal, Austin raises the following assignment of error:
"The trial court erred in denying Austin's motion to
withdraw his guilty plea."
Austin contends that the trial court erred in considering his
motion to withdraw his guilty plea as a postsentence motion
due to the lack of a proper advisement on post-release
control arguing that, since there was "no valid sentence
to begin ...