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State v. Austin

Court of Appeals of Ohio, Eleventh District, Trumbull

July 29, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ANDREW J. AUSTIN, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CR 00524.

          Dennis Watkins, Trumbull County Prosecutor, Gabriel M. Wildman and Ashleigh Musick, Assistant Prosecutors, For Plaintiff-Appellee.

          Rhys B. Cartwright-Jones, For Defendant-Appellant.

          OPINION

          MATT LYNCH, J.

         {¶1} 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 below.

         {¶2} 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 R.C. 2907.05(A)(4).

         {¶3} 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).[1] 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."

         {¶4} 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.

         {¶5} Austin moved to file a delayed appeal with this court, which motion was granted.

         {¶6} 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.

         {¶7} 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.

         {¶8} On appeal, Austin raises the following assignment of error:

         {¶9} "The trial court erred in denying Austin's motion to withdraw his guilty plea."

         {¶10} 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 ...


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