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State v. Austin

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 8, 2020

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

          Cuyahoga County Court of Common Pleas Case No. CR-16-608502-A Application for Reopening Motion No. 533096

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.

          James Austin, pro se.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, A.J.

         {¶ 1} Applicant, James Austin, seeks to reopen his appeal, State v. Austin, 8th Dist. Cuyahoga No. 105981, 2019-Ohio-1983. In his application for reopening, he asserts five proposed assignments of error:

I. Appellant was denied effective assistance of appellate counsel due to counsel's failure to argue that appellant was denied due process when his plea was not knowing, voluntarily, and intelligently made related to the inadequate explanation of post-release [sic] control.
II. The trial court erred to the prejudice of appellant when it failed to adequately inform appellant of the constitutional rights waived as a result of a guilty plea.
III. Appellant was denied effective assistance of appellate counsel due to counsel's failure to argue that appellant was denied due process when his plea was not knowing, voluntarily, and intelligently made related to the inadequate explanation of post-release [sic] control and the nature and number of the charges prior to the acceptance of the plea; specifically count nine.
IV. Appellant did not receive the effective assistance of counsel when counsel failed to appeal the issue of the plea having never been properly accepted, prior to sentencing, by the trial court.
V. Appellant did not receive the effective assistance of counsel when counsel failed to appeal the issue of the plea having never been properly accepted, prior to sentencing, by the trial court.

         Austin's application is untimely without a showing of good cause. Therefore, it is denied.

         I. Procedural and Factual History

         {¶ 2} On August 16, 2016, Austin was indicted and charged with numerous crimes, including aggravated burglary, kidnapping, aggravated robbery, robbery, intimidation of a crime victim or witness, carrying concealed weapons, improperly handling firearms in a motor vehicle, receiving stolen property, and having weapons while under disability. In the midst of a jury trial, as part a negotiated plea deal, Austin retracted his former not guilty pleas and pled guilty to two counts of aggravated burglary, one count of kidnapping, two counts of intimidation of a crime victim or witness, one count of having weapons while under disability, and one count of carrying concealed weapons. The remaining counts were dismissed, and the court proceeded immediately to sentencing. An aggregate eight-year sentence was imposed by the court on June 19, 2017.

         {¶ 3} Austin timely appealed. Austin's attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976), and requested to withdraw from the case. This court, in its independent review of the record, found nonfrivolous issues that could be asserted on appeal, and appointed new counsel to file a ...


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