State v. AustinState v. Austin
STATE OF OHIO, Plaintiff-Appellee, v. JAMES AUSTIN, Defendant-Appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 23, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and John D.R. Kirkland, Assistant Prosecuting Attorney, for appellee.
John P. Parker, for appellant.
EILEEN T. GALLAGHER, P.J.:
{¶ 1} Defendant-appellant, James Austin, appeals from his convictions and sentence following a guilty plea. He raises the following assignment of error for review:
The plea bargain must be vacated or specifically enforced because the appellant was promised an eight year sentence, which the court agreed to enter, and the court instead of honoring that agreement imposed eight years plus five years postrelease control. Appellant‘s guilty pleas were thus not knowingly, voluntarily, and intelligently entered and Crim.R. 11 was violated as well as the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution.
{¶ 2} After careful review of the record and relevant case law, we affirm Austin‘s convictions and sentence.
I. Procedural and Factual History
{¶ 3} In August 2016, Austin was named in a 23-count indictment, charging him with three counts of aggravated burglary, three counts of kidnapping, three counts of aggravated robbery, two counts of intimidation of a crime victim, four counts of having weapons while under disability, and single counts of grand theft, improper handling of a firearm in a motor vehicle, carrying a concealed weapon, and receiving stolen property.
{¶ 4} In June 2017, the matter proceeded to a jury trial. In the midst of trial, however, defense counsel informed the trial court that Austin wished to accept a plea offer that was discussed with the state prior to trial. At that time, the state advised the court that pursuant to a plea agreement, Austin would plead guilty to an amended indictment and accept an agreed-upon sentence of eight years in prison.
{¶ 5} The trial court then proceeded with a
TRIAL COURT: Do you also know for the felony of the first degree, those three F-1s, you shall be subject to five years postrelease control. That‘s a parole period after incarceration. If you violated the terms of postrelease control you may look at additional time of up to half of your original sentence and/or a charge of felony escape if you are violated by the parole authority or the Department of Correction. * * * Do you understand? AUSTIN: Yes.
{¶ 6} The trial court then asked Austin whether any threats or promises had been made to him in exchange for his change of plea. When Austin responded that he was promised “eight years,” the trial court explained that while the court was not required to do so, it would “accept the agreed mandatory eight years aggregate sentence” as a condition of the plea.
{¶ 7} Following the court‘s
{¶ 8} Upon accepting Austin‘s guilty pleas, the trial court proceeded directly with sentencing and imposed the aggregate eight-year prison term. In
{¶ 9} Austin now appeals.
II. Law and Analysis
{¶ 10} In his sole assignment of error, Austin argues his plea agreement with the state must be vacated because his guilty plea was not knowingly, voluntarily, and intelligently made. Austin contends that the trial court failed to advise him that, in addition to the agreed-upon sentence of eight years in prison, he was subject to a mandatory period of postrelease control.
{¶ 11} In considering whether a plea was entered knowingly, intelligently, and voluntarily, “an appellate court examines the totality of the circumstances through a de novo review of the record.” State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 7.
{¶ 12}
{¶ 13} Under
{¶ 14} The trial court must strictly comply with those provisions of
{¶ 16} The nonconstitutional rights listed in
{¶ 18} In support of his argument, Austin relies on the Ohio Supreme Court‘s decision in State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, and this court‘s decision in State v. Yarochovitch, 2017-Ohio-4293, 92 N.E.3d 304 (8th Dist.).
{¶ 19} In Sarkozy, the defendant argued “that because he was not advised of postrelease control before he entered his plea, the trial court did not determine that he was entering his guilty plea voluntarily, with an understanding of the nature of the charges and of the maximum penalty involved, as required by
[I]f the trial court fails during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control,
the court fails to comply with
Crim.R. 11 , and the reviewing court must vacate the plea and remand the cause.”
{¶ 20} Similarly, the appellant in Yarochovitch argued “that the complete failure of the trial court to advise him of postrelease control at the plea hearing renders his pleas invalid.” Yarochovitch at ¶ 5. This court agreed, stating:
The requirements set forth in
Crim. R. 11 are a mandatory duty the trial court must fulfill before accepting a guilty plea. It is incumbent on the trial court to set forth the maximum penalties a defendant faces as a part of ensuring that a guilty plea is knowingly, intelligently, and voluntarily made. The court‘s responsibility is not fulfilled where the court fails to mention the imposition of postrelease control. Where a court completely fails to mention any period of applicable mandatory postrelease control during the plea colloquy, a prejudice analysis is not implicated. A complete failure results in an inability for the court to fulfill its obligations underCrim.R. 11 .
{¶ 21} After careful review, we find Sarkozy and Yarochovitch to be distinguishable from the circumstances presented in this case. As stated, the trial courts in Sarkozy and Yarochovitch both completely failed to mention postrelease control during the
{¶ 22} In contrast, the trial court in this case specifically advised Austin that he “shall be subject to five years postrelease control” on his first-degree felony offenses. See Lakewood v. Papadelis, 32 Ohio St.3d 1, 3, 511 N.E.2d 1138 (1987)
{¶ 23} Viewing the
{¶ 24} In addition, we find no merit to Austin‘s vague assertion that the imposition of postrelease control breached the agreed upon terms of his plea agreement with the state. We recognize that “[a] plea agreement is a contract between the state and a criminal defendant and is subject to contract-law principles.” State v. Grove, 8th Dist. Cuyahoga No. 103042, 2016-Ohio-2721, ¶ 36, citing State v. Butts, 112 Ohio App.3d 683, 686, 679 N.E.2d 1170 (8th Dist.1996); Baker v. United States, 781 F.2d 85, 90 (6th Cir.1986). As this court has explained:
“When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). “When an allegation is made that a plea agreement has been broken, the defendant must merely show that the agreement was not fulfilled.” State v. Legree, 61 Ohio App.3d 568, 573 N.E.2d 687 (6th Dist.1988). A prosecutor‘s failure to comply with the terms of the plea agreement may, in some circumstances, render a defendant‘s plea involuntary and undermine the constitutionality of a conviction based upon that plea. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). State v. Parham, 8th Dist. Cuyahoga No. 105983, 2018-Ohio-1631, ¶ 24.
In order to determine whether a plea agreement has been breached, courts must examine what the parties reasonably understood at the time the defendant entered his guilty plea. State v. Latimore, 8th Dist. Cuyahoga No. 92490, 2010-Ohio-1052, ¶ 7.
{¶ 25} In this case, we find no language in the transcript to support Austin‘s position that the trial court‘s imposition of postrelease control breached a term of his plea agreement with the state. Here, the state carefully outlined the terms of the agreement and indicated that Austin would be pleading to amended charges in exchange for an agreed-upon sentence of eight years in prison. The state‘s description of the plea agreement contained no explicit promises that postrelease control would not be imposed. See Groves at ¶ 36 (“The terms of a plea agreement must therefore be explicit.“). Moreover, Austin has not presented any persuasive arguments on appeal to suggest the state had the authority to contractually modify the court‘s imposition of the statutorily mandated period of postrelease control. See State v. Lewis, 7th Dist. Columbiana No. 09CO9, 2008-Ohio-6373, ¶ 15. See also
{¶ 26} Austin‘s sole assignment of error is overruled.
{¶ 27} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR