[Cite as State v. Austin, 2012-Ohio-2277.]


STATE OF OHIO                     )                IN THE COURT OF APPEALS
                                  )ss:             NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                      C.A. No.     25381

        Appellee

        v.                                         APPEAL FROM JUDGMENT
                                                   ENTERED IN THE
RODNEY S. AUSTIN                                   COURT OF COMMON PLEAS
                                                   COUNTY OF SUMMIT, OHIO
        Appellant                                  CASE No.   CR 02 01 3701 (A)

                                  DECISION AND JOURNAL ENTRY

Dated: May 23, 2012



        BELFANCE, Judge.

        {¶1}     Defendant-Appellant Rodney Austin appeals from the judgment of the Summit

County Court of Common Pleas. For the reasons set forth below, we affirm.

                                              I.

        {¶2}     In 2002, Mr. Austin was indicted on two counts of murder with accompanying

firearms specifications, one count of having weapons under disability, and one count of

trafficking in cocaine. In May 2002, a supplemental indictment was filed charging Mr. Austin

with one count of tampering with evidence. On June 9, 2003, Mr. Austin pleaded guilty to one

count of involuntary manslaughter with an accompanying firearm specification, one count of

having weapons under disability, and one count of tampering with evidence. The remaining

pending charges were dismissed. The trial court sentenced Mr. Austin to a total of seventeen

years in prison. Mr. Austin did not appeal.
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       {¶3}    In 2008, Mr. Austin filed a pro se motion in the trial court seeking resentencing

due to improper post-release control notification. The State opposed the motion, and the trial

court denied the motion. Mr. Austin appealed, and this Court dismissed the appeal after Mr.

Austin failed to file a brief. Subsequently, the State moved this Court to vacate Mr. Austin’s

sentencing entry due to the erroneous post-release control notification. On September 3, 2009,

this Court vacated Mr. Austin’s sentence and remanded the matter to the trial court for

resentencing. Prior to being resentenced, Mr. Austin filed a motion to withdraw his guilty plea.

The trial court held a hearing on Mr. Austin’s motion and thereafter denied it.

       {¶4}    After Mr. Austin was resentenced, he appealed and his counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967), asserting that were no issues that

might support an appeal and moved to withdraw as counsel. This Court determined that there

were arguable issues that could be raised on appeal, granted Mr. Austin’s counsel’s motion to

withdraw, and appointed new counsel on Mr. Austin’s behalf. Mr. Austin’s new counsel has

raised two assignments of error for our review.

                                                  II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT DENIED MR. AUSTIN’S CRIMINAL
       RULE 32.1 PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA.

       {¶5}    Mr. Austin asserts in his first assignment of error that the trial court erred in

denying his motion to withdraw his guilty plea.

       {¶6}    The State contends that Mr. Austin’s appeal of the trial court’s denial of his

motion to withdraw his plea is untimely because he did not file a notice of appeal within thirty

days of the issuance of the trial court’s entry denying his motion. We do not agree.
                                                 3


       {¶7}    This Court vacated Mr. Austin’s sentence. Prior to being resentenced, Mr. Austin

moved to withdraw his guilty plea. Because effectively Mr. Austin did not have a sentence at the

time he moved to withdraw his plea, his motion was a presentence motion.            See State v.

Robertson, 9th Dist. No. 10CA0030-M, 2011-Ohio-4300, ¶ 4. Additionally, because the trial

court did not resentence Mr. Austin until after it denied his motion to withdraw his plea, that

denial was interlocutory and not immediately appealable. See State v. Lopez, 9th Dist. No.

10CA009771, 2010-Ohio-5926, ¶ 6. Accordingly, Mr. Austin did not have to immediately

appeal from the denial of his motion to withdraw his plea; and, thus, we will consider the merits

of his argument.

       {¶8}    The Supreme Court of Ohio has held that “a presentence motion to withdraw a

guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527 (1992).

Nonetheless, “[a] defendant does not have an absolute right to withdraw a guilty plea prior to

sentencing. A trial court must conduct a hearing to determine whether there is a reasonable and

legitimate basis for the withdrawal of the plea.” Id. at paragraph one of the syllabus. The trial

court’s decision to grant or deny the motion is reviewed for an abuse of discretion. Robertson at

¶ 5. “We defer to the judgment of the trial court, because the good faith, credibility and weight

of the movant’s assertions in support of the motion are matters to be resolved by that court.”

(Internal quotations and citations omitted.) Xie at 525.

       This Court has held that a trial court does not abuse its discretion when
       considering a motion to withdraw a guilty plea if the following elements are
       present: (1) the defendant is represented by competent counsel; (2) the trial court
       provides the defendant with a full hearing before entering the guilty plea; and (3)
       the trial court provides the defendant with a full hearing on the motion to
       withdraw the guilty plea, where the court considers the defendant’s arguments in
       support of his motion to withdraw the guilty plea.
                                                  4


(Internal quotations and citations omitted.) Robertson at ¶ 6. “The trial court’s decision in

response to a criminal defendant’s pre-sentence motion to withdraw a guilty plea must also take

into consideration the facts and circumstances of each case.” (Internal quotations and citations

omitted.) Id.

       {¶9}     Initially, we note that Mr. Austin asserted different arguments in his pro se written

motion than the ones asserted on his behalf by counsel during the hearing on his motion. In his

written motion, Mr. Austin asserted that he was entitled to withdraw his plea due to improper and

incomplete post-release control notification and because the trial court listed the constitutional

rights Mr. Austin was waiving all together and only asked Mr. Austin at the end of the list if he

understood. At the hearing, Mr. Austin asserted that he was told by his counsel that he would

only have to serve eight years of his seventeen-year sentence and that there may be evidence that

he did not participate in the tampering with evidence. On appeal, Mr. Austin does not discuss

the arguments made in his written motion; thus, this Court presumes he has abandoned them.

       {¶10} We cannot say that the trial court abused its discretion in denying Mr. Austin’s

motion. Mr. Austin was represented by counsel both at the plea stage and during the hearing on

the motion to withdraw his plea. While Mr. Austin asserts that his trial counsel was not

competent, a review of the record does not support these allegations. Mr. Austin asserts that his

counsel was not competent because the same counsel that represented him at the plea hearing

represented him on his motion to withdraw and Mr. Austin wanted to call his counsel as a

witness during the hearing on his motion to withdraw his plea. Assuming that this would render

Mr. Austin’s counsel not competent, the record contains a journal entry filed prior to the hearing

on his motion to withdraw indicating that Mr. Austin averred on the record that he did not intend

to call his counsel as a witness. We see no reason why the trial court should not have been able
                                                 5


to rely on Mr. Austin’s explicit intentions. Moreover, at the hearing on Mr. Austin’s motion to

withdraw, the trial court commented that it did not believe that counsel would provide Mr.

Austin with the false information that he would be out of prison in eight years, despite Mr.

Austin’s statements to the contrary. The trial court stated to Mr. Austin that the court was “going

to surmise that if [it] asked [Mr. Austin’s counsel] whether he indicated that he could have you

home in eight years, he would probably say that that didn’t get said, and if you thought you heard

that, there was a mistake in communications.” Mr. Austin stated that he thought his counsel was

“an honest man” and thought “he would tell the truth.” The trial court then asked Mr. Austin’s

counsel if the trial court had “accurately captured the situation[.]” Mr. Austin’s counsel replied,

“You have.” In addition, the trial court noted that Mr. Austin’s assertions that his counsel told

him that he would be out of prison in eight years were not supported by the written plea

agreement or the transcript of the plea hearing. Accordingly, we see no support for Mr. Austin’s

argument that he was not represented by competent counsel.

       {¶11} The trial court conducted a full hearing prior to Mr. Austin entering his plea;

while the trial court did inaccurately state Mr. Austin’s post-release control obligations at the

plea hearing, Mr. Austin does not argue on appeal that the inaccurate information influenced his

decision to enter a plea or even that the trial court abused its discretion in denying the motion on

the basis of improper post-release control notification. Finally, Mr. Austin received a full

hearing on his motion to withdraw his plea. While the hearing was not an evidentiary hearing, in

that no witnesses were sworn in, Mr. Austin’s counsel presented argument, and Mr. Austin

himself stated his concerns on the record. We cannot say that the trial court abused its discretion

in failing to hold an evidentiary hearing. See Robertson at ¶ 7 (noting that an evidentiary hearing
                                                 6


is not always required and that the extent of the hearing is determined by the circumstances of

the case).

       {¶12} It is clear from the trial court’s journal entry that the trial court thoughtfully

considered Mr. Austin’s motion and his arguments. There is evidence in the record that the trial

court considered prior transcripts, including the transcript of Mr. Austin’s plea hearing. Further,

the trial court issued a detailed and logical entry, applying the correct standard, and articulating

valid reasons for denying Mr. Austin’s motion. It is apparent that much of the trial court’s

determination rested on credibility determinations; determinations that it did not resolve in favor

of Mr. Austin. See Xie, 62 Ohio St.3d at 525. We cannot say that the trial court abused its

discretion in denying Mr. Austin’s motion.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT LACKED JURISDICTION TO RESENTENCE AUSTIN
       TO THREE YEARS FOR A GUN SPECIFICATION AFTER THE
       COMPLETION OF HIS SENTENCE.

       {¶13} Mr. Austin asserts in his second assignment of error that the trial court lacked

jurisdiction to resentence him on the gun specification because he had already served the three

years of the gun specification. See former R.C. 2929.14(E)(1)(a). We do not agree.

       {¶14} This Court previously addressed and rejected a similar argument in State v.

Brown, 9th Dist. No. 25206, 2010-Ohio-4863, ¶ 11-13. Like Mr. Brown, Mr. Austin asserts that,

because he had served the prison term associated with his gun specification prior to being

resentenced, the trial court lacked jurisdiction to resentence him on the gun specification. See id.

at ¶ 11, 13. Mr. Austin has provided us with no reason to deviate from our precedent in Brown.

Like Mr. Brown, Mr. Austin was still serving his prison sentence at the time of resentencing.

See id. at ¶ 4. Mr. Austin’s original sentence was vacated by this Court, and the trial court was
                                                 7


ordered by this Court to conduct a resentencing. We cannot say that the trial court lacked

jurisdiction to do so. Id. at ¶ 13. Accordingly, we overrule Mr. Austin’s second assignment of

error.

                                                III.

         {¶15} In light of the foregoing, we overrule Mr. Austin’s assignments of error and

affirm the judgment of the Summit County Court of Common Pleas.

                                                                              Judgment affirmed.




         There were reasonable grounds for this appeal.

         We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

         Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

         Costs taxed to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
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WHITMORE, J.
CONCURS.

DICKINSON, J.
CONCURRING.

       {¶16} As the majority has noted, on September 3, 2009, this Court vacated Mr. Austin’s

sentence and remanded the matter to the trial court for resentencing. This Court has held that, if

it remands a case for “resentencing,” the trial court “may not entertain a motion to withdraw a

plea.” State v. O’Neal, 9th Dist. 07CA0050-M, 2008-Ohio-1325, at ¶ 11. Although the trial

court erred by ruling on Mr. Austin’s motion, because it eventually denied the motion and

resentenced Mr. Austin, the error was harmless. Id. at ¶ 13. I, therefore, agree that the judgment

should be affirmed.


APPEARANCES:

AVIVA L. WILCHER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
