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State v Brandon

4-29-2013 Ohio:

State v Brandon
2013-Ohio-1740

This appeal emanates from the judgment on sentence entered by the Portage County Court of Common Pleas. Appellant, Dale Brandon, challenges the trial court's failure to award him jail time credit for time spent in jail awaiting extradition as well as the trial court's decision to classify him pursuant to Senate Bill 10's sexual offender classification scheme. For the reasons that follow, we reverse the trial court and remand the matter for further proceedings.

{¶2} On August 2, 2007, appellant was indicted on one count of gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4) and (B); and one count of attempted rape, a felony of the second degree, in violation of R.C. 2907.02(A)(1)(b) and R.C. 2923.02, with a subsequent attempted child rape specification. Appellant entered an oral and written plea of guilty to the charge of gross sexual imposition, which the trial court accepted. The court nolled the remaining count, including the specification.

{¶3} Appellant, through defense counsel, filed a motion to vacate his guilty plea, and a hearing was scheduled for January 7, 2009. On that date, counsel for the state and counsel for appellant appeared; appellant, however, was absent. It does not appear the hearing went forward, but a warrant was issued for appellant's arrest. He was later apprehended in Las Vegas, Nevada, where he was held pending extradition.

{¶4} Prior to being extradited, appellant filed a pro se motion to withdraw his guilty plea. A hearing was scheduled for August 24, 2009. The court's docket indicates a failure of service on appellant for this hearing, and moreover, it does not appear he was even present in Ohio on August 24, 2009. Nevertheless, the trial court overruled appellant's pro se motion on August 26, 2009. Despite this ruling, the trial court issued another notice that a "motion to vacate" hearing would take place on August 31, 2009. After being extradited, appellant appeared with counsel on that date. Rather than conduct a hearing on appellant's motion, however, the trial court indicated it had previously overruled appellant's pro se motion and proceeded to sentencing. Appellant appealed the judgment, and in State v. Brandon, 11th Dist. No. 2009-P-0071, 2010-Ohio-6251, this court reversed the judgment and remanded the matter for the trial court to conduct a proper hearing on appellant's motion to vacate. Id. at ¶19-22.

{¶5} On remand, the trial court conducted a hearing on appellant's motion to vacate and, on February 17, 2011, granted the motion. Appellant subsequently entered an Alford Plea to one count of felony-three gross sexual imposition. Appellant also pled guilty to one count of felony-four failure to appear. The trial court sentenced appellant to four years for gross sexual imposition and 18 months for failing to appear and ordered the terms to be served concurrently. The trial court further ordered appellant be classified as a Tier II sexual offender, pursuant to Senate Bill 10. This appeal followed.

... ... ...

{¶18} In the case sub judice, the sexual offense to which appellant pled guilty occurred on July 29, 2007. Because appellant committed his offense before Senate Bill 10's effective date of January 1, 2009, the trial court erred in applying Senate Bill 10 to him.

{¶19} Appellant's second assignment of error is therefore sustained.

{¶20} For the reasons discussed in this opinion, appellant's assignments of error are well taken. We therefore reverse the judgment of the Portage County Court of Common Pleas and remand this matter to the trial court for proceedings consistent with this opinion.

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