A Labette County judge on Wednesday denied a request to resentence a Parsons man convicted of aggravated battery and aggravated assault.

The decision means that Gerald D. Austin Jr., 27, of Parsons will serve his prison term.

Judge Fred W. Johnson presided at a hearing a week ago to reconsider the prison sentence he imposed on Austin. In July, Johnson sentenced Austin to 32 months in prison for firing a gun at a truck leaving Bordertown convenience store in February 2018.

Austin and a co-defendant were arrested Feb. 3, 2018, after a police officer on patrol heard gunshots and discovered Austin and his co-defendant at Bordertown, 29th and Main. Officers recovered two weapons — 9 mm and .25-caliber handguns — ammunition and drugs, as well as one shell casing.

A witness reported that Austin had fired a gun at a pickup that was driving away from the convenience store. Witnesses reported that someone in the pickup fired back toward Austin, though the vehicle occupants denied that.

The co-defendant served a 13-month prison term for two counts of attempted aggravated assault from an incident earlier that same day.

Austin was in the border box on the Kansas Sentencing Guidelines grid, which means he could have received prison but probation was an option if criteria were met. Austin and his attorney, Mark Fern, on July 16 asked for probation and argued that reasons for a community sentence existed. As part of the plea, the Labette County Attorney’s Office did not oppose the request to find that Austin’s case meets border box findings that could result in probation.

Johnson denied the request for probation and ordered the prison term.

A week ago, Fern brought in a handful of Austin’s former teachers, administrators and supervisors to attest to his work ethic, good heart and ability to reach children. Austin is a Parsons High School graduate and worked in USD 503 as a para-educator. While his case was pending in 2018 and 2019 and he was free on bond, Austin worked at Ruskin in Parsons.

Linda Proehl, assistant superintendent of USD 503, said Austin is a good kid with a good heart who did not take the right path. Besides being a para, Austin also was a bus monitor, riding the bus with the children. She said Austin had a tough life as a child and could identify with some kids better than did teachers.

She said if he got his life straightened out he could become a productive citizen.

“He’s a good kid. He just needs a lot of direction.”

Roger Duroni is a retired science teacher. He serves on the USD 503 Board of Education now. He had Austin in his class as a para. Duroni said he had a structured class and Austin fit into that framework and worked well with students. Austin also coached middle school sports. 

He said in high school Austin was ornery and gave the teachers “a little hell.” But he thought if Austin could get counseling he could find success. 

Former Parsons Middle School Principal Terry Smith said he knew Austin well and remembered that he was ornery in middle school. As a para and bus monitor Austin was “a rock star” with the kids. Smith said he tried to recruit Austin to work for him at his current school, Pittsburg Middle School.

“I think if he’s given another chance, he’ll make you proud,” Smith said.

Rob Barcus, athletic director and assistant principal at Parsons High School, wrote that though Austin got in trouble in high school, he always owned up to it and accepted punishment. He wrote that Austin could be a role model for kids.

“Prison is not the place for this young man,” Barcus wrote.

Jerry Waugh said he’s worked at Ruskin for 34 years and worked with Austin for about a year. He said Austin was smart, friendly and a hard worker. Austin always had a smile and did not complain. Waugh thought Austin could get his job back at Ruskin.

D.J. Ball is in-school suspension teacher at Pittsburg Middle School and has known Austin for 20 years. He credited Austin’s guidance in getting his career on track. Austin helped Ball get jobs at a day care and in the school system, including making contact with Smith at Pittsburg.

Ball said he also talked to Austin about the behavior that led to his current convictions and held him accountable for that.

“He made one silly mistake that he can overcome if given the chance to overcome it,” Ball said.

After the witnesses testified, Fern said he presented information that a community sentence would promote community safety and offender reformation. He said he thinks the plan for Austin, continued counseling, working and supervision, would meet those points. He didn’t think Austin would fail if given another chance.

Johnson took the matter under advisement and made the decision in writing Wednesday. 

Austin has remained jailed.


In other cases:

— William A. Herring, 34, Beeville, Texas, pleaded no contest to two counts of aggravated battery, both lower-level felonies. He was sentenced to 12 months in prison. The prison term was suspended based on Herring’s criminal history and he was placed on probation for three years. He is to wear an ankle monitor until June 2020 and stay out of Labette County. He also is to complete a batterer intervention program. A wrinkle in the plan will come as Herring starts to work in Neosho County on wind turbine construction. He will then get the former marital home because his ex-wife is moving to Joplin. This transition is to be coordinated with his probation officer. Herring was originally charged with abuse of a child, aggravated battery (with a knife), both felonies, and domestic battery, a misdemeanor.

— Philip J. Hood, born in 1967, Coffeyville, was ordered to stand trial on possession of methamphetamine, a low-level drug felony. The charge related to a counterfeiting investigation that began July 24 when someone allegedly tried to use a counterfeit $50 to buy liquor in Parsons. Officers identified the man by video and went to 3028 Chess, where the man lived. They did a search of the home because the man was on parole supervision and they found Hood in the bathroom. They later conducted a full search with a warrant and found two baggies of suspected meth in the bathroom in a pack of cigarettes, another baggie of meth on a shelf in the bathroom, a counterfeit $20 bill on the bathroom floor and another counterfeit $20 in Hood’s wallet. Parsons police only sent one of the baggies of meth to a KBI lab for testing, so the other two baggies could not be used as evidence against Hood. Police also found a spoon with residue on it in the bathroom and a needle. Because of this, the level three drug charge for possession with intent to distribute was reduced to a level five simple possession. A pretrial hearing is set for Jan. 7. A jury trial is set for Feb. 5 and 6.

— Rickey L. Crain, born in 1988, 1712 Chess, pleaded no contest to aggravated battery, a lower level felony. The original charge was abuse of a child, a mid-level felony. Sentencing will be Dec. 2. Crain and his attorney will seek a departure from Kansas Sentencing Guidelines to 24 months in prison instead of nearly three years. Crain also asked for a furlough from jail, where he’s being held, so he could get his affairs in order before serving the term. Judge Jeffry Jack denied the request and said he was not doing that for someone who beat an 11-year-old and got the child’s mother to lie about it.

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