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State v. Austin

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 1, 2019

STATE OF OHIO, Plaintiff-Appellee,
DIMITRIC AUSTIN, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-79-050538-ZA and CR-80-052921-ZA


          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.

          Dimitric Austin, pro se.



         {¶ 1} Defendant-appellant, Dimitric Austin ("appellant"), brings the instant appeal challenging the trial court's judgment denying his motion to vacate his convictions for attempted rape and carrying a concealed weapon. Specifically, appellant argues that the trial court erred by denying his motion to vacate because the trial court failed to comply with Crim.R. 11 and, as a result, his guilty pleas were not knowingly, intelligently, and voluntarily entered. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         A. 1980 Guilty Pleas

         {¶ 2} The instant appeal pertains to guilty pleas that appellant entered in two criminal cases. First, in Cuyahoga C.P. No. CR-79-050538-ZA, appellant pled guilty in February 1980 to attempted rape. In September 1980, appellant was sentenced to prison for a period of "4 to 25 years." On October 27, 1980, the trial court issued a nunc pro tunc sentencing entry clarifying that appellant's prison sentence was for a term of 4 to 15 years.

         {¶ 3} Second, in Cuyahoga C.P. No. CR-80-052921-ZA, appellant pled guilty in December 1980 to attempted rape and carrying a concealed weapon. The trial court sentenced appellant to a prison term of 5 to 15 years on the attempted rape count and a prison term of 3 to 10 years on the carrying a concealed weapon count. The trial court ordered the counts to run concurrently to one another.

         {¶ 4}The trial court ordered appellant's sentence in CR-79-050538-ZA to run concurrently with his sentence in CR-80-052921-ZA

         {¶ 5} Appellant did not file an appeal challenging his guilty pleas, convictions, or the trial court's sentence.

         B. Colorado Proceedings

         {¶ 6} In or around June 2003, a jury in the District Court for Arapahoe County, Colorado convicted appellant of first-degree assault. Appellant was subsequently adjudicated a habitual criminal. In September 2004, appellant was sentenced to a prison term of 64 years. See Austin v. Milyard, Colo. No. 11-cv-00633-RBJ, 2011 U.S. Dist. LEXIS 147927 (Dec. 22, 2011). Appellant's conviction was affirmed on direct appeal, and the Colorado Supreme Court denied appellant's petition for review in February 2008.

         {¶ 7} In August 2008, appellant filed a motion for postconviction relief, alleging that he was denied the right to effective assistance of both trial and appellate counsel. The trial court denied appellant's motion in February 2009, and the trial court's ruling was affirmed on appeal in September 2010. The Colorado Supreme Court declined to review the matter in February 2011.

         {¶ 8} Appellant filed an application for a writ of habeas corpus in March 2011, in which he argued, in relevant part, that (1) the trial court in the habitual criminal proceedings erred in denying his motion to preclude the use of his Ohio convictions, and (2) appellate counsel was ineffective for failing to file a direct appeal challenging his Ohio convictions. Id. at 5. Appellant also appeared to suggest that his trial counsel during the Ohio change-of-plea proceedings was ineffective. See id. at 19.

         {¶ 9} Appellant alleged that his habitual criminal adjudication violated his constitutional rights because the prior convictions upon which the adjudication was based, including the Ohio convictions, were unconstitutional.[1] Specifically, appellant argued that the prior convictions were obtained pursuant to guilty pleas that were not knowingly, intelligently, and voluntarily entered.

         {¶ 10} In December 2011, the Colorado District Court rejected appellant's arguments, concluding that (1) appellant was not entitled to habeas relief because he could have, but failed to challenge the validity of his 1980 guilty pleas in Ohio, and (2) appellant failed to demonstrate that counsel was ineffective for failing to file a direct appeal challenging his prior convictions in Ohio. Regarding the second finding, the court explained,

There is no record of the providency hearings for the Ohio cases. Although [appellant] testified that his counsel in the first Ohio case told him he would not be allowed to testify, [appellant] also testified that he could not recall the substance of the trial court's advisement on this matter. Accordingly, the only affirmative evidence [appellant] presented in the state trial court to show that his pleas were involuntary was his own testimony regarding statements made by to him by counsel before he entered his first guilty plea. This evidence does not suffice to demonstrate that the trial court failed to advise him of his right to testify before accepting his pleas. See Parke v. Raley, 506 U.S. 20, 30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (final judgment of conviction pursuant to a guilty plea is presumed valid, even in the absence of a transcript of the providency proceeding, unless defendant makes an affirmative showing of invalidity); see also [U.S. v. Krejcarek, 453 F.3d 1290, 1297-98 (10th Cir.2006)] ("Self-serving statements by a defendant that his conviction was constitutionally infirm are insufficient to overcome the presumption of regularity accorded prior convictions") (citing Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir.1993)). Moreover, to the extent [appellant] asserts that his guilty plea was rendered invalid by counsel's erroneous advice, his failure to demonstrate a deficient advisement by the trial court on his right to testify precludes any finding of prejudice - i.e, that but for counsel's asserted erroneous advice, he would not have pled guilty but would have insisted on proceeding to trial. See [Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)].
The Court finds that the state appellate court's determination that appellate counsel was not ineffective in failing to challenge the Ohio convictions on appeal comported with applicable federal law. [Appellant] therefore is not entitled to relief[.]

Austin at 41-42.

         C. Subsequent Challenges to ...

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