Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR, JUDGE
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.
Factual and Procedural History
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
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
5} Appellant did not file an appeal challenging his
guilty pleas, convictions, or the trial court's sentence.
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.
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. 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.
Subsequent Challenges to ...