State v. AustinState v. Austin
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.
Dimitric Austin, pro se.
FRANK D. CELEBREZZE, JR., J.:
{¶ 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
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.
{¶ 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
{¶ 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[.]
C. Subsequent Challenges to the 1980 Guilty Pleas
{¶ 11} On December 24, 2012, appellant filed a pro se petition for postconviction relief.2 Therein, appellant alleged that his guilty pleas were not knowingly, intelligently, and voluntarily entered. Specifically, appellant asserted that his convictions were “obtain[ed] in violation of [
{¶ 12} The trial court denied appellant’s petition on January 22, 2013. Appellant filed an appeal challenging the trial court’s judgment on February 20, 2013. 8th Dist. Cuyahoga No. 99549. However, this court dismissed the appeal in March 2013 based on appellant’s failure to comply with
{¶ 14} The trial court denied appellant’s motion to vacate on October 15, 2018. It is from this judgment that appellant filed the instant appeal on November 7, 2018. This court initially dismissed the appeal on November 26, 2018, based on appellant’s failure to comply with
{¶ 15} Appellant challenges the trial court’s judgment denying his motion to vacate his convictions. He appears to assign three errors for our review:
Did the [trial court] abuse its discretion when it failed to vacate or recall [appellant’s s]entence which prejudice [sic] him because [appellant] cannot overcome the missing [transcript] of the [Crim.R.] 11 advisement. - Did [appellant] receive ineffective assistance of counsel in violation of his State and Federal constitutional safeguards for reasons outlined herein?
- Did the court violated [sic] [appellant’s] due process rights by accepting guilty plea without inform[ing] him of the enumerated [rights] in [Crim.R. 11 (C)(2)(c)].
II. Law and Analysis
A. Guilty Plea
{¶ 16} In his first and third assignments of error, appellant appears to challenge the validity of his guilty pleas. Specifically, he appears to argue that the trial court did not inform him during the 1980 change-of-plea hearings that his convictions could be considered or used against him in subsequent criminal proceedings in order to enhance a sentence: “[t]he trial court fail to advise the defendant that by him entering a plea of guilty that the plea would or could be used against him at a later date as a sentence enhancement as a habitual criminal, this prejudiced the defendant. During the plea colloquy, the court fail to comply with
{¶ 17} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). A trial court must strictly comply with the
{¶ 18} After reviewing the record, we find that appellant’s first and third assignments of error and the arguments raised therein are barred by res judicata. See State v. Poole, 8th Dist. Cuyahoga No. 105765, 2017-Ohio-8323, ¶ 10 (appellant’s motion to withdraw his November 2009 guilty pleas, filed in April 2017, was barred by res judicata to the extent that appellant argued that the trial court failed to comply with
In a postconviction proceeding, res judicata bars the assertion of claims against a valid, final judgment of conviction that have been raised or could have been raised on appeal. State v. Coley-Carr, 8th Dist. Cuyahoga No. 101611, 2014-Ohio-5556, ¶ 11, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. Courts have repeatedly applied the doctrine of res judicata to postconviction motions to withdraw a guilty plea under
Crim.R. 32.1 . Id.; State v. Congress, 8th Dist. Cuyahoga No. 102867, 2015-Ohio-5264, ¶ 6-10.
(Emphasis added.) State v. Kraatz, 8th Dist. Cuyahoga No. 103515, 2016-Ohio-2640, ¶ 9.
{¶ 20} Res judicata would also bar appellant’s arguments challenging the knowing, intelligent, and voluntary nature of his 1980 guilty pleas because this is an appeal from appellant’s second motion challenging the validity of his guilty pleas. As noted above, after appellant’s arguments regarding the validity of his 1980 guilty pleas were rejected by the Colorado courts, he filed a petition for postconviction relief in December 2012. “‘The doctrine of res judicata is applicable to successive motions to withdraw a guilty plea under
{¶ 21} Assuming, arguendo, that appellant’s arguments are not barred by res judicata, we find no basis upon which to conclude that appellant’s guilty pleas were not knowingly, intelligently, and voluntarily entered. Appellant failed to provide this court with a transcript of the 1980 change-of-plea hearings, precluding this
{¶ 22} Generally, unless the record contains affirmative evidence demonstrating otherwise, this court presumes regularity in the trial court proceedings. State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19. In this case, presuming regularity requires us to presume that appellant was properly advised of his
{¶ 23} In the instant matter, appellant acknowledges that the transcripts from the 1980 change-of-plea hearings are not in the record before this court. See appellant’s brief at 3 (“[there is] no transcript of the court addressing [appellant] in regards to a [
{¶ 24} Appellant is a United States citizen. As such,
{¶ 25} The only evidence in the record before this court regarding
Now comes the Prosecuting Attorney on behalf of the State of Ohio and defendant Dimitric Austin in open court with his counsel present and was fully advised of his constitutional rights. Including those [rights] described in Criminal Rule 11.
Thereupon said defendant retracts his plea of not guilty heretofore entered, and for plea to said indictment days he is guilty of [attempted rape] * * * which plea, upon recommendation of the Prosecuting Attorney is accepted by the court.
(Emphasis added.)
{¶ 26} Second, regarding CR-80-052921-ZA, the trial court’s December 2, 1980 journal entry provides, “Deft present in Crt w/ [counsel]. CRE per [
Now comes the Prosecuting Attorney on behalf of the State of Ohio and defendant Dimitric Austin in open court with his counsel present and was fully advised of his constitutional rights.
Thereupon said defendant retracts his plea of not guilty heretofore entered, and for plea to said indictment days he is guilty of [attempted] rape * * * and guilty to [carrying a concealed weapon], which pleas on the recommendation of the Prosecuting Attorney are accepted by the court.
(Emphasis added.)
{¶ 27} Based on the record before this court, it is unclear whether the transcripts from the 1980 change-of-plea hearings exist. As noted above, appellant alleged in his December 2012 petition for postconviction relief that the transcripts had been destroyed in a fire. However, appellant originally filed the instant appeal pursuant to
{¶ 28} Nevertheless, on December 18, 2018, this court, sua sponte, converted the record on appeal to an
{¶ 29} In addition to failing to provide a transcript from the change-of-plea hearings, appellant has also failed to provide this court with an alternative record of the change-of-plea proceedings pursuant to
{¶ 30} For all of the foregoing reasons, appellant’s first and third assignments of error also fail on the merits. Appellant’s claim that his guilty pleas were not knowingly, intelligently, and voluntarily entered are entirely dependent on the nonexistent transcripts from the change-of-plea hearings. Without these transcripts, we must presume regularity in the trial court proceedings — that the trial court complied with
{¶ 31} In his second assignment of error, appellant argues that he was denied the constitutional right to effective assistance of counsel. Specifically, he asserts that trial counsel failed to adequately advise him of “a number of important non-collateral consequences of his pleas[.]” Appellant’s brief at 3. He further asserts that counsel failed to inform him that his convictions could later be used against him for purposes of the habitual criminal proceedings and sentencing enhancement in Colorado. Finally, appellant claims that had his counsel advised him that his convictions could be used against him at a later date, he would not have pled guilty and would have insisted on going to trial.
{¶ 32} Appellant’s ineffective assistance of counsel claim is barred by res judicata. Appellant could have, but failed to, raise his ineffective assistance claim in a timely appeal from his 1980 convictions. Additionally, appellant did, in fact, raise this argument — that his guilty plea was not knowingly, intelligently, and voluntarily entered because he was denied his constitutional right to effective assistance of counsel — in his December 2012 petition for postconviction relief. The trial court rejected appellant’s argument, and appellant failed to perfect an appeal in compliance with
A claim of ineffective assistance of counsel is waived by a guilty plea, except to the extent that the ineffective assistance of counsel caused the defendant’s plea to be less than knowing, intelligent and voluntary. State v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 272, 1992-Ohio-130, 595 N.E.2d 351 (1992), citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Where a defendant has entered a
guilty plea, the defendant can prevail on an ineffective assistance of counsel claim only by demonstrating that there is a reasonable probability that, but for counsel’s deficient performance, he would not have pled guilty to the offenses at issue and would have insisted on going to trial. Williams at ¶ 11, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30 (8th Dist.). In postconviction cases alleging ineffective assistance of counsel, “‘the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel’s ineffectiveness.’” (Emphasis deleted.) State v. Calhoun, 86 Ohio St.3d 279, 283, 714 N.E.2d 905 (1999), quoting State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), syllabus.
{¶ 33} In the instant matter, appellant failed to present any evidentiary documents in support of his ineffective assistance of counsel claim. Nor did appellant attach any supporting evidentiary documents to his motion to vacate. As noted above, the only supporting exhibits appellant submitted with his motion to vacate were portions of a transcript from the proceedings in Colorado.
{¶ 34} At the very least, a transcript of the 1980 change-of-plea hearings would be required in order to engage in any meaningful review of appellant’s ineffective assistance claim. See Kraatz, 8th Dist. Cuyahoga No. 103515, 2016-Ohio-2640, at ¶ 12. Without a transcript from the change-of-plea hearings, or an alternative record pursuant to
{¶ 35} For all of the foregoing reasons, appellant’s second assignment of error is overruled.
III. Conclusion
{¶ 36} After thoroughly reviewing the record, we affirm the trial court’s judgment denying appellant’s motion to vacate his 1980 guilty pleas. Appellant’s challenge to the knowing, intelligent, and voluntary nature of his guilty pleas, and his ineffective assistance of counsel claim are barred by res judicata. Furthermore, appellant has failed to provide this court with a transcript of the change-of-plea hearings. As such, this court must presume regularity.
{¶ 37} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution.
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR