[Cite as State v. Demyan, 2012-Ohio-3634.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                        C.A. No.        11CA010096

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RICHARD DEMYAN                                       COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   04 CR 66508

                                DECISION AND JOURNAL ENTRY

Dated: August 13, 2012



        DICKINSON, Judge.

                                             INTRODUCTION

        {¶1}    Richard Demyan pleaded guilty to one count of unlawful sexual conduct with a

minor. The trial court sentenced him to three years of community control. After completing his

sentence, Mr. Demyan learned from the father of the victim and one of the victim’s classmates

that, according to them, the victim had fabricated her accusations. Mr. Demyan, therefore, filed

a motion to vacate his conviction based on affidavits of the father and the classmate. Following

a hearing on the motion, the trial court denied it. Mr. Demyan has appealed, assigning as error

that the court incorrectly denied his motion to vacate. We affirm because, to the extent that his

motion was a petition for post-conviction relief, it was untimely; to the extent it was a motion for

new trial, Rule 33 of the Ohio Rules of Criminal Procedure does not apply; and, to the extent it

was a motion to withdraw his guilty plea, he failed to provide this Court with a transcript of the

hearing on the motion.
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                         PETITION FOR POST-CONVICTION RELIEF

       {¶2}    In his motion to vacate, Mr. Demyan argued that he was “entitled to the relief . . .

prescribed in Ohio Revised Code Section 2953.21 . . . .” Under Section 2953.21(A)(1)(a), “[a]ny

person who has been convicted of a criminal offense . . . and who claims that there was such a

denial or infringement of the person’s rights as to render the judgment void or voidable . . . may

file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and

asking the court to vacate or set aside the judgment or sentence or to grant other appropriate

relief.” A petition under Section 2953.21(A)(1)(a) must be “filed no later than one hundred

eighty days after the date on which the trial transcript is filed in the court of appeals in the direct

appeal of the judgment of conviction or adjudication . . . . If no appeal is taken, except as

otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later

than one hundred eighty days after the expiration of the time for filing the appeal.” R.C.

2953.21(A)(2).

       {¶3}    Under Section 2953.23(A)(1), a trial court may not consider a petition for post-

conviction relief that is filed after the deadline specified in Section 2953.21(A)(2) unless the

petitioner was unavoidably prevented from discovering the facts on which he relies or,

subsequent to the expiration of the deadline, the United States Supreme Court recognizes a new

federal or state right that applies retroactivity to people in the petitioner’s situation and the

petition asserts a claim based on the new right. R.C. 2953.23(A)(1)(a). The petitioner must also

show “by clear and convincing evidence that, but for constitutional error at trial, no reasonable

factfinder would have found [him] guilty of the offense of which [he] was convicted . . . .” R.C.

2953.23(A)(1)(b).
                                                 3


       {¶4}    In this case, Mr. Demyan did not file his petition for post-conviction relief within

180 days of his deadline for filing an appeal. In addition, because he pleaded guilty instead of

going to trial, he cannot demonstrate that, “but for constitutional error at trial, no reasonable

factfinder would have found [him] guilty[.]” State v. Meek, 9th Dist. No. 02CA008134, 2003-

Ohio-1803, ¶ 7 (quoting R.C. 2953.23(A)(1)(b)); State v. Murdock, 11th Dist. No. 2001-P-0013,

2002 WL 408184, *2 (Mar. 15, 2002). Accordingly, to the extent that Mr. Demyan’s motion

sought relief under Section 2953.21 of the Ohio Revised Code, the trial court did not have

authority to consider it. R.C. 2953.23(A).

                                   MOTION FOR NEW TRIAL

       {¶5}    In his motion to vacate, Mr. Demyan also asserted that he was entitled to “relief . .

. based on the theory of newly discovered evidence.” Under Rule 33 of the Ohio Rules of

Criminal Procedure, “[a] new trial may be granted on motion of the defendant . . . [w]hen new

evidence material to the defense is discovered which the defendant could not with reasonable

diligence have discovered and produced at the trial.” Crim. R. 33(A)(6). This Court, however,

has held that, if a defendant “never had a trial, his motion for a new trial [is] a nullity.” Warren

v. Keck, 9th Dist. No. 17986, 1997 WL 303325, *3 (May 21, 1997). Accordingly, to the extent

that Mr. Demyan’s motion to vacate requested a new trial based on newly discovered evidence

under Criminal Rule 33, the trial court correctly denied it.

                          MOTION TO WITHDRAW GUILTY PLEA

       {¶6}    In his motion to vacate, Mr. Demyan also argued that, if he had known that his

accuser’s father and classmate knew that she had fabricated her accusations, he would not have

pleaded guilty. Under Rule 32.1 of the Ohio Rules of Criminal Procedure, “[a] motion to

withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to
                                                 4


correct manifest injustice the court after sentence may set aside the judgment of conviction and

permit the defendant to withdraw his or her plea.”

       {¶7}    The trial court denied Mr. Demyan’s motion following a hearing on the motion.

Even though it was Mr. Demyan’s “duty to ensure that all parts of the record necessary for

determination of the appeal are before this court and that the record [was] properly preserved for

review,” he has not provided this Court with a copy of the hearing transcript. State v. Evans, 93

Ohio App. 3d 121, 124 (9th Dist. 1994).        “When portions of the transcript necessary for

resolution of assigned errors are omitted from the record, [a] reviewing court has nothing to pass

upon and thus, as to those assigned errors, the court has no choice but to presume the validity of

the lower court’s proceedings, and affirm.” Knapp v. Edwards Labs., 61 Ohio St. 2d 197, 199

(1980). Accordingly, to the extent that Mr. Demyan’s motion to vacate could be construed as a

motion to withdraw his guilty plea, we must presume that the trial court correctly determined that

he should not be allowed to withdraw his plea “to correct manifest injustice.” Crim. R. 32.1.

Mr. Demyan’s assignment of error is overruled.

                                        CONCLUSION

       {¶8}    The trial court correctly denied Mr. Demyan’s motion to vacate his conviction for

unlawful sexual conduct with a minor. The judgment of the Lorain County Common Pleas Court

is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



MOORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

BENJAMIN JOLTIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
