[Cite as State v. Walters, 2013-Ohio-772.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA949
:
vs. :
: DECISION AND JUDGMENT
DARRYL L. WALTERS, : ENTRY
:
Defendant-Appellant. : Released: 02/23/13
_____________________________________________________________
APPEARANCES:
Darryl L. Walters, Lebanon, Ohio, Appellant, pro se.
C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant
Adams County Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} Appellant, Darryl Walters, appeals the trial court’s denial of his
motion to withdraw his guilty plea and for a new trial, which was filed more
than three years after he was convicted and sentenced. On appeal,
Appellant raises only one assignment of error, contending that the trial court
denied his motion to withdraw his guilty plea without an evidentiary
hearing. In light of our conclusions that 1) Appellant’s arguments are barred
by res judicata, and 2) Appellant’s arguments fail even if addressed on the
merits, Appellant has failed to demonstrate a manifest injustice requiring
Adams App. No. 12CA949 2
withdrawal of his guilty plea. As such, we cannot conclude that the trial
court abused its discretion when it denied Appellant’s motion without
holding a hearing. Accordingly, Appellant’s sole assignment is overruled
and the decision of the trial court is affirmed.
FACTS
{¶2} On February 22, 2008, Appellant was indicted for the special
felony of murder, in violation R.C. 2903.02(A), stemming from the death of
Melinda Powell in July of 2004. Although the factual information in the
record is limited, the record reveals that discovery provided to Appellant by
the State indicates that Appellant made statements to law enforcement
regarding the crime.
{¶3} Specifically, the discovery provides Appellant stated to law
enforcement as follows:
“[H]e picked up Melinda Powell on the night of her death and had parked
his truck at the rear of the Dayton Walters Building in Portsmouth. He
stated that they were having sex when a car pulled up and they left. He
stated that he was going to have sex with her again and found that she was
dead. He stated he placed her body in the brush on Coffee Hollow where it
was found.”
Adams App. No. 12CA949 3
The discovery provided by the State further indicated that audio and video
statements of Appellant were available for review, but these were not made
part of the record below and as such are not part of our record on appeal.
{¶4} On August 7, 2008, Appellant withdrew his original plea of not
guilty in this matter and instead entered a plea of guilty of murder. In
October of 2008, Appellant entered into a plea negotiations whereby he
would plead not guilty to the murder charge, with the agreement that his
defense counsel and the State would “reargue sentence.” The transcript
from the change of plea recited this agreement and Appellant’s
understanding thereof. Appellant was subsequently sentenced to an
indefinite prison term of fifteen years to life.
{¶5} Appellant did not file a direct appeal of his conviction and
sentence, nor has he filed any motions for post-conviction relief. On
December 16, 2011, over three years after he was sentenced, Appellant filed
a motion to withdraw his guilty plea and requested a new trial. In his
motion, Appellant argued that his trial counsel had misadvised him
regarding the length of his sentence. Specifically, Appellant alleged that his
trial counsel was, at the time, not only representing him on the murder
charge in Adams County, but also on two additional homicide charges in
Scioto County.
Adams App. No. 12CA949 4
{¶6} Appellant argued that his trial counsel had advised him that in
exchange for entering pleas of guilt on the murder charges in both counties,
he would receive sentences of fifteen years to life on each count, all to be
served concurrently to one another. Appellant argued that while the Adams
County court had imposed the sentence as agreed, that Scioto County court
ordered that the Scioto County sentences were to be served concurrently to
one another, but consecutively to the Adams County sentence, contrary to
the alleged agreement. Appellant further argued in his motion that he
received ineffective assistance of counsel by virtue of his trial counsel’s
failure to file a motion to suppress his incriminating statements, which he
claimed were made without a proper Miranda warning.
{¶7} The State objected to Appellant’s motion, and the trial court
denied Appellant’s motion without a hearing by entry dated May 18, 2012.
It is from this entry denying his motion that Appellant now brings his
appeal, setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
THE DEFENDANT-APPELLANT’S MOTION TO WITHDRAW
HIS GUILTY PLEA WITHOUT AN EVIDENTIARY HEARING.”
Adams App. No. 12CA949 5
LEGAL ANALYSIS
{¶8} In his sole assignment of error, Appellant contends that the trial
court abused its discretion in denying his motion to withdraw his guilty plea
without an evidentiary hearing. Specifically, Appellant argues his trial
counsel’s erroneous advice regarding the negotiated plea amounted to a
manifest injustice entitling him to withdraw his plea. He further argues that
trial counsel’s failure to file a motion to suppress constituted ineffective
assistance of counsel, which he argues also resulted in a manifest injustice.
Appellant contends that having presented the trial court with facts
constituting a manifest injustice, the trial court abused its discretion in
denying the motion without first holding an evidentiary hearing.
Standard of Review
{¶9} Crim.R. 32.1, which governs motions to withdraw guilty pleas,
provides: A motion to withdraw a plea of guilty or no contest may be made
only before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea.
{¶10} Accordingly, a defendant who wishes to withdraw a plea of
guilt after the court has passed sentence must demonstrate a “manifest
injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324, at paragraph
Adams App. No. 12CA949 6
one of the syllabus (1977). The Supreme Court of Ohio has defined
“manifest injustice” as a “clear or openly unjust act.” State ex rel. Schneider
v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). “[U]nder such
standard, a postsentence withdrawal motion is allowable only in
extraordinary cases.” Smith at 264; citing United States v. Semel (C.A.4,
1965), 347 F.2d 228 [subsequent history omitted].
{¶11} The movant bears the burden of establishing a manifest
injustice. Id. The decision of whether to grant or deny a motion to withdraw
a guilty plea is addressed “to the sound discretion of the trial court, and the
good faith, credibility and weight of the movant's assertions in support of the
motion are matters to be resolved by that court.” Id., citing United States v.
Washington (C.A.3, 1965), 341 F.2d 277 [subsequent history omitted]. Thus,
we will not reverse a trial court's decision to grant or deny a postsentence
motion to withdraw a guilty plea unless the trial court abused its discretion,
i.e., the court's decision was “unreasonable, arbitrary or unconscionable.”
State v. Adams, 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).
{¶12} Appellant argues that his guilty pleas amounted to a manifest
injustice because (1) his trial counsel misadvised him as to the sentences he
would receive in exchange for pleading guilty to the Adams County case, as
well as both of the Scioto County cases; and (2) he received ineffective
Adams App. No. 12CA949 7
assistance of counsel based upon his trial counsel’s failure to file a motion to
suppress incriminating statements made to law enforcement while Appellant
was in custody. Appellant additionally contends that the trial court abused
its discretion by not holding a hearing on the motion to withdraw the guilty
plea.
Plea Negotiation and Sentence
{¶13} Appellant first argues that his trial counsel informed him that in
exchange for pleading guilty to both of the Scioto County cases, he would
receive two fifteen years to life sentences, to be served concurrently to one
another, and concurrently to the fifteen years to life sentence he would
receive in connection with his plea of guilt in the Adams County case. As
Appellant was sentenced in Adams County first, the Adams County Court
imposed an indefinite fifteen years to life sentence. However, the Scioto
County court subsequently ordered two fifteen years to life sentences for the
Scioto County cases to be served concurrently to one another, and
consecutively to the Adams County sentence.
{¶14} To the extent that this argument claims ineffective assistance of
counsel in explaining the negotiated terms of the plea agreement, it is
arguably waived. “Generally, the doctrine of res judicata bars from review
claims of ineffective assistance of counsel raised in a postsentence Crim.R.
Adams App. No. 12CA949 8
32.1 motion to withdraw a guilty plea if those claims were or could have
been asserted on direct appeal.” State v. Pemberton, 4th Dist. No. 10CA4,
2011-Ohio-373, ¶ 19; citing, State v. Vincent, Ross App. No. 03CA2713,
2003-Ohio-3998, at ¶ 11. “ ‘Under the doctrine of res judicata, a final
judgment of conviction bars a convicted defendant who was represented by
counsel from raising and litigating in any proceeding except an appeal from
that judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial, which resulted
in that judgment of conviction, or on an appeal from that judgment.’ ”
Pemberton at ¶ 19; quoting, State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d
104, at paragraph nine of the syllabus (1967).
{¶15} Similarly, the doctrine of res judicata bars Appellant from
raising issues of ineffective assistance of counsel that could have been
addressed in a motion for post-conviction relief. Pemberton at ¶ 19; see
also, State v. Lott, Cuyahoga App. Nos. 79790, 79791, 79792, 2002-Ohio-
2752, at ¶ 41. Stated another way, res judicata bars Appellant from raising
claims of ineffective assistance that occurred both “on-the-record” (direct
appeal) and “off-the-record” (postconviction relief) in his current Crim.R. 32
.1 motion.
Adams App. No. 12CA949 9
{¶16} Appellant could have raised this claim of ineffective assistance
on direct appeal; however he did not appeal from his original conviction and
sentence. Further, to the extent this issue relies upon evidence outside the
record, namely off the record conversations he had with his trial counsel,
Appellant could have asserted this argument through a petition for post-
conviction relief, but failed to do so. Therefore, res judicata bars our
consideration.
{¶17} Further, even assuming our consideration of this issue is not
barred by res judicata, a review of the record contradicts the claim asserted
by Appellant. Although Appellant claims that his trial counsel advised him
that his Adams County sentence would run concurrent to any sentences
subsequently imposed in Scioto County, Appellant stated otherwise, on the
record, at the August 7, 2008, change of plea hearing. For example, the
following exchange occurred at that hearing:
“STATE OF OHIO: Your honor may I please the Court it’s my
understanding that the defendant is going to plead
guilty as charged to the one count indictment and
both the State and the defense will be reargue [sic]
sentence.
Adams App. No. 12CA949 10
COURT: Very well, Mr. Westfall is that you’re [sic]
understanding of the stated plea of the negotiation
results[?]
MR. WESTFALL: It is however there is only one statutory sentence
here, the fifteen to life.
COURT: Indefinite term of fifteen years to life.
MR. WESTFALL: Yes.
COURT: Okay, Mr. Walters did you understand the stated
results of the plea negotiations that were conducted
on your behalf?
MR. WALTERS: Yes I do.
COURT: Did you authorize Mr. Westfall to enter into plea
negotiations on your behalf?
MR. WALTERS: Yes I did.
COURT: Are you satisfied with the results sir?
MR. WALTERS: Yes.
***
COURT: Mr. Walters because of the nature of this charge
the penalties are mandatory, but other than the
mandatory penalties, has anyone promised you or
Adams App. No. 12CA949 11
suggested to you that if you would enter a plea of
guilty that the Court would sentence you to
anything other than the mandatory penalties that
the Court has advised you of?
MR. WALTERS: No.”
{¶18} Thus, the transcript indicates that Appellant voiced his
agreement to the sentence in Adams County, and stated he had been made
no other promises with respect to sentencing. Accordingly, Appellant’s first
argument is without merit. See Pemberton, generally.
Motion to Suppress
{¶19} In his next argument, Appellant contends that he received
ineffective assistance of counsel by virtue of his trial counsel’s failure to file
a motion to suppress. As set forth above, the doctrine of res judicata
generally bars from review claims of ineffective assistance of counsel raised
in a postsentence Crim.R. 32.1 motion to withdraw a guilty plea if those
claims were or could have been asserted on direct appeal. State v. Vincent,
supra, at ¶ 11. If Appellant believed he was provided with ineffective
assistance of counsel at the trial court level, by virtue of his counsel’s failure
to file a motion to suppress, he could have raised that issue in a direct
Adams App. No. 12CA949 12
appeal, as this issue would have been apparent at the time of his conviction.
State v. LaPlante, 4th Dist. No. 11CA3215, 2011-Ohio-6675, ¶ 8.
{¶20} Additionally, we note that the failure to file a motion to
suppress does not constitute per se ineffective assistance of counsel. State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52. Instead, the failure to file
a motion to suppress amounts to ineffective assistance of counsel only when
the record demonstrates that the motion would have been successful if made.
State v. Resendiz, 12th Dist. No. CA2009-04-012, 2009-Ohio-6177, ¶ 29;
citing, State v. Brown, Warren App. No. CA2002-03-026, 2002-Ohio-5455,
¶ 11. According to Resendiz, we are to presume that trial counsel was
effective if he could have reasonably decided that filing a suppression
motion would be a futile act, even if there is some evidence in the record to
support a motion. Resendiz at ¶ 29.
{¶21} Again, assuming that this issue is not barred by res judicata, we
would find no merit to Appellant’s argument. Here, there is limited
information in the record as to the details of the crime committed by
Appellant. Other than the indictment and bill of particulars describing the
victim and the offense that occurred, we only have a paragraph description
of a statement given by Appellant that was provided by the State as part of
the discovery process. There is nothing in the record before us to indicate
Adams App. No. 12CA949 13
whether Appellant was or was not advised of his Miranda rights before he
was interviewed by law enforcement. Although the State’s discovery
indicates the interviews were recorded, these recordings are not in the
record. Further, other than simply alleging he was not Mirandized,
Appellant cites us to no particular interview, or any particular statement that
he claims should have been suppressed.
{¶22} Viewing the totality of the evidence contained in the record,
which is admittedly quite limited, we believe it was reasonable for trial
counsel to conclude that filing a motion to suppress would be futile. Thus,
even if Appellant’s argument is not barred by the doctrine of res judicata, we
find it to be without merit.
Evidentiary Hearing
{¶23} Finally, Appellant argues that the trial court abused its
discretion in failing to hold an evidentiary hearing on his motion. “A trial
court is not always required to conduct an evidentiary hearing when
presented with a post-sentence motion to withdraw a guilty plea.” State v.
Vincent, supra, at ¶ 10 (internal citations omitted); see also, State v.
Pemberton, supra, at ¶ 26. Instead, a trial court is only required to conduct
an evidentiary hearing if the facts alleged by a defendant indicate a manifest
injustice would occur if the plea were permitted to stand. Id. Further, if the
Adams App. No. 12CA949 14
record conclusively and irrefutably contradicts the defendant’s allegations,
an evidentiary hearing is not required. Vincent at ¶ 10.
{¶24} Because we have already concluded that res judicata bars
consideration of the merits of the issues raised by Appellant, the trial court
was not required to hold an evidentiary hearing on Appellant’s motion.
Further, as set forth above, the information contained in the limited record
presently before us contradicts Appellant’s allegations. Accordingly, we
find no merit to this argument.
{¶25} Having found that the arguments raised under Appellant’s sole
assignment of error are barred by res judicata, and further having found no
merit to the assignment of error, Appellant has failed to demonstrate that a
manifest injustice will occur if he plea is permitted to stand. As such, we
cannot conclude that the trial court abused its discretion in denying
Appellant’s motion to withdraw his guilty plea without a hearing. Thus,
Appellant’s sole assignment of error is overruled. Accordingly, the decision
of the trial court is affirmed.
JUDGMENT AFFIRMED.
Adams App. No. 12CA949 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Costs herein are assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
State v. Walters
Combined Opinion