[Cite as State v. Walters, 2013-Ohio-695.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA3482
:
vs. :
: DECISION AND JUDGMENT
DARRYL WALTERS, : ENTRY
:
Defendant-Appellant. : Released: 02/13/13
_____________________________________________________________
APPEARANCES:
Darryl Walters, Lebanon, Ohio, Appellant, pro se.
Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, 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
Scioto App. No. 12CA3482 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 May 5, 2008, Appellant was indicted under a four count
indictment for murder, felonious assault, tampering with evidence, and
abuse of a corpse, stemming from the death of Aleisha Frazee in October of
2001.1 The matter was assigned as Scioto County criminal case number
08CR468. Although the factual information in the record is limited, the
record indicates that Appellant confessed to these crimes upon being
interviewed by Scioto County Sheriff’s Department detectives while he was
being held in Adams County in connection with the homicide of another
woman from that county.
{¶3} In October of 2008, Appellant entered into a negotiated plea
agreement with the State and the trial court whereby he would plead not
guilty to the murder charges in cases 08CR468 and 08CR469, in exchange
for receiving two fifteen years to life sentences for the Scioto County cases,
1
Appellant was also indicted for murder in Scioto County criminal case number 08CR469, which involved
a different victim, Tamera Smith. These matters appear to have proceeded through the trial court as
companion cases, although they were never consolidated. Appellant currently only appeals the denial of
his post-sentence motion to withdraw his guilty plea in case number 08CR468.
Scioto App. No. 12CA3482 3
to be served concurrently to one another, and consecutive to the fifteen years
to life sentence he received in Adams County. The transcript from the
change of plea and sentencing hearing held on October 8, 2008, recited this
agreement and Appellant’s understanding thereof. Further, the remaining
counts under the indictments were dismissed.
{¶4} 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 advised him that his
Scioto County sentences were to be served concurrently, not consecutively
to the Adams County sentence. Appellant further argued 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.
{¶5} The State objected to Appellant’s motion, and the trial court
denied Appellant’s motion without a hearing by entry dated March 9, 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.
Scioto App. No. 12CA3482 4
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.”
LEGAL ANALYSIS
{¶6} 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
{¶7} 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.
Scioto App. No. 12CA3482 5
{¶8} Thus, 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 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].
{¶9} 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).
Scioto App. No. 12CA3482 6
{¶10} Appellant argues that his guilty pleas amounted to a manifest
injustice because (1) his trial counsel misadvised him as to the agreed
sentence he would receive in exchange for pleading guilty to both of the
Scioto County cases, as well as the Adams County case; and (2) he received
ineffective 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.
Negotiated Sentence
{¶11} 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 received in
connection with the Adams County case. However, at sentencing, the trial
court ordered the 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.
{¶12} To the extent that this argument claims ineffective assistance of
counsel in explaining the negotiated terms of the plea agreement, it is
Scioto App. No. 12CA3482 7
arguably waived. “Generally, the doctrine of res judicata 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. 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).
{¶13} 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 postconviction relief. Pemberton at ¶ 19; see also,
State v. Lott, 8th Dist. 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.
Scioto App. No. 12CA3482 8
{¶14} 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.
{¶15} 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 Scioto County sentences would run concurrent to the sentence
imposed in Adams county, Appellant stated otherwise, on the record, at the
October 8, 2008, change of plea/sentencing hearing. For example, the
following exchange occurred at that hearing:
THE COURT: * * * The record should further reflect it’s a
negotiated plea between the State of Ohio, Defense Counsel,
Defendant and this Court. Pursuant to Section 2953.08(D) and
Criminal Rule 11F, that upon this Defendant’s change of plea
he understands he will received two 15 to year – 15 years to life
sentences, running concurrently with each other, or at the same
Scioto App. No. 12CA3482 9
time, but consecutively with the sentences he is serving in
Adams County. He will be ordered to pay the court cost herein.
Is this your understanding, sir?
MR. WESTFALL: That is correct.
THE COURT: Okay. Mr. Walters, is this your
understanding?
DEFENDANT: Yes, I do.
{¶16} Thus, the express terms of the plea agreement, along with the
agreed upon sentence was stated on the record, and Appellant voiced his
understanding and agreement with those terms, which specified that the
Scioto County cases were to be served consecutively to the sentence
imposed in Adams County. Accordingly, Appellant’s first argument is
without merit. See Pemberton, generally.
Motion to Suppress
{¶17} 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,
Scioto App. No. 12CA3482 10
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
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.
{¶18} 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.
{¶19} 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 crimes alleged to be
committed by Appellant. Other than the indictment and bill of particulars
Scioto App. No. 12CA3482 11
describing the victim and the offenses that occurred, we only have a written
statement prepared by one of the detectives that investigated the case and
interviewed Appellant. The detective’s statement indicates that Appellant
was questioned about two Scioto County homicides, one of which involved
the victim herein, Aleisha Frazee, and one Adams County homicide while he
was incarcerated in Indiana on February 11, 2008. The statement does not
indicate whether Appellant was advised of his rights during this interview,
however, at this time, Appellant denied any involvement in the Scioto
County homicides.
{¶20} The statement further indicates that Appellant was not
questioned again until February 15, 2008, and that interview took place after
Appellant had been transferred back to Adams County. The detective’s
statement indicated that she was contacted by authorities in Adams County
at Appellant’s request, and that the interview took place after Appellant had
been advised of his rights. It was during this interview that Appellant made
incriminating statements related to the Scioto County homicides. Thus, the
record reveals that Appellant’s incriminating statements were made during
an interview that was conducted at his request, and only after he had been
advised of his rights.
Scioto App. No. 12CA3482 12
{¶21} 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. This is
especially true in light of the negative effect such a filing may have had on
the negotiated plea agreement. Thus, even if Appellant’s argument is not
barred by the doctrine of res judicata, we find it to be without merit.
Evidentiary Hearing
{¶22} 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
record conclusively and irrefutably contradicts the defendant’s allegations,
an evidentiary hearing is not required. Vincent at ¶ 10.
{¶23} 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.
Scioto App. No. 12CA3482 13
Further, as set forth above, even considering the limited information
contained in the record presently before us, that information contradicts
Appellant’s claims and allegations. This is true with regard to Appellant’s
alleged understanding of the negotiated terms of the plea deal, as well as
Appellant’s claimed justification in the record for the filing of a motion to
suppress. Accordingly, we find no merit to this argument.
{¶24} 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 his 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.
Scioto App. No. 12CA3482 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be 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 Scioto
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.
Harsha, J. & Abele, J: Concur in Judgment and Opinion.
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.