State v. Walters , 2013 Ohio 772 ( 2013 )


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  • [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.