[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.
