[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.
