[Cite as State v. Bruister, 2023-Ohio-3794.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112410

v. :

DARIN BRUSITER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: October 19, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-11-549689-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Anthony T. Miranda, Assistant Prosecuting 

Attorney, for appellee. 

Paul Croushore, for appellant. 

LISA B. FORBES, P.J.:

Darin Brusiter (“Brusiter”) appeals from the trial court’s journal entry 

denying his postsentence motion to withdraw his guilty plea. After reviewing the 

facts of the case and pertinent law, we affirm the lower court’s judgment.
I. Facts and Procedural History

In April 2011, Brusiter was charged with two counts of aggravated 

murder, with murder-for-hire and firearm specifications, kidnapping, insurance 

fraud, and tampering with evidence in relation to the killing of Asia Harris 

(“Harris”). Harris’s husband Samuel Wilson was also charged in the same 

indictment. Brusiter filed a motion to suppress the statements he made to the police 

as being in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 

694 (1966). On May 2, 2012, the court denied Brusiter’s motion and that same day 

he pled guilty to one count each of aggravated murder, kidnapping, insurance fraud, 

and tampering with evidence. The state dismissed the second count of aggravated 

murder and the murder-for-hire specification. The court sentenced Brusiter to an 

agreed term of “33 years to life” in prison.

Brusiter filed a direct appeal of the trial court’s denial of his motion 

to suppress. This court affirmed Brusiter’s convictions, finding that he waived his 

right to appeal pretrial rulings when he pled guilty and the trial court complied with 

Crim.R. 11(C)(2) in accepting this guilty plea. “We have previously held that where 

a trial court carries out the mandates of Crim.R. 11(C)(2), no prejudice accrues to 

the appellant where the court fails to inform him of the effect of his plea on pretrial 

motions.” State v. Brusiter, 8th Dist. Cuyahoga No. 98614, 2013-Ohio-1445, ¶ 7 

(“Brusiter I”). “Consistent with [case law] authority, Ohio courts, when confronted 

with defendants who have pled guilty to aggravated murder and subsequently 

sought to appeal pretrial rulings, have found such arguments waived.” Id. at ¶ 8. In 
finding that Brusiter waived his right to challenge the denial of his motion to 

suppress, this court also concluded that “the record on appeal affirmatively 

demonstrates that [Brusiter] entered a voluntary, knowing and intelligent guilty 

plea as required by Crim.R. 11.” Id. at ¶ 9.

Brusiter filed an application to reopen Brusiter I, pursuant to 

App.R. 26(B), in which he argued that his appellate counsel was ineffective for 

failing to argue that his murder and kidnapping convictions should merge as allied 

offenses. See State v. Brusiter, 8th Dist. Cuyahoga No. 98614, 2013-Ohio-3803

(“Brusiter II”). This court denied the application to reopen, finding that in Brusiter 

I, his convictions “were affirmed because [his] guilty plea waived any error relating 

to the motion to suppress,” and “the parties had stipulated that the murder charge 

and the kidnapping charge would not merge as allied offenses.” Id. at ¶ 3.

While Brusiter I and Brusiter II were pending, Brusiter filed a 

petition to vacate or set aside judgment of conviction or sentence based on a claim 

of ineffective assistance of counsel in the trial court. In March 2014, the trial court 

denied this postconviction motion, and Brusiter appealed arguing that “the trial 

court abused its discretion in denying him an evidentiary hearing on his petition for 

postconviction relief.” This court affirmed the trial court’s judgment, finding that 

the trial court “did not abuse its discretion in denying Brusiter’s petition without a 

hearing because he failed to satisfy his burden to provide sufficient, operative facts 

outside the record to demonstrate that counsel’s performance was deficient.” State 

v. Brusiter, 8th Dist. Cuyahoga No. 101908, 2015-Ohio-1549, ¶ 12 (“Brusiter III”). 
This court also found that, because Brusiter “could have raised his claims regarding 

trial counsel in his direct appeal, * * * his challenges are barred by res judicata.” Id. 

at ¶ 14. 

On August 12, 2015, Brusiter filed a pro se motion to withdraw guilty

plea due to newly discovered evidence. In this motion, Brusiter argued that he 

should be entitled to withdraw his plea, based on a breach of his plea agreement, 

because he received a letter dated May 31, 2015, from the Ohio Attorney General 

Collections Enforcement Section (the “OAG”). In this letter, the OAG stated that the 

Ohio Crime Victims Reparations Fund granted a claimant, Brenda Cook, an award 

of $15,679.07 in relation to the murder of Harris. This letter “demand[s] settlement 

of this claim * * *.” According to Brusiter, this letter breached his plea agreement 

because his sentencing journal entry reflects that costs and fines were waived and 

no restitution was ordered. 

On February 26, 2020, Brusiter, who was represented by counsel at 

this time, filed a second motion to withdraw guilty plea. In this motion, Brusiter 

argued that there are two reasons he should be allowed to withdraw his guilty plea. 

“First, there is a manifest injustice due to ineffective assistance of counsel at a critical 

stage in the proceeding (plea negotiation, plea agreement, and appeal). * * * Second, 

* * * Brusiter’s rights to Due Process and protection from self-incrimination under 

the Fifth Amendment were violated during the investigation and later in the motion 

to suppress hearing.” 
The trial court summarily denied both motions to withdraw guilty 

plea on February 8, 2023. It is from this order that Brusiter appeals raising one 

assignment of error for our review.

I. The trial court erred in denying Mr. Brusiter’s timely motion to 

withdraw his guilty plea, and in doing so without hearing the 

evidence.

Before reaching the merits of Brusiter’s appeal, we note that in 

Brusiter’s appellate brief, he presents arguments concerning only the denial of his 

February 26, 2020 motion to withdraw guilty plea. Therefore, we will not address 

his 2015 pro se motion to withdraw guilty plea.

II. Law

A. Postsentence Motion to Withdraw Guilty Plea

Appellate courts review a trial court’s ruling on a motion to withdraw 

a guilty plea for an abuse of discretion. State v. Xie, 62 Ohio St.3d 521, 526, 584 

N.E.2d 715 (1992). See also State v. Hines, 8th Dist. Cuyahoga No. 108326, 2020-

Ohio-663, ¶ 7. A trial court abuses its discretion when its decision “‘is unreasonable, 

arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 

N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.3d 151, 157, 404 N.E.2d 144 

(1980). The Ohio Supreme Court recently explained that an abuse of discretion 

“involves more than a difference in opinion.” State v. Weaver, Slip Opinion 

No. 2022-Ohio-4371, ¶ 24. That is, a trial court’s judgment that is “profoundly and 

wholly violative of fact and reason” constitutes an abuse of discretion. Id.
Pursuant to Crim.R. 32.1, 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.” This court has stated that 

manifest injustice “comprehends a fundamental flaw in the path of justice so 

extraordinary that the defendant could not have sought redress from the resulting 

prejudice through another form of application reasonably available to him or her.” 

State v. Sneed, 8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502, ¶ 13.

“A trial court is not automatically required to hold a hearing on every 

postsentence motion to withdraw a guilty plea. * * * A hearing is required only if the 

facts alleged by the defendant, accepted as true, would require that the defendant be 

allowed to withdraw the plea.” State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 

2017-Ohio-5818, ¶ 11. We “review a trial court’s decision whether to hold a hearing 

on a postsentence motion to withdraw a guilty plea for an abuse of discretion.” State 

v. Simmons, 8th Dist. Cuyahoga No. 109786, 2021-Ohio-1656, ¶ 20.

B. Res Judicata

“Res judicata bars the assertion of claims against a valid, final 

judgment of conviction that have been raised or could have been raised on appeal. 

* * * Ohio courts of appeals have applied res judicata to bar the assertion of claims 

in a motion to withdraw a guilty plea that were or could have been raised at trial or 

on appeal.” State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, 

¶ 59. See also State v. Nicholson, 8th Dist. Cuyahoga No. 97567, 2012-Ohio-1550, 
¶ 11 (“Nicholson could have raised the issue on direct appeal but did not do so. 

Accordingly, any argument regarding the validity of his plea is now barred by res 

judicata.”).

III. Analysis

On appeal, Brusiter argues that “the trial court should have at least 

held an evidentiary hearing on the questions presented of ineffective assistance of 

counsel in failing to apply the new standards that ineffectiveness of counsel during 

a critical stage makes the plea involuntary, unintentional, and unknowing.” Brusiter 

supports this argument by citing to the United States Supreme Court’s decision in 

Garza v. Idaho, 586 U.S. 2, 139 S.Ct. 738, 203 L.Ed.2d 77 (2019). Brusiter’s 

argument is based on his assumption that the 

U.S. Supreme Court recently changed the standards of ineffective 

assistance of counsel set by Strickland v. Washington (1984), 466 U.S. 

668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, by adopting it partially and 

holding that the “prejudice” requirement is presumed if the 

ineffectiveness of counsel was during a critical stage of the hearing.

However, our reading of Garza does not align with Brusiter’s assumption.

Garza did not change the standard for ineffective assistance of 

counsel. Rather, the Garza Court explained the court’s previous holding regarding 

circumstances when a presumption of prejudice arises as articulated in Roe v. 

Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000):

We hold today that the presumption of prejudice recognized in FloresOrtega applies regardless of whether a defendant has signed an appeal 

waiver. This ruling follows squarely from Flores-Ortega and from the 

fact that even the broadest appeal waiver does not deprive a defendant 

of all appellate claims. Accordingly where, as here, an attorney 

performed deficiently in failing to file a notice of appeal despite the 
defendant’s express instructions, prejudice is presumed “with no 

further showing from the defendant of the merits of his underlying 

claims.” See Flores-Ortega, 528 U.S., at 484, 120 S.Ct. 1029, 145 

L.Ed.2d 985.

Garza at 749-750.

The Garza opinion applies to cases in which “an attorney performed 

deficiently in failing to file a notice of appeal despite the defendant’s express 

instructions” to do so and the defendant signed “an appeal waiver.” Id. See also 

State v. Cognati, 9th Dist. Summit No. C.A. No. 29905, 2022-Ohio-601, ¶ 145 

(applying Garza and Flores-Ortega in holding that “counsel’s failure to follow Mr. 

Cognati’s express instructions to file an appeal would constitute deficient 

performance, and prejudice would be presumed”). Upon review, we find that Garza

does not apply to the case at hand, which is Brusiter’s fourth appeal. This case is not 

an example of counsel failing to file an appeal despite Brusiter’s express instruction 

to do so. 

Furthermore, we find that Brusiter’s 2020 motion to withdraw his 

guilty plea, which alleged ineffective assistance of counsel and the improper denial 

of his motion to suppress, is barred by the doctrine of res judicata. Brusiter filed a 

direct appeal in which he challenged the trial court’s denial of his motion to 

suppress. This court, in Brusiter I, affirmed Brusiter’s convictions, finding that he 

waived his right to challenge the denial of his motion to suppress by pleading guilty. 

This court also found that Brusiter’s guilty plea was voluntary, knowing, and 

intelligent. Id. at ¶ 9. In Brusiter II, this court reiterated the holdings in Brusiter I. 
Brusiter II at ¶ 3. Additionally, this court rejected Brusiter’s ineffective assistance 

of counsel claim in Brusiter III and found that this claim was barred by the doctrine 

of res judicata, because it was not raised in Brusiter’s direct appeal. Brusiter III at 

¶ 14. 

The trial court did not abuse its discretion by denying Brusiter’s 

motion to withdraw his guilty plea without holding a hearing. The motion was filed 

almost nine years after he pled guilty to aggravated murder and other offenses 

associated with the death of Harris. Brusiter’s arguments concerning ineffective 

assistance of counsel and the suppression of evidence were rejected by this court in 

his previous appeals. Accordingly, Brusiter’s sole assignment of error is overruled. 

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

LISA B. FORBES, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and

MARY J. BOYLE, J., CONCUR