[Cite as State v. Barnett, 2016-Ohio-8070.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsWILLIAM BARNETT 

 Defendant-Appellant 

JUDGES: 

: HOn. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. CT2016-0028 

: 

: 

: O P I N I O N 

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum 

County Court of Common Pleas, Case No. 

CR20080210 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: December 5, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

D. MICHAEL HADDOX WILLIAM J. BARNETT 

PROSECUTING ATTORNEY #586573 

BY GERALD ANDERSON II Marion Correctional Institution 

ASSIST. PROSECUTING ATTORNEY Box 57 

27 North Fifth St. Marion, OH 43301 

Zanesville, OH 43702-0189 
Muskingum County, Case No. CT2016-0028 2 

Gwin, P.J. 

{¶1} Appellant William J. Barnett [“Barnett”] appeals from the May 26, 2016 

Judgment Entry of the Muskingum County Court of Common Pleas denying his motions 

which include a motion to withdraw his guilty plea; motion for a new trial; motion on 

hearing for newly discovered evidence; and amended motion to suppress DNA evidence. 

Facts and Procedural History 

{¶2} The change of plea transcript indicates that Barnett entered a plea of guilty 

on April 9, 2009, to Rape in violation of R.C. 2907.02, a felony of the first degree, and 

Aggravated Burglary in violation of R.C. 2911.11, a felony of the first degree. In exchange 

for the plea, the state nolled Count 2 of the indictment alleging kidnapping in violation of 

R.C. 2905.01(A)(4) , the sexually violent predator specification to Count 2, the repeat 

violent offender specification to Count 2 and the sexually violent predator and repeat 

violent offender specifications to Count 3. The state recommended a 10-year sentence 

on Count 1 and Count 2 to be served consecutive to one another but concurrent with a 

sentence Barnett was currently serving in the Franklin County Court of Common Pleas. 

(T. at 3). 

{¶3} The facts underlying the allegations were put on the record by the state, 

 MR. SMITH: Thank you, Your Honor. If this matter had proceeded 

to trial, the State believes the evidence would have shown that between 

October 8th and October 9th, 2006, in Muskingum County, the defendant 

did, by force, stealth, or deception, knowingly trespass in an occupied 

structure located at 2926 Brookside Drive, Zanesville, Muskingum County, 

Ohio, with purpose to commit in that structure a criminal offense, that being 
Muskingum County, Case No. CT2016-0028 3 

kidnapping and/or rape, and that he did inflict, attempt to inflict, or threaten 

to inflict physical harm upon his victim identified as ...., this in violation of 

Revised Code Section 2911.11(A)(1). 

 With regard to Count 3, the State believes the evidence would have 

shown on the same date, time, and place the defendant did engage in 

sexual conduct with [the victim], who was not his spouse, and he compelled 

her to submit by force or threat of force, this in violation of Revised Code 

Section 2907.02(A)(2). 

 These charges stem from a Muskingum County Sheriff's Department 

investigation into a complaint filed by [the victim]. That investigation 

revealed that the defendant did enter into her apartment while she was 

gone, laying in wait for her. When she did come home, he brandished a 

knife and did compel her to have sexual conduct with him and escaped. 

This investigation later was able to be solved through the use of forensic 

technology and DNA evidence. 

T. at 11-12. 

{¶4} The trial court sentenced Barnett to 10 years on each count consecutive to 

each other but concurrent with the sentence Barnett was currently serving in the Franklin 

County Court of Common Pleas. (Sent. Entry, filed May 12, 2009). 

{¶5} Barnett appealed raising as his four assignments of error: 

 I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS 

AND THE RIGHT TO A GRAND JURY INDICTMENT UNDER ARTICLE I, 

SECTION 10 TO THE OHIO CONSTITUTION AND THE FIFTH, SIXTH 
Muskingum County, Case No. CT2016-0028 4 

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION BY A PROSECUTIO [SIC] AND RESULTING 

CONVICTION ON AN INSUFFICIENT INDICTMENT FOR AGGRAVATED 

BURGLARY WHICH DID NOT CONTAIN THE RECKLESS MENS REA 

ELEMENT AS REQUIRED BY LAW. 

 II. THE DEFENDANT-APPELLANT’S PLEA WAS NOT 

KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED UNDER 

ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE 

FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION. 

 III. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS 

AND WAS TWICE PLACED IN JEOPARDY IN VIOLATION OF ARTICLE I, 

SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION WHEN HE WAS SENTENCED TO CONSECUTIVE 

TERMS OF IMPRISONMENT FOR THE SAME OFFENSE. 

 IV. THE DEFENDANT-APPELLANT WAS DENIED THE 

EFFECTIVE ASSISTANCE OF COUNSEL UNDER ARTICLE I, SECTION 

10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION. 

State v. Barnett, 5th Dist. Muskingum No. CT2009-0025, 2010-Ohio-1695, ¶5-¶8. This 

court affirmed Barnett’s conviction and sentence. The Ohio Supreme Court declined to 
Muskingum County, Case No. CT2016-0028 5 

exercise jurisdiction. State v. Barnett, 126 Ohio St.3d 1582, 2010-Ohio-4542, 934 N.E. 

355(Table). 

{¶6} On November 24, 2009, Barnett filed a petition for post-conviction relief to 

vacate or set aside his conviction in the trial court pursuant to R.C. 2953.21, claiming 

ineffective assistance of counsel alleging he was forced to accept the plea bargain due 

to misrepresentations made by counsel, he was denied a right to a preliminary hearing 

and his right to a speedy trial was violated. The trial court denied Barnett’s petition by 

Judgment Entry filed November 24, 2009. No appeal was filed from the trial court’s 

judgment entry denying Barnett’s petition. 

{¶7} On October 23, 2015, Barnett filed: 1). Motion for Hearing on Newly 

Discovered Evidence; 2). Crim.R. 33(A)(4)(6) Motion for a New Trial on Evidence Not 

Available for Seven Years; 3). Crim.R. 32.1` Motion for Withdrawal of Guilty Plea- Hearing 

Requested. On October 30, 2015, Barnett filed a Motion to Dismiss Alleged DNA 

Evidence. On November 18, 2015, Barnett filed an Amended Motion to Suppress Alleged 

DNA Evidence. The state filed a response to each motion filed by Barnett. The trial court 

denied all of Barnett’s motions by Judgment Entry filed May 26, 2016. 

Assignments of Error 

{¶8} Barnett raises four assignments of error, 

{¶9} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

DEFENDANT IN DENYING HIS MOTION FOR WITHDRAWAL OF A GUILTY 

PLEA, HEARING REQUESTED. THE TRIAL COURT ERRED IN NOT 

GRANTING THE DEFENDANT A HEARING ON HIS MOTION. A COMPLAINT 

THAT CONTAINS ENOUGH FACTUAL MATTER WHEN TAKEN AS TRUE 
Muskingum County, Case No. CT2016-0028 6 

SHOULD NOT BE DISMISSED. IN DISMISSING THE COMPLAINT, THE 

COURT ERRS. 

{¶10} “II. IN A MOTION FOR NEW TRIAL ON EVIDENCE NOT AVAILABLE FOR 

SEVEN YEARS; IN A MOTION FOR NEW TRIAL ON NEWLY DISCOVERED 

EVIDENCE REQUIRED WHEN THAT EVIDENCE PROVES DEFENDANT NOT ONLY 

INNOCENT OF THE ALLEGED CRIME, BUT NO PROOF EXISTS SUPPORTING THAT 

CRIME OCCURRED. THE TRIAL COURT ERRS BY DISMISSING THE COMPLAINT 

WITHOUT A HEARING. 

{¶11} “III. A MOTION FOR NEW TRIAL ON EVIDENCE NOT 

AVAILABLE FOR SEVEN YEARS. WHEN EVIDENCE KNOWN TO THE STATE 

WAS WITHHELD FROM DEFENDANT FOR SEVEN YEARS THAT PREVIOUSLY 

UNAVAILABLE EVIDENCE RENDERS THE INDICTMENT INSUFFICIENT, AND A 

VERDICT THAT'S NOT SUSTAINED BY SUFFICIENT EVIDENCE IN THE 

PRESENCE OF THE PREVIOUSLY UNAVAILABLE, INCLUDING AFFIDAVITS, 

REQUIRES DISMISSAL OR GRANTING OF A NEW TRIAL. THE TRIAL 

COURT ERRED WHEN IT FAILED TO HOLD A HEARING ON EACH ISSUE 

INSTEAD OF DISMISSING THE MOTIONS. 

{¶12} “IV. ALTHOUGH DNA IS CONSIDERED THE SAME 

AS FINGERPRINT WHEN IT COMES TO EVIDENCE, CROSS 

EXAMINATION IS NOT A PROBLEM WITH A FINGERPRINT; 

HOWEVER, THE MINUTE AMOUNT OF DNA REQUIRED TO BE 

USED IN TESTING INCREASES DRAMATICALLY ITS 

SUSCEPTIBILITY TO CONTAMINATION FROM OTHER SOURCES 
Muskingum County, Case No. CT2016-0028 7 

— PARTICULARLY FORM THE SAMPLE THAT IS BEING RUN IN 

COMPARISON TO. THE TRIAL COURT ERRED WHEN IT FAILED 

TO HOLD A HEARING ON EACH ISSUE INSTEAD OF DISMISSING 

THE MOTIONS.” 

Pro se appellants 

{¶13} We understand that Barnett has filed this appeal pro se. Nevertheless, “like 

members of the bar, pro se litigants are required to comply with rules of practice and 

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. 

We also understand that “an appellate court will ordinarily indulge a pro se litigant where 

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th 

Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted). 

{¶14} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), 

the Supreme Court noted, “a reviewing court cannot add matter to the record before it 

that was not a part of the trial court's proceedings, and then decide the appeal on the 

basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).” 

It is also a longstanding rule "that the record cannot be enlarged by factual assertions in 

the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), 

citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 

227(1963). New material and factual assertions contained in any brief in this court may 

not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 

N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 
Muskingum County, Case No. CT2016-0028 8 

N.E.2d 1202, ¶16. In the interests of justice, we shall attempt to consider Barnett’s 

assignments of error. 

I. 

{¶15} After reviewing Barnett’s brief including his contentions, we have interpreted 

Barnett’s first assignment of error in the following manner: The trial court erred in denying 

his post-sentence motion to withdraw his guilty plea without a hearing. 

{¶16} The entry of a plea of guilty is a grave decision by an accused to dispense 

with a trial and allow the state to obtain a conviction without following the otherwise difficult 

process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States, 

368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete 

admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not 

simply stating that he did the discreet acts described in the indictment; he is admitting 

guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102 

L.Ed.2d 927(1989). 

{¶17} Crim.R. 32.1 provides that a trial court may grant a defendant’s post 

sentence motion to withdraw a guilty plea only to correct a manifest injustice. Therefore, 

“[a] defendant who seeks to withdraw a plea of guilty after the imposition of sentence has 

the burden of establishing the existence of manifest injustice.” State v. Smith, 49 Ohio 

St.2d 261,361 N.E.2d 1324(1977), paragraph one of the syllabus. Although no precise 

definition of “manifest injustice” exists, in general, “‘manifest injustice relates to some 

fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is 

inconsistent with the demands of due process.’” State v. Wooden, 10th Dist. Franklin No. 

03AP–368, 2004–Ohio–588, ¶ 10, quoting State v. Hall, 10th Dist. Franklin No. 03AP–
Muskingum County, Case No. CT2016-0028 9 

433, 2003–Ohio–6939; see, also, State v. Odoms, 10th Dist. Franklin No. 04AP–708, 

2005–Ohio–4926, quoting State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 

N.E.2d 83(1998) (“[a] manifest injustice has been defined as a ‘clear or openly unjust 

act’”) Under this standard, a post-sentence withdrawal motion is allowable only in 

extraordinary cases. Smith, 49 Ohio St.2d at 264, 361 N.E.2d 1324. 

{¶18} “A motion made pursuant to Crim.R. 32.1 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.” Smith at 

paragraph two of the syllabus. Thus, we review a trial court’s denial of a motion to 

withdraw a guilty plea under an abuse-of-discretion standard, and we reverse that denial 

only if it is unreasonable, arbitrary, or unconscionable. Odoms, 2005–Ohio–4926. 

{¶19} Barnett has failed to demonstrate that the evidence he presented to the trial 

court in the form of a test result from Ohio Bureau of Criminal Identification and 

Investigation [“BCI & I”] was “newly discovered.” 

{¶20} A review of the court’s files reveals that trial counsel filed a motion to obtain 

a DNA expert, naming Genetic Technologies, Inc. on September 30, 2008. The grounds 

for the motion as described by counsel was discovery had indicated DNA testing was 

performed in Barnett’s case. The trial court granted defense counsel’s motion on October 

3, 2008. 

{¶21} On October 15, 2008, defense counsel filed a demand for specific 

discovery, including all lab reports, DNA test results, protocols, manuals and procedures 

utilized by the state’s experts. 
Muskingum County, Case No. CT2016-0028 10 

{¶22} On December 22, 2008, defense counsel filed a motion to compel 

discovery. In addition, defense counsel filed his response to discovery identifying 

Stephanie Beine of Genetic Technologies as a witness at trial. In his motion to compel, 

defense counsel informed the trial court of the following, 

 On January 12, 2009, the undersigned counsel received some of the 

specific DNA evidence that was requested on October 15, 2008. The 

undersigned counsel forwarded the evidence received to Defendant's 

expert on January 14, 2009. Once Defendant's expert received the specific 

DNA evidence produced by the State of Ohio, she immediately notified the 

undersigned counsel that it was not complete and that she needed the 

Procedure Manuals for both labs, the Quality Assurance Manuals for both 

labs, and the electronic data for both labs. 

* * * 

 On February 19, 2009, the undersigned counsel received the 

additional BCI information that was requested but to date has not received 

the LabCorp information. On February 19, 2009, the undersigned counsel 

forwarded the additional BCI information to Defendant's expert for her 

review. 

{¶23} The trial court granted defense counsel’s motion to compel on March 4, 

2009, ordering the state to provide specific discovery within five days. 

{¶24} On March 31, 2009, the trial court approved payment to Genetic 

Technologies, Inc. for services performed for the defense from October 31, 2008 through 

March 27, 2009. 
Muskingum County, Case No. CT2016-0028 11 

{¶25} Barnett plead guilty on April 9, 2009. 

{¶26} Barnett produced no evidence that the state failed to comply with the trial 

court’s March 4, 2009 order. No affidavit was presented from either counsel or Genetic 

Technologies, Inc. that the reports Barnett submitted with his motion were not produced 

and reviewed by the defense and the defense expert prior to the date on which he entered 

his negotiated guilty plea. 

{¶27} Further, Barnett submitted in support of his motions a letter from his trial 

attorney dated September 30, 2014, in which counsel inform Barnett, 

 Once Genetics Technologies completed their review and analysis, 

they called me with their opinion. Since their opinion was not favorable to 

you, they did not send me a written report nor did they feel it was necessary 

to perform their own DNA test. 

{¶28} Accordingly, Barnett did not establish that the evidence was “newly 

discovered.” The trial court did not abuse its discretion in denying Barnett’s motion to 

withdraw his guilty plea without a hearing. 

{¶29} Barnett’s first assignment of error is overruled. 

II. & III. 

{¶30} After reviewing Barnett’s brief including his contentions, we have interpreted 

Barnett’s second and third assignments of error in the following manner: the trial court 

erred in overruling his motion for a new trial. 

{¶31} In State v. Aleshire, this court observed, 

 Pleas of guilty that are knowingly, voluntarily, and intelligently 

entered waive the defendant’s right to trial on the criminal charge or charges 
Muskingum County, Case No. CT2016-0028 12 

involved. It necessarily follows, therefore, that “[a] plea of guilty in a criminal 

case precludes the defendant from thereafter making a motion for a new 

trial.” State v. Frohner (1948), 150 Ohio St. 53, 80 N.E.2d 868, paragraph 

thirteen of the syllabus; State, ex rel. Batten v. Reece, 70 Ohio St.2d 246, 

436 N.E.2d 1027; State v. Franklin, Greene App. No.2002-CA-7, 2003-

Ohio-3831 at ¶ 10. 

 Moreover, allowing a defendant to file a motion for new trial instead 

of a motion to withdraw the plea permits the defendant to circumvent the 

more stringent standard set forth in seeking a withdrawal of a plea. State 

v. Frohner, supra. See, also State v. Woodley, Cuyahoga App. No. 83104 

at n. 2. (Citing State v. Burke (Mar. 9, 2001), 2nd Dist. No. 17955; State v. 

Vincent, 4th Dist. No. 02CA2654, 2003-Ohio-473, at ¶ 20; State v. Franklin, 

2nd Dist. No. 2002 CA 77, 2003-Ohio-3831). 

 Accordingly, because appellant entered guilty pleas to all the 

charges and waived his right to have a jury determine his guilt or innocence, 

the trial court correctly determined that it did not have jurisdiction to rule 

upon appellant’s motion for a new trial. Therefore, we affirm the trial court’s 

decision dismissing his motion for a new trial and overrule the appellant’s 

assignment of error related to his filing of a motion for a new trial. 

5th Dist. Licking No. 09-CA-132, 2010-Ohio-2566, ¶54-55; Accord, State v. Armstrong, 

8th Dist., Cuyahoga No. 103088, 2016-Ohio-2627, ¶63; State v. Temaj-Felix, 1st Dist., 

Hamilton No. C-140138, 2015-Ohio-3967, ¶7. 
Muskingum County, Case No. CT2016-0028 13 

{¶32} Accordingly, because Barnett entered guilty pleas to all the charges and 

waived his right to have a jury determine his guilt or innocence, the trial court did not have 

jurisdiction to rule upon his motion for a new trial. Barnett filed a separate motion to 

withdraw his guilty plea, which the trial court addressed. 

{¶33} To the extent Barnett argues his plea was not knowing, intelligent and 

voluntary, Barnett was represented by different counsel on his direct appeal. Barnett did 

raise an assignment of error concerning whether his plea was knowing, intelligent and 

voluntary and an assignment of error concerning whether he was denied the effective 

assistance of counsel. Barnett did further raise these issues based upon similar 

arguments in his petition for post-conviction relief; however, he did not appeal the trial 

court’s denial of his petition. Accordingly, the issues are barred by res judicata. 

{¶34} Therefore, we affirm the trial court’s decision dismissing his motion for a 

new trial and overrule the Barnett’s second and third assignments of error related to his 

filing of a motion for a new trial. 

IV. 

{¶35} After reviewing Barnett’s brief including his contentions, we have interpreted 

Barnett’s fourth assignment of error in the following manner: The trial court erred in not 

conducting a hearing on Barnett’s claim of contamination of the DNA evidence in his case. 

{¶36} “The possibility of contamination goes to the weight of the evidence, not its 

admissibility.” State v. Richey, 64 Ohio St.3d 353, 360, 595 N.E.2d 915 (1992), overruled 

on other grounds, State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997). In other 

words, Barnett could have, but did not, chose to go to trial and argue that the DNA 

evidence was flawed. All of the evidence that Barnett cites to in his brief was available at 
Muskingum County, Case No. CT2016-0028 14 

the time he entered his negotiated guilty plea. Hence, the argument and the evidence 

were available to him before his plea, direct appeal and his petition for post-conviction 

relief. 

{¶37} “Under the doctrine of res judicata, a final judgment of conviction bars the 

defendant from raising and litigating in any proceeding, except an appeal from that 

judgment, any defense or any claimed lack of due process that the defendant raised or 

could have raised at the trial which resulted in that judgment of conviction or on appeal 

from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Res 

judicata also implicitly prohibits a defendant from “re-packaging” evidence or issues that 

either were, or could have been, raised in the context of the petitioner's trial or direct 

appeal. State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362(12th Dist. 1995). 

{¶38} Barnett’s arguments do not raise any issues that are dependent upon 

evidence outside the trial court record. 
Muskingum County, Case No. CT2016-0028 15 

{¶39} Barnett’s fourth assignment of error is overruled. 

{¶40} The judgment of the Muskingum County Court of Common Pleas is 

affirmed. 

By Gwin, P.J., 

Hoffman, J., and 

Wise, J., concur