[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 postconviction 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.