[Cite as State v. Winters,
2012-Ohio-2713.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
KIRK E. WINTERS : Case No. 12-CA-18
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 92CR18489
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 14, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT KIRK E. WINTERS, #254-678
20 South Second Street Madison Correctional Institution
4th Floor 1851 State Route 56
Newark, OH 43055 P.O. Box 740
London, OH 43140
Licking County, Case No. 12-CA-18 2
Farmer, J.
{¶1} On January 6, 1992, the Licking County Grand Jury indicted appellant,
Kirk Winters, on one count of aggravated murder in violation of R.C. 2903.01 and one
count of aggravated robbery in violation of R.C. 2911.01. On April 28, 1992, appellant
pled no contest to the charges. By judgment entries filed same date, the trial court
sentenced appellant to an aggregated term of life in prison with parole eligibility after
twenty years.
{¶2} On October 20, 1997, appellant filed a motion to withdraw his pleas. By
judgment entry filed November 12, 1997, the trial court denied the motion. Appellant
appealed and this court affirmed the trial court's decision. State v. Winters, July 20,
1998, Licking App. No. 97CA144.
{¶3} On December 21, 2011, appellant filed a second motion to withdraw his
pleas. By judgment entry filed February 9, 2012, the trial court denied the motion.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "NO FINDING OF FACTS OR CONCLUSION OF LAW."
II
{¶6} "STATE CLAIMED UNDUE DELAY."
III
{¶7} "TRAIL (SIC) COURT ERROR (SIC) IN DENYING AN EVIDENTIARY
HEARING FOR DEFENDANT."
Licking County, Case No. 12-CA-18 3
IV
{¶8} "TRIAL COURT ERROR (SIC) IN NOT REVIEWING THE RECORDS OF
THE DEFENDANT'S CRIM.R. 11 PROCEEDINGS."
I, II, III, IV
{¶9} Appellant challenges the trial court's denial of his Crim.R. 32.1 motion to
withdraw his no contest pleas. We disagree.
{¶10} Specifically, appellant claims the trial court should have filed findings of
facts and conclusions of law, should not have considered the issue of undue delay,
should have afforded him an evidentiary hearing, and should have reviewed the record
and transcript of his plea hearing.
{¶11} Crim.R. 32.1 governs withdrawal of guilty plea and states, "[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." "[U]nder such
standard, a postsentence withdrawal motion is allowable only in extraordinary
cases.***The standard rests upon practical considerations important to the proper
administration of justice, and seeks to avoid the possibility of a defendant pleading guilty
to test the weight of potential punishment." State v. Smith (1977), 49 Ohio St.2d 261,
264. (Citations omitted.)
{¶12} "Although the rule itself does not provide for a time limit after the
imposition of sentence, during which a motion to withdraw a plea of guilty must be
made, it has been held that an undue delay between the occurrence of the alleged
Licking County, Case No. 12-CA-18 4
cause for withdrawal and the filing of the motion is a factor adversely affecting the
credibility of the movant and militating against the granting of the motion." Id.
{¶13} The right to withdraw a plea is not absolute and a trial court's decision on
the issue is governed by the abuse of discretion standard. Smith, supra. In order to
find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore (1983),
5 Ohio St.3d 217.
{¶14} Appellant's December 21, 2011 second motion to withdraw his pleas was
made almost twenty years after his April 28, 1992 pleas and sentencing. Appellant
based his claim for the right to withdraw his pleas on the fact that his trial counsel
informed him that he would be "out in 14 years or less with good time," but at his
November 2011 parole board hearing, he learned that he would not be eligible to be
released. Appellant argues these facts equate to a manifest injustice and he should
have been permitted to withdraw his pleas.
{¶15} Appellant first filed a motion to withdraw his pleas on October 20, 1997,
citing the following reason:
{¶16} "1) Defendant pleaded no contest to the charges of aggravated murder
and aggravated robbery and was induced to do so by a false promise of counsel.
Counsel promised that because the trial court abused its discretion when it failed to
suppress Defendant's statement he would appeal and Defendant would be granted a
new trial without his statement being used against him at that trial."
Licking County, Case No. 12-CA-18 5
{¶17} The trial court denied the motion on November 12, 1997. Appellant
appealed and this court affirmed the trial court's decision, finding the record contradicted
appellant's allegations. State v. Winters, July 20, 1998, Licking App. No. 97CA144.
{¶18} Res judicata is defined as "[a] valid, final judgment rendered upon the
merits bars all subsequent actions based upon any claim arising out of the transaction
or occurrence that was the subject matter of the previous action." Grava v. Parkman
Twp., 73 Ohio St.3d 379,
1995-Ohio-331, syllabus. Based upon this doctrine,
appellant's Crim. R. 32.1 motion should have been summarily denied.
{¶19} Furthermore, we disagree with appellant's argument that the trial court did
not do findings of fact and conclusions of law as the February 9, 2012 judgment entry
adopted the arguments as set forth in the state's January 3, 2012 response regarding
undue delay and the lack of evidentiary materials in support of the motion.
{¶20} The issue of undue delay was correctly considered given the fact that the
trial court had previously ruled on the same motion in 1997.
{¶21} There is no requirement for a hearing when sufficient evidentiary facts via
affidavits are not advanced by appellant. State v. Knowles, Cuyahoga App. No. 95239,
2011-Ohio-1685.
{¶22} Lastly, as for appellant's argument that the trial court did not review the
record and the transcript of the plea hearing, we find a complete transcript of the
hearing is contained in the record. During the hearing, the trial court specifically
addressed the sentences for the charges as follows:
Licking County, Case No. 12-CA-18 6
{¶23} "THE COURT: On the charge of aggravated murder, the maximum
sentence - - actually the only sentence is life in prison with the possibility of parole only
after having served 20 years in prison; do you understand that?
{¶24} "THE DEFENDANT: Yes.
{¶25} "THE COURT: Do you also understand that the maximum sentence on the
charge of aggravated robbery is 10 years, to an in - - an indeterminate sentence of 10
years to 25 years in prison; do you understand that?
{¶26} "THE DEFENDANT: Yes.
{¶27} "THE COURT: And that there's a fine on the murder case of up to
$25,000, and that there is a fine on the aggravated robbery charge of up to $10,000; do
you understand that?
{¶28} "THE DEFENDANT: Yes.
{¶29} "THE COURT: Do you understand that the sentences imposed can run
consecutively with each other, that is that you can be required to serve one and then
begin serving the other?
{¶30} "THE DEFENDANT: Yes." April 28, 1992 T. at 18-19.
{¶31} In its judgment entries filed April 28, 1992, the trial court sentenced
appellant as follows:
{¶32} "[Count I] The Defendant being before the Court, and having been
inquired of by the Court as to whether the Defendant had anything to say in mitigation of
sentence, it is the SENTENCE AND JUDGMENT OF THE COURT THAT: Defendant is
sentenced to life in prison with eligibility for parole after serving twenty years and the
Defendant is given credit for prior jail time in the sum of ____ days. The sentence
Licking County, Case No. 12-CA-18 7
imposed herein shall be served concurrently with the sentence in Count II of this
indictment. The Defendant is ordered to pay the costs of this action in the sum of
$_____, for which sum, judgment and execution is awarded. The sentence is to be
served at Orient Correctional Facility. No fine is imposed.
{¶33} "[Count II] The Defendant being before the Court, and having been
inquired of by the Court as to whether the Defendant had anything to say in mitigation of
sentence, it is the SENTENCE AND JUDGMENT OF THE COURT THAT: Defendant is
sentenced to an indeterminate term of 10 to 25 years at the Orient Correctional Facility
and the Defendant is given credit for prior jail time in the sum of ____ days. The
sentence is to be served concurrently with Count I of this indictment. The Defendant is
ordered to pay the costs of this action in the sum of $_____, for which sum, judgment
and execution is awarded. No fine is imposed."
{¶34} There is no indication that the trial court did not review the transcript in
denying appellant's second motion to withdraw his pleas. In addition, as the above cited
section of the change of plea hearing transcript demonstrates, appellant was advised
that he would not be eligible for parole until after twenty years had lapsed.
{¶35} Upon review, we find the trial court did not err in denying appellant's
second motion to withdraw his pleas.
{¶36} Assignments of Error I, II, III, and IV are denied.
Licking County, Case No. 12-CA-18 8
{¶37} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Gwin, J. concur.
s/Sheila G. Farmer________________
s/ Patricia A. Delaney______________
s/ W. Scott Gwin__________________
JUDGES
SGF/sg 511
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
KIRK E. WINTERS :
:
Defendant-Appellant : CASE NO. 12-CA-18
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.
s/Sheila G. Farmer________________
s/ Patricia A. Delaney______________
s/ W. Scott Gwin__________________
JUDGES
