[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 Flores-Ortega 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
