State v. Parsons

[Cite as State v. Parsons, 2026-Ohio-3852.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) STATE OF OHIO C.A. No. 31770 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE KELLY LEE PARSONS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-1990-03-0594-C DECISION AND JOURNAL ENTRY Dated: September 30, 2026 SUTTON, Judge. {¶1} Defendant-Appellant Kelly Lee Parsons appeals the judgment of the Summit County Court of Common Pleas. For the reasons that follow, this Court affirms. I. Relevant Background Information {¶2} “This case arose out of the murder of [W.S.].” State v. Parsons, 1991 WL 35107, *1 (9th Dist. Mar. 13, 1991) (“Parsons I”). “At approximately 10:30 p.m. on February 22, 1990, [] Kelly Lee Parsons, went to [W.S.’s] home in Tallmadge, Ohio with Daniel J. Burns and Ted Patterson.” Id. “Within an hour after their arrival, [W.S.] had been stabbed sixteen times with three instruments: a hunting knife, a throwing knife and a letter opener.” Additionally, “Parsons, Burns and Patterson took approximately $30,000 in cash from [W. S.’s] home. The three then went to Kent, Ohio where they divided the money and disposed of the weapons.” Id.  2 {¶3} Mr. Parsons pleaded guilty to aggravated murder and aggravated robbery. As part of the plea agreement, the State agreed it would “take no position on parole in this matter either for or against an early parole pursuant to the good time reductions that he is eligible for.” Further, at the plea and sentencing hearings, the Prosecutor stated: In my agreement as to parole, I will not take a position on the parole of Mr. Parsons, although I will contact the Parole Board and explain to them the facts of this case, the role of each man, and what did happen here in this crime. {¶4} The trial court sentenced Mr. Parsons to life imprisonment on the count of aggravated murder and 10 to 25 years on the aggravated robbery count. The trial court ordered the sentences to run concurrently. {¶5} Mr. Parsons appeared for his first parole hearing in 2003. Parole was denied and Mr. Parsons “was informed that, due to the revised parole eligibility guidelines, he would not be eligible for parole until he had served 300 months (or 25 years) in prison.” State v. Parsons, 2005- Ohio-268, ¶ 3 (9th Dist.) (“Parsons II”). In 2004, Mr. Parsons filed his first motion to withdraw his guilty plea, pursuant to Crim.R. 32.1. arguing it was a manifest injustice to subject him to new parole guidelines. The trial court denied Mr. Parsons’ motion and this Court affirmed that decision, stating: [Mr. Parsons] has no constitutional right to parole. A decision denying him parole does not affect his constitutional rights. The imposition of new parole guidelines was not a manifest injustice. Therefore, we do not find that the trial court abused its discretion by denying [Mr. Parsons’] motion to withdraw his guilty plea. (Internal citations omitted.) Id. at ¶ 14. {¶6} In 2011 and 2019, the parole board denied Mr. Parsons’ parole a second time and third time citing the aggravating factors of the offense and the extreme violence associated with W.S.’s murder. After being denied parole a third time, Mr. Parsons filed a second motion to withdraw his guilty plea. In his second motion to withdraw his guilty plea, Mr. Parsons argued  3 “the prosecutor’s office breached the plea agreement by providing a negative recommendation to the Ohio Adult Parole Authority.” State v. Parsons, 2022-Ohio-2852, ¶ 6 (9th Dist.) (“Parsons III”). The trial court denied Mr. Parsons’ motion and this Court affirmed the trial court’s decision. Id. at ¶ 6, 13. {¶7} Mr. Parsons was denied parole again in 2024, and the parole board continued his review until 2028. Mr. Parsons filed another motion to withdraw his guilty plea which the trial court denied. Mr. Parsons failed to file a timely appeal and sought a delayed appeal. This Court denied Mr. Parsons motion for delayed appeal. See State v. Parsons, 9th Dist. Summit No. 31570 (July 23, 2025). Mr. Parsons, in June of 2025, filed a fourth motion to withdraw his guilty plea restating the same arguments as in his previous two motions. The trial court denied Mr. Parsons’ motion because it was barred by the doctrine of res judicata. {¶8} In State v. Parsons, 2026-Ohio-1752, ¶ 4-6 (9th Dist.) (“Parsons IV”), this Court stated: In September 2024, Parsons filed another motion to withdraw his guilty plea based upon the same argument as his 2019 motion. In January 2025, the trial court denied the motion. Parsons did not appeal. In June 2025, Parsons again moved to withdraw his guilty plea for the same reason. Parsons asserted in his motion that it was accompanied by an affidavit of an attorney who spoke to the prosecutor’s office and confirmed that the prosecutor’s office had previously opposed Parsons’ parole request as the office was unaware of that portion of the plea agreement. However, the only document attached to [Parsons’] motion was a transcript of his plea hearing. The State opposed the motion, citing both res judicata and law of the case, but also argued that Parsons had not demonstrated a manifest injustice. In July 2025, the trial court concluded that Parsons’ argument was barred by res judicata, and, even if it was not, Parsons had not demonstrated a manifest injustice.  4 In affirming the trial court’s decision based upon the doctrine of res judicata, this Court explained: “[h]ere, in Parsons’ motion to withdraw, he raised the same issue that he has previously raised twice before. Accordingly, res judicata was applicable.” Id. at ¶ 10. {¶9} Mr. Parsons filed a fifth successive motion to withdraw his guilty plea in September 20251, again arguing the prosecutor’s office had previously opposed Mr. Parsons’ parole request because the office was unaware of that portion of the plea agreement regarding the State not taking a position regarding parole. This time, Mr. Parsons’ actually attached Attorney Andrea Whitaker’s affidavit, which was also referenced in his June 2025 motion. Attorney Whitaker averred Summit Legal Defenders represented Mr. Parsons at his 2024 parole hearing and spoke with Prosecutor Elliot Kolkovich. According to Ms. Whitaker, Prosecutor Kolkovich indicated “the office had previously been unaware of that portion of the plea deal, and their office had opposed during Mr. Parsons[’] prior parole requests.” Ms. Whitaker, based upon her alleged conversation with Prosecutor Kolkovich, also averred the State would no longer take a position at Mr. Parsons’ parole hearings. {¶10} The trial court denied Mr. Parsons’ motion based upon the doctrine of res judicata. {¶11} Mr. Parsons appealed raising two assignments of error for our review. II. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AND VIOLATED THE OHIO AND UNITED STATES CONSTITUTION WHEN THE TRIAL COURT CONCLUDED [MR. PARSONS’] MOTION TO ENFORCE GUILTY PLEA OR ALLOW [MR. PARSONS] TO WITHDRAW THE GUILTY PLEA WAS BARRED BASED ON LAW OF THE CASE DOCTRINE AND RES JUDICATA. 1 Although Mr. Parsons captioned his September 2025 motion as a “motion to enforce guilty plea or allow defendant to withdraw guilty plea[,]” Mr. Parsons indicated in the motion that the only remedy available is to withdraw the guilty plea.  5 {¶12} In his first assignment of error, Mr. Parsons argues the trial court abused its discretion when the trial court concluded his most recent motion to withdraw his guilty pleas was barred by the doctrine of res judicata. {¶13} “This Court has recognized that a successive motion to withdraw a guilty plea filed pursuant to Crim.R. 32.1 is subject to the doctrine of res judicata. Under the doctrine of res judicata, any issue that was or should have been litigated in a prior action between the parties may not be relitigated. An offender may not raise issues in a successive motion to withdraw a guilty plea that could have been raised in the initial motion.” State v. Brundage, 2025-Ohio-2310, ¶ 9 (9th Dist.), quoting State v. Kimbro, 2014-Ohio-4869, ¶ 7 (9th Dist.). {¶14} Here, Mr. Parsons has raised the issue of the State allegedly failing to honor his plea deal multiple times in postconviction motions to withdraw his guilty plea and has appealed the same. Further, in his June 2025 motion, Mr. Parsons could have attached the affidavit, which was attached to his September 2025 motion, but he did not do so. Those motions and appeals have been litigated to finality. In this appeal, Mr. Parsons again argues the State failed to honor that portion of his plea agreement relating to the State not taking a position at his parole hearings. This issue has been: (1) litigated in several motions to withdraw his guilty plea, (2) denied by the trial court, and (3) upheld on appeal. As such, this issue is therefore barred by res judicata and the trial court did not err in denying Mr. Parsons’ fifth motion to withdraw his guilty plea on that basis. See State v. Crangle, 2026-Ohio-428, ¶ 12, 13 (9th Dist.). {¶15} Accordingly, Mr. Parsons’ first assignment of error is overruled. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AND VIOLATED THE OHIO AND UNITED STATES CONSTITUTION AND CREATED A MANIFEST INJUSTICE WHEN THE TRIAL COURT  6 BECAME AWARE THE STATE VIOLATED THE TERMS AND CONDITIONS OF THE JUDICIALLY SANCTIONED PLEA AGREEMENT, THEREBY CREATING A MANIFEST INJUSTICE WHEN IT FAILED TO ENFORCE THE PLEA AGREEMENT OR ALLOW [MR. PARSONS] TO WITHDRAW THE VIOLATED PLEA AGREEMENT. {¶16} In his second assignment of error, Mr. Parsons argues the trial court committed a manifest injustice in failing to enforce the plea agreement or allow Mr. Parsons to withdraw the plea agreement. Based upon our resolution of the first assignment of error, however, Mr. Parsons’ second assignment of error is moot. See App.R. 12(A)(1)(c). {¶17} Accordingly, Mr. Parsons’ second assignment of error is moot. III. {¶18} For the forgoing reasons, Mr. Parsons’ first assignment of error is overruled, and his second assignment of error is moot. The judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to  7 mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. BETTY SUTTON FOR THE COURT FLAGG LANZINGER, J. CONCURS. HENSAL, P. J. DISSENTING. {¶19} I write separately to address the merits of all the arguments Mr. Parsons has made on appeal. Under his first assignment of error, Mr. Parsons has made three separate arguments. First, he argues that his motion was not a Rule 32.1 motion but a request for the trial court to enforce his plea agreement with the State. Second, he argues that, even if it is appropriate to construe his motion to enforce the plea agreement as a motion to withdraw under Rule 32.1, res judicata cannot be applied to it because it is based on newly discovered evidence. Third, he argues that the trial court improperly applied the “case of the law” doctrine to his motion, noting that the trial court also determined that his motion was “barred based upon the law of the case doctrine and res judicata . . . .” {¶20} Regarding Mr. Parsons’s first argument, the Ohio Supreme Court and this Court have recognized a motion to enforce plea agreement as a different mechanism than a motion to withdraw a plea. See State v. Billingsley, 2012-Ohio-4307, ¶ 23; State v. Henderson, 2019-Ohio- 1081, ¶ 8 (9th Dist.). Unlike a motion to withdraw a plea, which is governed by Criminal Rule  8 32.1, the principles of contract law apply to the interpretation and enforcement of a plea agreement. Billingsley at ¶ 26. “When either party to the plea bargain breaches the agreement, the non- breaching party is entitled to either rescission or specific performance of the plea agreement.” Akron v. Schafer, 2014-Ohio-5814, ¶ 6 (9th Dist.), quoting State v. West, 2005–Ohio–990, ¶ 29 (9th Dist.). {¶21} Mr. Parsons has filed several motions to withdraw his plea under Rule 32.1 but he has not previously filed a motion to enforce the plea agreement. In support of his motion, Mr. Parsons submitted an affidavit from his attorney who averred that the State told her that it has opposed Mr. Parsons’s parole requests, contrary to its promise at the sentencing hearing. Because Mr. Parsons has not previously moved for enforcement of the plea agreement on contract principles, I would conclude that the trial court incorrectly denied his motion on the basis of res judicata. {¶22} Regarding Mr. Parsons’s second argument, I would conclude that it is moot in light of his first argument. It would be inappropriate, however, to treat Mr. Parsons’s motion to enforce a plea agreement as a motion to withdraw his guilty plea. As previously explained, a motion to enforce a plea agreement is a different procedure than a motion to withdraw a guilty plea and can result in either recission or specific performance of the agreement. Although Mr. Parsons seeks recission, that alone does not convert his motion into a motion under Rule 32.1. I also note that Mr. Parsons did not cite or rely on Rule 32.1 anywhere in his motion. {¶23} Regarding Mr. Parsons’s third argument, the trial court determined that Mr. Parsons’s motion was also barred by the law of the case, citing this Court’s decision in State v. Parsons, 2022-Ohio-2852 (9th Dist.). That decision addressed a motion to compel Mr. Parsons filed and one of his prior motions to withdraw his guilty plea under Rule 32.1. This Court  9 determined that Mr. Parsons had not developed an argument that challenged the basis of the trial court’s decision. Id. at ¶ 11. This Court’s decision did not address a motion to enforce a plea agreement or establish the law of the case as to such motions. Accordingly, to the extent that the trial court determined that the doctrine of law of the case also barred Mr. Parsons’s argument, I would conclude that it was incorrect. {¶24} In his second assignment of error, Mr. Parsons addresses the merits of his motion to enforce the plea agreement. Because the trial court did not reach the merits of the motion, I would conclude that this argument is premature. {¶25} Upon review of the record, I would sustain Mr. Parsons’s first assignment of error and overrule his second assignment of error. This case should be remanded to the trial court to consider the merits of Mr. Parsons’s motion. Thus, I respectfully dissent. APPEARANCES: KELLY LEE PARSONS, pro se, for Appellant. ELLIOT KOLKOVICH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting Attorney, for Appellee.