Kenneth J. Cremeans, Chillicothe Correctional Institution,
Chillicothe, Ohio, pro se appellant.
K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio,
DECISION AND JUDGMENT ENTRY
William H. Harsha, Judge.
In December 2015, Kenneth J. Cremeans pled guilty to a charge
of aggravated robbery and received a sentence of 10 years in
prison. In June 2017, the trial court denied Cremeans's
postsentence motion to withdraw his guilty plea, which was
filed almost 18 months after his conviction and sentence.
Cremeans asserts that the trial court abused its discretion
by denying his postsentence motion to withdraw his guilty
Cremeans contests the validity of his plea based on his
mental illness rendering him incompetent, his disabling
withdrawal from opioids, and the coercion by his trial
counsel to plead guilty. However, res judicata barred these
claims, which he could have raised in a timely appeal from
his conviction and sentence. Moreover, he did not meet his
burden of establishing the existence of manifest injustice;
the affidavits Cremeans filed in support of his motion did
not create a genuine issue about his competency at the time
he pleaded guilty and did not effectively assert coercion by
his trial counsel. Finally, the trial court did not err by
failing to hold an evidentiary hearing on Cremeans's
motion because the record clearly refuted his factual
assertions. We overrule Cremeans's assignment of error
and affirm the denial of his postsentence motion to withdraw
his guilty plea.
In March 2015, the Meigs County Grand Jury returned an
indictment charging Kenneth J. Cremeans with one count of
aggravated robbery and one count of kidnapping with
accompanying firearm specifications. The trial court
appointed counsel for Cremeans, who entered a plea of not
guilty by reason of insanity. Following an evaluation before
he was bound over to the common pleas court, Cremeans was
found competent to stand trial. Following a second evaluation
a psychologist determined that Cremeans had a severe mental
disease, but that it did not preclude him from knowing the
wrongfulness of the acts charged in the indictment. In
October 2015, Cremeans stipulated to his competency and
withdrew his plea of not guilty by reason of insanity.
In December 2015, Cremeans executed a written plea of guilty
to the charge of aggravated robbery. In the form Cremeans
represented that: (1) he was mentally competent to enter a
guilty plea; (2) he was satisfied with his trial
counsel's competence, advice, and counsel; (3) he was not
under the influence of drugs or alcohol, and he was not under
the duress of any threats; and (4) he entered his plea freely
and voluntarily and of his own accord and with full
understanding of all matters set forth in the indictment and
the guilty plea form.
At that change-of-plea hearing the trial court advised
Cremeans of his rights and the possible penalties involved
and found he made his guilty plea knowingly, intelligently,
and voluntarily, with full awareness of the possible
consequences of his plea. The trial court accepted
Cremeans's guilty plea, convicted him, and sentenced him
to a 10-year prison sentence.
Nearly 18 months later, in June 2017, Cremeans filed a pro se
postsentence motion to withdraw his guilty plea. He claimed
that his guilty plea was invalid because he did not make it
knowingly, intelligently, and voluntarily in that he was
incompetent and in withdrawal from opioid medications at the
time he entered the plea. He also claimed that he was coerced
by his trial counsel to enter the plea. In support of his
motion he attached the affidavits of his grandfather, Larry
Douglas, and his mother, Tammy Tinkham.
In his affidavit Douglas stated that: (1) Cremeans had been
prescribed painkillers; (2) when Cremeans stopped using
painkillers, he did not act or behave normally; (3) Cremeans
told him that he "may be" withdrawing from
painkillers; and (4) this occurred during the period of time
of his release from county jail and his court appearance for
his plea agreement.
In her affidavit Tinkham stated that: (1) Cremeans had been
prescribed painkillers; (2) he was now going through
withdrawal; (3) he had mental illness and diminished
capacity; and (4) his trial counsel coerced him into entering
a guilty plea by telling him that the state's offer was
the final plea deal and that if he did not accept the plea
that day, the case would proceed to trial.
After the state filed a memorandum in opposition, the trial
court denied Cremeans's postsentence motion to withdraw