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State v. Cremeans

Court of Appeals of Ohio, Fourth District, Meigs

February 2, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
KENNETH CREMEANS, Defendant-Appellant.

          Kenneth J. Cremeans, Chillicothe Correctional Institution, Chillicothe, Ohio, pro se appellant.

          James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          William H. Harsha, Judge.

         {¶1} 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 plea.

         {¶2} 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.

         I. FACTS

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} After the state filed a memorandum in opposition, the trial court denied Cremeans's postsentence motion to withdraw his ...


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