State v. CremeansState v. Cremeans
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Marley C. Nelson, Assistant State Public Defender, Columbus, Ohio, for Appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
Smith, P.J.
{¶1} James D. Cremeans appeals his conviction in the Ross County Court of Common Pleas after he pled no contest to Possession of Cocaine,
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On June 1, 2018, a Ross County grand jury secretly indicted Mr. Cremeans on one count of possession of cocaine in an amount exceeding 5 grams, but less than 10 grams, а violation of
{¶3} The parties requested discovery and on July 20, 2018, Cremeans filed a motion to suppress evidence. According to the State‘s response to discovery, on December 20, 2017, Cremeans was operating a silver Chevrolet Impala on East Main Street in Chillicothe, near Cutright Street when Chillicothe Police Detective Samantha Taczak observed Cremeans “operating his vehicle from the right lane to the left lane without signaling 100 feet prior to turning.” Officer Taczak advised Officers King and Shipley.
{¶4} The motion to suppress hearing was continued several times at both parties’ request. The original trial court judge also recused himself. The motion to suppress eventually came on for hearing on March 13 and March 19, 2020. The motion was overruled. The matter was scheduled for a jury trial on September 2, 2020.1
{¶5} On September 1, 2020, Cremeans entered a no contest plea. The matter was set for disposition on October 30, 2020. On October 26, 2020, Cremeans filed a “Motion to Compel and to Dismiss this Case.” In the motion, Cremeans asserted that his counsel received on September 2, 2020, a brand new lab report regarding the drugs at issue and performed by a
{¶6} On October 30, 2020, Cremeans also filed a “Motion to Withdraw Plea of No Contest.” The matter was set for a motion hearing on December 4, 2020. Both motions were denied on December 21, 2020.
{¶7} On March 4, 2021, the trial court imposed a prison sentence of nine months, to be served consecutively to another criminal matter. This timely appeal followed.
ASSIGNMENTS OF ERROR I
- I. THE TRIAL COURT ERRED WHEN IT DID NOT STRICTLY COMPLY WITH CRIM.R. 11(C)(2)(c) DURING ITS PLEA COLLOQUY WITH MR. CREMEANS.
- II. JAMES D. CREMEANS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO PROVIDE THE COURT WITH NECESSARY INFORMATION TO SUPPORT THE ARGUED REASON TO SUPPRESS.
A. ASSIGNMENT OF ERROR ONE
1. Standard of Review
{¶8} ”
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶10} “The ultimate inquiry when reviewing a trial court‘s acceptance of a guilty plea is whether the defendant entered the plea in a knowing, intelligent, and voluntary manner.” State v. Day, 4th Dist. Adams No. 19CA1085, 2019-Ohio-4816, ¶ 23, 149 N.E.3d 122, citing Veney at ¶ 7. “In determining whether a guilty or no contest plea is knowing, intelligent, and voluntary, an appellate court must еxamine the totality of the circumstances through a de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards.” State v. Meade, 4th Dist. Scioto No. 17CA3816, 2018-Ohio-3544, ¶ 6, citing State v. Billiter, 4th Dist. Scioto No. 15CA3720, 2018-Ohio-733, ¶ 15, citing State v. Cooper, 4th Dist. Athens No. 11CA15, 2011-Ohio-6890, ¶ 35. “A guilty
2. Legal Analysis
{¶11} Under the first assignment of error, Cremeans argues that the trial court failed to strictly comply with
{¶12} In response, the State of Ohio points out that the trial court spent time going over the written plea form Cremeans signed. The plea form specifically stated “I understand by pleading no contest, I give up my right to jury trial....” The form then lists the enumerated rights. Furthermore, the State asserts that although the trial court does not use the specific word “waive,” the court clearly instructed Cremeans that the case
{¶13} In the reply brief however, Cremeans counters that the written plea paperwork does not repair the deficient advisal. Further, the trial court‘s statement that it would “likely proceed to sentence” does not clearly advise Cremeans that his constitutional rights would be waived. Creameans concludes that he was never told, explicitly or implicitly, that his constitutional rights would be waived if he entered a plea of no contest and maintains that the court did not strictly comply with
{¶14} We begin with the court‘s colloquy with Cremeаns. Importantly, we observe that before the court began discussing the enumerated constitutional rights, the court questioned Cremeans’ execution and understanding of the “Plea of No Contest” form. The exchange was as follows:
Mr. Cremeans: Yes, You‘re Honor.
The Court: Did you read the agreement?
Mr. Cremeans: Yes.
The Court: Did you understand it?
Mr. Cremeans: Yes.
The Court: Are you satisfied with the advice and counsel of your attorney?
Mr. Cremeans: Yes, Your Honor.
The Court: You‘re charged in the indictment with possession of cocaine. It‘s a fourth-degree fеlony. The elements of that are that you did knowingly obtain, possess, or use cocaine, a schedule two controlled substance, in an amount equal to or exceeding five grams but less than ten grams. Do you understand the allegations contained in the indictment?
Mr. Cremeans: Yes, Your Honor.
The Court: Alright, you‘re entering a no contest plea. A no contest plea is not an admission of the defendant‘s guilt, but it is an admission of the truth of the facts alleged in the indictment. A plea or admission cannot be used against the defendant in any subsequent civil or criminal proceeding. Do you understand what a no contest plea is?
Mr. Cremeans: Yes, Your Honor.
The Court: Alright, do you understand though that for all practical
Mr. Cremeans: Yes, Your Honor.
The Court: Though I am going to, I am going to order a PSI so the sentencing won‘t be today.
Mr. Cremeans: Ok.
The Court: Alright, you understand all of that?
Mr. Cremeans: Yes, Your Honor.
The Court: Alright, it‘s a fourth-degree felony which means it‘s punishable by a term of imprisonment between six and eighteen months and a fine up of to five thousand dollars. I see Ms. Gaba does it the old school way or writing out six, seven, eight, nine, ten, eleven, twelve - Judge Corzine did that the same way. Went through and read them each time. Alright, you understand that as additional financial sanctions the court can order you to pay court costs, make restitution if it‘s appropriate, and if you fail to pay court costs the court can order you to perform community service until the costs are paid?
Mr. Cremeans: Yes, Your Honor.
* * *
The Court: Do you understand that you have the right to have an attorney all the way through trial and if you cannot afford an attorney one will be provided to you at no cost to you?
Mr. Cremeans: Yes.
The Court: Do you understand that you have the right to a trial by a jury of twelve or if you choose by a judge?
The Court: Do you understand that all of the persons on a jury or a judge if it‘s a trial to the court must agree upon your guilt?
Mr. Cremeans: Yes, Your Honor.
The Court: Do you understand that every trial in the State of Ohio has the obligation to prove your guilt beyond a reasonable doubt as to each element of the crime?
Mr. Cremeans: Yes.
The Court: Do you understand that you have the right to a speedy and public trial?
Mr. Cremeans: Yes.
The Court: Do you understand that you have the right to confront any witness who testifies against yоu at trial?
Mr. Cremeans: Yes.
The Court: Do you understand that you have the right to compulsory process?
Mr. Cremeans: Yes.
The Court: Do you understand that you can‘t be forced to testify against yourself at trial and if you elect not to testify at trial, your silence can‘t be used against you in attempt to prove your guilt?
Mr. Cremeans: Yes, Your Honor.
The Court: Do you understand that dependent upon the outcome of your case, you may possess the right to appeal this court‘s decision and then have an attorney appointed for you if you can‘t afford one?
The Court: Do you have any questions of me before we proceed?
Mr. Cremeans: No.
The Court: Are you certain you want to proceed today and change your plea to no contest?
Mr. Cremeans: Yes.
The Court: Alright, let the record reflect the defendant is making a known, intelligent and voluntary decision to withdraw his plea of not guilty and to enter a plea of no contest. The Court finds the defendant has been informed of all his constitutional rights, he understands the nature of the charge, the effect of plea of no contest, as well as any possible penalties that could be imposed. Is there any argument that the facts as alleged in the indictment don‘t constitute the offense, possession of cocaine, a fourth-degree felony?
Ms. Gaba: Uh, no Your Honor.
Ms. Schumaker: No sir.
The Court: Very well. The Court therefore finds the defendant guilty of the offense of possession of cocaine, a fourth-degree felony.
{¶15} Based on the facts in this case, a finding that the trial court strictly complied with
I understand by pleading NO CONTEST I give up my right to a jury or court trial where I could see and have my attorney question witnesses against me, and where I could use the power of the court to call witnesses to testify for me. I know at trial I would not have to take the witness stand and could nоt be forced to testify against myself and that no one could comment if I chose not to testify. I understand I waive my right to have the prosecutor prove my guilt beyond a reasonable doubt on every element of each charge.
{¶16} As affirmed in Miller, a trial court strictly complies with
Common sense tells us that the trial judge‘s use of easily understood words conveyed to Miller that he would be waiving certain constitutional rights if he were to plead guilty and that the exchange resulted in Miller‘s plea being voluntarily, knowingly, and intelligently made. To reach any other result would raise form over substanсe. We refuse to require trial courts to use particular words during the plea colloquy.
{¶18} Similarly, we find that common sense tells us that the trial court‘s use of easily understood words, after having read the plea form which explicitly stated: “I understand by pleading NO CONTEST I give up my right to a jury or court trial...” and then continued the explanation of the rights which were again later explained by the trial court, the trial court strictly complied with
B. ASSIGNMENT OF ERROR TWO
1. Standard of Review
{¶19} To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different. State v. Wilson, 4th Dist. Lawrence No. 18CA15, 2019-Ohio-2754, at ¶ 25; State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In Ohio a properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-679, 860 N.E.2d 77, ¶ 62. Thus, in reviewing the claim of ineffective assistance of counsel, we must indulge in “a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland at 697, 104 S.Ct. 2052. Failure to satisfy either part of the test is fatal to the claim. Id.; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989); State v. Ruble, 2017-Ohio-7259, 96 N.E.3d 792, ¶ 47 (4th Dist.).
{¶20} Moreover, when a reviewing court considers an ineffective assistance of counsel claim, the reviewing court should not consider what, in hindsight, may have been a more appropriate course of action. See State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995), (stating that a reviewing court must assess the reasonableness of the defense counsel‘s decisions at the time they are made). Rather, the reviewing court “must be highly deferential.” Strickland, 466 U.S. at 689. As the Strickland Court stated, a reviewing court: “must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id., 466 U.S. at 689; see also State v. Hamelin (1988), 37 Ohio St.3d 153, 524 N.E.2d 476, cert. den. (1988), 488 U.S. 975, 109 S.Ct. 515, (stating that a properly licensed аttorney is presumed competent and the appellant bears the burden to establish counsel‘s ineffectiveness).
2. Legal Analysis
{¶21} At the suppression hearing, Officer Samantha Taczak testified
I observed a silver Impala occupied by three unknown males at the time make a right turn from Watt Street going eastbound on East Main Street. The vehicle turned into the righthand lane and then failed to signal 100 feet prior to changing lanes from going from the righthand lane to the lefthand lane.
{¶22} Officer Taczak further testified the lane change occurred “fairly quickly.” She described the turn signal activation and vehicle movement as “almost simultaneous.” She clarified that the signal was used, but not 100 feet prior to changing lanes.3 Once Officer Taczak observed the violation, she advised Officer King and Officer Shipley.
{¶23} At the сonclusion of the suppression hearing, the trial court issued his ruling as follows:
The issue in this case is whether he [Cremeans] had his signal on for the distance of 100 feet. I‘m quoting the defendant‘s expert. In conclusion, we have determined that the turn signal was on just before and during the initial few seconds of the lane change. The expert was qualified as an expert but not in kinetic engineering. Two experts were needed in this case. One was the one that testified
today. The one that is missing is an expert who could testify based upon this video how fast that vehicle was going. The only testimony we have in this case is unchallenged. Taczak testified that this vehicle was going at a general speed, that the speed limit is 25 to 35. She didn‘t cite on the radio transmission that this vehicle was speeding, so in the absence of testimony contradicting, and I might point out that a defendant under Ohio and U.S. Federal Law can testify at a suppression hearing without jeopardizing his fifth amendment privilege. This court did not hear from the testimony of anybody in that vehicle, including the occupants of the vehicle, about how long the turn signal was on. About how fast the vehicle was going. The officer‘s testimony is unchallenged. This court finds that this officer made an observation, that there was probable cause to cite this vehicle for improper lane change, properly communicated enough information to the officers to make the stop for probable cause for a violation of that ordnance. There has been no constitutional violation. The motion to suppress is overruled.
{¶24} Under the second assignment of error, Cremeans asserts that his trial counsel rendered ineffective assistance by failing to provide evidence of the speed of his car. Although the trial court indicated its belief that a kinetic engineering expert was needed to testify as to how fast the vehicle was traveling, the court also indicated that anybody in the vehicle, Cremeans or one of the other occupants, could have provided this testimony. Cremeans also acknowledges that he or one of the other occupants of the car could have testified abоut the speed of the car. Due to his counsel‘s failure to elicit favorable testimony on the speed of his vehicle, Cremeans argues
{¶25} First, ” ‘[t]he record developed at trial is generally inadequate to determine the validity of a suppression argument on appeal.’ ” State v. Siders, 4th Dist. Gallia No. 07CA10, 2008-Ohio-2712, at ¶ 11, quoting State v. Culbertson, 5th Dist. Stark No.2000CA00129, *4 (Nov. 13, 2000). “[If] the record is not clear or lacks sufficient evidence to determine whether [there is a reasonable probability that] a suppression motion would have been successful, a claim for ineffective assistance of counsel cannot be established.” State v. Parkinson, 5th Dist. Stark No.1995CA00208, *3 (May 20, 1996). In State v. Gerwin, 3rd Dist. Marion No. 15CR225, 2016-Ohio-5670, the appellate court observed, “this Court has no way of knowing what testimony might [have been] elicited” on this issue at a suppression hearing. Id. at ¶ 23. See State v. Mitchell, 9th Dist. No. 24730, 2009-Ohio-6950, at ¶ 20.
{¶26} In State v. Madrigal, 87 Ohio St.3d 378, 390-91, 721 N.E.2d 52 (2000), the Supreme Court of Ohio declined to find ineffective assistance based on trial counsel‘s failure to employ an eyewitness identification expert because: “[n]othing in the record indicates what kind of testimony an eyewitness identification expert could have рrovided. Establishing that
{¶27} Here, we note that the record contains no facts to indicate how a kinetic engineering expert, Cremeans himself, or the other occupants of Cremeans’ vehicle would have testified on the issue of speed. Cremeans’
{¶28} Second, assuming arguendo that we could properly consider Cremeans’ claims regarding trial counsel‘s failure to call an expert or one of his occupants, it is doubtful that Cremeans could establish that trial counsel rendered ineffective assistance. Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel, even if a better strategy hаd been available. See Gervin, supra, at ¶ 27; State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). The decision whether to call a witness is generally a matter of trial strategy, and, absent a showing of prejudice, does not deprive a defendant of effective assistance of counsel. See State v. Williams, 74 Ohio App.3d 686, 695, 600 N.E.2d 298 (1991). For example, as to calling a lay witness, it may be that Cremeans’ counsel declined to call Cremeans or one of his passengers for fear of opening up a pathway to potentially damaging testimony.
{¶30} Having found no merit to either of Appellant‘s assignments of error, the judgment of the trial court is hereby affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed tо Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will tеrminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
Judge Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.