[Cite as State v. Hubbard, 2025-Ohio-2150.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 114352 v. :
KMEENE HUBBARD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 18, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-05-470442-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher and Matthew Moretto, Assistant Prosecuting Attorneys, for appellee.
Mary Catherine Corrigan, for appellant.
LISA B. FORBES, P.J.:
Defendant-appellant Kmeene Hubbard (“Hubbard”) appeals the
judgment of the Cuyahoga County Court of Common Pleas denying, without a
hearing, his second postsentence motion to withdraw his guilty plea. For the
reasons that follow, we affirm the trial court’s denial. I. Facts and Procedural History
On September 15, 2005, Hubbard was indicted on two counts of
aggravated murder, one count of murder, and to two counts of aggravated robbery,
in connection with the death of two people. Each count carried a three-year firearm
specification. At arraignment, Hubbard pleaded not guilty to the charges. The trial
court found him to be indigent and appointed counsel.
Gloves and a knit mask had been obtained from the scene of the crime
and were thought to belong to the perpetrator. Accordingly, DNA testing became a
central concern in the case. On November 3, 2005, the trial court granted the State’s
motion for DNA collection in an order stating:
It is hereby ordered that defendant Kmeene Hubbard, D.O.B. December 16, 1985, submit to the taking of blood, saliva and hair samples, to be taken forthwith by a qualified representative of the medical unit of the Cuyahoga County Jail. The samples shall be taken in the presence of detective Michael Smith #948 and/or Detective James Rhodes #2252 and/or any other detective of the Cleveland Police Department Homicide Unit and in the presence of defendant’s counsel, at the Cuyahoga County Jail Medical Unit by employees of the Cuyahoga County Jail/Cuyahoga County Sheriff. The samples shall be forwarded to the Cuyahoga County Coroner.
After receiving the court order, the detectives immediately proceeded
to arrange for DNA collection. The detectives called Hubbard’s counsel. Counsel
related that he would not be present for the DNA collection and requested the
opportunity to speak with Hubbard on the phone. After Hubbard spoke with
counsel on the phone, Hubbard allowed the DNA collection to proceed without
incident. The DNA collected from Hubbard matched the DNA collected from the items found at the crime scene. Hubbard sought an independent review of a second
DNA sample. The results of the independent review confirmed those of the original
collection. No objection was made by Hubbard as to either sample.
On July 12, 2006, Hubbard pleaded guilty to one count of aggravated
murder and one count of murder, in exchange for the dismissal of the remaining
charges. Hubbard was sentenced to a term of life in prison with parole eligibility
after 30 years on the aggravated murder to run concurrent with a life term with
parole eligibly after 15 years on the murder conviction. The court merged the
firearm specifications for a total sentence of 33 years to life in prison. Hubbard did
not file a direct appeal from his convictions.
In July 2013, Hubbard filed a pro se motion to withdraw his guilty
plea, arguing that the plea was not entered knowingly, intelligently, and voluntarily
because of ineffective assistance of counsel. Specifically, Hubbard argued that his
counsel did not adequately investigate his case and encouraged him to take a plea
deal. Hubbard also argued that counsel was ineffective for failing to object to the
trial court’s imposition of postrelease control on unspecified felonies. The trial court
denied the motion without a hearing.
On June 26, 2024, Hubbard filed a second motion to withdraw his
plea. This time Hubbard argued that his plea was not knowing, voluntary, and
intelligent due to counsel’s ineffectiveness in failing to attend the DNA collection in
violation of a court order and for failing to move to suppress the DNA sample that was collected. On August 8, 2024, the trial court denied this motion without holding
a hearing.
Hubbard now appeals that decision, raising the following assignment
of error: “The trial court abused its discretion in denying Appellants postsentence
motion to withdraw plea without a hearing.”
II. Law and Analysis
A ruling on a motion to withdraw a guilty plea is reviewed for an abuse
of discretion. State v. Xie, 62 Ohio St.3d 521, 526 (1992); see also State v. Hines,
2020-Ohio-663, ¶ 7 (8th Dist.). A trial court abuses its discretion when its decision
“‘is unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). An
abuse of discretion “involves more than a difference in opinion.” State v. Weaver,
2022-Ohio-4371, ¶ 24. “For a court of appeals to reach an abuse-of-discretion
determination, the trial court’s judgment must be so profoundly and wholly violative
of fact and reason.” Id.
Crim.R. 32.1 states that 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.” A 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,
2002-Ohio-6502, ¶ 13 (8th Dist.).
A trial court is not obligated to hold a hearing on every postsentence
motion to withdraw a guilty plea; rather “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, 2017-Ohio-5818, ¶ 11 (8th Dist.). A
trial court’s decision whether to hold a hearing on a postsentence motion to
withdraw a guilty plea is reviewed for an abuse of discretion. State v. Simmons,
2021-Ohio-1656, ¶ 20 (8th Dist.).
We find that the trial court did not abuse its discretion in denying
Hubbard’s second motion to withdraw his guilty plea because res judicata applies.
Res judicata bars a defendant from raising, in a Crim.R. 32.1 postsentence motion
to withdraw a guilty plea, claims that he raised or could have raised on direct appeal.
State v. Straley, 2019-Ohio-5206, ¶ 15, citing State v. Ketterer, 2010-Ohio-3831,
¶ 59; see also State v. Nicholson, 2012-Ohio-1550, ¶ 11 (8th Dist.) (“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.”). That Hubbard’s
counsel was not present during the DNA collection was a fact known to the parties
and court at the time Hubbard entered his guilty pleas to aggravated murder and
murder. At no point during the Crim.R. 11 plea colloquy did Hubbard raise any
concerns about counsel’s absence during DNA collection. In fact, when he was asked
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[Cite as State v. Hubbard, 2025-Ohio-2150.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 114352 v. :
KMEENE HUBBARD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 18, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-05-470442-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher and Matthew Moretto, Assistant Prosecuting Attorneys, for appellee.
Mary Catherine Corrigan, for appellant.
LISA B. FORBES, P.J.:
Defendant-appellant Kmeene Hubbard (“Hubbard”) appeals the
judgment of the Cuyahoga County Court of Common Pleas denying, without a
hearing, his second postsentence motion to withdraw his guilty plea. For the
reasons that follow, we affirm the trial court’s denial. I. Facts and Procedural History
On September 15, 2005, Hubbard was indicted on two counts of
aggravated murder, one count of murder, and to two counts of aggravated robbery,
in connection with the death of two people. Each count carried a three-year firearm
specification. At arraignment, Hubbard pleaded not guilty to the charges. The trial
court found him to be indigent and appointed counsel.
Gloves and a knit mask had been obtained from the scene of the crime
and were thought to belong to the perpetrator. Accordingly, DNA testing became a
central concern in the case. On November 3, 2005, the trial court granted the State’s
motion for DNA collection in an order stating:
It is hereby ordered that defendant Kmeene Hubbard, D.O.B. December 16, 1985, submit to the taking of blood, saliva and hair samples, to be taken forthwith by a qualified representative of the medical unit of the Cuyahoga County Jail. The samples shall be taken in the presence of detective Michael Smith #948 and/or Detective James Rhodes #2252 and/or any other detective of the Cleveland Police Department Homicide Unit and in the presence of defendant’s counsel, at the Cuyahoga County Jail Medical Unit by employees of the Cuyahoga County Jail/Cuyahoga County Sheriff. The samples shall be forwarded to the Cuyahoga County Coroner.
After receiving the court order, the detectives immediately proceeded
to arrange for DNA collection. The detectives called Hubbard’s counsel. Counsel
related that he would not be present for the DNA collection and requested the
opportunity to speak with Hubbard on the phone. After Hubbard spoke with
counsel on the phone, Hubbard allowed the DNA collection to proceed without
incident. The DNA collected from Hubbard matched the DNA collected from the items found at the crime scene. Hubbard sought an independent review of a second
DNA sample. The results of the independent review confirmed those of the original
collection. No objection was made by Hubbard as to either sample.
On July 12, 2006, Hubbard pleaded guilty to one count of aggravated
murder and one count of murder, in exchange for the dismissal of the remaining
charges. Hubbard was sentenced to a term of life in prison with parole eligibility
after 30 years on the aggravated murder to run concurrent with a life term with
parole eligibly after 15 years on the murder conviction. The court merged the
firearm specifications for a total sentence of 33 years to life in prison. Hubbard did
not file a direct appeal from his convictions.
In July 2013, Hubbard filed a pro se motion to withdraw his guilty
plea, arguing that the plea was not entered knowingly, intelligently, and voluntarily
because of ineffective assistance of counsel. Specifically, Hubbard argued that his
counsel did not adequately investigate his case and encouraged him to take a plea
deal. Hubbard also argued that counsel was ineffective for failing to object to the
trial court’s imposition of postrelease control on unspecified felonies. The trial court
denied the motion without a hearing.
On June 26, 2024, Hubbard filed a second motion to withdraw his
plea. This time Hubbard argued that his plea was not knowing, voluntary, and
intelligent due to counsel’s ineffectiveness in failing to attend the DNA collection in
violation of a court order and for failing to move to suppress the DNA sample that was collected. On August 8, 2024, the trial court denied this motion without holding
a hearing.
Hubbard now appeals that decision, raising the following assignment
of error: “The trial court abused its discretion in denying Appellants postsentence
motion to withdraw plea without a hearing.”
II. Law and Analysis
A ruling on a motion to withdraw a guilty plea is reviewed for an abuse
of discretion. State v. Xie, 62 Ohio St.3d 521, 526 (1992); see also State v. Hines,
2020-Ohio-663, ¶ 7 (8th Dist.). A trial court abuses its discretion when its decision
“‘is unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). An
abuse of discretion “involves more than a difference in opinion.” State v. Weaver,
2022-Ohio-4371, ¶ 24. “For a court of appeals to reach an abuse-of-discretion
determination, the trial court’s judgment must be so profoundly and wholly violative
of fact and reason.” Id.
Crim.R. 32.1 states that 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.” A 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,
2002-Ohio-6502, ¶ 13 (8th Dist.).
A trial court is not obligated to hold a hearing on every postsentence
motion to withdraw a guilty plea; rather “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, 2017-Ohio-5818, ¶ 11 (8th Dist.). A
trial court’s decision whether to hold a hearing on a postsentence motion to
withdraw a guilty plea is reviewed for an abuse of discretion. State v. Simmons,
2021-Ohio-1656, ¶ 20 (8th Dist.).
We find that the trial court did not abuse its discretion in denying
Hubbard’s second motion to withdraw his guilty plea because res judicata applies.
Res judicata bars a defendant from raising, in a Crim.R. 32.1 postsentence motion
to withdraw a guilty plea, claims that he raised or could have raised on direct appeal.
State v. Straley, 2019-Ohio-5206, ¶ 15, citing State v. Ketterer, 2010-Ohio-3831,
¶ 59; see also State v. Nicholson, 2012-Ohio-1550, ¶ 11 (8th Dist.) (“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.”). That Hubbard’s
counsel was not present during the DNA collection was a fact known to the parties
and court at the time Hubbard entered his guilty pleas to aggravated murder and
murder. At no point during the Crim.R. 11 plea colloquy did Hubbard raise any
concerns about counsel’s absence during DNA collection. In fact, when he was asked
by the court whether there had been any difficulties with counsel, Hubbard responded, “no.” Furthermore, Hubbard had the opportunity to challenge the
validity of his plea due to counsel’s failure attend the DNA collection by filing a direct
appeal. Hubbard did not exercise this right. Any attempt to now challenge the plea
on this basis through a Crim.R. 32.1 motion to withdraw a guilty plea is res judicata.
Even if res judicata were not to apply, we would still affirm the trial
court’s denial of Hubbard’s motion to withdraw because Hubbard did not suffer a
manifest injustice. Hubbard claims that his guilty pleas were not knowing,
voluntary, and intelligent because his counsel was ineffective for failing to be present
during DNA collection. “Ineffective assistance of counsel can constitute manifest
injustice sufficient to allow the post-sentence withdrawal of a guilty plea where it
causes a guilty plea to be less than knowing, intelligent and voluntary.” (Cleaned
up.) State v. Norris, 2019-Ohio-3768, ¶ 28 (8th Dist.). When an allegation
underlying a motion to withdraw a guilty plea is ineffective assistance of counsel, the
defendant must show (1) that counsel’s performance was deficient, i.e., counsel’s
performance fell below an objective standard of reasonable representation, and
(2) that there is a reasonable probability that, but for counsel’s deficient
performance, the defendant would not have pleaded guilty and would have insisted
on going to trial. Id. at ¶ 29.
Assuming, for the sake of argument, that Hubbard’s counsel was
deficient for failing to attend DNA collection in violation of a court order, Hubbard
has failed to show a reasonable probability that but for counsel’s deficiency he would
not have pleaded guilty and would have instead insisted on going to trial. Hubbard does not attempt to explain how counsel’s absence at DNA collection had any impact
on the ultimate results of the DNA testing, which positively matched Hubbard’s
DNA to DNA collected from items left at the crime scene. It was this positive DNA
match that drove the State’s case against Hubbard and that ultimately led to the
entering of guilty pleas. Thus, without some indication that counsel’s performance
impacted the results of the DNA tests, we cannot conclude that there is a reasonable
probability that Hubbard would have forgone the plea deal offered by the State and
insisted on going to trial.
III. Conclusion
For the foregoing reasons, we affirm the trial court’s denial of
Hubbard’s Crim.R. 32.1 motion to withdraw his guilty plea. Hubbard’s single
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 issue out of this court directing the
common pleas court to carry this judgment into execution. Case remanded to the
trial court for execution of sentence. 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 MICHAEL JOHN RYAN, J., CONCUR