[Cite as State v. Redd, 2015-Ohio-3164.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26273
:
v. : Trial Court No. 2013-CR-3985
:
ARLONDO E. REDD : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 7th day of August, 2015.
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MATHIAS H. HECK, JR., by CHRISTINA E. MAHY, Atty. Reg. No. 0092671, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building,
P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
CHRIS BECK, Atty. Reg. No. 0081844, 1370 North Fairfield Road, Suite C, Beavercreek,
Ohio 45432
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Arlondo Redd appeals from his conviction for complicity to commit
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aggravated robbery. Finding no error, we affirm.
I. Background
{¶ 2} Redd and Kayin Pooler were indicted as co-defendants in January 2014 on
one count of aggravated robbery with a deadly weapon. Redd later filed a motion to
suppress arguing that statements he had made to police were made after unlawful,
coercive custodial interrogation; that he did not knowingly and voluntarily waive his
Miranda rights; and that even if he did waive his rights, he later revoked the waiver.
{¶ 3} Testifying at the suppression hearing were Detective Douglas Baker, one of
the detectives who interviewed Redd, and Redd himself.1 Detective Baker testified that
he went over a Miranda-rights form (admitted as State’s Exhibit 2) before asking Redd
any questions. Baker said that Redd orally acknowledged that he understood each right
and initialed next to each right listed on the form. Finally, said Baker, he had Redd read
the waiver-of-rights section at the bottom of the form and sign the form. During the
interview, Baker said, Redd eventually admitted that he was at the scene of the robbery
but that Pooler was the one with the gun and the one who committed the crime. Redd also
made a written statement in which he admitted being at the scene of the robbery. Redd
claimed that the detectives “tricked” him into admitting that he was at the scene. Redd
said that in response to coercive interrogation tactics he just told the detectives what they
wanted to hear. According to Redd, his entire written statement is false and he was not at
the scene when the robbery occurred.
1
Pooler also filed a motion to suppress, and the suppression hearing was on Pooler’s
motion too. The detective who interviewed Pooler also testified at the hearing.
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{¶ 4} At the end of the hearing, the trial court overruled Redd’s motion to suppress
and explained its rationale. The court concluded that Miranda warnings were required
and that Detective Baker gave them. The court cited a waiver-of-rights form signed by
Redd and said that the form corroborates Detective Baker’s testimony that he complied
with Miranda. On the question of whether Redd had voluntarily waived his rights, the court
said that the critical issue was credibility—Detective Baker’s versus Redd’s. The court
found Baker more credible. Based on Baker’s testimony about the interview and the
waiver-of-rights form, the court concluded that Redd had voluntarily waived his Miranda
rights.
{¶ 5} Following the suppression hearing, Redd and the state entered into a plea
agreement under which the state dismissed the indictment and Redd pleaded no contest
to a bill of information charging him with complicity to commit aggravated robbery with a
deadly weapon, but without a firearm specification which had been in the indictment.2
The trial court sentenced Redd to three years in prison. Redd appealed.
{¶ 6} Redd’s appellate counsel filed an Anders brief. In our independent review of
the record, we found that the termination entry incorrectly stated that Redd had entered a
plea of guilty. This being reversible error, we set aside the Anders brief and appointed
new appellate counsel, giving counsel free reign to “raise any issues that new counsel
wishes, including if appropriate those identified.” Decision and Entry (Dec. 1, 2014). We
turn now to the issues that new counsel has raised.
2
Pooler pleaded guilty to the indicted offense of aggravated robbery with a deadly
weapon and the firearm specification was dismissed.
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II. Analysis
{¶ 7} Redd assigns two errors to the trial court. The first alleges that defense
counsel rendered ineffective assistance, and the second alleges that the trial court should
not have accepted his no-contest plea.
A. Ineffective assistance of counsel
{¶ 1} Redd argues in the first assignment of error that defense counsel was
ineffective. To establish a claim that counsel’s assistance was so defective as to require
reversal of a conviction, the defendant must show that counsel’s performance was
deficient and that the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[T]he proper
standard for attorney performance is that of reasonably effective assistance. * * * When a
convicted defendant complains of the ineffectiveness of counsel’s assistance, the
defendant must show that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 687-688. A reviewing court “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
(Citation omitted.) Id. at 689. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id.
{¶ 2} Redd contends that, at the suppression hearing, defense counsel should
have objected to the state’s cross-examination of him (Redd) because the state’s
questions exceeded the scope of direct examination. Redd says that direct examination
of him was essentially limited to questions regarding the times of the police interviews and
the comments that police made during those interviews. But on cross-examination, he
says, the state asked about whether he had admitted to the robbery and whether he was
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at the scene of the robbery when it was committed.
{¶ 3} “[T]he rules of evidence normally applicable in criminal trials do not operate
with full force at hearings before the judge to determine the admissibility of evidence.”
U.S. v. Matlock, 415 U.S. 164, 172-173, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). This is true
of suppression hearings in Ohio. State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180,
837 N.E.2d 752, ¶ 14, citing Evid.R. 101(C)(1) (the rules of evidence generally do not
apply to admissibility determinations) and 104(A) (in making admissibility determinations
a court is generally not bound by the rules of evidence). Even under the normal rules of
evidence, “[i]n Ohio, cross-examination is not limited to the subject matter of direct
examination. Compare Evid.R. 611(B) with Fed.R. Evid. 611(b). It is available for all
matters pertinent to the case that the party calling the witness would have been entitled or
required to raise.” State v. Treesh, 90 Ohio St.3d 460, 481, 739 N.E.2d 749 (2001).
Accord State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 128
(saying that “[u]nder Evid.R. 611(B), cross-examination is not limited to the scope of direct
examination, but may cover ‘all relevant matters’ ”). Here, the state’s cross-examination
questions arose from Redd’s claim that statements he made to police were coerced. The
state sought to identify which statements were false and which were true. These
questions are relevant to the issue of whether Redd voluntarily waived his Miranda rights.
Therefore defense counsel cannot have rendered ineffective assistance by failing to
object to relevant admissible evidence.
{¶ 4} The first assignment of error is overruled.
B. Voluntariness of plea
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{¶ 5} The second assignment of error alleges that the trial court should not have
accepted Redd’s no-contest plea, because he did not make the plea knowingly and
voluntarily.
{¶ 6} “Crim.R. 11(C) imposes certain conditions on the trial court before it may
accept a plea of guilty or no contest to a felony offense. The purpose of those
requirements is to assure that the plea is knowingly, intelligently, and voluntarily made.”
State v. Jones, 2d Dist. Greene No. 03CA7, 2003-Ohio-4843, ¶ 5. Pertinent here is the
requirement that “[i]n felony cases the court may refuse to accept a plea of guilty or a plea
of no contest, and shall not accept a plea of guilty or no contest without first addressing
the defendant personally and * * * [d]etermining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and of the maximum penalty
involved * * *.” Crim.R. 11(C)(2)(a).
{¶ 7} Here, before accepting Redd’s plea, the trial court told him everything that
Crim.R. 11(C)(2) says a court should tell a defendant. And the court determined that Redd
understood what it was telling him. Along the way, Redd asked several questions. The
court answered each of his questions until Redd said that he understood.
{¶ 8} An apparently important question that Redd had was why he could not
appeal the denial of his motion to suppress before he was sentenced. Redd told the court:
I understand that if I plead no contest, they said I can go to prison and get
a—I can get possible judicial release. And then they said I could probably
appeal it with a expedite appeal. But I’m not understanding. If I can get
judicial release and I leave after six months—say I get granted—I’m still not
going come back for my appeal. And as far as I understand, I had—at my
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motion to suppress hearing, I had inadequate counsel. So I know I could
actually—my case really didn’t allow me—I didn’t really have nothing to do
with this case. You know what I’m saying? And I just know I’m not
understanding why I have to, you know what I’m saying, throw all my rights
away when, if I can appeal it now, before this happened, maybe you would
see—be lenient on my sentencing.
(Tr. 68-69).3 The trial court explained that the reason he could not immediately appeal
was that the suppression ruling was interlocutory and interlocutory rulings may not be
appealed right away. The court assured Redd that he would be able to appeal after he
had been sentenced. Redd said that he understood the court’s explanation.
{¶ 9} Later, the trial court asked Redd if he understood that by pleading no contest
he was giving up certain constitutional rights, and Redd answered, “I’m still thinking,” (Id.
at 77). He then asked the court another appeal question: “Say I found a flaw on my
discovery packet or some flaws inside my case, how do I go about appealing that?” (Id.).
The trial court told him that he could not appeal that issue because he could appeal only
issues that he had already raised, like those in his motion to suppress. But, added the
court, Redd might be able to obtain post-conviction relief on such grounds. Redd said that
he understood. The court then asked him if he understood that he was giving up the
constitutional rights it had mentioned earlier, and Redd replied that he did.
{¶ 10} Redd says that the numerous questions he asked during the plea hearing
indicates that he did not understand the proceedings. We think that just the opposite is
true: that Redd asked questions at the plea hearing suggests that when he finally did
3
The transcript mistakenly identifies the speaker as the court.
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enter his plea he did so knowingly and voluntarily. Redd’s apparent belief that he had not
been adequately represented at the suppression hearing does not show a failure to
understand the consequences of pleading no contest. The trial court did not err by
accepting Redd’s no-contest plea.
{¶ 11} Redd also says that he denied an essential element of the charged offense
and that this shows that he did not understand the nature of the charge to which he
pleaded no contest. Compare Jones, 2003-Ohio-4843, at ¶ 28 (concluding that the trial
court erred by accepting the defendant’s guilty plea where the defendant denied certain
conduct necessary to the offense and the court did not clarify the defendant’s
understanding). At the sentencing hearing, Redd claimed that he was innocent, telling the
court, “I had nothing to do with this crime.” (Tr. 84). But this claim of innocence is not
relevant to the plea-voluntariness analysis, because it was made after Redd entered his
plea. A defendant “cannot rely on post-plea statements or claims of innocence to
establish that the trial court erred in accepting her plea. ‘[W]hen a defendant makes
claims of innocence after a guilty plea has been accepted; a trial court has no duty to
inquire into a defendant’s reasons for pleading guilty.’ The proper way to raise the issue at
that point is a motion to withdraw the plea.” State v. Damron, 2d Dist. Champaign No.
2014-CA-15, 2015-Ohio-2057, ¶ 10, quoting State v. Reeves, 8th Dist. Cuyahoga No.
100560, 2014-Ohio-3497, ¶ 13 (citing cases).
{¶ 12} The second assignment of error is overruled.
{¶ 13} One matter remains and that is the error in the judgment entry of conviction
and sentencing, indicating that Redd entered a guilty plea when his plea was in fact one
of no contest. We had noted this mistake in our Anders review. Before Redd filed his
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present appellate brief, the trial court entered a nunc pro tunc termination entry that
correctly states that Redd entered a plea of no contest. Redd acknowledges the
correction and does not raise the error.
III. Conclusion
{¶ 14} We have overruled all of the assignments of error. The trial court’s judgment
is affirmed.
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FROELICH, P.J., and FAIN, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Christina E. Mahy
Chris Beck
Hon. Timothy N. O’Connell