[Cite as State v. Earnest,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 26646 : v. : T.C. NO. 14CR3928/1 : BRANDI J. EARNEST : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the ___25th___ day of ____September____, 2015.

...........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio 45409 Attorney for Defendant-Appellant

BRANDI J. EARNEST, Inmate #W091-979, Ohio Reformatory for Women, 1479 Collins Avenue, Marysville, Ohio 43040 Defendant-Appellant

.............

FROELICH, P.J.

{¶ 1} After the trial court overruled her motion to suppress, Brandi J. Earnest pled

no contest to complicity to commit aggravated robbery, a first-degree felony. The charge -2-

arose out of the robbery of a Little Caesar’s pizza store, of which Earnest was an

employee. The trial court found her guilty and sentenced her to four years in prison.

Earnest was ordered to pay restitution to Little Caesar’s Enterprises in the amount of

$2,041.46 and court costs. Earnest appeals from her conviction.

{¶ 2} Earnest’s counsel has filed a brief pursuant to Anders v. California,

,

,

(1967), stating that after thoroughly examining the

record and the law, he “has been unable to locate a viable issue on appeal.” Counsel

identified potential assignments of error related to the trial court’s denial of Earnest’s

motion to suppress, the trial court’s plea hearing, and Earnest’s sentence. By entry, we

informed Earnest that her attorney had filed an Anders brief on her behalf and granted

her 60 days from that date to file a pro se brief. No pro se brief was filed.

{¶ 3} We have conducted our independent review of the record pursuant to

Penson v. Ohio,

,

,

(1988), and we agree with

appellate counsel that there are no non-frivolous issues for review.

I. Motion to Suppress

{¶ 4} Detective Vincent Mason of the Kettering Police Department testified at the

suppression hearing. His testimony, which the trial court found to be credible,

established the following facts.

{¶ 5} At approximately 10:30 a.m. on September 7, 2014, the Little Caesar’s pizza

store on East Dorothy Lane in Kettering was robbed; Earnest and another employee,

Emily Gilley, were working there at the time. Money and two cell phones were reportedly

taken during the robbery. Detective Mason was working dispatch that day, but he was

asked to attempt to “ping” the two telephones, one of which belonged to Earnest. Mason -3-

could not ping Earnest’s cell phone because Earnest did not know the number, and the

other phone could not be pinged due to the type of cell phone it was.

{¶ 6} The next day, September 8, Detective Mason was assigned the robbery as

the lead detective. He reviewed the videotape of the Little Caesar’s robbery and saw

three people: Earnest, Gilley, and a suspect dressed all in black. Mason went to Gilley’s

and Earnest’s residences to speak with them about the robbery.

{¶ 7} Detective Mason drove to Earnest’s residence in a city-issued “regular” car

(not a police cruiser), a 2010 Ford Escape. Detective Mason testified that he wanted to

speak with Earnest to get her side of the story, information about the suspect, and get her

cell phone number. Mason stated it was “basic information-gathering in connection with

the investigation.” Earnest was not a suspect at the time.

{¶ 8} Earnest agreed to talk to Mason, but they went outside so as to not disturb

Earnest’s baby, who was sleeping. Earnest and Detective Mason sat in the rear of

Earnest’s vehicle; another detective, Detective McGuire, sat in the front passenger seat.

Detective Mason stated that Earnest was not patted down before entering the vehicle,

and she was not handcuffed. The doors were closed because of the cold weather, but

the doors were not locked.

{¶ 9} The next day, September 9, Detective Mason received a phone call from

Earnest; Earnest gave the detective the phone number that she said belonged to the cell

phone that had been taken. Detective Mason learned the identity of the phone company

that the cell number belonged to and obtained a warrant for information from the phone

company. A couple of weeks later, Mason received information from the phone company

that the phone number had been activated on September 8, four or five hours after Mason -4-

had spoken with Earnest at her apartment. The number had not been active before then.

{¶ 10} Detective Mason contacted Earnest about the cell phone number and talked

with her several times at Little Caesar’s over the next couple of months in connection with

the investigation. The detective told Earnest that he needed the phone number for the

phone that was taken during the robbery. The conversations occurred outside the store.

{¶ 11} On October 23, 2014, Earnest called Detective Mason with another phone

number for the phone that was taken. The detective obtained the phone records for this

number.

{¶ 12} On November 6, 2014, Detective Mason attempted to call Earnest, but the

phone number he had was turned off. The detective tried another number he had for

Earnest and reached Mike Class, who lived with Earnest. Mason asked Class for the

phone number from the phone that was taken during the robbery. Class responded that

there was no phone taken during the robbery. Class provided Mason a different phone

for Earnest. Detective Mason became suspicious and ordered the phone records for

Class’s phone number and the number Class provided for Earnest. There were no calls

on either phone at the time of the robbery.

{¶ 13} On November 11, 2014, Detective Mason went to Little Caesar’s and spoke

with Earnest, who was the acting manager, about an unrelated matter involving

counterfeit money that was passed through the store. Earnest started sweating

profusely.

{¶ 14} The next day, November 12, a Kettering police officer advised Detective

Mason that Earnest had reported that she had taken the bank bag home instead of

depositing it and that it (and other items) had been stolen out of her car. Detectives -5-

Mason and McGuire went to Earnest’s apartment complex and searched the dumpsters

there. They located the bank bag on top of other garbage in a dumpster. The detectives

knocked on Earnest’s door, but there was no answer.

{¶ 15} On November 13, Detective Mason called Earnest and told her that he

needed to talk to her about the bank bag and the thefts from her vehicle. Earnest stated

that she had to go to work and asked the detective to meet her there. Detectives Mason

and Winters drove to the Little Caesar’s in Mason’s city-issued car and waited. When

Earnest arrived, she acknowledged the detectives and went into the store. She came

back out approximately 15 minutes later.

{¶ 16} Earnest spoke with the detectives in the back of Mason’s vehicle. She was

not handcuffed, patted down, or placed under arrest; Mason stated that he does not carry

handcuffs with him. Detective Mason spoke to Earnest about both the bank bag incident

and the robbery of the Little Caesar’s. He informed Earnest that she was a suspect in

the robbery. Mason told Earnest, “You’re going home no matter what” and that he would

need to talk to a prosecutor to see what a prosecutor wanted to do with the case. Mason

asked most of the questions, although Detective Winters asked a couple. No promises

were made to Earnest. Earnest made several statements about what had occurred.

Detective Mason asked Earnest to write a statement after they were finished talking.

Earnest agreed, and she wrote it in the back seat of the car. Earnest left the vehicle

afterward. Detective Mason did not provide Earnest with Miranda warnings at any time

during their conversation.

{¶ 17} On November 17, 2014, Earnest was arrested and charged by complaint in

the Kettering Municipal Court with complicity to commit aggravated robbery (deadly -6-

weapon). A grand jury indicted Earnest for complicity to commit aggravated robbery on

December 11, 2014. Earnest pled not guilty.

{¶ 18} On December 29, 2014, Earnest moved to suppress the evidence against

her, including her oral and written statements. The suppression hearing was limited to

whether Earnest’s statements were made while she was in custody and thus obtained in

violation of Miranda v. Arizona,

,

,

(1966). The

trial court subsequently overruled Earnest’s motion, finding that none of Detective

Mason’s various interviews with Earnest occurred in a custodial setting and, thus, Miranda

did not apply.

{¶ 19} On appeal, appellate counsel raises as a potential assignment of error that

the trial court erred in overruling her motion to suppress. We agree that with counsel

that the record establishes that she was not in custody when her statements were made

and that an appeal of the trial court’s suppression ruling is frivolous.

{¶ 20} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” State v. Retherford,

,

(2d Dist. 1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence.

. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court’s conclusion, whether they meet the applicable

legal standard.”

{¶ 21} Under the Fifth Amendment to the United States Constitution, no person -7-

shall be compelled to be a witness against himself or herself. In order to ensure that this

right is protected, statements resulting from custodial interrogations are admissible only

after a showing that the procedural safeguards described in Miranda have been followed.

In re R.L.,

,

, ¶ 17 (2d Dist.), citing In re Haubeil, 4th Dist.

Ross No. 01CA2631,

, ¶ 9.

{¶ 22} Miranda defined custodial interrogation as “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way.”

. “[T]he ultimate inquiry is

simply whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the

degree associated with a formal arrest.” California v. Beheler,

,

,

(1983), citing Oregon v. Mathiason,

,

,

(1977). The inquiry whether a person is subject to custodial

interrogation focuses upon how a reasonable person in the suspect’s position would have

understood the situation. Berkemer v. McCarty,

,

,

(1984). The subjective views of the interviewing officer and the suspect are

immaterial to the determination of whether a custodial interrogation was conducted.

Stansbury v. California,

,

,

(1994); State

v. Hatten,

,

,

(2d Dist.).

{¶ 23} Here, none of the face-to-face interviews with detectives in Detective

Mason’s vehicle, which was not a police cruiser, was conducted in a custodial setting; the

same is true with respect to the telephone conversations. With respect to the interviews

in Mason’s vehicle specifically, Earnest agreed to speak with detectives in that setting;

the conversation on September 8 occurred in Mason’s vehicle because Earnest did not -8-

want to speak in her apartment, for fear of waking her baby. For each of the interviews,

Earnest was not patted down prior to entering the vehicle, she was not handcuffed, and

the doors were not locked. The detectives wore plain clothes and did not display their

weapons. The interviews lasted 15 to 20 minutes, and Earnest returned to her apartment

or place of employment after the interviews. Because Earnest was not in custody when

the interviews occurred, the detectives were not required to provide Miranda warnings.

II. Plea Hearing and Sentencing

{¶ 24} With respect to Earnest’s plea hearing, appellate counsel states that the

plea transcript “demonstrates substantial, if not model compliance,” with Crim.R. 11.

Counsel further notes that Earnest’s sentence was within the agreed sentencing range

{¶ 25} Crim.R. 11(C)(2) requires the court to address the defendant personally and

(a) determine that the defendant is making the plea voluntarily, with an understanding of

the nature of the charges and the maximum penalty, and, if applicable, that the defendant

is not eligible for probation or for the imposition of community control sanctions; (b) inform

the defendant of and determine that the defendant understands the effect of the plea of

guilty and that the court, upon acceptance of the plea, may proceed with judgment and

sentencing; and (c) inform the defendant and determine that he or she understands that,

by entering the plea, the defendant is waiving the rights to a jury trial, to confront

witnesses against him or her, to have compulsory process for obtaining witnesses, and

to require the State to prove guilt beyond a reasonable doubt at a trial at which he or she

cannot be compelled to testify against himself or herself. State v. Brown, 2d Dist.

Montgomery No. 21896,

.

{¶ 26} The Supreme Court of Ohio has urged trial courts to literally comply with -9-

Crim.R. 11. State v. Clark,

,

,

.

However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial

court need only substantially comply with those requirements. E.g., State v. Nero,

,

(1990). “Substantial compliance means that under

the totality of the circumstances the defendant subjectively understands the implications

of his plea and the rights he is waiving.”

In contrast, the trial court must strictly

comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights.

Clark at ¶ 31.

{¶ 27} Furthermore, when non-constitutional rights are at issue, a defendant who

challenges his plea on the basis that it was not knowingly, intelligently, and voluntarily

made generally must show a prejudicial effect. State v. Veney,

,

,

. Prejudice in this context means that the plea

would otherwise not have been entered. Id. at ¶ 15.

{¶ 28} Upon review of the transcript of the plea hearings, we agree with appellate

counsel that no arguably meritorious claims exist concerning Earnest’s plea. The trial

court fully complied with the requirements of Crim.R. 11.

{¶ 29} Finally, the parties agreed as part of Earnest’s plea agreement that Earnest

would receive a sentence between three and five years in prison. Having pled no contest

to a first-degree felony, Earnest was subject to a sentence between three years and

eleven years in prison. The trial court imposed a four-year sentence, which was within

both the statutory range and the agreed-upon range. Moreover, Earnest had previously

been sentenced to prison on two occasions. In 2007, she was sentenced in two separate

cases to one year for a robbery that occurred in December 2006 and to seven months for -10-

a burglary that occurred in November 2006.

{¶ 30} The trial court imposed restitution and court costs; in doing so, the court

stated that it had considered Earnest’s present and future ability to pay those sums. The

amount of restitution, $2,041.46, was the amount provided by the Little Caesar’s regional

loss prevention manager in the presentence investigation report. The court properly

imposed post-release control. We find no arguable error in the trial court’s imposition of

sentence.

IV. Conclusion

{¶ 31} In accordance with our obligation under Penson, we have reviewed the

entire record, including the transcripts of the suppression, plea, and sentencing hearings.

Based on the record, we find this appeal is frivolous. Accordingly, the trial court’s

judgment will be affirmed.

.............

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Carley J. Ingram Gary C. Schaengold Brandi J. Earnest Hon. Mary L. Wiseman