[Cite as State v. Mayberry,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27530 : v. : Trial Court Case No. 16-CR-2963 : ROBERT WINSTON MAYBERRY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 8th day of June, 2018.

...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

JOHN S. PINARD, Atty. Reg. No. 0085567, 120 W. Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Defendant-Appellant

ROBERT WINSTON MAYBERRY, #734-139, Southeastern Correctional Institution, 5900 B.I.S. Road, Lancaster, Ohio 43130 Defendant-Appellant, pro se

............. -2-

FROELICH, J.

{¶ 1} After the trial court overruled his motion to suppress, Robert Winston

Mayberry pled no contest to robbery (physical harm), a felony of the second degree. The

trial court imposed four years in prison and notified him that he was subject to a mandatory

three-year term of post-release control upon his release. The court ordered Mayberry to

pay court costs. For the following reasons, the trial court’s judgment will be affirmed.

I. Anders Procedural History and Standard

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

,

,

(1967), indicating that he found no

“meritorious issues for appeal.” Counsel raised three potential assignments of error,

namely that (1) the trial court erred in denying Mayberry’s motion to suppress, (2) the trial

court failed to comply with Crim.R. 11 at the plea hearing, and (3) the trial court failed to

sentence Mayberry within the statutory guidelines.

{¶ 3} We informed Mayberry that his attorney had filed an Anders brief on his

behalf and granted him 60 days from that date to file a pro se brief. On November 7,

2017, Mayberry filed a pro se brief, raising an additional assignment of error, i.e., that his

trial counsel rendered ineffective assistance by failing to conduct any pretrial

investigation.

{¶ 4} Upon an initial review of the record, we noted that appellate counsel had

indicated that he had reviewed videos of trial court proceedings, but that no transcripts of

those videos had been prepared. We stated, “It is axiomatic that the record in an Anders

case must contain transcripts of all on-the-record proceedings in the trial court. When

the record is incomplete, the filing of an Anders brief is not appropriate.” Decision and -3-

Entry (Feb. 21, 2018). We ordered counsel to arrange for the preparation of the

transcripts, which now has been done. Appellate counsel filed an amended Anders brief,

which added citations to the transcripts.

{¶ 5} Pursuant to Anders, we must determine, “after a full examination of all the

proceedings,” whether the appeal is “wholly frivolous.” Anders,

; Penson

v. Ohio,

,

,

(1988). An issue is not frivolous

merely because the prosecution can be expected to present a strong argument in reply.

State v. Pullen, 2d Dist. Montgomery No. 19232,

, ¶ 4. Rather, a

frivolous appeal is one that presents issues lacking arguable merit, which means that, “on

the facts and law involved, no responsible contention can be made that it offers a basis

for reversal.” State v. Marbury, 2d Dist. Montgomery No. 19226,

, ¶ 8,

citing Pullen at ¶ 4. If we find that any issue -- whether presented by appellate counsel,

presented by the defendant, or found through an independent analysis -- is not wholly

frivolous, we must appoint different appellate counsel to represent the defendant. Id. at

¶ 7.

II. Factual and Procedural History

{¶ 6} According to the presentence investigation report (PSI), at approximately

3:00 a.m. on September 17, 2016, Jessica Cremeens1 drove to the BP gas station on

South Main Street in Dayton and parked by a gas pump; Cremeens’s mother, Susie

Kidwell, was a passenger in the vehicle. Cremeens pulled cash from her bra to give

money to her mother to purchase cigarettes. Cremeens then placed the remaining cash,

1 The record is inconsistent regarding the spelling of Cremeens’s last name. This is the spelling used in the complaint and the indictment. -4-

approximately $350, back into her bra.

{¶ 7} As Cremeens was seated in her vehicle, a man (later identified as Mayberry)

approached her open driver’s window, said he was hungry, and asked if she had spare

change. As Cremeens looked for change, Mayberry punched Cremeens on the left side

of her jaw, reached into her bra, and stole the $350 in cash. Mayberry fled on foot.

Cremeens, Kidwell, and a witness, Ismail Muhammad, chased after Mayberry.

Muhammad caught up with Mayberry behind the gas station and hit Mayberry with his

(Muhammad’s) gun, which Muhammad lawfully carried. However, the magazine fell out

of the gun, and Mayberry was able to flee when Muhammad retrieved it. After the police

were called, the three gave a description of the perpetrator and his clothing, which

included a gray baseball cap with a skull on it. A detective obtained surveillance video

from the gas station; an image of the perpetrator from the video was later distributed to

the media.

{¶ 8} On September 24, 2016, two Dayton police officers were dispatched to a

residence in Dayton on a report that Mayberry was in the apartment and was wanted for

an incident at the BP gas station. Upon arrival, a female resident, who had called the

police, indicated that Mayberry was hiding in the bathroom. The resident showed the

officers a gray baseball cap with a skull on it. When Mayberry was apprehended, he was

wearing the same shoes as the suspect in the surveillance video.

{¶ 9} The next day, Mayberry was charged by complaint with robbery, in violation

of R.C. 2911.02(A)(2). The municipal court set a $50,000 cash or surety bond. After a

preliminary hearing on October 3, 2016, the municipal court found probable cause to

believe that Mayberry had committed the offense, and he was held pending the action of -5-

the grand jury. On October 14, 2016, Mayberry was indicted for robbery (physical harm),

in violation of R.C. 2911.02(A)(2). Mayberry was arraigned and entered a plea of not

guilty.

{¶ 10} In November 2016, Mayberry moved to suppress the pretrial identification

of him by Cremeens, Kidwell, and/or Muhammad. The court held a hearing on the

motion on December 12, 2016, at which two detectives testified. The trial court denied

the motion to suppress on February 27, 2017.

{¶ 11} On March 22, 2017, Mayberry pled no contest to the charged offense. The

trial court ordered a presentence investigation (PSI). As stated above, the trial court

sentenced Mayberry to four years in prison and ordered him to pay court costs.

{¶ 12} Mayberry appeals from his conviction.

III. Motion to Suppress

{¶ 13} Appellate counsel states as a potential assignment of error that the trial

court erred in denying Mayberry’s motion to suppress. In his written motion, Mayberry

sought to suppress the pretrial identifications by Cremeens, Kidwell, and/or Muhammad.

During the suppression hearing, defense counsel stated that he was limiting his motion

to Kidwell’s identification.

{¶ 14} “Due process requires suppression of pre-trial identification of a suspect

only if the identification procedure was so impermissibly suggestive as to give rise to a

very substantial likelihood of misidentification.” Neil v. Biggers,

,

,

(1972).

{¶ 15} The defendant must first show that the identification procedure was unduly

suggestive. “A lineup is unduly suggestive if it steers the witness to one suspect, -6-

independent of the witness’s honest recollection.” (Citations omitted.) State v. Adams,

,

,

. If the pretrial identification

procedure was not unfairly suggestive, any remaining questions as to the identification’s

reliability go to the weight of the identification, not its admissibility, and no further inquiry

into the reliability of the identification is required. Id. at ¶ 209; State v. Williams, 2d Dist.

Montgomery No. 26357,

, ¶ 13.

{¶ 16} If, on the other hand, the defendant shows that the pretrial identification

procedure was unduly suggestive, the court must then consider whether the identification,

viewed under the totality of the circumstances, is reliable despite the suggestive

procedure. E.g., Williams at ¶ 13. In reviewing the likelihood that the circumstances

resulted in a misidentification, courts have considered the opportunity of the witness to

view the perpetrator at the time of the offense, the witness’s degree of attention, the

accuracy of the witness’s prior description of the perpetrator, the level of certainty

demonstrated by the witness at the confrontation, and the length of time between the

crime and the confrontation.2

; Manson v. Brathwaite,

,

,

(1977); State v. Bates,

,

,

.

2 We have previously noted that some of the factors identified in Neil may bear reconsideration in light of the significant advancement of scientific understanding of memory. See State v. Frazier,

,

, ¶ 18, fn. 1 (2d Dist.); State v. Moody, 2d Dist. Montgomery No. 26926,

. For example, Neil and Manson v. Brathwaite,

,

,

(1977) direct courts to consider the witness’s degree of certainty in the identification, yet studies have repeatedly shown little relationship between certainty and accuracy. Nonetheless, as an intermediate court of appeals, this court must continue to follow the factors articulated in Neil and Manson, as required by Ohio Supreme Court precedent. See, e.g., State v. Bates,

,

,

; State v. Gross,

,

,

, ¶ 19, ¶ 25. -7-

{¶ 17} Reliability of the pretrial identification is the linchpin in determining its

admissibility.

. “So long as the identification possesses sufficient

aspects of reliability, there is no violation of due process.” State v. Sherls, 2d Dist.

Montgomery No. 18599,

, *3 (Feb. 22, 2002).

{¶ 18} We review a trial court’s denial of a motion to suppress a pretrial

identification for an abuse of discretion. State v. Wilson, 2d Dist. Montgomery No.

22624,

.

{¶ 19} Detectives Douglas Hall and Joseph Grieshop of the Dayton Police

Department testified at the suppression hearing. Their testimony established the

following facts.

{¶ 20} Detective Hall was assigned as the lead investigator of an incident that

occurred at the BP gas station at 433 South Main Street on September 17, 2016. After

an investigation, the detective identified Mayberry as a suspect. Using Justice Web, Hall

prepared three photospreads to be shown to the victim and two witnesses. Hall

explained that he entered Mayberry’s age, race, sex, height, weight, hair, eye color, and

“all the things that make up somebody’s physical composition,” and the program provided

a large number of photographs from which the detective could choose for the

photospreads. Detective Hall testified that he looked through approximately 30 to 42

photographs to find comparable individuals for the photospreads. Hall printed

photospreads of six photos, including Mayberry; the program randomly ordered the

photographs.

{¶ 21} Detective Hall testified that, after the photospreads were prepared, he gave

the photospreads and instructions to a blind administrator, Detective Grieshop; Grieshop -8-

did not have a printout identifying the individuals in the photographs. Hall stated that

Detective Grieshop was not involved in the investigation and, to Hall’s knowledge, did not

know who the suspect in the case was.

{¶ 22} On September 27, 2016, Cremeens and Kidwell came to police department

to view photospreads. Detective Hall greeted them and explained that they were going

to be separated and were going to speak with a different detective. Hall told them that

they would be asked to view some photographs that may or may not include the suspect.

Hall escorted one of the women to Detective Grieshop and then went back to his office;

the other woman waited in the lobby. When the first woman was done, Hall took the

second woman to Grieshop. Hall did not recall whether Cremeens or Kidwell went first.

{¶ 23} Detective Grieshop testified that Detective Hall approached him, said he

(Hall) had witnesses waiting, and that he needed someone unfamiliar with the case to

administer a photospread. Grieshop stated that he was not familiar with Hall’s case, that

Hall did not discuss the case with him, and that he had not seen any news coverage.

{¶ 24} Grieshop took Kidwell to a room and read her verbatim the instructions on

the packet. Grieshop testified that Kidwell circled photo number 5 (Mayberry’s photo),

initialed it, signed the page, and wrote the date. Kidwell further wrote that she was 98%

certain that the selected individual “robbed and struck” her daughter.

{¶ 25} Because defense counsel limited the suppression motion to Kidwell’s

identification, Detective Grieshop was not asked about Cremeen’s identification of

Mayberry.

{¶ 26} On September 29, 2016, Muhammad came to the police station to view a

photospread. As with Cremeens and Kidwell, Detective Hall took Muhammad to -9-

Detective Grieshop, who administered the photospread. No further evidence was

presented regarding Muhammad’s identification.

{¶ 27} Upon review of the evidence from the suppression hearing, including the

photo spread packet presented to Kidwell, we find no arguably meritorious argument that

the identification procedure employed by the Dayton police was unduly suggestive. The

photospread presented to Kidwell was not unduly suggestive. A blind administrator

presented the photospread to Kidwell, and there was nothing in the manner in which

Detective Hall greeted Kidwell and Detective Grieshop administered the photospread that

would make the presentation unduly suggestive. We agree with appellate counsel that

his proposed assignment of error regarding the denial of Mayberry’s motion to suppress

is frivolous.

IV. Plea Hearing

{¶ 28} Appellate counsel’s second proposed assignment of error raises that the

trial court failed to comply with Crim.R. 11 at the plea hearing.

{¶ 29} 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 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 -10-

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,

.

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

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.

{¶ 31} 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.

{¶ 32} Mayberry’s no contest plea was entered as part of a joint plea hearing with

several other individuals in unrelated cases. The trial court addressed each person

personally, in turn, throughout the hearing.

{¶ 33} With respect to Mayberry, the trial court asked Mayberry, and he agreed,

that he was pleading no contest to robbery, a felony of the second degree, and that there

was no agreement as to sentencing. The court stated, “We’ll get a PSI and we’ll be back -11-

in court in two weeks.” Mayberry agreed that he wished to proceed in that manner.

{¶ 34} Mayberry stated that he was a United States citizen, that he was 48 years

old, that he had completed 10th grade, that he could read and understand English, and

that he had read and understood the plea form and had reviewed his plea form with his

lawyer. Mayberry stated that he was not under the influence of alcohol, drugs, or

medication at the plea hearing, and he denied having a physical or mental condition that

would impair his understanding of the plea hearing.

{¶ 35} Mayberry informed the trial court that he was on post-release control. The

trial court asked Mayberry if he understood that the court had no control over the Parole

Authority. The trial court stated:

* * * You understand that you’re going to enter a plea of no contest this

morning. I’m going to find you guilty, right? You have the ability to take

me up to the Court of Appeals if you want to about that motion to suppress

that I made. But in any event by virtue of the plea you’re making and the

finding of guilt that could, I’m not saying it will, have some impact with PRC,

the parole authority. I don’t control that. Are you still willing to go forward

with your plea this morning, Mr. Mayberry?

Mayberry responded affirmatively.

{¶ 36} The trial court informed Mayberry that robbery, a second-degree felony, was

punishable by a fine of up to $15,000, a prison term from two to eight years, and a

mandatory three-year period of post-release control. Mayberry indicated that he

understood. Mayberry also expressed his understanding that the court could impose

restitution, court costs, and other financial sanctions. The trial court informed Mayberry -12-

about the potential consequences of violating post-release control, including the potential

consequences if a new felony were committed while on post-release control.

{¶ 37} The trial court addressed Mayberry’s eligibility for community control and

that he faced eight years in prison if he violated the terms of any community control.

Mayberry told the court that no one had promised him community control. Mayberry

indicated that the trial court had fully articulated the terms of the plea, that he was not

threatened or forced to enter his plea, and that he was entering his plea voluntarily.

{¶ 38} The trial court informed Mayberry of the effect of a no contest plea, and

Mayberry indicated his understanding. The court reviewed Mayberry’s constitutional

rights and explained that he was waiving those rights as a result of his plea. The

prosecutor read the charge against Mayberry, and Mayberry indicated that he understood

it. Mayberry stated that he had enough time to consult with his lawyer, that he was

satisfied with counsel’s representation, and that he knew he was withdrawing any pending

motions as a result of his plea. Mayberry indicated that he had no questions for the court,

and he entered a plea of no contest.

{¶ 39} The trial court conducted a thorough plea hearing. The only matter of note

is that the court did not inform Mayberry that it could revoke his existing post-release

control and that, if it did so, any sentence it imposed for the violation would be consecutive

to his sentence for the robbery. See R.C. 2929.141(A)(1). In this case, we conclude

this presents no arguably meritorious issue; there is nothing to suggest that Mayberry

would not have entered his plea had he been provided that notification, and the trial court

did not, in fact, revoke his post-release control. There is no reasonable argument that

Mayberry was prejudiced by the trial court’s failure to include that notification. -13-

V. Sentencing

{¶ 40} In his third potential assignment of error, appellate counsel raises that the

trial court failed to sentence Mayberry within the statutory guidelines.

{¶ 41} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum,

, 2016-

Ohio-1002,

, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may

increase, reduce, or modify a sentence, or it may vacate the sentence and remand for

resentencing, only if it “clearly and convincingly” finds either (1) that the record does not

support certain specified findings or (2) that the sentence imposed is contrary to law.

{¶ 42} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021,

, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial

court must consider the statutory criteria that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard,

,

,

(2d Dist.), citing State v. Mathis,

,

,

.

{¶ 43} At sentencing, the trial court indicated that it had reviewed the PSI, and it

gave the State, defense counsel, and Mayberry an opportunity to address the court.

Mayberry expressed remorse. In imposing sentence, the trial court commented on

Mayberry’s lengthy criminal history, Mayberry’s expression of remorse, and the fact that

Mayberry had entered a plea. The court stated that it had considered the principles and

purposes of sentencing, including the seriousness and recidivism factors set forth in the -14-

Revised Code, and Mayberry’s ability to pay financial sanctions. The trial court imposed

four years in prison, which was in the low-middle portion of the statutory range. The

court properly informed Mayberry that the sentence carried a mandatory term of three

years of post-release control. The court ordered Mayberry to pay court costs; it did not

impose a fine or restitution.

{¶ 44} Mayberry’s sentence was within the statutory range of two, three, four, five,

six, seven, or eight years. Mayberry was provided his right of allocution, and the trial

court indicated that it had considered the statutory criteria. We find no non-frivolous

issue that Mayberry’s sentence was contrary to law.

VI. Ineffective Assistance of Counsel

{¶ 45} Mayberry, pro se, raises the issue of ineffective assistance of counsel. He

claims that his trial counsel acted deficiently by failing to conduct any pretrial investigation.

{¶ 46} To establish ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the outcome of the case would have been different.

See Strickland v. Washington,

,

,

(1984);

State v. Bradley,

,

(1989). Trial counsel is entitled

to a strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland,

. A defendant is entitled to “reasonable

competence” from his or her attorney, not “perfect advocacy.” See Maryland v. Kulbicki,

(2015), citing Yarborough v. Gentry,

,

,

(2003) (per curiam). -15-

{¶ 47} “Strickland and its progeny establish that when a court is presented with

an ineffective-assistance-of-counsel claim, it should look to the full record presented

by the defendant to determine whether the defendant satisfied his [or her] burden to

prove deficient performance.” Reeves v. Alabama, __ U.S. __,

,

(2017). Hindsight is not permitted to distort the assessment of what was

reasonable in light of counsel’s perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel. State v. Cook,

,

(1992); State v.

Fields,

,

, ¶ 38 (2d Dist.).

{¶ 48} “A claim of ineffective assistance of counsel cannot be asserted on direct

appeal if it relies on matters outside the record.” State v. Harris, 2d Dist. Montgomery

No. 27179,

.

{¶ 49} Mayberry asserts that his trial counsel failed to adequately review

documents that were produced by the State through discovery, which caused counsel to

fail to discover inconsistencies between the victim’s statement to the police and her

medical records. The record does not reflect what evidence was provided to defense

counsel during discovery, nor does it reflect how trial counsel reviewed those documents.

In short, the evidence upon which Mayberry would rely in support of this argument is

outside the record. This claim of ineffective assistance of counsel is not proper for direct

appeal and is frivolous.

{¶ 50} Mayberry further asserts that his trial counsel should have challenged

certain evidence provided by the State, such as photographs of Cremeens taken several

days after the incident. He also argues that the surveillance video may have supported -16-

his claim that he did not assault Cremeens and that trial counsel could have used the

video in his defense.

{¶ 51} “[A] no contest plea is an admission to the facts as laid out at the plea

hearing; the trial court retains discretion to consider a defendant’s contention that the

admitted facts do not constitute the charged offense, but the defendant who pleads no

contest waives the right to present additional affirmative factual allegations to prove that

he is not guilty of the charged offense.” State v. Cole, 2d Dist. Montgomery No. 26576,

. By pleading no contest to robbery, Mayberry waived any

challenge to the sufficiency of the evidence against him. And, because he admitted to

the facts alleged in the indictment, any argument that his trial counsel rendered ineffective

assistance in failing to present favorable evidence on his behalf is frivolous.

{¶ 52} To the extent that Mayberry raises that his trial counsel rendered ineffective

assistance by advising him to plead no contest, that argument also relies on evidence

outside the record, is not cognizable on direct appeal, and is frivolous.

VII. Independent Review and Conclusion

{¶ 53} We have conducted an independent review of the record and find no non-

frivolous issues for appeal. Accordingly, the trial court’s judgment will be affirmed.

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

WELBAUM, P.J. and TUCKER, J., concur.

Copies mailed to:

Mathias H. Heck Heather N. Jans John S. Pinard Robert Winston Mayberry Hon. Steven K. Dankof