[Cite as State v. Schiessler, 2012-Ohio-4085.]




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

STATE OF OHIO                                       :
                                                    :     Appellate Case No. 24771
        Plaintiff-Appellee                          :
                                                    :     Trial Court No. 2010-CR-4045/1
v.                                                  :
                                                    :
JUSTIN S. SCHIESSLER                                :     (Criminal Appeal from
                                                    :     (Common Pleas Court)
        Defendant-Appellant                 :
                                                    :
                                                 ...........

                                                 OPINION

                            Rendered on the 7th day of September, 2012.

                                                 ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

A. MARK SEGRETI, JR., Atty. Reg. #0009106, 1405 Streamside Drive, Dayton, Ohio 45459
     Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1}     Defendant-appellant Justin S. Schiessler appeals from his conviction and

sentence for Felonious Assault and Aggravated Robbery. Schiessler contends that the trial
                                                                                            2


court erred by overruling his motion to suppress statements he gave to a police officer while in

custody, because the State failed to prove that he had knowingly and voluntarily waived his

rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He

also contends that his trial counsel was ineffective for having failed to offer proof of his

mental deficiencies at the suppression hearing.

       {¶ 2}    We conclude that the testimony of the police officer to whom Schiessler made

his statements, which testimony the trial court found “highly credible,” was sufficient to

establish that Schiessler knowingly and voluntarily waived his Miranda rights. We further

conclude that the record of this appeal does not support Schiessler’s contention that there was

evidence of mental deficiencies on his part that his trial counsel was ineffective for having

failed to offer at the suppression hearing. Accordingly, the judgment of the trial court is

Affirmed.



                      I. Schiessler Is Arrested and Makes Statements

       {¶ 3}    One morning in mid-December, 2010, Schiessler was arrested, along with

others, as a result of the incident giving rise to his subsequent indictment on two counts of

Felonious Assault and two counts of Aggravated Robbery. Dayton Police Detective David

Hirst, a 25-year veteran of the Dayton Police Department, interrogated Schiessler at Dayton

Police Headquarters (the Dayton Safety Building).

       {¶ 4}    In its decision overruling Schiessler’s suppression motion, the trial court,

finding Hirst’s testimony “highly credible,” adopted it “as the operative facts”:

               As testified to by Detective Hirst, * * * , Detective Hirst met with [Schiessler]
                                                                                                    3


       in a second floor interview room at the Safety Building. [Schiessler] was not

       handcuffed. Detective Hirst did not have a firearm. Detective Hirst went through a

       Pre-Interview Rights form with [Schiessler]. [Schiessler] signed the form. State Ex.

       1. [Schiessler] was advised of each right separately. [Schiessler] initialed next to each

       right that was read to him to signify his understanding of each right. [Schiessler] read

       aloud the waiver of rights paragraph. Detective Hirst provided a definition of the

       word “coercion” used in the waiver of rights paragraph. [Schiessler] signed the waiver

       of rights and provided statements.

               Detective Hirst spoke with [Schiessler] for a little over two hours, with breaks

       for Detective Hirst to confer with other detectives. The total length of [Schiessler’s]

       interview was approximately one and a half hours. [Schiessler] did not request food,

       water, legal counsel, or breaks. [Schiessler] did not ask that the interview stop. No

       promises or threats were conveyed to [Schiessler]. [Schiessler] was not under the

       influence of drugs or alcohol at the time. [Schiessler] voluntarily wrote two statements,

       choosing his own thoughts, words and expression. State’s Exs. 2 and 3.

       {¶ 5}    The evidence in the record supports the trial court’s findings of fact.

       {¶ 6}    Hirst acknowledged, on cross-examination, that he told Schiessler on more

than one occasion that Schiessler was lying, based not only upon contradictions with what the

other persons arrested were saying, but also upon contradictions contained within Schiessler’s

own statements.

       {¶ 7}    Schiessler was eighteen years old at the time he gave his statements. He had

completed nine years of schooling. Although Schiessler states, in his brief, that he was still in
                                                                                                  4


school at the time of his interrogation, there is nothing in the record to establish that fact.



                                II. The Course of Proceedings

        {¶ 8}    Schessler was charged by indictment with one count of Aggravated Robbery

(deadly weapon), in violation of R.C. 2911.01(A)(1), a felony of the first degree; one count of

Aggravated Robbery (serious physical harm), in violation of R.C. 2911.01(A)(3), a felony of

the first degree; one count of Felonious Assault (serious physical harm), in violation of R.C.

2903.11(A)(1), a felony of the second degree; and one count of Felonious Assault (deadly

weapon), in violation of R.C. 2903.11(A)(2), a felony of the second degree.

        {¶ 9}    Schiessler moved to suppress the statements he made, contending that they

were made without a “knowing, intelligent or voluntary waiver of his rights.” At the hearing

on his motion, the State offered the testimony of Detective Hirst. Schiessler did not present

any evidence. After taking the matter under submission, the trial court overruled his motion

to suppress, in a written decision.

        {¶ 10} Schiessler then pled no contest to all four counts. The trial court accepted his

plea, and found him guilty of all four counts. At the sentencing hearing, the trial court

merged the Felonious Assault counts into the two Aggravated Robbery counts. The trial

court then sentenced Schiessler to ten years on each of the two Aggravated Robbery

convictions, to be served concurrently.

        {¶ 11} From his conviction and sentence, Schiessler appeals.

           III. The Evidence in the Record Supports the Trial Court’s Finding

          that Schiessler Knowingly and Voluntarily Waived his Miranda Rights
[Cite as State v. Schiessler, 2012-Ohio-4085.]
        {¶ 12} Schiessler’s First Assignment of Error is as follows:

                 THE      TRIAL      COURT       ERRED   AND    DENIED     APPELLANT         HIS

        CONSTITUTIONAL RIGHTS BY OVERRULING HIS MOTION TO SUPPRESS

        STATEMENTS TO THE POLICE ON THE BASIS THAT HE HAD VALIDLY

        WAIVED HIS RIGHTS AGAINST SELF-INCRIMINATION AND TO COUNSEL.

        {¶ 13} Schiessler contends that the State failed to carry its burden of proving that he

knowingly and voluntarily waived his Miranda rights.

        {¶ 14} Hirst testified that after he explained to Schiessler that he was being

interviewed on a charge of Felonious Assault, Hirst had Schiessler write down, on the form,

his name, social security number, date of birth, and address. Hirst then testified what he did

next, as follows:

                 A. The next step, I tell him I’m going to go over his rights. I’m going to read

        each one of them to him. I turn it around so he can read it and I tell him that he can

        read along if he likes. I tell him if he has any questions to go ahead and then ask.

        People ask all the time it they’re not sure of something.

                 I then would read out loud right number one to him. I ask him, do you

        understand that right? He replied yes. I then ask him to write down his initials next

        to the number. I tell him all that means is I read it to him and he understood it. And

        the same was done with rights one through five.

                 Q. After you go through rights one through five, do you do anything else?

                 A. Yes. I then tell him to – I want him to read out loud the Waiver of Rights

        to me so that I know he’s reading it. He read it out loud. I then asked him if he knew

        what the word “coercion” meant. He told me he did not so I explained “coercion” to
                                                                                                   6


       him, and I circled it. That tells me if I’m ever looking over a Rights form with a

       person that I did explain that to them, because it was circled.

               I then asked him how many years he had completed of school and asked him to

       write it in and also write down what school he’d gone to.

               After he’d done that, I asked him if he wanted to talk to me that he needed to

       sign. He signed it, as did I.

       {¶ 15} Schiessler predicates much of his argument that the State failed in its burden

upon his assertion that although he was eighteen, he had only just completed the ninth grade,

arguing “[y]outhfulness and slowness of learning may make the waiver ineffective.” There is

no evidence in the record to establish that Schiessler had only just completed the ninth grade.

The evidence in the record merely establishes that he had only a ninth-grade education, not

that he was still in school, having been held back several grades.

       {¶ 16} Schiessler cites several cases in support of his argument that the State failed in

its burden. In one of these cases, Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62

L.Ed.2d 622 (1980), the officer taking the statement could not remember what the rights he

read off a card were, could not recall whether he asked the defendant whether he understood

the rights as read to him, and “couldn’t say yes or no” whether he had rendered any tests to

determine whether the defendant was literate or otherwise capable of understanding his rights.

 444 U.S. 469. In the case before us, by contrast, Hirst testified that he ascertained from

Schiessler that he understood each right as it was read to him, and had Schiessler read the

waiver of rights part of the form out loud, thereby establishing that Schiessler was literate.

       {¶ 17} In support of his proposition that “[t]he state’s evidence must enable the trial
                                                                                            7


court to evaluate the defendant’s age, education and intelligence,” Schiessler cites Oregon v.

Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). That case was primarily

concerned with the issue of whether a defendant’s statement after proper Miranda warnings

would be admissible when the defendant had not long before given a statement, while in

custody, that was not accompanied by Miranda warnings. The court did say, in footnote 4, at

470 U.S. 315, of the Miranda warnings preceding the second statement:

               The Miranda advice on the card was clear and comprehensive, incorporating

       the warning that any statements could be used in a court of law; the rights to remain

       silent, consult an attorney at state expense, and interrupt the conversation at any time;

       and the reminder that any statements must be voluntary. The reverse side of the card

       carried three questions in boldface and recorded Elstad's responses:

               “DO YOU UNDERSTAND THESE RIGHTS? ‘Yeh’

               “DO YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS? ‘No’

               “HAVING THESE RIGHTS IN MIND, DO YOU WISH TO TALK TO US

       NOW? ‘Yeh I do!’ ”

               The card is dated and signed by respondent and by Officer McAllister. A

       recent high school graduate, Elstad was fully capable of understanding this careful

       administering of Miranda warnings.

       {¶ 18} In Elstad, the court was confronted with a situation in which the only evidence

that the defendant understood his Miranda rights before waiving them was his written

affirmative response to the general question “Do you understand these rights?” The court

noted that Elstad was a high school graduate in bolstering its conclusion that the state had met
                                                                                              8


its burden, in that case, of establishing a knowing and voluntary waiver. In the case before

us, Hirst testified that he elicited from Schiessler that he understood each right, as it was read

to him.   Furthermore, Hirst had Schiessler read aloud the portion of the form waiving

Schiessler’s rights. We do not construe footnote 4 in Elstad as a requirement that only high

school graduates are competent to waive Miranda rights, without some further, specific proof

of mental competence.

       {¶ 19} Finally, Schiessler cites State v. Lail, 2d Dist. Montgomery No. 24118,

2011-Ohio-2312. In that case, a fifteen-year-old defendant, who had been transferred from

juvenile court to be tried as an adult for a number of serious felonies, had given a statement.

Like Schiessler, the defendant in that case had completed ninth grade. As in the case before

us, the detective read the defendant in Lail each Miranda right before ascertaining that the

defendant understood it, and then had the defendant read the waiver of rights section of the

form out loud. Unlike in this case, there was evidence in the record in Lail that the defendant

in that case had “qualified for Special Education services due to a disability determination of

cognitive disability,” and that his “IQ score ‘placed him in the range of what would be

considered mild mental retardation.’ ” Id. ¶ 6. There was evidence in the record in that case

that the defendant, Lail, “was functioning many grade levels below what would be expected of

other students his same age,” and that “the personality tests described [Lail] as having

deficient social skills and coping skills.” Id.

       {¶ 20} Against the backdrop of evidence in the record that the defendant in Lail

might have “mild mental retardation,” we were obviously concerned about whether the

defendant in that case was capable of understanding his Miranda rights, so that he could
                                                                                             9


knowingly and voluntarily have waived them. We considered additional evidence in the

record suggesting that, in spite of that defendant’s mental deficiencies, he was nevertheless

capable of understanding and waiving his Miranda rights, found that the trial court’s

conclusion that his waiver was knowing and voluntary was supported by the evidence, and

affirmed his conviction. Id. ¶ 23.

       {¶ 21} In the case before us, by contrast, there is no evidence in the record to suggest

that Schiessler had mental deficiencies. The evidence in this record supports the trial court’s

conclusion that Schiessler knowingly and voluntarily waived his Miranda rights. Schiessler’s

First Assignment of Error is overruled.



             IV. There Is Nothing in the Record to Establish that There Was

              Evidence that Trial Counsel Could Have Offered, But Did Not

                  Offer, As Proof that Schiessler Had Mental Deficiencies

       {¶ 22} Schiessler’s Second Assignment of Error is as follows:

               APPELLANT’S SIXTH AMENDMENT RIGHT TO COUNSEL WAS

       VIOLATED BECAUSE HIS COUNSEL DID NOT PRESENT EVIDENCE OF HIS

       LACK OF COMPETENCE TO WAIVE HIS CONSTITUTIONAL RIGHTS.

       {¶ 23} In making a claim of ineffective assistance of trial counsel, a defendant bears

the burden of establishing, from the record, that his trial counsel was ineffective, and that his

trial counsel’s ineffectiveness prejudiced him. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
                                                                                               10


        {¶ 24} Schiessler contends in his brief that he “had mental deficiencies and perhaps

mental illness. Nevertheless, his counsel did not present any evidence on these issues so that

the trial court would know that he lacked competence to waive his constitutional rights.” But

there is nothing in the record to establish, or even to suggest, that Schiessler had mental

deficiencies or mental illness.

        {¶ 25} If there were such evidence, then we would agree that Schiessler’s trial

counsel should have offered it at the suppression hearing, so that the trial court could have

performed the sort of analysis that we performed in State v. Lail, supra. But we cannot find

Schiessler’s trial counsel to have been ineffective for having failed to offer evidence of

Schiessler’s mental deficiencies or illness without some showing, in this record, that evidence

of that kind existed.     If such evidence exists, it could be the basis for a petition for

post-conviction relief, where evidence outside the record of the direct appeal is permitted.

        {¶ 26} Schiessler’s Second Assignment of Error is overruled.



                                        V. Conclusion

        {¶ 27} Both of Schiessler’s assignments of error having been overruled, the judgment

of the trial court is Affirmed.

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

GRADY, P.J., and FROELICH, J., concur.

Copies mailed to:

Mathias H. Heck
Andrew T French
A. Mark Segreti, Jr.
Mary L. Wiseman
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