[Cite as State v. Goodner, 195 Ohio App.3d 636, 2011-Ohio-5018.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO


THE STATE OF OHIO,                                     :

        Appellee,                                      :           C.A. CASE NO.   24320

v.                                                     :           T.C. NO.   10CR527

GOODNER,                                               :           (Criminal appeal from
                                                                    Common Pleas Court)
        Appellant.                                     :

                                            ..........

                                           OPINION

                        Rendered on the          30th day of September, 2011.

                                            ..........

     Mathias Heck Jr., Montgomery County Prosecuting Attorney, and Laura M.
Woodruff, Assistant Prosecuting Attorney, for appellee.

        Antony A. Abboud, for appellant.

                                            ..........


        DONOVAN, Judge.

        {¶ 1} Defendant-appellant, Kelly D. Goodner, appeals from his conviction

and sentence for five counts of aggravated robbery, in violation of R.C.

2911.01(A)(1), all felonies of the first degree.

                                                       I

        {¶ 2} On February 20, 2010, Goodner was stopped by Dayton Police

Officers Dustin Phillips and Nathan Spellman while he was walking near the

intersection of Harvard Boulevard and Richmond Avenue in the Five Oaks
                                                                                    2

neighborhood at approximately 11:30 p.m. Goodner matched the description of a

suspect in a robbery that Officer Spellman had investigated some days prior

involving a short, black male wearing a red jacket with a yellow design and a black

mask that covered only the bottom half of his face.

      {¶ 3} Upon observing an individual who fit that description, Officer Phillips

pulled over and shined his cruiser’s spotlight on Goodner and ordered him to stop.

The officers exited the cruiser and approached Goodner. Officer Phillips asked

Goodner whether he had any weapons. Goodner stated that he had a BB gun and

indicated that it was located in his waistband under his jacket.      Officer Phillips

retrieved the BB gun from Goodner’s waistband, noting that it matched the

description of a weapon used in a recent armed robbery in the area.

      {¶ 4} Officer Phillips then placed Goodner in the rear of the cruiser and

transported him to the Safety Building where he was interviewed by Detective Mark

Bilinski. Detective Bilinski was investigating a string of five robberies in which the

perpetrator was a described as a short, black male wearing a black half-mask.

Three of the robberies were committed with a weapon, perceived by the victims to

be a handgun. The remaining two robberies were committed with a knife and a

baseball bat.   Once at the Safety Building, Officer Phillips directed Goodner to

remove his jacket.    Officer Phillips searched the jacket and discovered a black

neoprene half-mask in the right-side pocket.

      {¶ 5} After Goodner was questioned, Detective Bilinski and Detective

William Elzholz created photo spreads, each containing a photo of Goodner, and

showed them to witnesses from the robberies that Goodner was suspected of

having committed.    Each witness was able to positively identify Goodner from
                                                                                   3

photo spreads. Specifically, Goodner was implicated in the following robberies:

      {¶ 6} January 19, 2010: On this date, the United Dairy Farmers located at

3905 North Main Street was robbed by a short, thin, black male wearing a black

neoprene mask and wielding a knife.      The victim, Jameela Johnson, identified

Goodner as the perpetrator from a photo spread.

      {¶ 7} January 29, 2010: On this date, the Lee’s Famous Recipe restaurant

located at 4140 North Main Street was robbed by a light-skinned black male

wearing a black neoprene mask and wielding an aluminum baseball bat.              An

employee from the restaurant, Leonard Taylor, identified Goodner as the

perpetrator from a photo spread.

      {¶ 8} February 10, 2010: On this date, Dante Hobson, a Domino’s Pizza

delivery driver, was robbed at 53 Victor Avenue by a short, black male wearing a

black mask, brandishing what appeared to be a large semi-automatic handgun with

an attached scope. Hobson later positively identified Goodner as the perpetrator

from a photo spread.

      {¶ 9} February 15, 2010: On this date, Shawn Ostrander, a Donato’s Pizza

delivery driver, was robbed at 103 Marathon Avenue by a black male wearing a red

jacket with yellow lines and a black mask, brandishing a large semi-automatic

handgun that he pulled out of his waistband. Ostrander identified Goodner as the

perpetrator from a photo spread.

      {¶ 10} February 16, 2010: On this date, an employee at the Main Drive Thru

in Dayton, Ohio, was robbed by a short, light-skinned black male wearing a black

mask, brandishing a large semi-automatic handgun. Waylan identified Goodner as

the perpetrator in two photo spreads prepared by Detective Elzholz.
                                                                                      4

       {¶ 11} Goodner was indicted for five counts of aggravated robbery (deadly

weapon) on March 17, 2010. At his arraignment on March 23, 2010, Goodner

stood mute, and the trial court entered a plea of not guilty on his behalf. Goodner

filed a motion to sever and a motion to suppress on April 8, 2010. On April 30,

2010, a hearing was held on Goodner’s motion to suppress. The trial court issued

a written decision overruling Goodner’s motion to suppress on May 3, 2010. On

July 21, 2010, the trial court issued a written decision overruling Goodner’s motion

to sever. Goodner subsequently pleaded no contest to five counts of aggravated

robbery (deadly weapon), and the trial court sentenced him to four years’

imprisonment on each count, the sentences to run consecutively, for an aggregate

sentence of 20 years.

       {¶ 12} It is from this judgment that Goodner now appeals.

                                              II

       {¶ 13} Because they are interrelated, Goodner’s first and fourth assignments

of error will be discussed together as follows:

       {¶ 14} “Mr. Goodner was deprived of the effective assistance of counsel.”

       {¶ 15} “The trial court erred in accepting the defendant’s no-contest plea.”

       {¶ 16} In his first assignment, Goodner contends that defense counsel was

ineffective for failing to advise him regarding the evidence necessary to prove

whether a BB gun is a deadly weapon. Goodner asserts that had he been made

aware of this information by his attorney, he would have elected to have a jury trial

on those counts wherein he was accused of using a handgun.               In his fourth

assignment, Goodner argues that his no-contest pleas were less than knowing and
                                                                                     5

voluntary because the trial court failed to substantially comply with Crim.R.

11(C)(2). Specifically, Goodner reiterates his assertion that his attorney failed to

inform him prior to entering his pleas that whether a BB gun is a deadly weapon is

an issue of fact to be decided at trial.

       {¶ 17} We evaluate ineffective-assistance-of-counsel arguments in light of

the two-pronged analysis set forth in Strickland v. Washington (1984), 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674.            Trial counsel is entitled to a strong

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

assistance. Id. at 688. To reverse a conviction based on ineffective assistance of

counsel, the defendant must demonstrate that trial counsel's conduct fell below an

objective standard of reasonableness and that his errors were serious enough to

create a reasonable probability that, but for the errors, the result of the trial would

have been different. Id. at 687.           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. Id. at 689.

       {¶ 18} In evaluating claims by defendants that counsel’s misinformation led

to their plea, courts have said that counsel’s erroneous advice about the

consequences of the plea does not rise to the level of ineffectiveness. State v. Xie

(1992), 62 Ohio St.3d 521; State v. Arvanitis (1986), 36 Ohio App.3d 213; State v.

Herrington (Feb. 21, 1995), Clermont App. No. CA94-07-060. A properly licensed

attorney in the state of Ohio is presumed competent. State v. Smith (1985), 17

Ohio St.3d 98; State v. Jackson (1980), 64 Ohio St.2d 107.
                                                                                      6

       {¶ 19} Initially, we note that Ohio Rules of Criminal Procedure provide that a

“plea of no contest is not an admission of defendant’s guilt, but is an admission of

the truth of the facts alleged in the indictment[.]” Crim.R. 11(B).         Where the

indictment, information, or complaint contains sufficient allegations to state a felony

offense and the defendant pleads no contest, the court must find the defendant

guilty. State v. Bird (1998), 81 Ohio St.3d 582, 584. Accordingly, “by pleading no

contest to the indictment, [the] appellant is foreclosed from challenging the factual

merits of the underlying charge.” Id.

       {¶ 20} Goodner pleaded no contest to five counts of aggravated robbery

(deadly weapon), in violation of R.C. 2911.01(A)(1), all felonies of the first degree.

R.C. 2911.01(A)(1) provides, “No person, in attempting or committing a theft

offense * * * or in fleeing immediately after the attempt or offense, shall * * * [h]ave

a deadly weapon on or about the offender’s person or under the offender’s control

and either display the weapon, brandish it, indicate that the offender possesses it,

or use it[.]” R.C. 2923.11(A) defines a deadly weapon as “any instrument, device,

or thing capable of inflicting death, and designed or specially adapted for use as a

weapon, or possessed, carried, or used as a weapon.”

       {¶ 21} Counts I and II in Goodner’s indictment specifically state that the

deadly weapons used were a knife and a baseball bat, respectively.            Although

Counts III, IV, and V contain the deadly-weapon element set forth in R.C.

2911.01(A)(1), these counts are silent regarding the type of deadly weapon used in

each of the robberies.

       {¶ 22} Goodner notes that for a BB gun to be considered a “deadly weapon,”

there must be evidence adduced concerning its capability for inflicting death. State
                                                                                     7

v. Brown, 101 Ohio App.3d 784. Goodner asserts that had his counsel informed

him of this principle of law, he would have requested a trial on counts III, IV, and V,

rather than pleading no contest to those charges. However, by entering no contest

pleas to the all the counts, Goodner admitted the truth of the allegations stated in

the indictment. Bird, 81 Ohio St.3d at 585. Simply put, by pleading no-contest,

Goodner admitted that a deadly weapon was used in each of the aggravated

robberies set forth in the indictment. As a result, the record before us contains no

facts to support his assertion that defense counsel was ineffective. Significantly,

although Goodner was apprehended on February 20, 2010, with a BB gun, each

victim in Counts III, IV, and V asserted that Goodner displayed a handgun during

the course of the crimes that had occurred on earlier dates.

       {¶ 23} Accordingly, Goodner has failed to meet his burden to establish that

defense counsel was ineffective.

       {¶ 24} In his fourth assignment, Goodner reasserts that his counsel was

ineffective for failing to properly advise him regarding the evidence necessary to

prove whether a BB gun is a deadly weapon. As a result, Goodner contends that

he did not enter his no-contest pleas in a knowing, voluntary, and intelligent

fashion, and the trial court erred by accepting his pleas.

       {¶ 25} In order to be constitutionally valid and comport with due process, a

no-contest plea must be entered knowingly, intelligently, and voluntarily. Boykin v.

Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Compliance with

Crim.R. 11(C)(2) in accepting guilty or no-contest pleas portrays those qualities.

       {¶ 26} In State v. McGrady, Greene App. No. 2009CA60, 2010-Ohio-3243,
                                                                                       8

at ¶11-13, this court stated:

       {¶ 27} “In order for a plea to be given knowingly and voluntarily, the trial court

must follow the mandates of Crim.R. 11(C). If a defendant's guilty plea is not

voluntary and knowing, it has been obtained in violation of due process and is void.

Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274.

       {¶ 28} “A defendant who challenges his guilty plea on the basis that it was

not knowingly, intelligently, and voluntarily made must show a prejudicial effect.

State v. Stewart (1977), 51 Ohio St.2d 86, 93; Crim.R. 52(A). The test is whether

the plea would have been otherwise made. [State v. Nero (1990), 56 Ohio St.3d

106, 108, 564 N.E.2d 474.]

       {¶ 29} “A trial court must strictly comply with Crim.R. 11 as it pertains to the

waiver of federal constitutional rights. These include the right to trial by jury, the

right of confrontation, and the privilege against self-incrimination. [Boykin] at

243-244. However, substantial compliance with Crim.R. 11(C) is sufficient when

waiving non-constitutional rights. [Nero at 108.] The non-constitutional rights that a

defendant must be informed of are the nature of the charges with an understanding

of the law in relation to the facts, the maximum penalty, and that after entering a

guilty plea or a no-contest plea, the court may proceed to judgment and sentence.

Crim.R. 11(C)(2)(a), (b); State v. Philpott, Cuyahoga App. No. 74392, citing

McCarthy v. [United States] (1969), 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d

418. 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. Nero [at 108].”
                                                                                   9

       {¶ 30} As we have previously noted, ineffective assistance of counsel is not

established on this record. Our review of the plea and hearing indicates that the

trial court scrupulously complied with all the mandates of Crim.R. 11(C)(2). The

trial court thoroughly advised Goodner of the constitutional rights he was giving up

by pleading no contest, as well as all the other nonconstitutional matters. Goodner

indicated in each and every instance that he understood the matters explained to

him by the trial court. Goodner indicated that he had no questions or concerns.

This record affirmatively establishes that Goodner’s no-contest pleas were entered

knowingly, intelligently, and voluntarily.

       {¶ 31} Goodner’s first and fourth assignments of error are overruled.

                                             III

       {¶ 32} Goodner’s second assignment of error is as follows:

       {¶ 33} “The trial court erred in denying Mr. Goodner’s motion to sever.”

       {¶ 34} In his second assignment, Goodner argues that the trial court erred

when it denied his motion to sever the five counts of aggravated robbery in the

indictment. Specifically, Goodner asserts that he would have been prejudiced by

the joinder of offenses committed with the knife and baseball bat (Counts I and II)

with the offenses committed with the BB gun (Counts III, IV, and V) because a BB

gun does not fit the statutory definition of a deadly weapon. Goodner, however,

did not advance this specific argument in his motion to sever that was ruled upon

by the trial court.

       {¶ 35} In his motion to sever, Goodner argued that he was “charged with five

distinct counts of aggravated robbery, all containing different dates, locations, and
                                                                                    10

complainants.”   Goodner also asserted that the evidence with respect to each

count would be complex and confusing to a jury. We note that totally absent from

his motion to sever is any argument regarding a BB gun or its characterization as a

deadly weapon. Accordingly, Goodner cannot raise this argument for the first time

on appeal, and we will not address it.

       {¶ 36} In State v. Broadnax, Montgomery App. No. 21844, 2007-Ohio-6584,

we stated the following:

       {¶ 37} “Crim.R. 8(A) provides:

       {¶ 38} “ ‘Joinder of offenses. Two or more offenses may be charged in the

same indictment, information or complaint in a separate count for each offense if

the offenses charged, whether felonies or misdemeanors or both, are of the same

or similar character, or are based on the same act or transaction, or are based on

two or more acts or transactions connected together or constituting parts of a

common scheme or plan, or are part of a course of criminal conduct.’

       {¶ 39} “The law favors joinder to prevent successive trials, to minimize the

possibility of incongruous results in successive trials before different juries, to

conserve judicial resources, and to diminish the inconvenience to witnesses. State

v. Schaim (1992), 65 Ohio St.3d 51, 58; State v. Torres (1981), 66 Ohio St.2d 340,

343.

       {¶ 40} “Crim.R.14 provides:

       {¶ 41} “ ‘If it appears that a defendant or the state is prejudiced by a joinder

of offenses or of defendants in an indictment, information, or complaint, or by such

joinder for trial together of indictments, information or complaints, the court shall
                                                                                    11

order an election or separate trial of counts, grant a severance of defendants, or

provide such other relief as justice requires. In ruling on a motion by a defendant for

severance, the court shall order the prosecuting attorney to deliver to the court for

inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the

defendants which the state intends to introduce in evidence at the trial.’

       {¶ 42} “Even if offenses are properly joined pursuant to Crim.R. 8(A), a

defendant may move to sever the charges pursuant to Crim.R. 14. To affirmatively

show that his rights have been prejudiced by the joinder, the defendant must

furnish the trial court information sufficient to allow the court to weigh the

considerations favoring joinder against the defendant’s right to a fair trial, and

defendant must demonstrate that the court abused its discretion in refusing to

separate the charges for trial. [State v.] Glass [(Mar. 9, 2001), Greene App. No.

2000CA74, 2001 WL 228453]; State v Lott (1990), 57 Ohio St.3d 160.

       {¶ 43} “One of the ways in which the State can negate a defendant’s claim of

prejudice is by showing that the evidence pertaining to each crime joined at trial is

simple and direct, such that the trier of fact could segregate the proof on the

multiple charges. Lott; Torres; State v. Rutledge (June 1, 2001), Montgomery App.

No. 18462. The purpose of this ‘joinder test’ is to prevent the jury from confusing

the offenses or improperly cumulating the evidence of the various crimes. Lott;

Rutledge.”

       {¶ 44} The defendant in Broadnax, 2007-Ohio-6584, was indicted for five

counts of aggravated robbery. In holding that the trial court properly denied the

defendant’s motion to sever, we noted that the evidence pertaining to each offense
                                                                                   12

was simple and direct. Id. Additionally, all the robberies involved different stores

and different witnesses who independently identified the defendant as the

perpetrator. Id. We further found that the evidence with respect to each offense

was straightforward and uncomplicated and would, therefore, make it improbable

that a jury would confuse the evidence or consider testimony regarding one offense

as corroborative of the another. Id.

       {¶ 45} In the instant case, joinder was clearly proper.          Similar to the

defendant in Broadnax, Goodner was indicted for five counts of aggravated

robbery.   Each of the robberies was of a same or similar character, and each

involved a different store or restaurant. All the robberies were committed between

the dates of January 19, 2010, and February 16, 2010.           Witnesses from each

robbery independently identified Goodner as the perpetrator. The evidence with

respect to each robbery was simple and direct, and it is improbable that a jury

would confuse the evidence or improperly consider testimony regarding one

robbery as corroborative of another.          Accordingly, Goodner has failed to

demonstrate prejudice resulting from the joinder of the offenses for trial, and the

trial court did not abuse its discretion when it denied his motion to sever.

       {¶ 46} Goodner’s second assignment of error is overruled.

                                              IV

       {¶ 47} Goodner’s third assignment of error is as follows:

       {¶ 48} “The trial court erred in admitting the evidence of Kay Waylan’s

identifications which were inherently suggestive and unreliable, and thereby a

violation of due process.”

       {¶ 49} In his third assignment, Goodner contends that the trial court erred
                                                                                       13

when it overruled his motion to suppress. Specifically, Goodner asserts that the

photo spreads shown to Kay Waylan by Detective Elzholz regarding the February

16, 2010 robbery at the Main Drive Thru were unduly suggestive.

       {¶ 50} With respect to a motion to suppress, “the trial court assumes the role

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

the credibility of witnesses.” State v. Hopfer (1996), 112 Ohio App.3d 521, 548,

quoting State v. Venham (1994), 96 Ohio App.3d 649, 653. The court of appeals

must accept the trial court’s findings of fact if they are supported by competent,

credible evidence in the record. State v. Isaac (July 15, 2005), Montgomery App.

No. 20662, 2005-Ohio-3733, citing State v. Retherford (1994), 93 Ohio App.3d 586.

 Accepting those facts as true, the appellate court must then independently

determine, as a matter of law and without deference to the trial court’s legal

conclusion, whether the applicable legal standard is satisfied. Id.

       {¶ 51} To warrant suppression of identification testimony, the accused bears

the burden of showing that the identification procedure was “so impermissibly

suggestive as to give rise to a very substantial likelihood of irreparable

misidentification” and that the identification itself was unreliable under the totality of

the circumstances. Manson v. Brathwaite (1977), 432 U.S. 98, 106, 97 S.Ct. 2243,

53 L.Ed.2d 140; Neil v. Biggers (1972), 409 U.S. 188, 199, 93 S.Ct. 375, 34

L.Ed.2d 401, 88 S.Ct. 967, 19 L.Ed.2d 1247; Simmons v. United States (1968), 390

U.S. 377, 384. See also State v. Broom (1988), 40 Ohio St.3d 277, 284; State v.

Moody (1978), 55 Ohio St.2d 64, 67.

       {¶ 52} In State v. Sherls (Feb. 22, 2002), Montgomery App. No. 18599,
                                                                                    14

2002-Ohio-939, this court addressed the issue of suggestive photographic

confrontations:

       {¶ 53} “In many cases, and in almost all cases in which the criminal offender

is not known to his victim or other eyewitnesses and is not arrested at the time of

the crime, those who witness the crime are asked to identify the perpetrator for

purposes of police investigation through some form of confrontation.              This

confrontation may be in the form of a ‘lineup,’ a one-on-one ‘show up,’ or from a

photograph or series of photographs displayed to the witness. When any of these

systems of confrontation suggest, due to the manner or mode of their presentation,

that one individual is more likely than others to be the perpetrator of the crime, that

fact increases the likelihood of misidentification and violates the right to due

process of law of a defendant so identified. Identification testimony that has been

tainted by an unduly or unnecessarily suggestive out-of-court confrontation may be

suppressed on that basis.

       {¶ 54} “However, even when a confrontation is unnecessarily or unduly

suggestive, the identification testimony derived from the confrontation is not

inadmissible solely for that reason. Reliability of the testimony is the linchpin in

determining its admissibility.    So long as the identification possesses sufficient

aspects of reliability, there is no violation of due process.

       {¶ 55} “Reliability is determined from the totality of the circumstances.

These circumstances include the opportunity of the witness to view the criminal at

the time of the crime, the witness' degree of attention, the accuracy of his prior

description of the criminal, the level of certainty demonstrated at the confrontation,

and the time between the crime and the confrontation. Against these factors is to
                                                                                   15

be weighed the corrupting effect of the suggestive identification itself.

       {¶ 56} “The foregoing due process concerns are implicated only if and when

a confrontation is unnecessarily or unduly suggestive. That prospect usually arises

when the witness has been shown but one subject, whether in a ‘showup’ * * * or a

single photograph * * *. Similarly, if the witness is shown pictures or photographs

of several persons in which the photograph of one recurs or is in some way

emphasized, undue suggestion may occur. However, even when the confrontation

process is unduly or unnecessarily suggestive, the later identification testimony

should not be excluded so long as the identification itself is reliable.” See State v.

White (Feb. 2, 1994), Clark App. No. 3057.

       {¶ 57} In the instant case, Detective Elzholz showed Waylan two

photographic arrays on February 24, 2010, approximately eight days after the

robbery occurred at the drive-through. In her victim statement, Waylan described

the perpetrator as a short, black male with an average build and a light complexion.

 Detective Elzholz testified that based on Waylan’s description, he created a photo

array comprised of six photos of black males with similar physical characteristics,

one of which was a photo of Goodner. Detective Elzholz testified that he gave

Waylan the following instructions before showing her the first photo spread:

       {¶ 58} “Detective Elzholz: * * * I’m going to show you a group of photographs.

 This group of photographs may or may not contain a picture of the person who

committed the crime now being invested. Keep in mind hairstyles, beards, and

mustaches may be easily changed. Also photos may not always depict the true

complexion of a person, it may be lighter or darker than shown in the photos. Pay

no attention to any markings and numbers that may appear on the photos or any
                                                                                     16

differences in types or styles of photos. When you’ve looked at all the photos tell

me whether or not you see the person who committed the crime. Do not tell any

other witnesses if you have or have not identified anyone.”

       {¶ 59} Detective Elzholz then showed the photo array to Waylan, who

immediately identified the photo in the second position, Goodner, as the

perpetrator. Detective Elzholz testified that he in no way influenced or coerced

Waylan during the initial photo array identification. After identifying Goodner in the

first array, Waylan asked Detective Elzholz if she could see another photo of the

number two individual from a different angle. Detective Elzholz testified that he

had left the drive-through and returned to the Safety Building in order to create a

second photo array with a picture of Goodner in a different position. The second

array was also composed of six black males with similar physical characteristics.

In this instance, Goodner’s photo was in the fifth position. Detective Elzholz did

not indicate to Waylan that the individual in the number two position in the first array

was the individual in the fifth position in the second array. After observing the

second array, Waylan again immediately identified Goodner as the perpetrator.

       {¶ 60} Other than his bare assertion, Goodner can point to no evidence in

the record that demonstrates that showing Waylan a second photo containing

Goodner’s photo array was unduly suggestive.          The photographic arrays were

randomly created using the Montgomery County Justice Web System. Detective

Elzholz testified at the suppression hearing that he followed the proper procedure in

showing the two random photo arrays to Waylan, who was able to identify Goodner

from both arrays as the individual who robbed her. After a thorough review of the

record, we find that there was nothing unduly suggestive regarding the process
                                                                                   17

used to identify Goodner as the perpetrator. Thus, the trial court did not err when it

overruled Goodner’s motion to suppress Waylan’s identification of him.

       {¶ 61} Goodner’s third assignment of error is overruled.

                                               V

       {¶ 62} All of Goodner’s assignments of error having been overruled, the

judgment of the trial court is affirmed.



                                                                  Judgment affirmed.

       GRADY, P.J., and W AITE, J., concur.

                                           ..........

       GRADY, P.J., concurring.

       {¶ 63} In State v. Cooperrider (1983), 4 Ohio St.3d 226, 228, the Supreme

Court wrote: “[I]t is impossible to determine whether the attorney was ineffective in

his representation of appellant where the allegations of ineffectiveness are based

on facts not appearing in the record.” Defendant-appellant’s claim that his trial

counsel misadvised or failed to advise him that a BB gun is not a deadly weapon for

purposes of R.C. 2923.11(A) are facts that do not appear in the record of this case.

 I would overrule the first assignment of error on that basis.

       {¶ 64} Defendant-appellant’s fourth assignment of error is predicated on the

same factual claim and further assumes that the BB gun he had on his person

when he was arrested was the “deadly weapon” that defendant-appellant used

when he committed the five robbery offenses to which defendant-appellant entered

pleas of no-contest. I would overrule the fourth assignment of error for the same

reason: that the record fails to exemplify the error assigned.
                                                                                18




                                      ..........

      W AITE, J., concurring.

      {¶ 65} With respect to the first and fourth assignments of error, I concur in

the foregoing concurrence of Judge Grady. In all other respects, I concur in the

foregoing opinion of Judge Donovan.

                                   ..........

      Cheryl L. Waite, J., of the Seventh District Court of Appeals, sitting by
assignment.
