[Cite as State v. Redd, 2015-Ohio-3164.]




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

STATE OF OHIO                                    :
                                                 :
        Plaintiff-Appellee                       :   Appellate Case No. 26273
                                                 :
v.                                               :   Trial Court No. 2013-CR-3985
                                                 :
ARLONDO E. REDD                                  :   (Criminal Appeal from
                                                 :    Common Pleas Court)
        Defendant-Appellant                      :
                                                 :

                                            ...........
                                           OPINION
                             Rendered on the 7th day of August, 2015.
                                            ...........

MATHIAS H. HECK, JR., by CHRISTINA E. MAHY, Atty. Reg. No. 0092671, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building,
P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

CHRIS BECK, Atty. Reg. No. 0081844, 1370 North Fairfield Road, Suite C, Beavercreek,
Ohio 45432
      Attorney for Defendant-Appellant

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

HALL, J.

        {¶ 1} Arlondo Redd appeals from his conviction for complicity to commit
                                                                                          -2-
aggravated robbery. Finding no error, we affirm.



                                      I. Background

       {¶ 2} Redd and Kayin Pooler were indicted as co-defendants in January 2014 on

one count of aggravated robbery with a deadly weapon. Redd later filed a motion to

suppress arguing that statements he had made to police were made after unlawful,

coercive custodial interrogation; that he did not knowingly and voluntarily waive his

Miranda rights; and that even if he did waive his rights, he later revoked the waiver.

       {¶ 3} Testifying at the suppression hearing were Detective Douglas Baker, one of

the detectives who interviewed Redd, and Redd himself.1 Detective Baker testified that

he went over a Miranda-rights form (admitted as State’s Exhibit 2) before asking Redd

any questions. Baker said that Redd orally acknowledged that he understood each right

and initialed next to each right listed on the form. Finally, said Baker, he had Redd read

the waiver-of-rights section at the bottom of the form and sign the form. During the

interview, Baker said, Redd eventually admitted that he was at the scene of the robbery

but that Pooler was the one with the gun and the one who committed the crime. Redd also

made a written statement in which he admitted being at the scene of the robbery. Redd

claimed that the detectives “tricked” him into admitting that he was at the scene. Redd

said that in response to coercive interrogation tactics he just told the detectives what they

wanted to hear. According to Redd, his entire written statement is false and he was not at

the scene when the robbery occurred.



1
 Pooler also filed a motion to suppress, and the suppression hearing was on Pooler’s
motion too. The detective who interviewed Pooler also testified at the hearing.
                                                                                           -3-
          {¶ 4} At the end of the hearing, the trial court overruled Redd’s motion to suppress

and explained its rationale. The court concluded that Miranda warnings were required

and that Detective Baker gave them. The court cited a waiver-of-rights form signed by

Redd and said that the form corroborates Detective Baker’s testimony that he complied

with Miranda. On the question of whether Redd had voluntarily waived his rights, the court

said that the critical issue was credibility—Detective Baker’s versus Redd’s. The court

found Baker more credible. Based on Baker’s testimony about the interview and the

waiver-of-rights form, the court concluded that Redd had voluntarily waived his Miranda

rights.

          {¶ 5} Following the suppression hearing, Redd and the state entered into a plea

agreement under which the state dismissed the indictment and Redd pleaded no contest

to a bill of information charging him with complicity to commit aggravated robbery with a

deadly weapon, but without a firearm specification which had been in the indictment.2

The trial court sentenced Redd to three years in prison. Redd appealed.

          {¶ 6} Redd’s appellate counsel filed an Anders brief. In our independent review of

the record, we found that the termination entry incorrectly stated that Redd had entered a

plea of guilty. This being reversible error, we set aside the Anders brief and appointed

new appellate counsel, giving counsel free reign to “raise any issues that new counsel

wishes, including if appropriate those identified.” Decision and Entry (Dec. 1, 2014). We

turn now to the issues that new counsel has raised.




2
 Pooler pleaded guilty to the indicted offense of aggravated robbery with a deadly
weapon and the firearm specification was dismissed.
                                                                                         -4-
                                       II. Analysis

       {¶ 7} Redd assigns two errors to the trial court. The first alleges that defense

counsel rendered ineffective assistance, and the second alleges that the trial court should

not have accepted his no-contest plea.

                          A. Ineffective assistance of counsel

       {¶ 1} Redd argues in the first assignment of error that defense counsel was

ineffective. To establish a claim that counsel’s assistance was so defective as to require

reversal of a conviction, the defendant must show that counsel’s performance was

deficient and that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[T]he proper

standard for attorney performance is that of reasonably effective assistance. * * * When a

convicted defendant complains of the ineffectiveness of counsel’s assistance, the

defendant must show that counsel’s representation fell below an objective standard of

reasonableness.” Id. at 687-688. A reviewing court “must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.”

(Citation omitted.) Id. at 689. “Judicial scrutiny of counsel’s performance must be highly

deferential.” Id.

       {¶ 2} Redd contends that, at the suppression hearing, defense counsel should

have objected to the state’s cross-examination of him (Redd) because the state’s

questions exceeded the scope of direct examination. Redd says that direct examination

of him was essentially limited to questions regarding the times of the police interviews and

the comments that police made during those interviews. But on cross-examination, he

says, the state asked about whether he had admitted to the robbery and whether he was
                                                                                          -5-
at the scene of the robbery when it was committed.

       {¶ 3} “[T]he rules of evidence normally applicable in criminal trials do not operate

with full force at hearings before the judge to determine the admissibility of evidence.”

U.S. v. Matlock, 415 U.S. 164, 172-173, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). This is true

of suppression hearings in Ohio. State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180,

837 N.E.2d 752, ¶ 14, citing Evid.R. 101(C)(1) (the rules of evidence generally do not

apply to admissibility determinations) and 104(A) (in making admissibility determinations

a court is generally not bound by the rules of evidence). Even under the normal rules of

evidence, “[i]n Ohio, cross-examination is not limited to the subject matter of direct

examination. Compare Evid.R. 611(B) with Fed.R. Evid. 611(b). It is available for all

matters pertinent to the case that the party calling the witness would have been entitled or

required to raise.” State v. Treesh, 90 Ohio St.3d 460, 481, 739 N.E.2d 749 (2001).

Accord State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 128

(saying that “[u]nder Evid.R. 611(B), cross-examination is not limited to the scope of direct

examination, but may cover ‘all relevant matters’ ”). Here, the state’s cross-examination

questions arose from Redd’s claim that statements he made to police were coerced. The

state sought to identify which statements were false and which were true. These

questions are relevant to the issue of whether Redd voluntarily waived his Miranda rights.

Therefore defense counsel cannot have rendered ineffective assistance by failing to

object to relevant admissible evidence.

       {¶ 4} The first assignment of error is overruled.



                                B. Voluntariness of plea
                                                                                          -6-
       {¶ 5} The second assignment of error alleges that the trial court should not have

accepted Redd’s no-contest plea, because he did not make the plea knowingly and

voluntarily.

       {¶ 6} “Crim.R. 11(C) imposes certain conditions on the trial court before it may

accept a plea of guilty or no contest to a felony offense. The purpose of those

requirements is to assure that the plea is knowingly, intelligently, and voluntarily made.”

State v. Jones, 2d Dist. Greene No. 03CA7, 2003-Ohio-4843, ¶ 5. Pertinent here is the

requirement that “[i]n felony cases the court may refuse to accept a plea of guilty or a plea

of no contest, and shall not accept a plea of guilty or no contest without first addressing

the defendant personally and * * * [d]etermining that the defendant is making the plea

voluntarily, with understanding of the nature of the charges and of the maximum penalty

involved * * *.” Crim.R. 11(C)(2)(a).

       {¶ 7} Here, before accepting Redd’s plea, the trial court told him everything that

Crim.R. 11(C)(2) says a court should tell a defendant. And the court determined that Redd

understood what it was telling him. Along the way, Redd asked several questions. The

court answered each of his questions until Redd said that he understood.

       {¶ 8} An apparently important question that Redd had was why he could not

appeal the denial of his motion to suppress before he was sentenced. Redd told the court:

       I understand that if I plead no contest, they said I can go to prison and get

       a—I can get possible judicial release. And then they said I could probably

       appeal it with a expedite appeal. But I’m not understanding. If I can get

       judicial release and I leave after six months—say I get granted—I’m still not

       going come back for my appeal. And as far as I understand, I had—at my
                                                                                          -7-
         motion to suppress hearing, I had inadequate counsel. So I know I could

         actually—my case really didn’t allow me—I didn’t really have nothing to do

         with this case. You know what I’m saying? And I just know I’m not

         understanding why I have to, you know what I’m saying, throw all my rights

         away when, if I can appeal it now, before this happened, maybe you would

         see—be lenient on my sentencing.

(Tr. 68-69).3 The trial court explained that the reason he could not immediately appeal

was that the suppression ruling was interlocutory and interlocutory rulings may not be

appealed right away. The court assured Redd that he would be able to appeal after he

had been sentenced. Redd said that he understood the court’s explanation.

         {¶ 9} Later, the trial court asked Redd if he understood that by pleading no contest

he was giving up certain constitutional rights, and Redd answered, “I’m still thinking,” (Id.

at 77). He then asked the court another appeal question: “Say I found a flaw on my

discovery packet or some flaws inside my case, how do I go about appealing that?” (Id.).

The trial court told him that he could not appeal that issue because he could appeal only

issues that he had already raised, like those in his motion to suppress. But, added the

court, Redd might be able to obtain post-conviction relief on such grounds. Redd said that

he understood. The court then asked him if he understood that he was giving up the

constitutional rights it had mentioned earlier, and Redd replied that he did.

         {¶ 10} Redd says that the numerous questions he asked during the plea hearing

indicates that he did not understand the proceedings. We think that just the opposite is

true: that Redd asked questions at the plea hearing suggests that when he finally did


3
    The transcript mistakenly identifies the speaker as the court.
                                                                                          -8-
enter his plea he did so knowingly and voluntarily. Redd’s apparent belief that he had not

been adequately represented at the suppression hearing does not show a failure to

understand the consequences of pleading no contest. The trial court did not err by

accepting Redd’s no-contest plea.

       {¶ 11} Redd also says that he denied an essential element of the charged offense

and that this shows that he did not understand the nature of the charge to which he

pleaded no contest. Compare Jones, 2003-Ohio-4843, at ¶ 28 (concluding that the trial

court erred by accepting the defendant’s guilty plea where the defendant denied certain

conduct necessary to the offense and the court did not clarify the defendant’s

understanding). At the sentencing hearing, Redd claimed that he was innocent, telling the

court, “I had nothing to do with this crime.” (Tr. 84). But this claim of innocence is not

relevant to the plea-voluntariness analysis, because it was made after Redd entered his

plea. A defendant “cannot rely on post-plea statements or claims of innocence to

establish that the trial court erred in accepting her plea. ‘[W]hen a defendant makes

claims of innocence after a guilty plea has been accepted; a trial court has no duty to

inquire into a defendant’s reasons for pleading guilty.’ The proper way to raise the issue at

that point is a motion to withdraw the plea.” State v. Damron, 2d Dist. Champaign No.

2014-CA-15, 2015-Ohio-2057, ¶ 10, quoting State v. Reeves, 8th Dist. Cuyahoga No.

100560, 2014-Ohio-3497, ¶ 13 (citing cases).

       {¶ 12} The second assignment of error is overruled.

       {¶ 13} One matter remains and that is the error in the judgment entry of conviction

and sentencing, indicating that Redd entered a guilty plea when his plea was in fact one

of no contest. We had noted this mistake in our Anders review. Before Redd filed his
                                                                                        -9-
present appellate brief, the trial court entered a nunc pro tunc termination entry that

correctly states that Redd entered a plea of no contest. Redd acknowledges the

correction and does not raise the error.



                                     III. Conclusion

       {¶ 14} We have overruled all of the assignments of error. The trial court’s judgment

is affirmed.

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



FROELICH, P.J., and FAIN, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Christina E. Mahy
Chris Beck
Hon. Timothy N. O’Connell
