[Cite as State v. Atkins, 2014-Ohio-1091.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. William B. Hoffman, P.J.
                                               :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee   :       Hon. Sheila G. Farmer, J.
                                               :
-vs-                                           :
                                               :       Case No. 12-CA-39
SHEVANN R. ATKINS                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Fairfield County
                                                   Court of Common Pleas, Case No. 2011-
                                                   CR-380



JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            March 19, 2014



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOCELYN KELLY                                      PAMELA L. PINCHOT
Assistant Prosecuting Attorney                     1800 Lyons Road
239 West Main Street, Ste. 101                     Dayton, OH 45458
Lancaster, OH 43130
[Cite as State v. Atkins, 2014-Ohio-1091.]


Gwin, J.,

        {¶1}     Defendant-appellant         Shevann   R.    Atkins   (“Atkins”)   appealed   her

convictions and sentences in the Fairfield County Court of Common Pleas for one count

of theft, a fourth-degree felony in violation of R.C. 2913.02(A)(3), one count of illegal

use of supplemental nutrition assistance program benefits, a fourth-degree felony in

violation of R.C. 2913.46(B), and one count of tampering with records, a third-degree

felony in violation of R.C. 2913.42(A)(1). State v. Atkins, 5th Dist. Fairfield No. 12-CA-

39, 2013-Ohio-2236. This Court upheld appellant's conviction and sentences. Id.

        {¶2}     By Judgment Entry filed September 24, 2013, this Court granted Atkins’

motion to re-open her direct appeal for the sole purpose of addressing the issue of

whether counsel was ineffective and Atkins prejudiced by the failure to file a motion to

suppress her statements made during the June 26, 2011 meeting.

                                             Assignment of Error

        {¶3}     Atkins has raised the following assignment of error

        {¶4}     “I. SHEVANN ATKINS WAS DENIED HER CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL, AND WAS PREJUDICED BY THE

FAILURE TO FILE A MOTION TO SUPPRESS HER STATEMENTS MADE DURING

THE JUNE 26, 2011, MEETING.”

                                                  Analysis

        {¶5}     In her present motion to re-open, appellant maintains she received

ineffective assistance of appellate counsel on direct appeal. The standard for reviewing

claims for ineffective assistance of counsel was set forth in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Ohio adopted this standard in the
Fairfield County, Case No. 12-CA-39                                                      3

case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). These cases

require a two-pronged analysis in reviewing a claim for ineffective assistance of

counsel.

      {¶6}   First, we must determine whether counsel's assistance was ineffective;

i.e., whether counsel's performance fell below an objective standard of reasonable

representation and volatile of any of his essential duties to the client. If we find

ineffective assistance of counsel, we must then determine whether the defense was

actually prejudice by counsel's ineffectiveness such that the reliability of the outcome of

the trial is suspect. This requires a showing that there is a reasonable probability that

but for counsel's unprofessional error, the outcome of the trial would have been

different. We apply the Strickland test to all claims of ineffective assistance of counsel,

either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. No. 2005-CA-41,

2006-Ohio-5214.

      {¶7}   When counsel's alleged ineffectiveness involves the failure to pursue a

motion or legal defense, this actual prejudice prong of Strickland breaks down into two

components. First, the defendant must show that the motion or defense “is meritorious,”

and, second, the defendant must show that there is a reasonable probability that the

outcome would have been different if the motion had been granted or the defense

pursued. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91

L.Ed.2d 305 (1986); see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798

(2001), citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

      {¶8}   Trial counsel's failure to file a suppression motion does not per se

constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389,
Fairfield County, Case No. 12-CA-39                                                    4


2000–Ohio–0448. Counsel can only be found ineffective for failing to file a motion to

suppress if, based on the record, the motion would have been granted. State v. Lavelle,

5th Dist. No. 07 CA 130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–

CA–88, 2007–Ohio–3009, at ¶ 86.

      {¶9}   In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), the Court adopted a set of prophylactic measures designed to safeguard the

constitutional guarantee against self-incrimination. J.D.B. v. North Carolina __ U.S.___,

131 S.Ct. 2394, 2401, 180 L.Ed.2d 310(July 16, 2011). Prior to questioning, a suspect

“must be warned that he has a right to remain silent, that any statement he does make

may be used as evidence against him, and that he has a right to the presence of an

attorney, either retained or appointed.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602; see

also Florida v. Powell, 559 U.S. ––––, ––––, 130 S.Ct. 1195, 1198, 175 L.Ed.2d 1009

(2010).

      {¶10} Because these measures protect the individual against the coercive

nature of custodial interrogation, they are required “ ‘only where there has been such a

restriction on a person’s freedom as to render him “in custody.” ’ ” Stansbury v.

California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam)

(quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)

(per curiam)). Whether a suspect is “in custody” is an objective inquiry. J.D.B. v. North

Carolina, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310. In J.D.B., the United States Supreme

Court further explained,

             “Two discrete inquiries are essential to the determination: first, what

      were the circumstances surrounding the interrogation; and second, given
Fairfield County, Case No. 12-CA-39                                                    5


      those circumstances, would a reasonable person have felt he or she was

      at liberty to terminate the interrogation and leave. Once the scene is set

      and the players’ lines and actions are reconstructed, the court must apply

      an objective test to resolve the ultimate inquiry: was there a formal arrest

      or restraint on freedom of movement of the degree associated with formal

      arrest.” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133

      L.Ed.2d 383 (1995) (internal quotation marks, alteration, and footnote

      omitted).

             See also Yarborough v. Alvarado, 541 U.S. 652, 662–663, 124

      S.Ct. 2140, 158 L.Ed.2d 938 (2004); Stansbury, 511 U.S., at 323, 114

      S.Ct. 1526; Berkemer v. McCarty, 468 U.S. 420, 442, and n. 35, 104 S.Ct.

      3138, 82 L.Ed.2d 317 (1984). Rather than demarcate a limited set of

      relevant circumstances, we have required police officers and courts to

      “examine all of the circumstances surrounding the interrogation,”

      Stansbury, 511 U.S., at 322, 114 S.Ct. 1526, including any circumstance

      that “would have affected how a reasonable person” in the suspect’s

      position “would perceive his or her freedom to leave,” id., at 325, 114 S.Ct.

      1526. On the other hand, the “subjective views harbored by either the

      interrogating officers or the person being questioned” are irrelevant. Id., at

      323, 114 S.Ct. 1526. The test, in other words, involves no consideration of

      the “actual mindset” of the particular suspect subjected to police

      questioning. Alvarado, 541 U.S., at 667, 124 S.Ct. 2140; see also
Fairfield County, Case No. 12-CA-39                                                  6

      California v. Beheler, 463 U.S. 1121, 1125, n. 3, 103 S.Ct. 3517, 77

      L.Ed.2d 1275 (1983) (per curiam).

             The benefit of the objective custody analysis is that it is “designed

      to give clear guidance to the police.” Alvarado, 541 U.S., at 668, 124 S.Ct.

      2140. But see Berkemer, 468 U.S., at 441, 104 S.Ct. 3138 (recognizing

      the “occasiona[l] ... difficulty” that police and courts nonetheless have in

      “deciding exactly when a suspect has been taken into custody”). Police

      must make in-the-moment judgments as to when to administer Miranda

      warnings. By limiting analysis to the objective circumstances of the

      interrogation, and asking how a reasonable person in the suspect’s

      position would understand his freedom to terminate questioning and leave,

      the objective test avoids burdening police with the task of anticipating the

      idiosyncrasies of every individual suspect and divining how those

      particular traits affect each person’s subjective state of mind. See id., at

      430–431, 104 S.Ct. 3138 (officers are not required to “make guesses” as

      to circumstances “unknowable” to them at the time); Alvarado, 541 U.S.,

      at 668, 124 S.Ct. 2140 (officers are under no duty “to consider ...

      contingent psychological factors when deciding when suspects should be

      advised of their Miranda rights”).

J.D.B. v. North Carolina __ U.S.___, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310. Accord,

State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 28, ¶27. The test

involves no consideration of the particular suspect's “actual mindset.” Yarborough v.

Alvarado, 541U.S. 652, 667, 124 S.Ct. 2140, 158 L.Ed.2d 938(2004). Accord, State v.
Fairfield County, Case No. 12-CA-39                                                    7

Mason, 82 Ohio St.3d 144, 153, 1998-Ohio-370, 694 N.E.2d 932(1998); State v. Gumm,

73 Ohio St.3d 413, 429, 1995 Ohio 24, 653 N.E.2d 253(1995).

      {¶11} The determination of whether a custodial interrogation has occurred

requires an inquiry into how a reasonable person in the detainee’s position would have

felt in the same position. Id. Miranda warnings are not required simply because the

questioning takes place in a coercive atmosphere. See Oregon v. Mathiason, 429 U.S.

492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714(1977) (a coercive environment does not

automatically convert a noncustodial situation into one requiring Miranda warnings).

State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶26; State v.

Mason, 82 Ohio St.3d 144, 154, 694 N.E.2d 932, 946(1998). Nor is the requirement of

warnings to be imposed simply because the questioned person is one whom the police

suspect. Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. 711, 50 L.Ed.2d 714; State v.

Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶47.

      {¶12} In the case at bar, Atkins was not in custody when she was questioned by

Investigator Kessler, but was there voluntarily. Atkins testified that Job and Family

Services asked her to come in and she drove herself to the interview. She was not

questioned at a police station, but at the Job and Family Services Building. She was not

under arrest and was free to leave at any time. There was not any restraint of her

movement such that a reasonable person would believe they were under arrest.

      {¶13} The fact that the investigator may have used deception to get her to come

to the interview is not controlling. Deception is a factor bearing on voluntariness.

Schmidt v. Hewitt, 573 F.2d 794, 801(3rd Cir. 1978). “However, this factor, standing

alone, is not dispositive of the issue.” State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E.2d
Fairfield County, Case No. 12-CA-39                                                       8


97(1991). Here, the authorities may have used deception to get Atkins to the interview,

but deception was not used during the interview. Atkins never refused to answer

questions, never asked for the questioning to stop, and never asked for medical

attention or a lawyer. See State v. Biros, 78 Ohio St.3d 426, 441, 678 N.E.2d 891(1997)

(no custodial interrogation where accused voluntarily went to the police station in his

own vehicle, was not arrested, and was free to leave at any time). The interview lasted

less than one hour.

       {¶14} The investigator did confront Atkins with the strength of the evidence

against her. However, in State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895,

908(1989), the court clearly stated that admonitions to tell the truth directed at a suspect

by police officers are not coercive in nature. See Frazier v. Cupp (1969), 394 U.S. 731,

89 S.Ct. 1420, 22 L.Ed.2d 684; State v. Wiles, 59 Ohio St.3d 71, 81, 571 N.E.2d 97,

112(1991). “A defendant’s will is not overborne simply because he is led to believe that

the government’s knowledge of his guilt is greater than it actually is.” Ledbetter v.

Edwards, 35 F.3d 1062, 1070(6th Cir. 1994).

       {¶15} Because Atkins was not subject to a custodial interrogation on June 26,

2011, she was not subject to Miranda.

       {¶16} In addition, an examination of the totality of the circumstances in this case

indicates that Atkins’ statements were voluntarily made.

       {¶17} In Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d

473(1986), the court held that "police over-reaching" is a prerequisite to a finding of

involuntariness. Evidence of use by the interrogators of an inherently coercive tactic

(e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will
Fairfield County, Case No. 12-CA-39                                                      9

trigger the totality of the circumstances analysis. State v. Clark, 38 Ohio St.3d 252, 261,

527 N.E.2d 844, 854(1988).

       {¶18} In the cause sub judice, Atkins does not assert that she was physically

deprived or mistreated while at the interview, nor does the record reveal any type of

physical deprivation. Moreover, there is no evidence that police subjected Atkins to

threats or physical abuse, or deprived her of food, sleep, or medical treatment. See

State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895, 908(1989).

       {¶19} At the time of the interview, Atkins was attending classes at Ohio

University. Atkins was only interviewed once and that interview was relatively short in

length, just under an hour. Investigator Kessler testified that she was "very sharp"

during the interview and asked questions. Atkins did tell the investigator that she

struggled with narcolepsy, but did not mention having any problems that day. When

Atkins asked about getting a lawyer, Investigator Kessler replied, "You're welcome to a

lawyer at any time you want a lawyer.” He further told Atkins she was free to leave the

interview at any time. (2T. at 407-408).

       {¶20} Atkins’ decision not to file a motion to suppress in this case may have

been based on a reasonable trial strategy.

       {¶21} The Ohio Supreme Court has recognized that if counsel, for strategic

reasons, decides not to pursue every possible trial strategy, defendant is not denied

effective assistance of counsel. State v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d

523(1988). When there is no demonstration that counsel failed to research the facts or

the law or that counsel was ignorant of a crucial defense, a reviewing court defers to

counsel's judgment in the matter. State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d
Fairfield County, Case No. 12-CA-39                                                       10

1189(1980), citing People v. Miller, 7 Cal.3d 562, 573-574, 102 Cal.Rptr. 841, 498 P.2d

1089(1972); State v. Wiley, 10th Dist. Franklin No. 03AP-340, 2004-Ohio-1008, ¶ 21.

      {¶22} A defendant has no constitutional right to determine trial tactics and

strategy of counsel. State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298(1999);

State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶150; State v.

Donkers, 170 Ohio App.3d 509, 867 N.E.2d 903, 2007-Ohio-1557(11th Dist.), ¶183.

Rather, decisions about viable defenses are the exclusive domain of defense counsel

after consulting with the defendant. Id. In the case at bar, the evidence before this

course indicates that the decision not to file a motion to suppress may have been a

tactical decision by trial counsel. In State v. Madrigal, the Ohio Supreme Court noted,

             Filing a motion to suppress is not without risks, and the fact that

      counsel filed a motion for leave to file the motion to suppress, and later

      withdrew that motion, is compelling evidence of a tactical decision. It is not

      mere speculation to presume that defense counsel obtained information

      concerning the suppression motion that led to its withdrawal. Further, the

      “adversarial testing process” worked to Madrigal's benefit. The gun that

      was seized during Madrigal's arrest was never conclusively tied to the

      murder in this case. Through cross-examination of the state's expert, as

      well as the presentation of his own expert, Madrigal's counsel were able to

      show that the gun was not necessarily the murder weapon.

87 Ohio St.3d 378, 389, 2000-Ohio-448, 712 N.E.2d 52.

      {¶23} In the case at bar, the defense utilized cross-examination, Atkins’

testimony and argument to present to the jury a picture of overreaching by the state in
Fairfield County, Case No. 12-CA-39                                                        11


its zeal to obtain a conviction. Even if ruled inadmissible in the state’s case in chief, the

trial court “might have allowed its use to impeach [appellant] if [s]he later chose to testify

at trial. See United States v. Salvucci, 448 U.S. 83, 93–94, 100 S.Ct. 2547, 2554, 65

L.Ed.2d 619, 629(1980); 4 LaFave, Search and Seizure (2 Ed.1987) 240–242, Section

11.2(d), and 349–351, Section 11.3(g); 1 Hall, Search and Seizure (2 Ed.1991) 244–

245, Section 5:42.” State v. Campbell, 69 Ohio St.3d 38, 44-45, 1994-Ohio-492, 630

N.E.2d 339. Even assuming defense counsel's tactics were questionable, we are

unpersuaded that these trial tactics constituted ineffective assistance of counsel. See

State v. Clayton 62 Ohio St.2d 45, 49, 16 O.O.3d 35, 37, 402 N.E.2d 1189, 1192(1980).

       {¶24} Given the record in the case at bar, we cannot conclude that there is a

reasonable probability that a motion to suppress would have been successful. See, e.g.,

State v. Fair, 2nd Dist. No. 24120, 2011–Ohio–3330, ¶ 27. Accordingly, Atkins has not

satisfied the second prong of the Strickland test and, therefore, has not demonstrated

that she received ineffective assistance of counsel.

       {¶25} Atkins’ sole assignment of error is overruled.
Fairfield County, Case No. 12-CA-39                                               12


       {¶26} For the foregoing reasons, the judgment of the Court of Common Pleas, of

Fairfield County, Ohio, is affirmed.


By Gwin, J.,

Hoffman, P.J., and

Farmer, J., concur
