State v. Mayberry , 2018 Ohio 2220 ( 2018 )

[Cite as State v. Mayberry, 2018-Ohio-2220.]
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,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (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, 386 U.S. at 744; Penson
v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (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, 2002-Ohio-6788, ¶ 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, 2003-Ohio-3242, ¶ 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, 409 U.S. 188, 196-97,
93 S.Ct. 375, 34 L.Ed.2d 401 (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,
144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208. 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, 2015-Ohio-1403, ¶ 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 Neil at 199-200; Manson v. Brathwaite, 432 U.S. 98, 97
S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Bates, 110 Ohio St.3d 1230, 2006-Ohio-3667,
850 N.E.2d 1208, ¶ 8.
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, 2016-Ohio-727, 60 N.E.3d 633, ¶ 18, fn. 1 (2d Dist.);
State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-8366, ¶ 12, fn. 3. For
example, Neil and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140(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, 110 Ohio St.3d 1230, 2006-Ohio-3667, 850 N.E.2d 1208 at ¶
9; State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 19, ¶ 25.
-7-
{¶ 17} Reliability of the pretrial identification is the linchpin in determining its
admissibility. Manson at 114. “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, 2002 WL 254144, *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, 2009-Ohio-1038, ¶ 19.
{¶ 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,
2007-Ohio-6675, ¶ 3.
{¶ 30} The Supreme Court of Ohio has urged trial courts to literally comply with
Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.
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, 56
Ohio St.3d 106, 108, 564 N.E.2d 474 (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.” Id. 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, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. 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, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 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, 992 N.E.2d 491, ¶ 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, 194 Ohio App.3d
500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 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, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Trial counsel is entitled
to a strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688. A defendant is entitled to “reasonable
competence” from his or her attorney, not “perfect advocacy.” See Maryland v. Kulbicki,
136 S.Ct. 2, 5 (2015), citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d
1 (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. __, 138 S.Ct. 22, 26, 199
L.Ed.2d 341 (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, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v.
Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 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, 2017-Ohio-9052, ¶ 19.
{¶ 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,
2015-Ohio-5295, ¶ 32. 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