[Cite as State v. Mimes,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200122 TRIAL NO. B-1906901 Plaintiff-Appellee, :

vs. : O P I N I O N. WILLIE MIMES, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: July 21, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

HENDON, Judge.

{¶1} Defendant-appellant Willie Mimes appeals the 36-month prison

sentence that the trial court imposed after Mimes pleaded guilty to failing to comply

with an order or signal of a police officer. We affirm the 36-month prison term. We

reverse the portion of the trial court’s judgment imposing costs and fines and

remand this cause to the trial court to correct the clerical error in the entry reflecting

the imposition of costs and fines.

I. Facts and Procedure

A. Background

{¶2} On December 10, 2019, Willie Mimes, III, was charged with “failure to

comply with an order or signal of a police officer” under R.C. 2921.331(B). Mimes

had committed a traffic violation and had fled from law enforcement after being

signaled to pull over. He then crashed the vehicle into a pole and fled on foot. Mimes

was apprehended by law enforcement at his home on that same day, and indicted on

a sole count of failure to comply one week later.

{¶3} In January 2020, Mimes entered a guilty plea to the charge. The trial

court ordered a presentence investigation report, an advisability of treatment report,

and a River City evaluation.

B. The Sentencing Hearing

{¶4} In February 2020, the court held a sentencing hearing. In mitigation,

counsel for Mimes acknowledged that the officers had reservations about Mimes’

attitude, but that Mimes had taken full responsibility for his actions after being read

his Miranda rights. Counsel argued that the reports supported Mimes’ eligibility for

intensive supervised probation; that Mimes had “no problems with alcohol or drugs”

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and that he was at a “moderate risk” to reoffend although his “employment history in

his neighborhood placed him on high risk areas as far as the risk assessment score.”

Counsel also stated that Mimes had “been through a lot for being such a young man,”

that he was “just asking for help” and was apologetic.

{¶5} Mimes had initially expressed that he had nothing to say on his own

behalf. The court then asked Mimes, “No apologies?” to which Mimes responded “I

apologize.” The court asked Mimes if he realized how dangerous the situation was.

Mimes replied with, “Can we just get to the point?” and that the court could “do what

you all have to do” if it did not want to send him to six months of treatment at River

City. The court responded, “We are not doing that.” Mimes then said, “Three years?

Do that. It is what it is.”

{¶6} After being given time to speak with Mimes outside of court, counsel

explained that Mimes had been in the Hamilton County Justice Center for 72 days,

and that he was “a little frightened” and had “bad nerves.” The court disagreed and,

based on Mimes’ juvenile record and the officer’s account of what happened at the

scene, stated that it was “not going to waste a bed.” After considering the risk that

Mimes would commit another offense, the need to protect the public, the nature and

circumstances of the offense, and Mimes’ history, character, and condition, the court

determined that a prison sentence was required.

{¶7} Mimes was sentenced to 36 months in the Ohio Department of

Corrections with credit for days served at the Hamilton County Justice Center and

for transport time. Mimes did not object. The trial court opted not to order fines or

court costs.

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II. Standard of Review

{¶8} Pursuant to R.C. 2953.08(G)(2)(a), we may modify or vacate a

defendant's sentence only if we clearly and convincingly find that the record does not

support the trial court’s findings under relevant statutes–specifically division (B) or

(D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I)

of section 2929.20 of the Revised Code–or that the sentence is contrary to law. State

v. Anderson, 1st Dist. Hamilton No. C-190588,

.

{¶9} With respect to R.C. 2929.11 and 2929.12, this court has long held that

these are not fact-finding statutes, and that, absent an affirmative demonstration to

the contrary, we will presume that the trial court considered them.

{¶10} We review a trial court’s imposition of court fines and costs to

determine whether clear and convincing evidence supports the order. The state

concedes this issue, stating that the issue of court costs was a clerical error, and

requests the matter be remanded for correction.

III. Assignment of Error

{¶11} In his first assignment of error, Mimes argues that the sentence

imposed by the trial court was contrary to law. Mimes contends that the trial court’s

sentence did not comply with the principles and purposes of sentencing under R.C.

2929.11, and that it is not consistent with the seriousness and recidivism factors of

R.C. 2929.12.

{¶12} In his second assignment of error, Mimes argues that the trial court

erred by imposing court costs after stating that it would not do so during the

sentencing hearing.

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A. Purposes and Principles of Sentencing

{¶13} R.C. 2929.11(A) provides that a sentencing court “shall be guided by

the overriding purposes of felony sentencing,” which are in place “to protect the

public from future crime by the offender and others, to punish the offender, and to

promote the effective rehabilitation of the offender” by using the minimum sanctions

which would accomplish those purposes “without imposing an unnecessary burden

on state or local government resources. The sentencing court must “consider the

need for incapacitating the offender, deterring the offender and others from future

crime, rehabilitating the offender, and making restitution to the victim of the offense,

the public, or both.”

{¶14} However, in State v. Jones, Slip Opinion No.

, the

Ohio Supreme Court recently held that “R.C. 2953.08(G)(2)(a) clearly does not

provide a basis for an appellate court to modify or vacate a sentence if it concludes

that the record does not support the sentence under R.C. 2929.11 and 2929.12

because * * * R.C. 2929.11 and 2929.12 are not among the statutes listed in the

provision.” Id. at ¶ 31.

{¶15} The court further held that a trial court’s findings under R.C. 2929.11

and 2929.12 were not reviewable under R.C. 2953.08(G)(2)(b) because “an appellate

court’s conclusion that the record does not support a sentence under R.C. 2929.11 or

2929.12 is not the equivalent of a conclusion that the sentence is ‘otherwise contrary

to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id. at ¶ 34. The court

concluded that “[n]othing in R.C. 2953.08(G)(2) permits an appellate court to

independently weigh the evidence in the record and substitute its judgment for that

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of the trial court concerning the sentence that best reflects compliance with R.C.

2929.11 and 2929.12.” Id. at ¶ 42.

{¶16} The record indicates that the trial court imposed the 36-month

sentence after considering the risk that Mimes would commit another offense, the

need to protect the public, the nature and circumstances of the offense, and Mimes’

history, character, and condition. The trial court took Mimes’ juvenile record, the

presentence reports and assessments, and the seriousness of Mimes’ offense into

consideration, and determined that a prison sentence was required.

{¶17} Mimes has not shown that the trial court failed to consider the factors

in R.C. 2929.11 and 2929.12. Pursuant to Jones, this court is not permitted to

independently weigh the factors in R.C. 2929.11 and 2929.12 and substitute our

judgment for that of the trial court “concerning the sentence that best reflects

compliance with R.C. 2929.11 and 2929.12.” Jones, Slip Opinion No. 2020-Ohio-

6729, at ¶ 42. Therefore, we hold that the 36-month sentence imposed was not

contrary to law. Mimes’ assignment of error is overruled.

B. Court Costs and Fines

{¶18} The trial court announced that there would be no court costs or fines,

but the entry reflected imposition of costs and fines. The state concedes that the case

should be remanded to correct this error. The second assignment of error is

sustained.

IV. Conclusion

{¶19} We affirm the portion of the trial court’s judgment where it sentenced

Mimes to 36 months of imprisonment. We reverse the trial court’s judgment assessing

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costs and fines and we remand the matter to the trial court to correct this clerical error in

the entry.

Judgment affirmed in part and reversed in part, and cause remanded.

MYERS, P.J., and BERGERON, J., concur.

SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by assignment.

Please note:

The court has recorded its entry on the date of the release of this opinion

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