State v. Mills

S
[Cite as State v. Mills, 2021-Ohio-326.]




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

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 28799
                                                 :
 v.                                              :   Trial Court Case No. 2019-CR-3389
                                                 :
 MICHAEL D. MILLS                                :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 5th day of February, 2021.

                                            ...........

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
     Attorney for Defendant-Appellant

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

HALL, J.
                                                                                           -2-




       {¶ 1} Michael D. Mills pled guilty to carrying a concealed weapon, a felony of the

fourth degree, for which he received a prison sentence of 18 months. His appellate

counsel filed a brief under the authority of Anders v. California, 

386 U.S. 738

, 

87 S. Ct. 1396

, 

18 L. Ed. 2d 493

(1967), asserting the absence of any non-frivolous issues for

appeal and asking permission to withdraw as counsel. On October 15, 2020, we notified

Mills that his counsel had found no meritorious claims to present on appeal and granted

him 60 days to file a pro se brief assigning any errors for review. He has not filed a brief.

       {¶ 2} Mills was driving a vehicle on October 15, 2019 in Dayton. After a traffic stop,

he was found not to have a valid driver’s license. An inventory of the vehicle revealed a

loaded .38 caliber revolver under the driver’s seat. Mills admitted the gun was his.

       {¶ 3} Mills was charged with carrying a concealed weapon and improper handling

of a firearm in a motor vehicle. On February 11, 2020, a plea agreement was made: in

exchange for a plea to the carrying a concealed weapon charge, the improper handling

charge would be dismissed. After a complete and thorough Crim.R. 11 colloquy, Mills

knowingly, intelligently and voluntarily pled guilty to the charge.

       {¶ 4} A presentence investigation (PSI) was ordered, and the case came before

the court for sentencing on March 24, 2020. On that date, Mills was informed that the

court intended to impose a prison sentence, and he fled the courthouse. A warrant was

issued for his arrest. Sentencing was later conducted on April 7, 2020. The record reflects

that the court considered the PSI, the purposes and principles of sentencing, and the risk

and recidivism factors of the Revised Code. The PSI revealed Mills had two juvenile felony

adjudications, each of which resulted in a commitment to the Department of Youth
                                                                                          -3-


Services. As an adult, Mills’s record included four prior felony convictions, three prior

prison terms, multiple misdemeanor violations and failures at prior supervision. The court

imposed a sentence of 18 months in prison and correctly advised Mills about post-release

control.

                                Potential Assignment of Error

         {¶ 5} Counsel’s brief raises a potential assignment of error that questions whether

Mills’s maximum prison sentence was unduly harsh and whether the trial court properly

considered the purposes of sentencing in R.C. 2929.11 or properly considered the

seriousness of the crime or the likelihood of recidivism in R.C. 2929.12.1 In regard to the

maximum sentence that was imposed, our review is limited. We have repeatedly ruled

that based upon the language of R.C. 2953.08(G)(2), when a sentence is not contrary to

law, we may only vacate or modify a felony sentence if we find by clear and convincing

evidence that the record does not support the sentence. State v. Barnett, 2d Dist.

Montgomery No. 27660, 2018-Ohio-4133, citing State v. Marcum, 

146 Ohio St. 3d 516

,

2016-Ohio-1002, 

59 N.E.2d 1231

. Here, given Mills’s prior convictions and prison

sentences, his failures at prior supervision, and his disappearance from the courthouse,

there is simply no reasonable argument that the trial court’s sentence was clearly and

convincingly contrary to the record. That potential assignment of error is frivolous.

         {¶ 6} Regarding R.C. 2929.11 and 2929.12, recently the Supreme Court held in

State v. Jones, Ohio Slip Opinion No. 2020-Ohio-6729, __ N.E.3d __, that appellate

review of a sentence “does not provide a basis for an appellate court to modify or

vacate a sentence based on its view that the sentence is not supported by the record


1 The   brief inaccurately refers to R.C. 2929.13 for the seriousness and recidivism factors.
                                                                                    -4-


under R.C. 2929.11 and R.C. 2929.12.”

Id. at ¶ 39.

Therefore, a sentence cannot be

reversed “based on the lack of support in the record for the trial court's findings

under R.C. 2929.11 and R.C. 2929.12.”

Id. at ¶ 29.

Given the holding in Jones, the

potential assignment of error has no arguable merit insofar as it references R.C.

2929.11 and R.C. 2929.12.

                                   Anders Review

       {¶ 7} We also have performed our duty under Anders to conduct an independent

review of the record. We thoroughly have reviewed the docket, the various filings, the

PSI, the written transcript, and the sentencing disposition. We have found no non-

frivolous issues for review.

       {¶ 8} We grant counsel’s request to withdraw from representation and affirm the

judgment of the Montgomery County Common Pleas Court.



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



DONOVAN, J. and WELBAUM, J., concur.


Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Hilary Lerman
Michael D. Mills
Hon. Mary Katherine Huffman

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