State v. Mims

2023 Ohio 1044

• Court: Ohio Court of Appeals
• Decided: March 30, 2023
• Docket: 111780
• Status: Published

Opinion

[Cite as State v. Mims, 2023-Ohio-1044.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : No. 111780 v. :

JAMONE MIMS, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED IN PART AND REMANDED RELEASED AND JOURNALIZED: March 30, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-660626-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki, Assistant Prosecuting Attorney, for appellant.

Cullen Sweeney, Cuyahoga County Public Defender, and Robert B. McCaleb and John T. Martin, Assistant Public Defenders, for appellee.

EILEEN A. GALLAGHER, P.J.:

Plaintiff-appellant, the state of Ohio, appeals the sentence imposed on

defendant-appellee Jamone Mims for felonious assault with a firearm specification. The state argues that the trial court improperly applied jail-time credit to the

mandatory prison term imposed on the specification.

For the reasons that follow, we find the state’s appeal to be ripe and the

trial court’s application of jail-time credit to be contrary to law. We therefore reverse

the judgment, in part, by modifying it to delete the request that jail-time credit be

applied to the mandatory prison term.

I. Factual Background and Procedural History

On August 12, 2021, a Cuyahoga County Grand Jury indicted Jamone

Mims for, among other things, felonious assault in violation of R.C. 2903.11(A)(2)

with a one-year firearm specification pursuant to R.C. 2941.141(A). On May 11,

2022, Mims pleaded guilty to that charge and specification. The state dismissed the

remaining counts in the indictment.

On June 27, 2022, the trial court imposed a sentence of one year in

prison on the firearm specification, to be served prior, and consecutive, to an

indefinite sentence of two to three years in prison on the underlying felonious-

assault conviction.

At the sentencing hearing, Mims’ counsel made the following request:

Your Honor, I would also ask that, based on his position, based on the fact that he’s been here 20 months, I would ask you to find him indigent in terms of fines and court costs. I would also ask this Court to consider an entry that would give him credit for the one-year firearm specification while he’s been in jail. I would ask the Court to consider that because he has been in for 20 months here. The court addressed the request as follows during the hearing:

I will put language in the journal entry because I think the situation with the pandemic and our inability to properly process your case and bring it to a resolution does impact you differently. It hits differently because of the pandemic. So I will put language that at the time that you have spent, the credit that you get shall be credited to the one-year firearm specification and any remaining credit will go towards your underlying sentence.

Now, whether the Ohio Department of Rehabilitation & Correction[] disregards that order, I don’t know. I don’t know how they process those orders because typically time served does not go towards the firearm specifications. I’m going to put it in my entry and I hope that they abide by it.

The court calculated Mims’ jail-time credit to be 588 days.1 The state

objected to the allocation of this jail-time credit to the firearm specification.

The trial court thereafter reduced its sentence to a journal entry, which

stated as follows, in relevant part:

The court imposes a prison sentence at the Lorain Correctional Institution of 3 year(s). Ct.2: 1 year firearm spec runs prior and consecutive to 2 year underlying sentence. The sentence imposed upon Defendant is an indefinite sentence under SB 201 – Reagan Tokes Law. The aggregate minimum term imposed by the Court is 2 years. The maximum term is 3 years. * * * Court is requesting jail credit shall be applied to firearm spec and remainder to be applied to underlying sentence.

The state sought leave to appeal the sentence pursuant to App.R. 5(C)

and R.C. 2945.67 and our court granted leave. The state raises one assignment of

error for review:

1 Mims was arrested months before his indictment; the amount of jail credit the court awarded is not in dispute. The trial court erred when it requested that defendant’s jail-time credit be applied to the portion of the sentence imposed for a firearm specification.

Mims filed a responsive brief and also moved to dismiss the appeal.

He argued that the issue is not ripe and that our court lacks jurisdiction to hear the

appeal. The state opposed the motion and the parties addressed the motion at oral

argument. We denied the motion,2 a decision that we explain here before reaching

the merits of the appeal.

II. Law and Analysis

A. Ripeness and Jurisdiction

We first address Mims’ argument that the appeal is not ripe and that

we lack jurisdiction to hear the appeal.

1. The Appeal Is Ripe

With respect to ripeness, Mims contends that the only circumstance

in which it would matter which portion of the sentence the credit is applied against

is if he is granted judicial release before serving one full year in prison (the length of

the mandatory term). If Mims does not obtain judicial release, the argument goes,

then he will be released on the same day whether the credit is applied to the

specification portion of the sentence or the underlying felony portion. Mims says

the state’s argument would only become ripe if Mims applies for, and is granted,

judicial release before actually serving one year in prison.

2 State v. Jamone Mims, 8th Dist. Cuyahoga No. 111780, Motion No. 561663 (Feb. 15, 2023). The state argues that the issue is ripe following the Supreme Court’s

opinion in State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781, 964 N.E.2d 423. We

agree that the issue is ripe for adjudication.

“‘In order to be justiciable, a controversy must be ripe for review.’”

State v. Maddox, 168 Ohio St.3d 292, 2022-Ohio-764, 198 N.E.3d 797, ¶ 7, quoting

Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 26. To

consider ripeness is to consider the constitutional and prudential justiciability of a

controversy. See Maddox at ¶ 8; see also Natl. Park Hospitality Assn. v. Dept. of

Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (holding that

the issue of ripeness stems from constitutional limits on judicial power, as well as

prudential reasons for refusing to exercise jurisdiction). The constitutional

requirements of the ripeness doctrine are met “‘if a threatened injury is sufficiently

“imminent” to establish standing * * *.’” Maddox at ¶ 8, quoting Natl. Treasury

Emps. Union v. United States, 101 F.3d 1423, 1428 (D.C.Cir.1996). “The prudential-

justiciability concerns include (1) whether the claim is fit for judicial decision and

(2) whether withholding court consideration will cause hardship to the parties.”

Maddox at ¶ 8, citing Hill v. Snyder, 878 F.3d 193, 213 (6th Cir.2017). A controversy

is fit for judicial decision when “‘[t]he issue presented in th[e] case is purely legal,

and will not be clarified by further factual development.”’ Maddox at ¶ 8, quoting

Thomas v. Union Carbide Agricultural Prods. Co., 473 U.S. 568, 581, 105 S.Ct.

3325, 87 L.Ed.2d 409 (1985). Mims tries to cast this case as one of executive-agency discretion, but

it is not. This case concerns the imposition of a sentence that the state says is

contrary to black-letter statutory law. See State v. Gamble, 2021-Ohio-1810, 173

N.E.3d 132, ¶ 26 (8th Dist.) (comparing challenges to the imposition of a sentence

with the ripeness of due-process claims based on an executive agency’s execution of

that sentence). The injury, if there is one, already exists; Mims “ha[s] received the

entirety of [his] sentence[] and the sentence[] ha[s] been journalized.” See Maddox

at ¶ 16.

The state is not asking us to address an abstract or hypothetical or

remote issue here, nor would we be “‘entangling [ourselves] in abstract

disagreements over administrative policies’” by taking up the state’s appeal. See

State ex rel. Elyria Foundry Co. v. Indus. Comm. of Ohio, 82 Ohio St.3d 88, 89, 694

N.E.2d 459 (1998), quoting Abbot Laboratories v. Gardner, 387 U.S. 136, 148, 87

S.Ct. 1507, 18 L.Ed.2d 681 (1967). And no further factual development would clarify

the purely legal issue at hand — whether the trial court’s application of jail-time

credit to the mandatory firearm specification was contrary to law under the facts of

the case.

If we do not resolve this legal issue now, an issue we are perfectly

capable of reviewing at this time, our decision would cause hardship to the parties.

If the Ohio Department of Rehabilitation and Correction (“DRC”)

applies the credit to the specification time, the state may not be able to assert a

challenge to the imposition of this sentence in judicial-release briefing as easily as Mims suggests. Ohio has returned “to the traditional distinction between void and

voidable” sentences such that ‘“sentences based on an error, including sentences in

which a trial court fails to impose a statutorily mandated term, are voidable if the

court imposing the sentence has jurisdiction over the case and the defendant.”’

Gamble at ¶ 22, quoting State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784,

162 N.E.3d 776, ¶ 1. “If the sentencing error rendered the defendant’s sentence

voidable, the error cannot be corrected through a postconviction proceeding or

though another form of collateral attack.” Gamble at ¶ 22, citing Henderson at ¶ 43.

On the other hand, if DRC does not apply the credit to the firearm

specification when it should have done so, Mims may never be able to effectively

challenge that determination either. In addition to the “void and voidable” issue just

mentioned, a trial court may deny a motion for judicial release without a hearing

and without making any specific findings — State v. Cruz, 8th Dist. Cuyahoga No.

109770, 2021-Ohio-947, ¶ 12, citing R.C. 2929.20 — and a denial of a judicial-

release motion is not generally considered a final, appealable order. E.g., id. at ¶ 6

(collecting cases).

We are, therefore, persuaded that the appeal is constitutionally and

prudentially justiciable; it is ripe. See also Olmsted Twp. v. Ritchie, 2022-Ohio-124,

181 N.E.3d 649, ¶ 2–6, 8, 10, fn. 2 (8th Dist.) (finding ripeness in defendant’s

challenge to sentencing entries that erroneously stated that jail time was available

on misdemeanor sentences, which could be imposed upon a violation of community

control, despite the fact that no jail time had in fact been imposed on the defendant); State ex rel. Fraley v. Ohio Dept. Rehab. & Corr., 161 Ohio St.3d 209, 2020-Ohio-

4410, 161 N.E.3d 646, ¶ 17 (“If the entries contained a legal error favoring Fraley,

then the state should have appealed the error.”).

2. We Have Jurisdiction to Hear the Appeal

With respect to our jurisdiction, Mims argues that, while the trial

court “requested” that the DRC apply jail-time credit to the mandatory term, “there

is no evidence that DRC followed this request.” He contends that the trial court’s

“request” regarding jail-time credit was not a decision that can be appealed under

R.C. 2945.67 or 2953.08. He asserts that the request “does not make the sentence

contrary to law unless the request is actually honored by DRC.” We disagree.

As the state points out, “[a] court speaks through its journal entries”

and “DRC’s role is not to correct a sentencing court’s errors and impose the sentence

it believes the court should have imposed.” Fraley at ¶ 17. “To the contrary, DRC is

obliged to execute the sentence imposed by the court.” Id., citing State v. Grimes,

151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 21, overruled on other

grounds, State v. Hudson, 161 Ohio St.3d 166, 2020-Ohio-3849, 161 N.E.3d 608.

We are aware that trial courts sometimes request that DRC exercise

its discretion with respect to a defendant, making a request for a certain diet, for

example. We do not consider a request like that in this appeal. The trial court made

a “request” as to something that is not within DRC’s discretion, since the request

went to the imposition of sentence itself. We would not deny the state appellate

review here, just as we would not deny a defendant appellate review of a sentencing entry that said something like, “Defendant sentenced to two years in prison for

felonious assault, request that he be awarded no jail-time credit” or “Defendant

sentenced to one year in prison, request that DRC hold him for fourteen months.”

The trial court’s sentencing entry was a final, appealable order and it

applied jail-time credit to the mandatory prison term imposed on the firearm

specification. We have jurisdiction to hear the appeal.

Having concluded that the issue is ripe for review and that we have

jurisdiction, we turn to the merits of the case.

B. Application of Jail-Time Credit to Mandatory Prison Term

We review felony sentences under 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, ¶ 21. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce or otherwise modify a sentence or vacate a sentence and remand for

resentencing if it “clearly and convincingly” finds that (1) the record does not

support certain of the sentencing court’s findings or (2) the sentence is “otherwise

contrary to law.” “‘Clear and convincing evidence is that measure or degree of proof

* * * which will produce in the mind of the trier of facts a firm belief or conviction as

to the facts sought to be established.’” State v. Franklin, 8th Dist. Cuyahoga No.

107482, 2019-Ohio-3760, ¶ 29, quoting Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954), paragraph three of the syllabus.

The state’s assignment of error is straightforward. The state argues

that a sentencing entry that applies jail-time credit to a mandatory prison term imposed for a firearm specification is contrary to law under the plain language of

R.C. 2929.14(B)(1)(b) and the Ohio Supreme Court’s decision in State v. Moore, 154

Ohio St.3d 94, 2018-Ohio-3237, 111 N.E.3d 1146, ¶ 32. The state asks us to reverse

the judgment and remand the matter “for a limited resentencing hearing to vacate

the portion of the sentencing entry applying Mims’s jail-time credit to the

mandatory prison sentence imposed for the firearm specification.”

Mims concedes that the Supreme Court in Moore held that jail-time

credit cannot be applied to mandatory sentences imposed for firearm specifications.

He nevertheless defends the sentence as an appropriate exercise of the trial court’s

judicial discretion considering the “unique circumstances” of his pretrial detention,

which he says was “exceptionally long” due to the COVID-19 pandemic, withdrawals

of counsel and his indigency. He contends that Moore was wrongly decided and

“issued what amounted to an advisory opinion” about whether R.C. 2929.14(B)

denies indigent defendants equal protection of the laws. He suggests, without

significant analysis, that to apply R.C. 2929.14(B) here would deny Mims equal

protection of the laws because Mims was unable to pay the $100,000 bond set in his

case and was found indigent.

The state responds by arguing that the trial court did not have the

discretion to impose this sentence and that Mims did not raise an equal-protection

argument in the trial court and “cannot raise a constitutional issue for the first time

on appeal,” citing Powell v. Williams, 2022-Ohio-526, 185 N.E.3d 595, ¶ 10 (8th

Dist.). The state also contends that there was no equal-protection violation here because even if we were to reverse, Mims “would not spend a single extra day in

confinement than if he had made bail after his first appearance.”

Mims asks that, if we do reverse the sentence, we remand the matter

for “limited resentencing” “for the sole purpose of ensuring that the 588 days of jail

time credit are applied to the non-mandatory portion of Mr. Mims’s sentence.”

We address Mims’ argument regarding judicial discretion first.

“[T]he General Assembly has the plenary power to prescribe crimes and fix

penalties.” State v. Morris, 55 Ohio St.2d 101, 112, 378 N.E.2d 708 (1978). Thus,

“‘the only sentence which a trial judge may impose is that provided for by statute

* * *.’” State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 12,

quoting State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984). “‘Judges have

no inherent power to create sentences.’ Rather, judges are duty-bound to apply

sentencing laws as they are written.” (Citations omitted.) Anderson at ¶ 10, quoting

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22.

In other words, however well-intentioned a trial court may be in

crafting a criminal sentence, it has no discretion to impose a sentence that is

contrary to law. Therefore, our resolution of the state’s assignment of error will turn

on whether Mims’ sentence is contrary to law.

We find that the court’s application of jail-time credit is contrary to

law. The Supreme Court in Moore held that R.C. 2929.14(B)(1)(b) does not allow

jail-time credit to be applied to mandatory firearm-specification sentences. Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, 111 N.E.3d 1146, at ¶ 15. Because that is exactly

what the trial court did here, the sentence violates R.C. 2929.14(B).

Mims does not dispute that Moore is binding precedent on this

question of statutory interpretation. Instead, he argues on appeal that application

of R.C. 2929.14(B) in this case would deprive Mims of the equal protection of the

law.

Even if this argument is not waived, we would find no equal-

protection violation here because the same argument was considered and rejected

by the Supreme Court’s opinion in Moore.

Mims was declared indigent and says that he remained detained

throughout his case because he could not afford the $100,000 bond set for him. His

equal-protection argument is that he will be treated differently than nonindigent

defendants if the jail-time credit is not applied to his firearm-specification sentence.

Mims does not clearly explain what differential treatment he expects, but the

argument seems to go as follows: A nonindigent defendant would have posted bond.

Both Mims and a nonindigent defendant would be able to apply for judicial release

six months after serving the one-year mandatory firearm sentence. But because

Mims was indigent and could not pay his bond, Mims would “lose” jail-time credit

if he were granted judicial release where a nonindigent defendant would not.

The Supreme Court expressly rejected this theory of differential

treatment in Moore. Moore at ¶ 29. The court of appeals in that case had found that

“‘giving full credit to an offender may require applying [jail-time] credit to a mandatory term when otherwise the potential length of the stated prison sentence

is not accurately reflective of the time the offender’s liberty was restrained.’” Moore

at ¶ 27, quoting State v. Moore, 2017-Ohio-673, 85 N.E.3d 547, ¶ 26 (6th Dist.).

In rejecting that reasoning as applied to Moore, the Supreme Court

reasoned that the defendant’s complaint in Moore “is not that he lost his jail-time

credit but that the credit was not allocated in the manner in which he prefers.”

Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, 111 N.E.3d 1146, at ¶ 29. The court

continued by noting that the defendant “could lose his jail-time credit because he

would not be able to use it if he were granted judicial release” (emphasis sic), but it

held that this loss would not be an injury to the defendant because “there is no right

to judicial release.” Id. Moreover, the court reasoned that a defendant does not

actually “lose” jail-time credit at all because any remaining credit would be applied

to any sentence imposed if the defendant were to violate a condition of release. Id.

The same reasoning applies to Mims. He will not be denied jail-time

credit if we reverse; the credit will be applied to the portion of his sentence for the

underlying felony. It is possible that Mims will not be able to use all of his jail-time

credit if he is granted judicial release, but he does not “lose” that credit because any

remaining credit would be applied to a sentence imposed if he were to violate a

condition of release. Moreover, if Mims is granted judicial release, “he will suffer no

injury: judicial release will give [him] exactly what he wants from jail-time credit—

not being in prison.” Moore at ¶ 29. Because the trial court’s application of jail-time credit was contrary

to law, we sustain the state’s assignment of error.

III. Conclusion

Having sustained the state’s sole assignment of error for the reasons

stated above we reverse the judgment, in part. Because both parties have asked for

resentencing, we remand this matter for a limited resentencing. The trial court is

directed to vacate its prior sentencing order and issue a new journal entry that does

not include a request to apply jail-time credit to the mandatory prison term but

instead applies that credit to the underlying felony sentence.

It is ordered that the appellant recover from the appellee the costs herein

taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and EILEEN T. GALLAGHER, J., CONCUR