[Cite as State v. Mays, 2012-Ohio-3602.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO : 

: Appellate Case No. 24923 

Plaintiff-Appellee : 

: Trial Court Case No. 2011-CR-2926 

v. : 

: 

PHILLIP DION MAYS : (Criminal Appeal from 

: (Common Pleas Court) 

Defendant-Appellant : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 10th day of August, 2012. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. 

Box 972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

RICHARD A. NYSTROM, Atty. Reg. #0040615, 1502 Liberty Tower, 120 West Second 

Street, Dayton, Ohio 45402 

Attorney for Defendant-Appellant 

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

 

FAIN, J. 

{¶ 1} Defendant-appellant Phillip D. Mays appeals from his conviction and 
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maximum three-year sentence for Robbery, in violation of R.C. 2911.02(A)(3), a felony of the 

third degree, following a guilty plea. Mays also pled guilty to Grand Theft of a Motor 

Vehicle, in violation of R.C. 2913.02(A)(1), a felony of the fourth degree, but that conviction 

was merged into the Robbery conviction for sentencing purposes. 

{¶ 2} Assigned appellate counsel has 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 could find 

no potential assignments of error having arguable merit. By entry of this court filed April 10, 

2012, Mays was accorded 60 days within which to file his own, pro se brief. He has not done 

so. 

{¶ 3} We have reviewed the entire record, including the transcript of the plea and 

sentencing hearings. The trial court took Mays’s guilty plea properly under Crim.R. 11(C), 

ascertaining that Mays understood the nature of the charges to which he was pleading guilty, 

the potential consequences of his plea, and the various rights that he would be giving up by 

pleading guilty. 

{¶ 4} The trial court also conducted a proper sentencing hearing, merging the 

Grand Theft of a Motor Vehicle conviction into the Robbery conviction for sentencing 

purposes. The trial court heard from Mays’s trial counsel, from Mays, and from the State. 

The trial court considered a pre-sentence investigation report, which we have reviewed. The 

trial court imposed a maximum, three-year sentence for Robbery, disapproved Mays’ motion 

for shock incarceration under R.C. 5120.031, but approved him for participation in intensive 

program prison under R.C. 5120.032. 

{¶ 5} The only potential assignment of error that assigned appellate counsel 
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has been able to identify, but not one having arguable merit in his opinion, is that the trial 

court erred in imposing the maximum sentence for Robbery. As counsel notes, after State v. 

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, trial courts have discretion to 

impose a prison sentence within the allowed statutory range, and are not required to give 

reasons or make findings. Accordingly, the general standard of appellate review is the abuse 

of discretion standard of review. A somewhat different standard of review obtains for an 

appeal brought under R.C. 2953.08 – see R.C. 2953.08(G)(2) – but that statute expressly 

declares that the right to appeal set forth therein is “[i]n addition to any other right to appeal * 

* * .” R.C. 2953.08(A). An appeal under R.C. 2953.08 can lie from a maximum sentence, 

like the one in the case before us, but appears to be limited to situations in which the record 

does not support the sentencing court’s findings that were statutorily required before Foster, 

or in which the sentence is contrary to law. R.C. 2953.08(G)(2)(a) and (b). Neither of these 

situations obtain in the case before us. 

{¶ 6} That leaves a general appeal, not under R.C. 2953.08, in which the issue 

is whether the sentence chosen by the trial court from within the statutory range is a proper 

exercise of the trial court’s discretion. 

{¶ 7} Under R.C. 2929.12(D), the trial court is required to consider the 

following factors as “factors indicating that the offender is likely to commit future crimes”: 

(1) At the time of committing the offense, the offender was under release from 

confinement before trial or sentencing, under a sanction imposed pursuant to section 2929.16, 

2929.17, or 2929.18 of the Revised Code, or under post-release control pursuant to section 

2967.28 or any other provision of the Revised Code for an earlier offense or had been 
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unfavorably terminated from post-release control for a prior offense pursuant to division (B) 

of section 2967.16 or section 2929.141 of the Revised Code. 

(2) The offender previously was adjudicated a delinquent child pursuant to Chapter 

2151. of the Revised Code prior to January 1, 2002, or pursuant to Chapter 2152. of the 

Revised Code, or the offender has a history of criminal convictions. 

(3) The offender has not been rehabilitated to a satisfactory degree after previously 

being adjudicated a delinquent child pursuant to Chapter 2151. of the Revised Code prior to 

January 1, 2002, or pursuant to Chapter 2152. of the Revised Code, or the offender has not 

responded favorably to sanctions previously imposed for criminal convictions. 

(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to 

the offense, and the offender refuses to acknowledge that the offender has demonstrated that 

pattern, or the offender refuses treatment for the drug or alcohol abuse. 

(5) The offender shows no genuine remorse for the offense. 

{¶ 8} Our review of the pre-sentence investigation report indicates that four 

of these factors weigh in favor of a longer sentence in this case. As to factor (1), Mays was 

under post-release control when he committed these offenses. As to factor (2), Mays was 

adjudicated a delinquent child on three occasions, was convicted of eight misdemeanors as an 

adult, and was convicted of seven felonies as an adult (before these offenses), including 

Aggravated Robbery with a Deadly Weapon, Rape, and Assault on a Corrections Officer. As 

to factor (3), the frequency of Mays’s prior convictions, the last of which resulted in a 

conviction in January, 2009, together with the fact that his offenses in this case occurred while 

he was on post-release control, indicate that he has not responded favorably to sanctions 
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previously imposed. As to factor (4), although Mays has had a history of over 20 years of 

dependency upon alcohol, marijuana, cocaine, and crack cocaine, he did acknowledge, at the 

sentencing hearing, his struggle with drug addiction, and does not refuse treatment, so that 

factor does not weigh in favor of a longer sentence. Finally, as to factor (5), although Mays 

stated at the sentencing hearing that he had apologized to his victim, he showed little remorse. 

 In the pre-sentence investigation report, although Mays acknowledged having committed the 

offenses, he presented a more self-serving version of the facts than did the victim. According 

to Mays, he did not do anything more than ask the victim if he could “borrow a couple bucks” 

until the victim jumped out of his truck “acting defensively.” According to the victim, Mays 

approached the truck telling the victim to get out of the truck and give Mays all of the victim’s 

money. 

{¶ 9} Conversely, none of the factors required to be considered as indicating 

that the offender is not likely to commit future crimes is present in this case. R.C. 

2929.12(E). R.C. 2929.12(B) requires consideration of certain factors indicating that the 

offender’s conduct is more serious than the conduct normally constituting the offense, and 

R.C. 2929.12(C) requires consideration of certain factors indicating that the offender’s 

conduct is less serious than conduct normally constituting the offense. None of these factors 

is present in this case. 

{¶ 10} In view of the substantial likelihood that Mays will commit another offense, 

based upon the four factors set forth in R.C. 2929.12(D) that apply in his case, including his 

extensive criminal history, we see no reasonable argument that can be made that the trial court 

abused its discretion in imposing the maximum, three-year sentence. 
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{¶ 11} We have performed our duty, under Anders v. California, supra, to review the 

record independently, and we have found no potential assignments of error having arguable 

merit. Accordingly, the judgment of the trial court is Affirmed. 

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

GRADY, P.J., and HALL, J., concur. 

Copies mailed to: 

Mathias H. Heck 

Carley J. Ingram 

Phillip Dion Mays 

Richard A. Nystrom 

Gregory F. Singer