[Cite as State v. Simmons,
2020-Ohio-6813.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-A-0029
- vs - :
WILLIAM E. SIMMONS, III, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2019 CR
000611.
Judgment: Affirmed.
Cecilia M. Cooper, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Prosecutor’s Office, 25 West Jefferson Street, Jefferson,
OH 44047 (For Plaintiff-Appellee).
Mary Catherine Corrigan, Friedman & Gilbert LLC, 50 Public Square, Suite 1900,
Cleveland, OH 44113; and Allison Faye Hibbard, The Brownhoist Building, 4403 St. Clair
Avenue, Cleveland, OH 44103 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, William E. Simmons, III, appeals from the judgment entry of
sentence issued by the Ashtabula County Court of Common Pleas on June 12, 2020,
following pleas of guilty to two felonies of the third degree. At issue on appeal is the trial
court’s imposition of a maximum, consecutive sentence. The judgment is affirmed.
{¶2} On or between June 16 and June 21, 2019, in Harpersfield Township,
appellant was a passenger in a vehicle that struck and killed a pedestrian on Route 534
in Harpersfield Township. The vehicle was driven by Tyler Zsigray. Neither appellant nor
Zsigray called 911 or came forward with the fact that they were involved in the accident.
They hid the damaged vehicle in a barn, which prevented law enforcement officers from
finding the vehicle until much later on in time. Appellant and Zsigray were initially
dishonest with law enforcement about the facts and circumstances of the accident. Both
subsequently admitted they went back to the scene of the accident and saw the
pedestrian lying on the road, but they did not call 911.
{¶3} Appellant was indicted on three counts: Count One, Obstructing Justice, in
violation of R.C. 2921.32(A)(4)(C)(4); Count Two, Obstructing Justice, in violation of R.C.
2921.32(A)(5)(C)(4); and Count Three, Tampering with Evidence, in violation of R.C.
2921.12(A)(1). All three counts are felonies of the third degree.
{¶4} Pursuant to a negotiated plea agreement, appellant pleaded guilty to
Counts One and Three. The state of Ohio agreed to dismiss Count Two as well as
charges in a pending case. The state further agreed not to impose post-release control
on a previous case as a result of the convictions in the case sub judice. Appellant faced
a potential penalty, on both counts, of a prison sentence of 9, 12, 18, 24, 30, or 36 months
and a fine of not more than $10,000.00. A prison term was neither mandatory nor
presumed for either count.
{¶5} The trial court ordered a presentence investigation. The presentence
investigation report revealed that appellant, at 33 years of age, had amassed at least 21
adult convictions plus juvenile adjudications. He had previously attended NorthEast Ohio
Community Alternative Programs (“NEOCAP”), spent time in county jail, and served a
prison sentence. When the instant offenses occurred, appellant was on post-release
control for another felony.
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{¶6} Appellant appeared before the trial court for sentencing on June 12, 2020.
He had applied to and was rejected by both Mental Health Court and NEOCAP programs.
Appellant read two letters into the record—one addressed to the victim’s family, and one
addressed to the court—expressing regret and remorse for his role in what happened
after the fatal accident. The victim’s husband and mother-in-law also addressed the court.
Appellant requested the court impose community control, while defense counsel
requested non-consecutive sentences on the lower end of the sentencing range. The
prosecutor requested maximum, consecutive sentences.
{¶7} The trial court found recidivism likely, that the seriousness factors override
the mitigating factors, and that community control would demean the seriousness of the
offenses and not adequately protect the public from future crimes. After making
consecutive sentence findings, the court imposed the maximum sentence on each count,
36 months in prison, to run consecutively for a total prison term of 72 months. No fine
was imposed.
{¶8} The sentence was journalized on June 12, 2020. On appeal from this entry,
appellant raises one assignment of error for our review:
{¶9} “The Trial Court erred by failing to consider the factors pursuant to Ohio
Revised Code (ORC) 2929.12(C)(4) and 2929.12(E)(5) where substantial mitigation and
genuine remorse existed yet, the Trial Court still imposed a maximum consecutive
sentence.”
{¶10} Appellant raises no challenge to the trial court’s findings under R.C.
2929.14(C)(4), the statutory provision authorizing consecutive service of multiple
sentences. Accordingly, whether the trial court erred in imposing consecutive sentences
is not properly before us on appeal. State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-
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4761, ¶18 (holding that an appellate court errs by reviewing the imposition of consecutive
sentences under R.C. 2929.11 and 2929.12).
{¶11} Our review on appeal is therefore limited to whether the trial court’s
imposition of the maximum sentence on each individual count is contrary to law under
R.C. 2929.11 and 2929.12. We do not review this argument under the standard set forth
in R.C. 2953.08(G). Id. at ¶17. Nevertheless, we apply “‘a standard that is equally
deferential to the sentencing court’”; i.e., when reviewing the length of an individual
sentence, “‘an appellate court may vacate or modify any sentence that is not clearly and
convincingly contrary to law only if the appellate court finds by clear and convincing
evidence that the record does not support the sentence.’” Id. at ¶14-15, quoting State v.
Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶23 (citation omitted).
{¶12} R.C. 2929.11 addresses the purposes and principles of felony sentencing,
and R.C. 2929.12 sets forth “seriousness” and “recidivism” factors. A sentencing court is
not required to use specific language and render precise findings to satisfactorily
“consider” the relevant seriousness and recidivism factors. State v. Long, 11th Dist. Lake
No. 2013-L-102, 2014-Ohio-4416, ¶79. Instead, the defendant has the burden to
affirmatively show that the trial court did not consider the applicable sentencing criteria or
that the sentence imposed is “strikingly inconsistent” with applicable sentencing
factors.
Id. Thus, we presume a trial court considered the statutory purposes, principles,
and factors from a silent record.
Id., citing State v. Adams,
37 Ohio St.3d 295 (1988),
paragraph three of the syllabus.
{¶13} Appellant argues the trial court failed to consider his expression of genuine
remorse; his mental health issues that were unregulated and untreated until the months
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following the fatal accident; and that he was merely a passenger in the vehicle and was
not charged with a homicide offense.
{¶14} All of these factors were noted in the presentence investigation report and
argued by defense counsel and/or appellant at sentencing. The court stated it had
considered the presentence investigation report, and it observed firsthand appellant recite
his letters of remorse into the record. In light of appellant’s extensive criminal history, his
repeated failure to rehabilitate, and the circumstances of the case, the presence of
mitigating factors does not imply that the maximum sentences for each of these offenses
was unjustified.
{¶15} Given these facts and the deference to which sentencing courts are entitled,
we do not clearly and convincingly find that the record fails to support the individual
sentences. There is no indication in the record that the trial court failed to consider
mitigating factors, and we discern no error in the imposition of maximum sentences for
both offenses to which appellant pleaded guilty.
{¶16} Appellant’s sole assignment of error is without merit.
{¶17} The judgment entry of sentence of the Ashtabula County Court of Common
Pleas is affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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