[Cite as State v. Sams, 2019-Ohio-2052.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    OTTAWA COUNTY


State of Ohio                                    Court of Appeals No. OT-18-038

        Appellee                                 Trial Court No. 18 CR 049

v.

Clark Sams, Sr.                                  DECISION AND JUDGMENT

        Appellant                                Decided: May 24, 2019

                                           *****

        James J. VanEerten, Ottawa County Prosecuting Attorney, and
        Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.

        Brett A. Klimkowsky, for appellant.

                                           *****

        SINGER, J.

        {¶ 1} This is an appeal from the November 6, 2018 judgment entry of the Ottawa

County Court of Common Pleas, sentencing appellant, Clark H. Sams, Sr., to nine years

of imprisonment. For the reasons set forth below, we affirm the judgment.
      {¶ 2} Appellant sets forth one assignment of error:

             The Trial Court’s sentence of Clark H. Sams, Sr. (“Appellant”) is

      excessive.

                                  Background

      {¶ 3} On February 6, 2018, appellant, a 46-year-old married man and father of five

children, snorted Oxycodone with his friend, Joshua Trapp. The duo had a conversation,

which “started over money.” Trapp wanted to rob either a bank or a pharmacy to get

some money. It was decided that Trapp would rob the pharmacy at Magruder Hospital in

Port Clinton, Ohio. Trapp dressed in camouflage and initially armed himself with a BB

gun. Appellant suggested Trapp use either a 45 or 9 mm gun and gave Trapp a loaded,

9 mm gun. Trapp took the bullets out of the gun and wiped the bullets. Appellant asked

Trapp what he was doing and Trapp said, “I have to wipe it clean in case you have to use

it.” Trapp reloaded the gun.

      {¶ 4} Appellant drove Trapp to Magruder Hospital. Trapp got out of the car and

ran toward the pharmacy. Appellant waited outside in the vehicle, which was parked

about a block away and positioned so appellant could see the pharmacy door. Trapp

robbed the pharmacy of certain medications at gunpoint. Thereafter, Trapp left the

pharmacy, jumped into the waiting getaway vehicle. As appellant drove away, he noticed

“the cops coming in” and told Trapp to remove his coat because the police were “looking

for a dude with camo.” When appellant and Trapp reached appellant’s home, Trapp




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counted the stolen pills and burned the clothes he had been wearing. Appellant and

Trapp then went out to sell the pills. Thereafter, appellant and Trapp were arrested.

       {¶ 5} On February 22, 2018, appellant was indicted on one count of complicity to

commit aggravated robbery, two counts of complicity to theft of drugs with firearm

specifications, one count of inducing panic and two counts of tampering with evidence.

       {¶ 6} On October 1, 2018, appellant entered a guilty plea to one count of

complicity to commit aggravated robbery, a first-degree felony. The trial court informed

appellant he could be sentenced to a maximum of 11 years in prison and fined up to

$20,000. The court accept appellant’s guilty plea and found appellant guilty.

       {¶ 7} On November 5, 2018, a sentencing hearing was held. An employee of

Magruder Hospital, who was present during the armed robbery of the pharmacy, spoke.

She stated her life, her children’s lives, her family’s lives, her co-workers’ lives and their

families’ lives have all been completely turned upside down since February 6, 2018. She

noted the school system that her children attend was shut down, and her children came

home in a panic. As a result of the incident, the employee suffers from PTSD, she does

not sleep, she has at least two panic attacks a day and her family does not get her full

attention. She acknowledged that she is still employed at the hospital but two of the four

people who were in the pharmacy when it was robbed have left the employment of the

pharmacy.

       {¶ 8} Appellant’s counsel also spoke and mentioned appellant was cooperative

with authorities, was very remorseful, has no appreciable criminal history, was gainfully




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employed for twenty years and is a loving father. Counsel stated appellant was

prescribed considerable prescriptions including Oxymorphone, Oxycodone, Subsys and

Marinol in great quantities for several years, and was under the influence of these drugs.

       Appellant then spoke and apologized to everyone at the hospital and accepted

responsibility for his actions. Appellant requested the court order treatment in lieu of

conviction.

       {¶ 9} The court observed it reviewed R.C. 2929.12 and considered R.C. 2929.13,

as well as the presentence report and the letters from appellant’s mother and some of his

children. The court remarked appellant had a closed-head injury from child abuse, issues

with alcohol early on, severe mental health issues and physical pain issues for which

considerable opiates were prescribed as treatment. The court noted what appellant did

was very serious and needed to be addressed. The court sentenced appellant to nine years

in prison and five years of postrelease control. At the parties’ request, the court

dismissed the remaining counts of the indictment. Appellant appealed.

                                        Arguments

       {¶ 10} Appellant argues his sentence was excessive in light of his age, remorse,

assistance with law enforcement officials during the investigation, severe mental health

issues including bipolar and schizophrenia, twenty-year employment history and law

abiding past, except for a 1997 conviction for operating a vehicle while intoxicated.

Appellant claims his criminal conduct was the proximate result of being over-prescribed

painkillers. Appellant observes no one was physically injured as a result of the pharmacy




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robbery, although several people, who were held at gunpoint, suffered severe

psychological injuries and trauma. Appellant contends the nine-year sentence is

excessive and does not serve the overriding principles and purposes of felony sentencing,

as it is unlikely he will commit another heinous crime and he can be rehabilitated while

on community control.

       {¶ 11} The state counters appellant’s sentence is not excessive and should be

upheld. The state argued the trial court considered, as required, R.C. 2929.11 and

2929.12 before it imposed sentence. The state noted a first-degree felony carries a

presumption of prison, and the prison term range is three to eleven years. The state also

observed appellant only cooperated with police after his arrest; he did not turn himself in

after the robbery.

                                           Law

       {¶ 12} The standard of appellate review of felony sentences is set forth in R.C.

2953.08. In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11,

this court defined that standard of review as whether there is clear and convincing

evidence to support the trial court’s findings and whether the sentence is otherwise

contrary to law.

       {¶ 13} A sentence is not clearly and convincingly contrary to law “where the trial

court considers the purposes and principles of sentencing under R.C. 2929.11 as well as

the seriousness and recidivism factors listed in R.C. 2929.12, properly applies post-

release control, and sentences a defendant within the permissible statutory range.” State




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v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10. In addition, in felony

cases it is unnecessary for the trial court to articulate its consideration of each factor, so

long as it is obvious from the record that the principles of sentencing were considered by

the court. State v. Gonzalez, 8th Dist. Cuyahoga No. 102579, 2015-Ohio-4765, ¶ 6.

                                           Analysis

       {¶ 14} The record shows that at the November 5, 2018 sentencing hearing, the

trial court listened to the statement of a hospital employee who was in the pharmacy

when it was robbed, arguments of appellant’s counsel as well as appellant’s statement

admitting responsibility for the crime and expressing his remorse.

       {¶ 15} The court remarked it reviewed R.C. 2929.11, and quoted the code section,

including that the court shall be guided by the overriding purposes of felony sentencing

which are to protect the public from future crime by the offender and to punish the

offender, using minimum sanctions to accomplish those purposes, that the court shall

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, and that the sentence shall be reasonably calculated to achieve the three

overriding purposes of felony sentencing commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact on the victim, and consistent with

sentences imposed for similar crimes committed by similar offenders.

       {¶ 16} The court also reviewed and considered R.C. 2929.12 and 2929.13, the

presentence report and favorable letters submitted on appellant’s behalf. The court




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mentioned the child abuse suffered by appellant, early alcohol issues appellant

experienced and appellant’s severe mental health issues as well as physical pain issues.

       {¶ 17} In the written judgment entry, the trial court set forth it considered the

record, oral statements, victim impact statements, the presentence report and the

principles and purposes of sentencing under R.C. 2929.11, it balanced the seriousness and

recidivism factors under R.C. 2929.12, and found “the more likely recidivism factors do

not outweigh the less likely factors and the more serious factors do outweigh the less

serious factors.” The court also set forth it considered the factors set forth in R.C.

2929.13, and found appellant was not amenable to community control.

       {¶ 18} We find the trial court properly considered the statutory factors and

complied with all of the applicable rules and laws, including R.C. 2929.11 and 2929.12,

and the sentence imposed was within the range provided for a felony of the first degree.

We further find the sentence imposed by the trial court is not clearly and convincingly

contrary to law, and the trial court did not err in sentencing appellant to a prison term of

nine years. While appellant argued treatment would have achieved the purposes of

sentencing, the record demonstrates the trial court clearly considered all relevant statutory

factors prior to sentencing and concluded that incarceration was the appropriate sentence.

Accordingly, appellant’s assignment of error is found not well-taken.

       {¶ 19} The judgment of the Ottawa County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                         Judgment affirmed.



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                                                               State v. Sams
                                                               C.A. No. OT-18-038




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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