[Cite as State v. Cobb, 2014-Ohio-3530.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.       13CA0087-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
SABRINA M. COBB                                      COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   13 CR 0311

                                 DECISION AND JOURNAL ENTRY

Dated: August 18, 2014



        WHITMORE, Judge.

        {¶1}     Appellant, Sabrina Cobb, appeals from the judgment of the Medina County Court

of Common Pleas, sentencing her to a 12-month prison term. This Court affirms.

                                                 I

        {¶2}     Cobb stole prescription oxycodone and fentanyl from her sister and brother-in-

law’s home in Pennsylvania. Cobb, then, negotiated with a friend to sell the drugs to him. In

December 2012, Cobb sold 63 oxycodone tablets to the friend. The next month, Cobb again met

her friend, who was accompanied by an undercover agent, and sold them 90 oxycodone tablets.

The following month, Cobb sold 10 fentanyl patches to the same friend and undercover agent.

        {¶3}     Cobb was indicted for two counts of aggravated trafficking in drugs, in violation

of R.C. 2925.03(A)(1)/(C)(1)(a), which are felonies of the fourth degree. Cobb was also indicted

for one count of aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(1)/(C)(1)(c),

which is a felony of the third degree. At her arraignment, Cobb pleaded not guilty. She was
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released on bond with conditions including that she enter into a substance abuse monitoring

(“SAM”) program.

       {¶4}    Following discovery, Cobb changed her plea to no contest. The trial court found

her guilty of all charges and referred her to adult probation for a presentence investigation report.

After reviewing the presentence investigation report and listening to Cobb and her counsel, the

court sentenced Cobb to 12 months in prison for each count and ordered all three prison terms to

run concurrently.

       {¶5}    Cobb now appeals and raises one assignment of error for our review.

                                                 II

                                       Assignment of Error

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO
       ADEQUATELY CONSIDER REQUIRED STATUTORY SENTENCING
       FACTORS IN IMPOSING A TOTAL PRISON SENTENCE OF TWELVE (12)
       MONTHS ON THE DEFENDANT, INSTEAD OF COMMUNITY
       CONTROL/PROBATION WHERE DEFENDANT HAD NO PRIOR FELONY
       RECORD, WHERE PRISON TERM(S) WERE NOT MANDATORY FOR HER
       NON-VIOLENT OFFENSES, SHE APOLOGIZED AND ACCEPTED
       RESPONSIBILITY FOR HER ACTIONS, AND SHE SUFFERS FROM
       SERIOUS HEALTH PROBLEMS WHICH ENDANGER HER LIFE UNLESS
       SHE RECEIVES PERIODIC MEDICAL CARE IN THE FORM OF BLOOD
       TRANSFUSIONS.

       {¶6}    In her sole assignment of error, Cobb argues that the trial court failed to consider

the statutory sentencing guidelines and factors contained in R.C. 2929.11, 2929.12, and 2929.13.

More specifically, Cobb argues had the court adequately considered the factors she would have

been sentenced to community control. We disagree.

       {¶7}    In reviewing a felony sentence, this Court follows the two-step approach set forth

in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. E.g., State v. Shank, 9th Dist. Medina

No. 12CA0104-M, 2013-Ohio-5368, ¶ 31. First, we “examine the sentencing court’s compliance
                                                 3


with all applicable rules and statutes in imposing the sentence to determine whether the sentence

is clearly and convincingly contrary to law.” Kalish at ¶ 26. If the sentence is not contrary to

law, then we review the trial court’s sentence under an abuse-of-discretion standard. Id. An

abuse of discretion indicates that the trial court was unreasonable, arbitrary, or unconscionable in

its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶8}    In the present matter, Cobb was convicted of three counts of aggravated

trafficking in drugs. Two of the counts were fourth-degree felonies, with a possible prison term

from six to eighteen months. See R.C. 2929.14(A)(4).         One count was a third-degree felony,

with a possible prison term from nine to thirty-six months. See R.C. 2929.14(A)(3)(b). Cobb

was sentenced to twelve months for each count, all to run concurrently. Cobb’s sentence fell

within the permitted statutory range and it is not contrary to law.

       {¶9}    We next examine whether the trial court abused its discretion in imposing a prison

term, rather than community control. In analyzing whether a prison term is appropriate for a

fourth-degree or third-degree felony drug violation of R.C. Chapter 2925, the court must look at

the specific provision within that Chapter that was violated. R.C. 2929.13(E)(1). In this case,

Cobb was convicted on two counts of violating R.C. 2925.03(A)(1)/(C)(1)(a) for her sales of

oxycodone. R.C. 2925.03(C)(1)(a) directs that R.C. 2929.13(C) applies in determining whether

to impose a prison term for these offenses. R.C. 2929.13(C) specifies that in determining

whether to impose a prison term, “the sentencing court shall comply with the purposes and

principles of sentencing under section 2929.11 of the Revised Code and with section 2929.12 of

the Revised Code.”

       {¶10} Cobb was also convicted of aggravated trafficking in violation of R.C.

2925.03(A)(1)/(C)(1)(c) for her sale of the fentanyl patches. R.C. 2925.03(C)(1)(c) provides this
                                                 4


is a third-degree felony and “there is a presumption for a prison term for the offense.” “[F]or a

felony drug offense that is a violation of any provision of Chapter 2925 * * * for which a

presumption in favor of a prison term is specified as being applicable * * * it is presumed that a

prison term is necessary in order to comply with the purposes and principles of sentencing under

section 2929.11 of the Revised Code.” R.C. 2929.13(D)(1).

       {¶11} Despite this presumption, the sentencing court may impose community control

sanctions if it makes both of the following findings:

       (a) A community control sanction or a combination of community control
       sanctions would adequately punish the offender and protect the public from future
       crime, because the applicable factors under section 2929.12 of the Revised Code
       indicating a lesser likelihood of recidivism outweigh the applicable factors under
       that section indicating a greater likelihood of recidivism.

       (b) A community control sanction or a combination of community control
       sanctions would not demean the seriousness of the offense, because one or more
       factors under section 2929.12 of the Revised Code that indicate that the offender’s
       conduct was less serious than conduct normally constituting the offense are
       applicable, and they outweigh the applicable factors under that section that
       indicate that the offender’s conduct was more serious than conduct normally
       constituting the offense.

R.C. 2929.13(D)(2).

       {¶12} “[T]here is no requirement under R.C. 2929.12 that the trial court on the record

provide an analysis of the factors it considered. Rather, pursuant to Foster, the trial court was

simply required to consider these factors.” (Emphasis sic.) State v. Bigley, 9th Dist. Medina No.

08CA0085-M, 2009-Ohio-2943, ¶ 14. “A silent record raises the presumption that the trial court

considered the factors contained in R.C. 2929.12.” Id., quoting State v. Adams, 37 Ohio St.3d

295 (1988), paragraph three of the syllabus.

       {¶13} In its sentencing entry, the trial court noted it considered the record, oral

statements, the presentence report, and the principles and purposes of sentencing under R.C.
                                                 5


2929.11. The court specifically found “a prison term is consistent with the purposes and

principles of sentencing in [R.C.] 2929.11.” The record also reflects that the court considered

the factors in R.C. 2929.12.

       {¶14} Cobb argues that she should have been granted community control because she

had no prior felony convictions, apologized, and has serious health problems.

       {¶15} First, Cobb argues that she had no prior “felony record.” The recidivism factors

contained in R.C. 2929.12 do not distinguish between “felony” convictions1 and others. Rather,

pursuant to R.C. 2929.12(D)(2), the sentencing court shall consider whether the offender was

“adjudicated a delinquent child” or “has a history of criminal convictions.” See also R.C.

2929.12(E)(1) and (2).     The record reflects that Cobb had been previously adjudicated a

delinquent child and had a criminal conviction as an adult. In addition, Cobb had not led a law-

abiding life for a number of years prior to the current offenses. See R.C. 2929.12(E)(3). The

trial court observed that Cobb had a drug possession conviction in February 2012. Her current

offenses arose out of drug sales occurring later that same year and in early 2013.

       {¶16} The trial judge further noted Cobb’s “adjustment to the SAM program was

troubling.” Not only did she test positive for marijuana, she denied having any drinking or drug

problems. See R.C. 2929.12(D)(4). According to Cobb, she began using marijuana at age 13

and drinking at age 15. In 2010, she was assessed and diagnosed with cannabis and alcohol

abuse, but after attending one or two meetings, she failed to complete treatment. In relation to



1
 We note whether an offender who is convicted of a non-violent, fourth-degree felony had been
previously convicted of a “felony” offense would be relevant for determining eligibility for
community control under R.C. 2929.13(B)(1)(a)(i). But R.C. 2929.13(B) is not applicable to
Cobb’s offenses. See R.C. 2929.13(E) and R.C. 2925.03(C)(1). Even if R.C. 2929.13(B) were
applicable, Cobb would not necessarily qualify for community control because her most serious
charge was a third-degree felony. See R.C. 2929.13(B)(1)(a)(ii).
                                                 6


the current offenses, the court observed that Cobb negotiated the price for which she would sell

the drugs in a “very sophisticated way.” Although Cobb’s later drug tests in the SAM program

were negative, we cannot say the trial court abused its discretion.

       {¶17}    Cobb further argues that she “apologized and accepted responsibility for her

actions.” As one factor indicating an offender is not likely to commit future crimes, “R.C.

2929.12(E)(5) requires an offender express ‘genuine remorse.’” (Emphasis sic.) State v. Smith,

9th Dist. Summit No. 26585, 2013-Ohio-4682, ¶ 26.         At the sentencing hearing, Cobb stated,

“I’m sorry. I know what I did was stupid and I’m willing to take ownership for it.” After some

discussion back and forth, the trial court stated, “I don’t believe you. * * * It’s really not taking

ownership of this. It’s really just another story.” As “a reviewing court [we] must defer to the

trial court as to whether a defendant’s remarks are indicative of genuine remorse because it is in

the best position to make that determination.” State v. Suarez, 11th Dist. Geauga No. 2013-G-

3167, 2014-Ohio-1350, ¶ 18, quoting State v. Davis, 11th Dist. Lake No. 2010-L-148, 2011-

Ohio-5435, ¶ 15.

       {¶18} Finally, Cobb argues that the trial court failed to address her “serious health

problems as a mitigating factor in favor of community control.” Cobb suffers from lupus, non-

immune hemolytic anemia, and possibly bone marrow failure. As a result, she requires frequent

blood transfusions. When Cobb initially informed the trial court of her health problems, the trial

court did not ignore the issue but expressed concern regarding the impact her continued drug use

might have on those medical conditions.         At the sentencing hearing, the trial court again

addressed her medical conditions stating that it was not a reason to “give her a pass.” As noted

by our sister districts, “a defendant’s medical condition does not require the imposition of a
                                                 7


lesser sentence, since [her] medical needs can be met in the prison system.” Suarez at ¶ 19,

citing State v. Martin, 12th Dist. Butler No. CA2013-03-055, 2013-Ohio-3676, ¶ 25.

       {¶19}    Having reviewed the sentencing entry, change of plea and sentencing transcripts,

and the presentence investigation report, we cannot conclude that the trial court abused its

discretion in sentencing Cobb. Cobb’s sole assignment of error is overruled.

                                                III

       {¶20} Cobb’s assignment of error is overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT
                                          8




HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
