[Cite as State v. Floyd, 2016-Ohio-1443.]



                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )           CASE NO. 15 MA 0014
V.                                               )
                                                 )                  OPINION
TONI N. FLOYD,                                   )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 13 CR 989

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St. 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney Anthony J. Farris
                                                 860 Boardman-Canfield Rd., Suite 204
                                                 Youngstown, Ohio 44512


JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                 Dated: March 31, 2016
[Cite as State v. Floyd, 2016-Ohio-1443.]
DONOFRIO, P.J.

        {¶1}     Defendant-appellant Toni N. Floyd appeals a decision of the Mahoning
County Common Pleas Court sentencing her to three years in prison following her
guilty pleas to drug trafficking and drug possession.
        {¶2}     On September 19, 2013, a Mahoning County grand jury issued an
eight-count indictment against Floyd and codefendant Shakaila Jerai Jones related to
drug trafficking.      Seven of the eight counts named Floyd (counts 2 through 8).
Counts 2, 6, and 7 were for third-degree-felony trafficking in heroin in violation of R.C.
2929.03(A)(1)(C)(6)(c).          Count 3 was for third-degree-felony trafficking in drugs
(oxycodone) in violation of R.C. 2925.11(A)(C)(1)(b). Count 4 was second-degree-
felony trafficking in heroin in violation of R.C. 2925.03(A)(1)(C)(6)(d). Count 5 was
for first-degree-felony trafficking in heroin in violation of R.C. 2925.03(A)(1)(C)(6)(e).
Count 8 was for third-degree-felony possession of drugs (oxycodone) in violation of
R.C. 2925.11(A)(C)(1)(b).           Each of the trafficking counts were enhanced felonies
because of the amount of drugs involved and because the offenses were committed
within the vicinity of a school or in the vicinity of a juvenile. The indictment also
contained a specification seeking forfeiture of $1807 pursuant to R.C. 2981.
        {¶3}     Count 1 of the indictment named only codefendant Jones. She was
also named along with Floyd in some of the other counts, including counts 2, 3, 5,
and 7, but her case is not included with or the subject of this appeal.
        {¶4}     Subsequently, the parties reached a Crim.R. 11 plea agreement. The
State moved to amend count 5 from a second-degree felony to a third-degree felony.
Floyd pleaded guilty to all counts in exchange for the State recommending a
maximum four-year prison sentence. The trial court conducted a sentencing hearing
on January 7, 2015, where counsel for Floyd made a series of impassioned
arguments in support of a community control sanction in lieu of incarceration. (Sent.
Tr., 6-12.)      The sentencing judge rejected Floyd’s counsel’s request, issuing a
statement from the bench:

                 I don’t think community control is going to solve the problem,
        even as your lawyer described it. It’s not going to, it’s not going to help
                                                                                 -2-


       your economic circumstances.       And so I don’t see that Community
       Control, that you’re amenable to Community Control for those reasons.

(Sent. Tr. 20.)
       {¶5}   The trial court then sentenced Floyd as follows: 36 months for counts 2,
6, and 7 (third-degree heroin trafficking); 36 months for count 3 (third-degree drug
trafficking); three years for counts 4 and 5 (second-degree heroin trafficking); and 36
months for count 8 (third-degree possession of drugs).          These sentences were
ordered to run concurrently for an aggregate prison term of three years. This appeal
followed.
       {¶6}   Floyd asserts one assignment of error as follows:

              The sentencing Courts finding that Appellant was not amenable
       to community control because “… it’s not going to help your economic
       circumstances” was clearly and convincingly contrary to law.

       {¶7}   Concerning the appropriate standard of review that appellate courts
must apply when reviewing felony sentences, the Ohio Supreme Court recently held
that “an appellate court may vacate or modify a felony sentence on appeal only if it
determines by clear and convincing evidence that the record does not support the
trial court's findings under relevant statutes or that the sentence is otherwise contrary
to law.” State v. Marcum, Slip Opinion 2016-Ohio-1002, ¶ 1.
       {¶8}   Floyd pleaded guilty to five third-degree felonies and two second-
degree felonies. The possible sentences for a third-degree felony are nine, twelve,
eighteen, twenty-four, thirty, or thirty-six months. R.C. 2929.14(A)(3)(b). The possible
sentences for a second-degree felony are two, three, four, five, six, seven, or eight
years. R.C. 2929.14(A)(2).      Taken together, Floyd faced a maximum possible
sentence of 31 years in prison. Concerning the drug trafficking offenses (counts 2, 3,
4, 5, 6, and 7), because of the amount of drugs involved and because the offenses
were committed within the vicinity of a school or in the vicinity of a juvenile, there was
                                                                              -3-


a statutory presumption for a prison term. R.C. 2925.03(A)(1)(C)(6)(c); R.C.
2925.03(A)(1)(C)(6)(c). The trial court sentenced Floyd to only three years in prison,
which was considerably less than the maximum term authorized for the offenses and
one year less than that recommended by the State pursuant to the plea agreement.
       {¶9}   Despite the presumption for a prison term, Floyd argues that the trial
court’s finding that she was not amenable to community control sanction was clearly
and convincingly contrary to law. While acknowledging the presumption in favor of a
prison term for certain felony drug offenses such as the ones Floyd pleaded guilty to
here, R.C. 2929.13(D)(2) allows a sentencing court to impose a community control
sanction or a combination of community control sanctions instead of a prison term on
an offender 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.

       {¶10} Here, the trial court’s finding that Floyd was not amenable to a
community control sanction cannot be said to be clearly and convincingly contrary to
law. Floyd provides no explanation as to how that finding is contrary to the Equal
                                                                               -4-


Protection Clause. Her appellate brief does not cite to any caselaw in support of
such a notion and offers only that as a conclusory assertion. Rather, upon review, it
is quite apparent that Floyd’s highlighting of the court’s reference to her economic
circumstances is taken completely out of context. The court was simply explaining
that a community control sanction in lieu of prison was not going to solve the problem
of Floyd’s reliance on drug trafficking as means to supplement her income.
      {¶11} Although it was not required to since there was a presumption in favor
of a prison term, the trial court provided ample support for imposition of a prison term
rather than a community control sanction independent of Floyd’s purported socio-
economic status. (Sent. Tr. 18-20.) The court noted its responsibility to punish the
offender and to protect the public. The court also noted that Floyd had committed
these offenses in the presence of her children and that she was the principal offender
(as contrasted to her codefendant) increased the seriousness of her crimes. Based
on this reasoning taken in conjunction with the record, we find that the sentence
ordered by the trial court was supported by clear and convincing evidence and was
not otherwise contrary to law.
      {¶12} Accordingly, Floyd’s sole assignment of error is without merit.
      {¶13} The judgment of the trial court is affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.
