[Cite as State v. Kosak, 2014-Ohio-2310.]




               IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellee                            :       C.A. CASE NO.     2013 CA 67

v.                                                    :       T.C. NO.    13CR208

BRITTNEY M. KOSAK                                     :        (Criminal appeal from
                                                               Common Pleas Court)
        Defendant-Appellant                           :

                                                      :

                                            ..........

                                            OPINION

                         Rendered on the       30th       day of         May     , 2014.

                                            ..........

ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 111 W. First Street, Suite 518,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, P.J.

                 {¶ 1} Brittney M. Kosak pled guilty to and was convicted of six counts of
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trafficking in cocaine in the Greene County Court of Common Pleas; one count was a felony

of the first degree, four were felonies of the second degree, and one was a felony of the

fourth degree. On the first-degree felony, Kosak was sentenced to a mandatory term of nine

years in prison. The trial court’s sentences on all of the other counts ran concurrently with

this sentence. Kosak appeals from her convictions, challenging her sentences.

        {¶ 2}   For the following reasons, the judgment of the trial court will be affirmed.

        {¶ 3}   Between June and September 2012, Kosak was involved in several

controlled drug buys involving a confidential informant, who was working for the Greene

County ACE Task Force.        On April 26, 2013, she was indicted on seven counts of

trafficking in cocaine, six counts of possession of cocaine, one count of engaging in a pattern

of corrupt activity, and one count of conspiracy to commit engaging in a pattern of corrupt

activity.

        {¶ 4}   On August 23, 2013, Kosak pled guilty to six counts of trafficking in

cocaine, in exchange for which the other counts were dismissed. As stated above, the

counts to which she pled ranged from a felony of the first degree, which required a

mandatory term of imprisonment, to a felony of the fourth degree. The trial court imposed

nine years of mandatory imprisonment for the felony of the first degree. Lesser sentences

were imposed for the other offenses, ranging from four years to nine months, and these

sentences were ordered to be served concurrently with the mandatory sentence, for an

aggregate term of nine years. The court also imposed a period of post-release control on

each count, including a mandatory term of five years on the most serious offense. The court

did not order Kosak to pay restitution, but it did order her to reimburse the ACE Task Force
                                                                                              3

“for drug buy money,” with “joint and several liability” with her co-defendant.

       {¶ 5}       Kosak rasies two assignments of error on appeal.

       {¶ 6}       The first assignment of error states:

       The trial court imposed a sentence that is contrary to law due to a failure

       to address either the purposes and principles of felony sentencing or the

       seriousness and recidivism factors.

       {¶ 7}        Kosak contends that her sentence was contrary to law because the trial court

did not adequately address the purposes and principles of felony sentencing, as set forth in

R.C. 2929.11, or the seriousness and recidivism factors, as set forth in R.C. 2929.12.

Kosak concedes that the trial court mentioned its consideration of these factors, but she

argues that, without a more detailed discussion of the factors, the court’s sentence was

contrary to law.

       {¶ 8}       A sentence is not contrary to law when the trial court imposes a sentence

within the statutory range, after expressly stating that it has considered the purposes and

principles of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors

set forth in R.C. 2929.12. State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32 (2d

Dist.), citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.

       {¶ 9}       The State correctly observes in its brief that Kosak “is asking this Court to

require something of the trial court that the Ohio Supreme Court has already held that the

trial courts are not required to do,” and Kosak provides no support for her argument that

specific findings regarding the purposes and principles of sentencing, the seriousness of her

offenses, and her likelihood of recidivism were required.
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       {¶ 10}    Moreover, the court’s comments at the sentencing hearing and findings in

the judgment entry indicated that Kosak had previously been convicted of a similar

trafficking offense, for which she had served a prison sentence, that she had trafficked a

substantial amount of cocaine in this case, that she did not take full responsibility for her

actions, and that she did not show remorse except as to the adverse effects that a prison

sentence would have on her own life. These factors supported the trial court’s implicit

conclusion that the purposes and principles of sentencing would be served by a substantial

prison term, that the offenses were serious ones, and that Kosak’s likelihood of recidivism

was high.

       {¶ 11}    The sentences imposed were within the statutory range, and the court stated

in its judgment entry that it had considered the purposes and principles of sentencing set

forth in R.C. 2929.11 and the factors set forth in R.C. 2929.12. The sentences imposed by

the trial court were not contrary to law.

       {¶ 12} The first assignment of error is overruled.

       {¶ 13} The second assignment of error states:

       The trial court committed abuse of discretion when it imposed a nine (9)

       year sentence on the Appellant when similarly situated co-defendants

       received lesser sentences.

       {¶ 14} Kosak asserts that the trial court abused its discretion because it did not state

its reasons for imposing a nine-year sentence, its reasons for imposing a non-minimum

sentence, or why the sentences imposed on her “co-defendants” were “disproportionately

lesser” than the sentence she received.
[Cite as State v. Kosak, 2014-Ohio-2310.]
        {¶ 15} Kosak’s conviction of trafficking in Count 5 was a felony of the first degree

for which the court was required to impose a mandatory sentence. R.C. 2925.03(C)(4)(f);

R.C. 2929.13(F)(5). The possible sentences ranged from three years to eleven years, R.C.

2929.14(A)(1), and the court imposed nine years. Kosak was convicted on four additional

counts of trafficking, each of which was a felony of the second degree, and she was

sentenced to four years on each of these counts. The sentence for one additional count of

trafficking, a felony of the fourth degree, was nine months. The court ordered that all of the

sentences be served concurrently, for an aggregate term of nine years. The court did not

impose the minimum sentence, but it also did not impose the maximum sentence on any of

the offenses or run the sentences consecutively. The court noted that Kosak’s maximum

potential sentence was 44½ years.

        {¶ 16} At the sentencing hearing, Kosak and her mother portrayed Kosak as a

somewhat innocent participant in the trafficking, claiming that she had been trying to help a

pregnant friend pay rent, and asserting that she (Kosak) had been pressured by others to sell

drugs. Kosak claimed that she had learned her lesson when she previously went to prison

on drug charges and that she had “learned her lesson quite enough” in her personal life as

well. In response, the trial court stated that she needed “a bit of a reality check” with

respect to her assertion that she was not a drug dealer. “You are a drug dealer. * * * I can’t

remember the last time somebody came in front of me who sold so many drugs to

undercover police officers in the county.”

        {¶ 17}     Kosak’s argument that the trial court was required to make findings of fact

before imposing a non-minimum sentence is without merit, as was discussed under the first

assignment.
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       {¶ 18} In her brief, Kosak also asserts that her sentence was disproportionate to her

“co-defendants’” sentences.      A defendant alleging disproportionality in felony sentencing

has the burden of producing evidence to “indicate that his [or her] sentence is directly

disproportionate to sentences given to other offenders with similar records who have

committed these offenses * * *.” State v. St. Martin, 8th Dist. Cuyahoga No. 96834,

2012-Ohio-1633, ¶ 13, citing State v. Breeden, 8th Dist. Cuyahoga No. 84663,

2005-Ohio-510, ¶ 81.      Generally, a defendant must raise the issue that a sentence is

disproportionate to sentences imposed upon other offenders before the trial court and present

some evidence, however minimal, to provide a starting point for analysis and to preserve the

issue for appeal. State v. Searles, 8th Dist. Cuyahoga No. 96549, 2011-Ohio-6275, ¶ 25,

quoting State v. Edwards, 8th Dist. Cuyahoga No. 89181, 2007-Ohio-6068, ¶ 11.

       {¶ 19}    Defense counsel referred to “co-defendants” in arguing to the court that

there should be “joint and several liability” for the restitution that was ordered; the court

referred to a related, unresolved case and stated that it (the court) would be willing to

consider shared responsibility for restitution “as other matters come to resolution down the

road.” Kosak’s attorney also described her as a low-paid “runner” or “gopher” who made a

poor decision to help a friend and ended up facing significant prison time; he stated his

concern that others with greater culpability might “end up with a sentence significantly less.”

 At that time, however, these concerns were speculative. There is no information in the

record or in Kosak’s brief about the offenses with which her “co-defendants” were

ultimately charged or convicted and/or the sentences they received. However, based on the

trial court’s comments at the sentencing hearing, we recognize that the other participants in
                                                                                              7

these crimes may have been sentenced after Kosak was.

       {¶ 20}    Nonetheless, Kosak has failed to present any evidence that her

“co-defendants” were similarly situated to her. The offenses for which they were charged

and convicted (if any), whether they went to trial or entered pleas, the terms of their plea

agreements (if any), the sentences imposed, and other pertinent factors, such as their ages,

criminal records, and remorsefulness, are unknown to us. The trial court may have taken a

variety of factors into account when it imposed its sentences on those defendants, and these

factors may have justified treating those defendants differently from Kosak.

       {¶ 21} Moreover, there is no requirement that co-defendants receive equal

sentences. Each defendant is different and nothing prohibits a trial court from imposing two

different sentences upon individuals convicted of similar crimes.       State v. Berlingeri, 8th

Dist. Cuyahoga No. 95458, 2011-Ohio-2528, ¶ 12. “When that happens, ‘the task of the

appellate court is to determine whether the sentence is so unusual as to be outside the

mainstream of local judicial practice.’” Id., citing State v. Beasley, 8th Dist. Cuyahoga No.

82884, 2004-Ohio-988, ¶ 24; see also State v. Bailey, 2d Dist. Clark No. 2011 CA 40,

2012-Ohio-1569, ¶ 19. Kosak has failed to establish any unfairness in the sentence that she

received, or that it was “outside the mainstream of local judicial practice.”

       {¶ 22}    The second assignment of error is overruled.

       {¶ 23} The judgment of the trial court will be affirmed.

                                          ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:
                          8

Elizabeth A. Ellis
Charles W. Slicer, III
Hon. Stephen A. Wolaver
