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State v. Cooks

Court of Appeals of Ohio, Sixth District, Sandusky

June 7, 2019

State of Ohio Appellee
v.
Nathan T. Cooks Appellant

          Trial Court No. 18CR792

          Timothy Braun, Sandusky County Prosecuting Attorney, and Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.

          Brett A. Klimkowsky, for appellant.

          DECISION AND JUDGMENT

          MAYLE, P.J.

         {¶ 1} Appellant Nathan T. Cooks appeals the November 6, 2018 judgment of the Sandusky County Court of Common Pleas sentencing him to 18 months in prison following his conviction for trafficking in cocaine, in violation of R.C. 2925.03(A)(2) and (C)(4)(b). Because Cooks's sentence is not contrary to law, we affirm.

         Facts and Procedural History

         {¶ 2} The Sandusky County Drug Task Force, acting on a tip, conducted a search of Cooks's Fremont, Ohio home on March 8, 2018, pursuant to a search warrant. Cooks was found in a bathroom, attempting to flush drugs down a toilet. A law enforcement officer was able to retrieve the drugs before they were flushed, and they were later identified as .95 grams of cocaine. A bag of marijuana was found next to the toilet, and a second bag was located in a kitchen drawer. The police confiscated the drugs, as well as video recording equipment, six cell phones, $187 in cash, and two guns that were alleged to have been used in the commission of the offense(s). According to the record, Cooks's two young children were seen "wandering" in the home at the time of the search.

         {¶ 3} No charges were brought against Cooks until July 30, 2018, when he was indicted for tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree (Count 1); possession of cocaine, in violation of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree (Count 2); and trafficking in cocaine, in violation of R.C. 2925.03(A)(2) and (C)(4)(b), a felony of the fourth degree (Count 3). The indictment included specifications for committing the crimes within the vicinity of children and a nearby school. At his August 1, 2017 arraignment, Cooks pled not guilty, was appointed counsel, and was released on his own recognizance.

         {¶ 4} At the change-of-plea hearing on September 5, 2018, the parties agreed that Cooks would plead guilty to the drug trafficking offense (Count 3), and the state would nolle prosequi Counts 1 and 2. Before accepting the plea, the court advised Cooks of his rights, as set forth in Crim.R. 11. Of particular relevance to this case, the court advised Cooks that he faced up to 18 months in prison, a $5, 000 fine, forfeiture of the property confiscated from his home, a five-year driver's license suspension, and postrelease control. The trial court accepted Cooks's plea, found him guilty, and referred the matter for a presentence investigation ("PSI").

         {¶ 5} By decision dated November 6, 2018, following a hearing, the trial court sentenced Cooks to 18 months in prison, the costs of prosecution and confinement, three years of discretionary postrelease control, forfeiture of the items previously described, and a 24-month driver's license suspension. Cooks was assigned appellate counsel and raises a single assignment of error for our review.

         STATEMENT OF ASSIGNMENT OF ERROR 1: The Trial

Court's sentence of Nathan T. Cooks ("Appellant") is excessive and violates the law insofar as the Trial Court penalized Appellant in part due to being indigent.

         {¶ 6} We review sentencing challenges under R.C. 2953.08(G)(2). The statute allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate the sentence and remand the matter for resentencing only if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of ...

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