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11th District: Repeated heroin overdoses do not justify maximum sentence in drug theft case

Legal News Reporter

Published: July 10, 2018

A pharmacy technician who admitted stealing prescription drugs on the job did not deserve the maximum sentence even though she violated the terms of her community control by overdosing, according to the 11th District Court of Appeals.

Madison Cozzone worked at a supermarket pharmacy.

Case summary shows the pharmacy began receiving complaints from customers claiming their Oxycodone and Xanax prescriptions did not contain the full amount prescribed. After pharmacy surveillance footage was reviewed, Cozzone was seen tampering with prescriptions on three separate dates in 2012.

Cozzone was sentenced in March 2013 to three years of rehabilitation after the Geauga County trial court granted her motion for intervention in lieu of conviction on three counts of theft of drugs and one count of aggravated possession of drugs.

In 2015, she tested positive for opiates twice after failing to report to her supervising officer three times.

In July of that year, Cozzone was sentenced to three years community control, including six months at the Geauga County Safety Center and up to six months in the NorthEast Ohio Community Alternative Program.

She was released from NEOCAP in January 2016. Six months later, she overdosed on heroin. Her community control was then extended – for a total of five years.

In May 2017, she overdosed on heroin again.

After pleading guilty to the community control violation, Cozzone was sentenced to 54 months in prison with 380 days of jail-time credit.

The trial court found consecutive sentences were not disproportionate to the seriousness of her conduct.

“People may want to say, well, she’s not hurting the public. Yes, she is,” the judge stated at sentencing. “At the very least, again, she is stealing medication belonging to somebody else.

“And each call on an overdose where the emergency squads get to come and treat her is another time that that squad’s unavailable to somebody who has a medical need that this defendant has chosen, albeit unwillingly because of an addiction, to utilize those services for herself. So the public does need protection from her conduct. And certainly her history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by her.”

But the appellate panel found the case must be remanded for resentencing.

“At the sentencing hearing, the trial court reviewed the offenses leading to the instant case and appellant’s conduct of violating court orders and overdosing on drugs,” 11th District Judge Timothy P. Cannon wrote. “However, the judge explicitly stated: `I have to note that I am not imposing sentence for overdoses. I’m not. I’m not imposing sentences for drug use. I’m not.’ After a review of appellant’s PSI, we find appellant’s criminal history includes only the offenses charged in the instant case and four minor traffic violations. Appellant has no significant prior criminal history. We, therefore … find that the record does not support the trial court’s finding under R.C. 2929.14(C)(4)(c) as stated in the sentencing hearing and included in the sentencing entry.”

The panel rejected Cozzone’s argument that her community control violation was “technical” in nature, meaning the maximum prison term for that offense was 180 days under the newly-enacted R.C. 2929.15(B).

“Here, appellant violated the terms of her community control when she overdosed on heroin. Although appellant was not charged or convicted for this conduct, overdosing on drugs is criminal in nature and cannot be considered a `technical’ violation of the terms and conditions of community control,” Judge Cannon stated in his 3-0 opinion.

Appellate judges Cynthia Westcott Rice and Colleen Mary O’Toole concurred.

The case is cited State v. Cozzone, 2018-Ohio-2249.