COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70216 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION BRYAN SWILIK : : PER CURIAM Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 22, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-327379 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RICHARD A. NEFF (#0040576) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. (#0015576) 75 Public Square, Suite #1016 Cleveland, Ohio 44113-2098 - 2 - PER CURIAM: Defendant-appellant Bryan Swilik ("appellant") appeals from the sentence imposed by the trial court after appellant entered a plea of guilty to a charge of drug abuse. Appellant assigns the following errors for review: 1. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT ADVISE DEFENDANT AS TO HIS ELIGIBILITY FOR DRUG DEPENDENCY TREATMENT. (TR. 13-14, 20, 22). 2. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT FAILED TO FOLLOW THE STATUTORY MANDATE CONCERNING TREATMENT IN LIEU OF IMPRISONMENT IN 2925.11 OF THE OHIO REVISED CODE. 3. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW WHEN HE WAS SENTENCED TO JAIL WHICH WOULD BE PRECLUDED IF HE WERE A PREGNANT ADULT FEMALE. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On August 28, 1995, appellant was indicted for two counts of drug trafficking in violation of R.C. 2925.03, one count of drug abuse in violation of R.C. 2925.11, and one count of possession of criminal tools in violation of R.C. 2923.24. On December 4, 1995, appellant entered a plea of guilty to the drug abuse charge. The remaining three counts of the indictment were dismissed. Before the sentence was imposed, appellant's attorney informed the trial court that he believed appellant qualified as a drug - 3 - dependent person and was currently in counseling and treatment for the addiction. He requested appellant be placed on probation. The trial court noted appellant previously had been placed on probation in order to get help for his addiction but appellant violated two separate probations. The trial court stated it considered conditional probation but rejected it due to the two prior probation violations. The trial court sentenced appellant to one and a half years, fined him $1,500 and suspended his driver's license for six months. II. In his first assignment of error, appellant asserts he was denied due process because the trial court failed to advise him of his eligibility for drug dependency treatment. Appellant argues the trial court had a mandatory duty to advise appellant of his right to request conditional probation. R.C. 2951.04(A) states: If the court has reason to believe that an offender convicted of a felony or misdemeanor is a drug dependent person or is in danger of becoming a drug dependent person, the court may, and when the offender has been convicted the court shall, advise the offender that he has a right to request conditional probation for purposes of treatment and rehabilitation. It has been held that it is the mandatory duty of the trial court to advise the defendant of his right to request conditional probation under R.C. 2951.04(A). State v. Pruitt (1984), 18 Ohio App.3d 50, 58. An appellate court will not speculate how a trial court might have exercised its discretion to grant or deny a - 4 - request for conditional probation if the request had been made. Id. at 59; State v. Riley (1993), 87 Ohio App.3d 420, 425. In State v. Mays (October 26, 1995), Cuyahoga App. No. 68255, unreported, the court held the trial court did not abuse its discretion when it failed to use the words "conditional probation" when it refused to grant appellant's request for probation. It was clear from the record appellant's counsel was making a request for conditional probation. He informed the trial court of Mays' treatment plans for his drug addiction. Any alleged failure of a trial court to advise a defendant of his right to request conditional probation is harmless error where the record clearly shows the defendant was aware of the right. State v. Boyd (1994), 95 Ohio App.3d 679. In the instant case, it also was apparent appellant's counsel was requesting conditional probation when he pointed out appellant was undergoing counseling and treatment for drug addiction and would benefit from continuing treatment. He then requested probation. Clearly, appellant was aware of his right to request conditional probation. His attorney's request actually was such a request. Further, there is no need to speculate as to how the trial court would have ruled if a specific request for "conditional probation" had been made. The trial court stated conditional probation was considered but rejected because of appellant's prior probation violations. Appellant's first assignment of error lacks merit. - 5 - III. In his second assignment of error, appellant contends the trial court erred by not referring appellant to a drug program instead of sentencing him to imprisonment. Appellant points out he had no previous convictions for any drug offense. Pursuant to R.C. 2925.11(G)(1), a trial court may place an offender who pleads guilty to a drug offense on conditional probation to allow the defendant to enter a drug treatment program. Whether to so sentence an offender is discretionary as the statute uses the word "may." Generally, an appellate court will not review a trial court's exercise of discretion in sentencing when the sentence is authorized by statute and is within the statutory limits. State v. Hill (1994), 70 Ohio St.3d 25, 29. A silent record raises the presumption the trial court considered the relevant statutory sentencing factors. State v. Adams (1988), 37 Ohio St.3d 295. The burden is on the defendant to come forward with evidence to rebut the presumption that the trial court considered the sentencing criteria. State v. Cyrus (1992), 63 Ohio St.3d 164, 166. Appellant's sentence was within the statutory limits. The trial court was not required to place appellant on conditional probation because this was appellant's first drug offense. Appellant has provided no evidence to rebut the presumption the trial court did consider the appropriate sentencing criteria. Appellant's second assignment of error is overruled. - 6 - IV. In his third assignment of error, appellant argues he was denied due process of law and equal protection because if he were a pregnant adult female he would have been placed on probation if he agreed to receive prenatal care and participate in a drug treatment program. R.C. 2925.11(H). With this assignment of error, appellant's counsel is continuing his long-standing tradition of resurrecting arguments he already has presented to this court which were considered and rejected. This same argument was advanced by appellant's counsel in State v. Crim (September 2, 1993), Cuyahoga App. No. 63439, unreported. This court held R.C. 2925.11(H) to be constitutional as it bore a rational relationship to the achievement of a legitimate governmental purpose. Appellant's third assignment of error is meritless. Judgment affirmed. - 7 - This cause is affirmed. It is ordered that appellee(s) recover of appellant(s) their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, CHIEF JUSTICE JAMES M. PORTER, JUDGE JOSEPH J. NAHRA, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .