[Cite as State v. Esmail,

.] STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO.

) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) AMAD ESMAIL ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2010 CR 144

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Robert Herron Columbiana County Prosecutor Atty. Ryan P. Weikart Assistant Prosecuting Attorney 105 South Market Street Lisbon, Ohio 44432

For Defendant-Appellant: Atty. James S. Gentile Atty. Ronald D. Yarwood Atty. Edward A. Czopur DeGenova & Yarwood, Ltd. 42 N. Phelps St. Youngstown, Ohio 44503

JUDGES: Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: May 27, 2014 [Cite as State v. Esmail,

.] WAITE, J.

{¶1} This is the second time Appellant Amad Esmail is appealing his felony

sentence. He was convicted on eight drug charges, including aggravated trafficking

in drugs and aggravated possession of drugs. He was sentenced to an eight-year

prison term that involved consecutive prison terms. The sentence was reversed due

to errors in imposing the consecutive sentences. On remand, the trial court

sentenced Appellant to the same consecutive prison term, this time making the

findings required by R.C. 2929.14(C)(4). Appellant now argues that the court should

not have imposed consecutive sentences because in so doing, the court relied on a

prior drug conviction that was later dismissed after he completed a drug court

program. The trial court did not rely on the charges dismissed following drug court,

and the assignment of error has no merit. Appellant also argues that a lone instance

of prior criminal conduct should not now result in consecutive sentences, especially

because his crimes are primarily caused by his drug addiction. Appellant’s argument

is not supported by the record. As his second assignment of error is also without

merit, the judgment of the trial court is affirmed.

Case Background

{¶2} The history of this case is well-documented in the prior appeal of

Appellant's sentence:

On May 27, 2010, the Columbiana County Grand Jury issued a secret

indictment charging Esmail with three counts of trafficking in drugs

(R.C. 2925.03(A)(1)), third-degree felonies; two counts of aggravated -2-

trafficking in drugs (R.C. 2925.03(A)(1)), and one count of aggravated

possession of drugs (R.C. 2925.11(A)), all first-degree felonies; and two

counts of possession of drugs (R.C. 2925.11(A)), fifth-degree felonies.

These charges stem from four dates during a three-week period [in

2009] where Esmail sold Oxycontin pills and heroin from a gas station

that he operated. On June 18, 2010, Esmail was arraigned and pled

not guilty. On April 4, 2011, Esmail filed a motion for treatment in lieu of

conviction, which the trial court denied.

On August 26, 2011, Esmail and the State entered into a Crim.R. 11

plea agreement. Esmail withdrew his previous plea of not guilty and

agreed to plead guilty to all eight counts in the indictment. The State

recommended a sentencing structure grouping the offenses by degree

for a total 8 year prison term. The State opposed community control

sanctions, but Esmail requested a lesser sentence and a presentence

investigation. At the plea hearing, the trial court accepted Esmail's

guilty plea and granted the request for the PSI.

On October 27, 2011, the matter came before the trial court for a

sentencing hearing. The State summed up the facts supporting the

charges, arising out of transactions taking place at Esmail's gas station

within 1,000 feet of a day care center as follows: “In total, over five

days, this Defendant possessed and sold, and/or sold, 453 Oxycontins,

over five and half grams of heroin. The street value on the Oxycontins -3-

alone being over $31,000. That's not a recreational user, Your Honor.

That's a drug dealer.” The State also argued a prison sentence was

warranted given Esmail's 2006 convictions on several counts of drug

trafficking in Trumbull County resulted in a Drug Court diversion and

being placed on community control to no effect. Defense counsel urged

the court to impose a minimum sentence and concurrent terms.

Defense counsel characterized Esmail's criminal activity as a result of a

long-term drug addiction and explained that despite past involvement in

Drug Court, he had not received adequate drug rehabilitation. Counsel

further noted that Esmail's offenses took place over a short period of

time and involved only one person purchasing the drugs. The court

also gave Esmail an opportunity to speak. Esmail stated that he works

hard and is dedicated to his family. He explained that his addiction

began 10 years ago when he was sick and an employee offered him an

Oxycontin pill. He emphasized that he was not out in the community

“starting trouble” but was confined to the gas station all day.

At the sentencing hearing, the trial court made note of a 2003 drug

related conviction in addition to the 2006 convictions noted by the State.

The following were the only findings made by the trial court relative to

sentencing and pertinent to the issues raised here on appeal:

“Mr. Amad, I have considered all of the appropriate factors in this case,

I believe; including the Presentence Investigation.” The trial court goes -4-

on to note two prior convictions for drug-related offenses, concluding: “I

do not believe that you are amenable to Community Control. Again,

based on the past record * * * ” Finally the trial court states: “I do

believe that this sentence today is consistent with the terms of Senate

Bill 86. Again, the primary purposes of which are to protect the public

and to punish the offender.”

On November 3, 2011, the trial court issued a judgment entry

sentencing Esmail pursuant to the sentencing structure the State

recommended. For the first-degree felonies: 3 years on Count 1; 4

years on Count 5; and 4 years on Count 6, these terms to be served

concurrently with each other but consecutive to the other prison

sentences. For the third-degree felonies: 3 years on Count 2; 3 years

on Count 3; and 3 years on Count 4, these terms to be served

concurrently with each other but consecutive to the other prison

sentences. For the fifth-degree felonies: 1 year on Count 7 and 1 year

on Count 8, these terms to be served concurrently with each other but

consecutive to the other prison sentences. Thus, the trial court

sentenced Esmail to a total 8 year term of incarceration.

State v. Esmail, 7th Dist. No.

,

(“Esmail I”).

{¶3} In the prior appeal, we specifically noted and relied on the fact that

Appellant was charged with drug offenses in 2003 that were later dismissed in

Trumbull County Drug Court, and that in 2006 Appellant “was convicted of multiple -5-

drug trafficking offenses, was sentenced to five years community control, and

received an early termination of his community control in January 2009;

approximately six months before he committed the present offenses in June and July

2009.” Id. at ¶45.

{¶4} We remanded the case for resentencing because the trial court

imposed consecutive sentences without making all of the findings required by newly

enacted R.C. 2929.14(C)(4). Id. at ¶48. Following remand, the trial court held

another sentencing hearing on August 8, 2013. At the hearing, Appellant's counsel

objected to any references to the 2003 drug charges that were dismissed by the

Trumbull County Drug Court. (Tr., pp. 8-9.) The court sustained the objection and

directed the prosecutor to refer only to Appellant’s 2006 convictions. (Tr., p. 9.) The

prosecutor then described the 2006 convictions: five felony counts including

aggravated trafficking and failure to comply. To excuse these crimes, the prosecutor

stated that Appellant “blamed his addiction, and also blamed that he wasn't making

profits from these drug transactions.” (Tr., pp. 9-10.) The prosecutor also noted that

Appellant was placed on community control following his drug convictions, but within

six months of the termination of community control he began selling drugs again out

of his gas station in Leetonia. (Tr., p. 10.)

{¶5} The trial court sentenced Appellant to the same eight-year prison term

as the original sentence: three years concurrently served on counts 1, 2, 3 and 4;

four years concurrently on counts 5 and 6, and one year concurrently served on

counts 7 and 8. These three groups of sentences were to be served consecutively, -6-

for a total of eight years in prison. The court noted: “Of significance to me is the

Defendant's past adult criminal record. That includes the felony drug convictions in

Trumbull County in 2006. Those convictions do include three counts of Aggravated

Trafficking in Drugs. * * * He's now a repeat drug trafficking offender. In my opinion,

I find that as such, he is necessarily a threat to the public, especially when

considering the amount of drugs involved; and the trafficking offenses occurred within

the vicinity of a school.” (Tr., pp. 34-35.) In imposing consecutive sentences, the

court discussed the three findings required by R.C. 2929.14(C)(4). (Tr., p. 38.) The

trial court filed its judgment entry on August 13, 2013, and this timely appeal followed.

ASSIGNMENT OF ERROR NO. 1

The sentence imposed against Mr. Esmail was contrary to law as it was

based, in part, on a dismissed case being used as “criminal history.”

{¶6} Appellant challenges the imposition of consecutive sentences as part of

his total sentence on various felony drug offenses. We review felony sentences in a

limited, two-step approach, as set forth in the plurality opinion in State v. Kalish,

,

,

. First, we examine the

sentence to determine if it is “clearly and convincingly contrary to law.”

If the

sentence is not clearly and convincingly contrary to law, then we review the sentence

for abuse of the trial court's discretion. Id. at ¶17. Although some appellate courts

no longer apply an abuse of discretion standard to felony sentences based on a

newly reenacted version of R.C. 2953.08(G)(2), we have consistently continued to

apply the two-fold Kalish standard, even when reviewing consecutive sentences. -7-

State v. Jackson, 7th Dist. No. 12 MA 199,

; State v. Hill, 7th Dist. No.

13 MA 1,

.

{¶7} R.C. 2929.14(C)(4) states:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the

offender and that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender

poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflects the seriousness of the offender's

conduct. -8-

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

{¶8} Pursuant to revised R.C. 2929.14(C)(4), a trial court must make three

findings before imposing consecutive sentences. A court may impose consecutive

sentences if it finds that: (1) consecutive sentences are necessary to protect the

public from future crime or to punish the offender and (2) consecutive sentences are

not disproportionate to the seriousness of the offender's conduct and to the danger

the offender poses to the public, and (3) one of the following: (a) the offender

committed one or more of the multiple offenses while the offender was awaiting trial

or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17,

or 2929.18 of the Revised Code, or was under postrelease control for a prior offense,

or (b) at least two of the multiple offenses were committed as part of one or more

courses of conduct, and the harm caused by two or more of the multiple offenses so

committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the

seriousness of the offender's conduct, or (c) the offender's history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from

future crime by the offender. The trial court is not required to state reasons

supporting the findings. State v. Galindo–Barjas, 7th Dist. No. 12 MA 37, 2013-Ohio-

431, ¶16-17, 19. The trial court is not required to cite any “magic words” before

imposing consecutive sentences, as long as it is “clear from the record that the trial -9-

court engaged in the appropriate analysis.” State v. Power, 7th Dist. No.

,

, quoting State v. McKenzie, 3d Dist. No. 15-12-07, 2012-Ohio-

6117, ¶10. The trial court can use either the exact wording of R.C. 2929.14(C)(4), or

other language that reflects that the findings were made. We review the entire record

to determine whether the findings were made at the time consecutive sentences are

imposed.

{¶9} The re-sentencing judgment entry states:

Pursuant to R.C. 2929.14, this Court finds that consecutive prison

sentences are necessary to punish the offender, to protect the public

from future crimes, and that consecutive sentences are not

disproportionate to the seriousness of the Defendant's conduct and the

danger he poses to the public. This Court also finds that the Defendant's

history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the Defendant.

(8/13/13 J.E., pp. 3-4.)

{¶10} Appellant argues that the record does not support the necessary third

finding, i.e., that his history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

Appellant assumes that the trial court improperly relied on his indictment on drug

charges in 2003. These charges were dismissed in 2005 as part of his participation

in the Trumbull County Drug Court. Appellant has no basis for this assumption. The

trial court specifically stated at the sentencing hearing that it was not relying on those -10-

charges, and the judge sustained Appellant's objection to the use of those charges at

sentencing. Appellant believes that even though the judge said he was not going to

consider the 2003 charges, he included these charges when coming to his decision.

Appellant comes to this conclusion because the judge said that Appellant's criminal

record “includes” the felony drug convictions from 2006, implying that there was more

to Appellant's criminal history than only the 2006 conviction. (8/13/13 Tr., p. 34.)

While this is certainly true, Appellant’s record “includes” his 2006 conviction and his

2011 conviction. Appellant urges us to believe that this statement implies that the

judge was also taking into account the 2003 charges.

{¶11} Appellant’s argument is not convincing. First, it is settled law that a

sentencing judge can take into account facts relating to other charges, even charges

that have been dismissed or which resulted in an acquittal. United States v. Watts,

,

,

(1997); State v. Wiles,

,

(1991); State v. Donald, 7th Dist. No. 08 MA 154, 2009-Ohio-

4638, ¶42-44.

{¶12} Second, Appellant's prior criminal history, including the 2003

indictment, is part of the record of this case and the prior appeal of this case.

Whether or not this indictment should count against him at sentencing, it is a matter

of public record that he was charged with drug offenses in 2003. Esmail I, ¶6, 21, 45.

Appellant did not object to the references to the 2003 charges in his prior appeal, and

we specifically relied on these charges as part of our analysis in finding that the

original sentence did not amount to an abuse of discretion. Id. at ¶45. Appellant -11-

cannot now object that the trial judge should not have made any reference to those

charges. The time for such objection has long since passed.

{¶13} Third, there is no evidence in the record that the trial judge considered

the 2003 charges at sentencing. Appellant objected to the use of the charges, the

objection was sustained, the court directed the prosecutor to discuss only the 2006

convictions, and the court referred only to the 2006 convictions. (Tr., p. 34.)

Whether or not there were charges made against Appellant in 2003, it was proper for

the trial court to state that his criminal record includes convictions in Trumbull County

in 2006. Those convictions include three counts of aggravated trafficking in drugs,

the same charges involved in the instant appeal. Whatever Appellant's total criminal

record might consist of, it certainly includes convictions from 2006. The use of the

word “includes” implies nothing more than that Appellant has a criminal record and

that convictions from 2006 are part of that record. Appellant's argument is both

linguistically and logically incorrect. Regardless, any consideration of the 2003

charges would have been harmless since that fact is part of the record and a court is

permitted at sentencing to rely on prior criminal activity even if it does not result in a

conviction. This assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

The record does not support a finding that Appellant's criminal history

demonstrates that consecutive sentences are necessary to protect the

public thereby requiring reversal of the sentence as to consecutive

sentences. -12-

{¶14} Appellant argues that his criminal history does not support the trial

court's finding that consecutive sentences were necessary to protect the public.

Appellant is essentially arguing that the trial court abused its discretion in imposing

consecutive sentences because the weight of the evidence shows that he was not a

danger to the public. Appellant argues that he committed the crimes because he is a

drug addict who has never had counseling. He contends that he only sold drugs to

one customer, and that he himself was the victim of the crime. He argues that his

likelihood of recidivism stems from the fact that he is a drug addict, not because he is

a criminal, and that a lengthy prison term is not going to deal with the reason he

committed the crimes or prevent him from committing future drug crimes. Appellant

concludes that the trial court was required to impose community control sanctions

rather than a lengthy prison term. Appellant cites no cases in support of his

argument.

{¶15} We have already ruled in the prior appeal that the trial court did not

abuse its discretion to impose a prison term rather than community control. Esmail I

at ¶37, 45, 47-48. Appellant made this same argument in the prior appeal and the

matter is now res judicata: “Esmail mainly argues that the trial court abused its

discretion because he sold drugs to a single buyer and thus was not a threat to the

public, only to himself.” Id. at ¶47. The record reflects that the 2006 convictions

were an indication that Appellant was becoming a major drug dealer rather than

indications merely of personal drug use. They involved three separate sales of

Oxycontin and one purchase of 500 Oxycontin pills for $7,500 from an undercover -13-

agent. He was placed on community control for those convictions, but within six

months of being released from that community control he began committing the

crimes involved in the instant appeal. On June 30, 2009, he sold 85 Oxycontin pills

for $4,000. On July 2, 2009, he sold 1.4 grams of heroin and four Oxycontin pills for

$400. On July 15, 2009, he sold 4.4 grams of heroin for $800. On July 17, 2009, he

sold 50 Oxycontin pills for $2,250. Thus, after having experienced community control

sanctions, he not only continued to sell Oxycontin, but expanded his trafficking

program to include heroin. Both drug suppliers were also arrested and stated that

they had delivered drugs to Appellant at his gas station on several occasions.

Appellant's argument that he was the only person involved in the crime and was

himself the only victim is not supported by the record. Appellant's argument is

without merit.

Conclusion

{¶16} Appellant challenges the imposition of consecutive sentences after this

case was remanded to the trial court for resentencing in Esmail I. On resentencing,

the trial court made the proper findings to impose consecutive sentences. Appellant

argues that the sentence is unlawful because the trial court improperly considered

charges from 2003 that were later dismissed. The record reflects that the trial court

specifically did not consider those charges, even though they are part of the record of

this case and the court could have relied on those charges in sentencing. Appellant

also argues that it was an abuse of discretion to impose consecutive prison terms

rather than community control. This issue is res judicata, having been unsuccessfully -14-

argued by Appellant in the prior appeal. Further, the record reflects that community

control sanctions from Appellant's 2006 convictions were ineffective, and there was

no abuse of discretion in imposing a more severe sanction for his later crimes. The

judgment of the trial court is affirmed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.