State v. Esmail

[Cite as State v. Esmail, 2014-Ohio-2297.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 CO 35
)
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, 2014-Ohio-2297.]
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
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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
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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
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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. 11 CO 35, 2013-Ohio-2165, ¶3-8 (“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
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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,
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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, 120
Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶26. First, we examine the
sentence to determine if it is “clearly and convincingly contrary to law.” Id. 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.
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State v. Jackson, 7th Dist. No. 12 MA 199, 2014-Ohio-777; State v. Hill, 7th Dist. No.
13 MA 1, 2014-Ohio-919.
{¶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.
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(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
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court engaged in the appropriate analysis.” State v. Power, 7th Dist. No. 12 CO 14,
2013-Ohio-4254, ¶40, 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
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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,
519 U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997); State v. Wiles, 59 Ohio St. 3d
71, 78, 571 N.E.2d 97 (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
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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.
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{¶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
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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
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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.