State v. Esmail , 2013 Ohio 2165 ( 2013 )

[Cite as State v. Esmail, 2013-Ohio-2165.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 11 CO 35PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
AMAD ESMAIL, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 10 CR 144.
JUDGMENT: Conviction Affirmed.
Remanded for Resentencing.
APPEARANCES:
For Plaintiff-Appellee: Attorney Robert L. Herron
Prosecuting Attorney
Attorney Ryan Weikart
Asst. Prosecuting Attorney
105 S. Market Street
Lisbon, OH 44432
For Defendant-Appellant: Attorney James Gentile
Attorney Ronald Yarwood
Attorney Edward Czopur
42 N. Phelps Street
Youngstown, OH 44503
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: May 20, 2013
[Cite as State v. Esmail, 2013-Ohio-2165.]
DeGenaro, P.J.
{¶1} Defendant-Appellant, Amad Esmail, appeals the decision of the Columbiana
County Common Pleas Court convicting him of three counts of trafficking in drugs, two
counts of aggravated trafficking in drugs, one count of aggravated possession of drugs,
and two counts of possession of drugs and sentencing him accordingly. On appeal,
Esmail challenges several aspects of his sentence. He contends that the trial court failed
to make the requisite findings before imposing consecutive sentences. Next, he argues
that the trial court erred in imposing prison terms rather than community control sanctions
for his fifth-degree felonies. He also contends that the trial court abused its discretion in
imposing maximum sentences for his third-degree and fifth-degree felonies. Finally, he
argues that the trial court erred by failing to consider a risk reduction sentence.
{¶2} Only one of Esmail's assignments of error has merit. The trial court failed to
make all of the required findings pursuant to R.C. 2929.14(C)(4) before imposing
consecutive sentences; thus, Esmail's sentence was contrary to law. As to the other
assignments of error, the trial court did not err in imposing prison terms for Esmail's fifth-
degree felonies. Further, the trial court's sentence was not an abuse of discretion.
Finally, risk reduction sentencing was optional and the trial court did not err in failing to
state that it considered such a sentence. Accordingly, Esmail's conviction is affirmed and
this cause is remanded for resentencing.
Facts and Procedural History
{¶3} 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 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 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.
{¶4} On August 26, 2011, Esmail and the State entered into a Crim.R. 11 plea
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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.
{¶5} 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 Oxycotins 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.
{¶6} 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:
{¶7} "Mr. Amad, I have considered all of the appropriate factors in this case, I
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believe; including the Presentence Investigation." The trial court goes 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."
{¶8} 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.
Felony Sentence Review
{¶9} Esmail presents four assignments of error on appeal. Because these
assignments of error all concern review of his sentence and are analyzed under the same
standard of review, they will be addressed together and slightly out of order, for ease of
analysis:
{¶10} "The sentence imposed against Mr. Esmail was in violation of 2929.14(C)(4)
and an abuse of discretion as the trial court did not make the necessary findings before
imposing consecutive sentences."
{¶11} "The trial court abused its discretion by imposing prison sentences for Mr.
Esmail's fifth degree felony convictions."
{¶12} "The trial court abused its discretion in imposing maximum sentences on
each of the felony three and felony five non-violent drug convictions against Mr. Esmail."
{¶13} "The trial court erred in failing to consider 'risk reduction' pursuant to ORC §
-4-
2929.143, despite counsel's requests, before imposing maximum sentences."
{¶14} When reviewing a felony sentence, an appellate court first reviews the
sentence to ensure that the sentencing court clearly and convincingly complied with the
applicable laws. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,
¶4. A trial court's sentence would be contrary to law if, for example, it were outside the
statutory range, in contravention to a statute, or decided pursuant to an unconstitutional
statute. Id. at ¶15. If this inquiry is satisfied, an appellate court then reviews the trial
court's sentencing decision for abuse of discretion. Id. at ¶17, 19-20. An abuse of
discretion means more than an error of law or judgment; but rather implies that the court's
attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980).
Consecutive Sentences
{¶15} The General Assembly recently amended Ohio's felony sentencing statutes
in Am. Sub.H.B. No. 86 which became effective September 30, 2011. Because the trial
court sentenced Esmail on November 3, 2011H.B. 86 applies to his sentence.
{¶16} Before H.B. 86 was enacted, the Ohio Supreme Court held "there is no
mandate for judicial fact-finding in the general guidance statutes." State v. Foster, ¶42.
Foster struck down as unconstitutional R.C. 2929.14(E)(4), which at that time governed
the imposition of consecutive sentences, because it required judicial fact-finding.
{¶17} However, this aspect of Foster's holding was later undercut by the United
States Supreme Court's decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172
L.Ed.2d 517 (2009). As the Ohio Supreme Court noted in State v. Hodge, 128 Ohio St.3d
1, 2010-Ohio-6320, 941 N.E.2d 768, "[a]fter Ice, it is now settled law that * * * the jury-trial
guarantee of the Sixth Amendment to the United States Constitution does not preclude
states from requiring trial court judges to engage in judicial fact-finding prior to imposing
consecutive sentences." Id. at ¶19. The Hodge Court concluded, however, that Ice did
not revive the former consecutive sentencing provisions held to be unconstitutional in
Foster, stating that "[t]rial court judges are not obligated to engage in judicial fact-finding
prior to imposing consecutive sentences unless the General Assembly enacts new
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legislation requiring that findings be made." Id. at paragraphs two and three of the
syllabus.
{¶18} With the passage of H.B. 86 in 2011, the Ohio Legislature has re-enacted
verbatim the consecutive sentencing provisions of former R.C. 2929.14(E)(4) as they
existed prior to Foster, although the provisions have been renumbered.
{¶19} Specifically, R.C. 2929.14(C)(4) now provides:
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.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶20} While Esmail concedes that his sentence was within the statutory range, he
argues that the trial court failed to make the requisite findings to impose consecutive
sentences in violation of R.C. 2929.14(C)(4).
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{¶21} Here, the trial court made the following relevant findings during the
sentencing hearing, in addition to acknowledging the drug trafficking convictions in
Trumbull County in 2006 noted by the State:
"Okay. Mr. Amad, I have considered all of the appropriate factors in this case, I
believe; including the Presentence Investigation."
***
"I would also note, sir, back in 2003, according to my review, was the first time that
there was some sort of a drug-related offense. I do not believe that you are
amendable to Community Control. Again, based on the past record that I see
reflected in the Presentence Investigation."
***
"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."
{¶22} In the November 3, 2011 sentencing entry, the trial court stated that it also
considered "the purposes and principles of sentencing, and all other relevant factors,
(O.R.C. 2929.11 and 12)."
{¶23} The trial court did find that Esmail's sentence was necessary to protect the
public and to punish the offender, but this was the only one of the three findings required
by R.C. 2929.14(C)(4) the trial court made before imposing consecutive sentences. The
trial court did not find that the consecutive sentences are not disproportionate to the
seriousness of Esmail's conduct and to the danger he poses to the public. And although
the trial court noted Esmail’s prior record, it did so in the context of community control; no
finding was made with respect to consecutive sentences in light of Esmail’s record. While
the trial court did state that it believed the sentence was consistent with "Senate Bill 86."
this was not enough to comply with R.C. 2929.14(C)(4). Although the trial court was not
required to use the exact words of the statute, generally citing to H.B. 86 is not sufficient
to show the court made the required statutory findings.
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{¶24} Other courts interpreting this provision have looked to pre-Foster precedent
analyzing former R.C. 2929.14(E)(4) to interpret R.C. 2929.14(C)(4). For instance, in
State v. Davis, 8th Dist. Nos. 97689, 97691, and 97692, 2012-Ohio-3951, the Eighth
District concluded:
Under R.C. 2929.14(C)(4), the trial court must state its findings in
support of consecutive sentences on the record at the sentencing hearing.
State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473,
paragraph one of the syllabus. However, it is not required to recite any
"magic" or "talismanic" words when imposing consecutive sentences
provided it is "clear from the record that the trial court engaged in the
appropriate analysis." State v. Murrin, 8th Dist. No. 83714, 2004-Ohio-
3962, ¶12.
Davis at ¶8.
{¶25} Similarly, in State v. Frasca, 11th Dist. No. 2011-T-0108, 2012-Ohio-3746,
the Eleventh District concluded: "in making findings regarding consecutive sentencing, 'a
verbatim recitation of the statutory language is not required by the trial court.' " Id. at ¶60,
quoting State v. Green, 11th Dist. No.2003-A-0089, 2005-Ohio-3268, ¶26, citing State v.
Grissom, 11th Dist. No.2001-L-107, 2002-Ohio-5154, ¶21.
{¶26} In Frasca, during the sentencing hearing the trial court emphasized
Frasca's extensive criminal record and noted that many of Frasca's prior convictions were
for felonious assault, menacing and aggravated menacing. The trial court further "found
that the victim in the Felonious Assault case was cut 'pretty severely.' The trial court
finally found[:] 'based on your past record, that is the reason I have given the sentence I
have.' In the sentencing entry the trial court also stated that the 'Court finds that the
offender's criminal history shows that consecutive terms are needed to protect the
public.'" Frasca at ¶58-59.
{¶27} Drawing from recent precedent from other districts, the Eleventh District
concluded that the trial court's findings were sufficient:
-8-
The [trial] court noted on the record Frasca's extensive record and
this record being the basis for the sentence. It also stated in the Entry that
a consecutive sentence was needed to protect the public. Such findings
have been found sufficient to satisfy the factual findings requirement under
R.C. 2929.19(C)(4). State v. Jones, 1st Dist. No. C–110603, 2012–Ohio–
2075, ¶ 23 (where the trial court stated during the sentencing hearing that it
was ordering the prison terms to be served consecutively because the
defendant had an extensive criminal history and the victims had been
seriously injured, these statements were sufficient to show that the trial
court's imposition of consecutive sentences was appropriate and complied
with R.C. 2929.14(C)(4)); State v. Johnson, 8th Dist. No. 97579, 2012–
Ohio–2508, ¶ 12 (when the court made findings related to the appellant's
specific conduct in the case and his repeated engagement in criminal
activity, it properly found that the sentence was not disproportionate to his
conduct and threat he posed to society).
Frasca at ¶60.
{¶28} Recently, in State v. Kornegay, 7th Dist. No. 12 MA 10, 2013-Ohio-658, this
court held that the trial court complied with R.C. 2929.14(C)(4) where, at sentencing, it
"found that appellant committed the crimes 'during the course of the time period where he
was involved in other matters' and that this demonstrated that a sentence on a single
term would not adequately represent the seriousness of the offenses and would not
adequately protect the public. The court also noted that recidivism was a 'big problem'. It
pointed out that when it gave appellant the opportunity for day reporting and treatment, he
was not able to comply." (Internal record citations omitted.) Id. at ¶19. See also State v.
Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, where this court held the findings made
by the trial court at the sentencing hearing and in the sentencing entry complied with H.B.
86.
{¶29} Conversely, a statement by the trial court that the "statutory conditions for
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consecutive sentences have been met," is insufficient and requires a remand for
resentencing. State v. Bradley, 5th Dist. No. 2012CA00011, 2012-Ohio-4787, ¶43-45.
Similarly, in State v. Upkins, 3d Dist. No. 17–12–13, 2012-Ohio-6114, the Third District
reversed and remanded for resentencing where the trial court said it “considered the
consecutive factors under R.C. 2929.14(C)(4)," but failed to elaborate on all of the
factors. Id. at ¶4. Recently, in State v. Farnsworth, 7th Dist. No. 12 CO 10, 2013-Ohio-
1275, this court held that the trial court making only two of the three required findings
warranted reversal for resentencing.
{¶30} The statements made by the trial court here are more in line with those at
issue in Bradley and Upkins and are therefore insufficient to comply with the findings
requirement contemplated by H.B. 86.
{¶31} Esmail's sentence is contrary to law because the trial court failed to make all
of the required findings before imposing consecutive sentences under R.C.
2929.14(C)(4). Accordingly, Esmail's first assignment of error is meritorious.
Prison Sentences for Fifth-Degree Felonies
{¶32} Esmail's second argument is that the trial court abused its discretion in
imposing prison terms for the fifth-degree felonies because under R.C. 2929.13(B)(1)(b),
the court lacked discretion to impose a prison term rather than community control
sanctions. Alternatively, he contends that even if the court had discretion to impose a
prison term, it failed to make the requisite findings pursuant to R.C. 2929.13(B)(3) before
imposing the prison terms.
{¶33} Esmail was convicted of two counts of possession of drugs pursuant to R.C.
2925.11(A), which are fifth-degree felonies. The trial court sentenced him to a one year
prison term for each count. The record reveals that Count 7 involved Methylphenidate
and Count 8 involved Oxycodone, both Schedule II controlled substances. R.C.
2925.11(C)(1)(a) directs that for such an offense, the trial court should apply R.C.
2929.13(B) in determining whether to impose a prison term.
{¶34} Esmail has misinterpreted R.C. 2929.13(B). Sub-part (1) provides in
relevant part:
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(a) Except as provided in division (B)(1)(b) of this section, if an offender is
convicted of or pleads guilty to a felony of the fourth or fifth degree that is
not an offense of violence, the court shall sentence the offender to a
community control sanction of at least one year's duration if all of the
following apply:
(i) The offender previously has not been convicted of or
pleaded guilty to a felony offense or to an offense of violence
that is a misdemeanor and that the offender committed within
two years prior to the offense for which sentence is being
imposed.
(ii) The most serious charge against the offender at the time
of sentencing is a felony of the fourth or fifth degree.
(iii) If the court made a request of the department of
rehabilitation and correction pursuant to division (B)(1)(c) of
this section, the department, within the forty-five-day period
specified in that division, provided the court with the names
of, contact information for, and program details of one or
more community control sanctions of at least one year's
duration that are available for persons sentenced by the
court.
(b) The court has discretion to impose a prison term upon an offender who
is convicted of or pleads guilty to a felony of the fourth or fifth degree that is
not an offense of violence if any of the following apply:
(i) The offender committed the offense while having a firearm
on or about the offender's person or under the offender's
control.
(ii) The offender caused physical harm to another person
while committing the offense.
(iii) The offender violated a term of the conditions of bond as
set by the court.
(iv) The court made a request of the department of
rehabilitation and correction pursuant to division (B)(1)(c) of
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this section, and the department, within the forty-five-day
period specified in that division, did not provide the court with
the name of, contact information for, and program details of
any community control sanction of at least one year's
duration that is available for persons sentenced by the court.
{¶35} The trial court must sentence an offender convicted of a non-violent fifth-
degree felony to at least one year of community control if all of the factors in R.C.
2929.13(B)(1)(a)(i)-(iii) apply, except when one of the factors in (B)(1)(b) apply; then the
court has discretion to impose a prison term. R.C. 2929.13(B)(1) does not apply to
Esmail because he was previously convicted of a felony ((B)(1)(a)(i)) and in the instant
case, he was sentenced on first-degree and third-degree felonies in addition to the fifth-
degree felonies ((B)(1)(a)(ii)). Because all of the factors in R.C. 2929.13(B)(1)(a) do not
apply to Esmail, it is not necessary to examine the exceptions contained in (B)(1)(b).
{¶36} R.C. 2929.13(B)(2) provides that if (B)(1) does not apply, the court must
determine whether any of the nine factors under (B)(2)(a)-(i) apply. None of these nine
factors apply to Esmail and the court did not make any such findings; thus, R.C.
2929.13(B)(3)(b) instructs that
[I]f the court does not make a finding described in division (B)(2)(a), (b), (c),
(d), (e), (f), (g), (h), or (i) of this section and if the court, after considering
the factors set forth in section 2929.12 of the Revised Code, finds that a
community control sanction or combination of community control sanctions
is consistent with the purposes and principles of sentencing set forth in
section 2929.11 of the Revised Code, the court shall impose a community
control sanction or combination of community control sanctions upon the
offender.
{¶37} Accordingly, if the trial court had determined that community control
sanctions were consistent with the statutory purposes and principles of sentencing, then
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the trial court would be required to sentence Esmail to community control. However, at
the sentencing hearing, the court stated that it did not believe community control
sanctions were appropriate due to Esmail's past criminal record reflected in the PSI. The
court also found that Esmail's sentence was consistent with the purposes of felony
sentencing, protecting the public and punishing the offender. The trial court properly
considered Esmail's two prior drug-related offenses and reasonably determined that
community control sanctions were not appropriate. Because the trial court did not find
that community control was consistent with the purposes of sentencing in this case, the
trial court was not required to impose community control sanctions upon Esmail.
Accordingly, Esmail's second assignment of error is meritless.
Risk Reduction Sentences
{¶38} Esmail's fourth argument is that the trial court erred by failing to consider
sentencing him to a risk reduction sentence pursuant to R.C. 2929.143 when counsel
requested consideration of this statute during the sentencing hearing.
{¶39} R.C. 2929.143 provides in pertinent part:
(A) When a court sentences an offender who is convicted of a felony to a
term of incarceration in a state correctional institution, the court may
recommend that the offender serve a risk reduction sentence under section
5120.036 of the Revised Code if the court determines that a risk reduction
sentence is appropriate * * *.
{¶40} R.C. 5120.036 provides that if the court recommends a risk reduction
sentence and the offender successfully completes such programming or treatment, then
the Department of Rehabilitation and Correction shall release the offender to supervised
release after the offender has served all of his or her mandatory terms and a minimum of
eighty percent of his or her aggregated nonmandatory prison terms.
{¶41} During the sentencing hearing, defense counsel did note that the trial court
could recommend Esmail for a risk reduction sentence. The trial court did not explicitly
state its consideration of risk reduction sentencing during the hearing; however, as
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discussed above, the trial court did state that it believed that Esmail's sentence was
consistent with "Senate Bill 86." Furthermore, in the sentencing entry, the trial court
stated that it considered the statements of counsel.
{¶42} As Esmail notes, neither this court nor the other appellate districts have
interpreted R.C. 2929.143. However, the statute states that "the court may recommend
that the offender serve a risk reduction sentence under section 5120.036 of the Revised
Code if the court determines that a risk reduction sentence is appropriate." (emphasis
added.) R.C. 2929.143(A). The statute gives the trial court the option of recommending
such a sentence if the court finds it is appropriate. Moreover, the statute does not appear
to require that the trial court specifically state its consideration of a risk reduction
sentence on the record. Thus, the trial court did not err in failing to state that it
considered a risk reduction sentence. Accordingly, Esmail's fourth assignment of error is
meritless.
Maximum Sentences
{¶43} Esmail's final argument is that the trial court abused its discretion in
sentencing him to the maximum sentences for his third-degree and fifth-degree felonies.
Although we have concluded that Esmail's sentence was clearly and convincingly contrary
to law because the trial court erred with respect to H.B. 86 sentencing issues, we will still
review whether the sentence was an abuse of discretion as the case will be remanded for
resentencing, and this analysis is instructive. See Kalish at ¶15 ("If on appeal the trial
court's sentence is * * * clearly and convincingly contrary to law, * * * the appellate court's
review is at an end.").
{¶44} The trial court sentenced Esmail to a three year prison term for each of
three counts of trafficking in drugs (R.C. 2925.03(A)(1)), third-degree felonies, which were
the maximum terms for these offenses. See R.C. 2929.14(A)(3)(b). The court sentenced
Esmail to a one year prison term for each of two counts of possession of drugs (R.C.
2925.11(A)), fifth-degree felonies, which were the maximum terms for these offenses.
See R.C. 2929.14(A)(5). However, as the State notes, the trial court ran the third-degree
felony offenses concurrently to each other and ran the fifth-degree felony offenses
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concurrently to each other. Thus, Esmail received three years for the three third-degree
felonies out of a possible nine year sentence and one year for the two fifth-degree
felonies out of a possible two year sentence.
{¶45} Upon review of the sentencing hearing transcript and the record, these
sentences were not an abuse of discretion. Esmail had a prior conviction in 2006 for
aggravated trafficking in drugs and committed another drug-related offense in 2003,
which the court considered during sentencing. In 2003, Esmail was charged with various
drug possession offenses, placed in Trumbull County Drug Court and the charges were
dismissed upon his successful completion of Drug Court. In 2006, Esmail was convicted
of multiple 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.
{¶46} Regarding the present offenses, on four dates in June and July 2009,
Esmail sold 85 Oxycontin pills for $3,915, 1.8 grams of heroin and 4 Oxycontin pills for
$350, 4.9 grams of heroin for $800, and 50 Oxycontin pills for $2,250. On July 28, 2009,
officers executing a search of the gas station uncovered more drugs and $7,680 in cash
on Esmail's person.
{¶47} 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. He
claims that the trial court could have sentenced him to community control sanctions,
rather than maximum prison terms. However, the indictment reveals that Esmail
committed his trafficking offenses within the vicinity of a school, which belie his claims
that he was not a threat to the public. Moreover, during his allocution statement, Esmail
downplayed the seriousness of his crimes by stating that he only sold drugs from his gas
station and was not causing trouble in the community. The trial court properly considered
his two prior offenses, as well as the information in the PSI and the appropriate
sentencing factors, and the court's imposition of these maximum sentences was
reasonable. Moreover, the trial court's overall sentence was not an abuse of discretion.
Accordingly, Esmail's third assignment of error is meritless.
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{¶48} In conclusion, only one of Esmail's assignments of error has merit. The trial
court failed to make all of the required findings pursuant to R.C. 2929.14(C)(4) before
imposing consecutive sentences; thus, Esmail's sentence was contrary to law. As to the
other assignments of error, the trial court did not err in imposing prison terms for Esmail's
fifth-degree felonies. Further, the trial court's sentence was not an abuse of discretion.
Finally, risk reduction sentencing was optional and the trial court did not err in failing to
state that it considered such a sentence. Accordingly, Esmail's conviction is affirmed and
this cause is remanded for resentencing.
Donofrio, J., concurs.
Waite, J., concurs.