State v. Esmail, 2014 Ohio 2297

Appellant Amad Esmail challenges his eight-year consecutive sentence for eight drug offenses after remand for proper crediting of R.C. 2929.14(C)(4) findings.
The trial court on remand again sentenced to eight years, making the required findings for consecutive sentences.
The State referenced prior 2006 convictions and noted a history of drug trafficking; a 2003 indictment later dismissed was not relied on for the new sentence.
Esmail argued the court improperly relied on dismissed charges (2003) as criminal history and contended the history did not justify consecutive sentences.
The appellate court previously affirmed the sentence in Esmail I and, on remand, again affirmed, concluding the court did not abuse discretion and did not rely on the dismissed 2003 charges.
The court found that the record shows Esmail’s 2006 convictions demonstrated a pattern of trafficking and a continued threat, supporting consecutive terms.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the sentence rely on a dismissed charge for criminal history?	Esmail asserts the court used the 2003 dismissed charges as criminal history.	Esmail argues the court did not rely on those charges and sustained objections to them.	No; court did not rely on the dismissed charges.
Is the history of criminal conduct sufficient to justify consecutive sentences?	Esmail contends his addiction and limited conduct do not warrant lengthy consecutive terms.	State asserts prior drug convictions show growing drug trafficking and necessity for protect-the-public rationale.	Yes; history supports consecutive sentences.

State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (two-step Kalish standard for reviewing felony sentences)
State v. Galindo-Barjas, 2013-Ohio-431 (7th Dist. No. 12 MA 37, 2013) (no requirement for 'magic words' to support consecutive findings)
State v. Power, 7th Dist. No. 12 CO 14 (2013-Ohio-4254) (trial court need not recite magic words if analysis is clear)
State v. McKenzie, 3d Dist. No. 15-12-07 (2012-Ohio-6117) (analysis of findings for consecutive sentences)
United States v. Watts, 519 U.S. 148 (1997) (permissible to consider dismissed/acquitted charges in sentencing)
State v. Wiles, 59 Ohio St.3d 71 (1991) (court may rely on prior criminal activity in sentencing)
State v. Donald, 7th Dist. No. 08 MA 154 (2009-Ohio-4638) (prior charges and record can inform sentencing)
Esmail I, 2013-Ohio-2165 (7th Dist. No. 11 CO 35, 2013) (remand for resentencing on proper findings; prior reference to 2003/2006 history)