State v. Gallardo

2024 Ohio 2942

• Court: Ohio Court of Appeals
• Decided: August 2, 2024
• Docket: OT-23-025, OT-23-026
• Status: Published

Opinion

[Cite as State v. Gallardo, 2024-Ohio-2942.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

State of Ohio Court of Appeals No. OT-23-025 OT-23-026 Appellee Trial Court No. 23 CR 007 22 CR 134 v.

Joseph Gallardo DECISION AND JUDGMENT

Appellant Decided: August 2, 2024

*****

James J. VanEerten, Ottawa County Prosecuting Attorney, and Barbara Rivas and Alec Vogelpohl, Assistant Prosecuting Attorneys, for appellee.

Brian A. Smith, for appellant.

***** OSOWIK, J.

{¶ 1} This is a consolidated appeal of a July 14, 2023 judgment of the Ottawa

County Court of Common Pleas, sentencing appellant to a 36-month term of

incarceration on one count of failure to register his residential address as a sexual

offender, in violation of R.C. 2950.05, a felony of the third degree, a 90-day term of incarceration on each of six counts of voyeurism, in violation of R.C. 2907.08,

misdemeanors of the second degree, a 36-month term of incarceration on one count of

tampering with evidence, in violation of R.C. 2921.12, a felony of the third degree, with

the voyeurism sentences ordered to be served concurrently with one another, and

concurrently with the tampering with evidence sentence, the aggregate of which was

ordered to be served consecutively with the failure to register sentence, equaling a 72-

month term of incarceration, ordered to be served consecutively with the imposed

balance of appellant’s terminated post-release control on a prior rape conviction, tallying

a total term of incarceration of nine years, four months, and 22 days.

{¶ 2} We note at the outset that appellant unconditionally acknowledges that the

trial court made all requisite R.C. 2929.14(C)(4) statutory findings in support of the

disputed consecutive sentencing in this case. Nevertheless, appellant argues in broad

terms that the trial court incorrectly found that consecutive sentences were necessary to

protect the public and were not disproportionate to the danger posed to the public. For

the reasons set forth below, this court affirms the judgment of the trial court.

{¶ 3} Appellant, Joseph Gallardo, sets forth the following sole assignment of

error:

“1. The trial court’s imposition of consecutive sentences * * * was not supported

by the record.”

2. {¶ 4} The following undisputed facts are relevant to this appeal. This case stems

from a series of sexual offenses committed by appellant, whose criminal history traces

back to the 1980s, whose criminal offenses have consistently been sexual offenses and

related offenses committed in the course of committing the sexual offenses, whose

criminal offenses range from voyeurism to rape, and who has committed new sexual

offenses each time that he has been released on post-release control.

{¶ 5} In the context of these facts and circumstances, the Court Diagnostic &

Treatment Center accordantly determined that appellant poses a high risk of both sexual

offense of violence recidivism and general offense recidivism, thereby presenting a high

risk of danger to the public if appellant was again released back into the community.

{¶ 6} The 2022 events underpinning this case involve several female neighbors of

appellant’s mother in Port Clinton, where appellant had been staying when last released

on post-release control for prior sex offenses. For several months, appellant engaged in

ongoing surveillance of several neighbor women, surreptitiously recording them

engaging in intimate activities. Shortly thereafter, appellant relocated to a different Port

Clinton residence and failed to notify his probation officer in compliance with his sexual

offender registration requirements. Appellant’s failure to register triggered an

investigation. That investigation uncovered appellant’s unlawful acts underlying this

case.

3. {¶ 7} In the failure to register investigation, the officers secured a search warrant

for appellant’s mobile phone. Subsequent forensic examination of appellant’s electronic

device revealed that appellant had recently made multiple video recordings, and

subsequently, unsuccessfully, attempted to permanently delete the incriminating

recordings. Review of the retrieved recordings showed that appellant had been secretly

monitoring and recording several female neighbors of his mother, making numerous

recordings of the women while they were alone inside of their homes, while they were in

a state of undress, and while they engaged in private activities, such as using their

bathrooms, showering, changing clothes, and masturbating. These covert recordings

were made on multiple occasions, ranging from April 2022, through June 2022.

Appellant was out on post-release control on a prior rape conviction at the time of these

events. Appellant would slip out of his mother’s home at night to lurk around

neighboring homes, awaiting opportunities to make the recordings.

{¶ 8} On January 11, 2023, following the conclusion of the investigation,

appellant was indicted on two counts of failure to provide notice of change in vehicle

information, in violation of R.C. 2950.05, felonies of the first degree, one count of failure

to register, in violation of R.C. 2950.05, a felony of the first degree, six counts of

voyeurism, in violation of R.C. 2907.08, misdemeanors of the second degree, two counts

of menacing by stalking, in violation of R.C. 2903.211, felonies of the fourth degree, two

counts of tampering with evidence, in violation of R.C. 2921.12, felonies of the third

4. degree, six counts of breaking and entering, in violation of R.C. 2911.13, felonies of the

fifth degree, one count of failure to provide notice of a change of address, in violation of

R.C. 2950.05, a felony of the first degree, and appellant’s post-release control was

unsuccessfully terminated.

{¶ 9} On April 27, 2023, pursuant to a negotiated plea agreement, appellant pled

guilty to one count of failure to register, as amended to a felony of the third degree, in

violation of R.C. 2950.05, six counts of voyeurism, in violation of R.C. 2907.08,

misdemeanors of the second degree, and one count of tampering with evidence, in

violation of R.C. 2921.12, a felony of the third degree. In exchange, the remainder of the

charges were dismissed.

{¶ 10} On July 14, 2023, appellant was sentenced. The trial court reviewed the

report prepared by the Court Diagnostic & Treatment Center. The report noted that

despite multiple, previous incarcerations and the provision of services designed to

mitigate the risk of recidivism, appellant consistently reoffended, committing new sexual

offenses within a short time upon each release back into the community. The report

determined to a reasonable degree of psychological certainty that appellant poses a high

risk of recidivism of sexual offenses, including sexual offenses of violence, and general

offenses, if released back into the community. In conjunction, the report determined to a

reasonable degree of psychological certainty that appellant has demonstrated a persistent

5. lack of responsiveness to all past treatment and is unlikely to respond to treatment in this

{¶ 11} The trial court next heard the testimony of one of the victims. The victim,

who lives in immediate proximity to appellant’s mother, had been secretly recorded by

appellant while alone inside of her home, including appellant recording her using her

bathroom, showering, and masturbating.

{¶ 12} The victim testified that she and her husband had moved into their home

shortly before this incident. The victim stated that appellant’s mother had disclosed to

her that he had recently been released from prison. The victim had been nonjudgmental

in response to that disclosure. The victim conveyed,

She [appellant’s mother] said, oh, [appellant] just got out of prison. But

I’m hoping he’s going to move away * * * I didn’t have any details. I didn’t

really care because it’s not my place to be in his business * * * I,

unfortunately, was naïve * * * I assumed [that] after you serve many years

in prison, that maybe, [that] maybe [the person would] change. But that

[was] not the case * * * In December, on my husband’s birthday, a

prosecutor and detective came to our house and informed us what happened

* * * [Appellant] robbed us of our peace of mind * * * There were many

nights that my husband and I couldn’t sleep because we were just so

disgusted with what had taken place. And he robbed me of what I thought

6. would have been a personal, intimate moment, alone in my house * * * I

think he’s sick. And it just makes me sick now that I still have to think

about those moments and I can’t get that back. I can’t erase what I know

or what he saw. (Emphasis added).

{¶ 13} Following the victim’s testimony, appellee summarized appellant’s lengthy

sexual offense criminal history, including dozens of voyeurism and peeping offenses, as

well as multiple rape convictions. Appellee then noted that appellant had received sexual

offender treatment on multiple past occasions, yet committed new sexual offenses within

months of each past release, including the commission of two rapes, on January 18 and

February 4, 2004, respectively, after being released and placed on post-release control on

May 1, 2003.

{¶ 14} Appellee further noted that over the course of appellant’s years of

involvement in the criminal justice system, evaluations of appellant have consistently

found him to be a chronic reoffender, in addition to being a classified sexual predator

based upon the multiple prior rape convictions. Appellee concluded,

The defendant should be sentenced to prison. The state believes that

consecutive sentences are necessary to protect the public from future crime

by the defendant given his criminal history and to punish him. Consecutive

sentences are not disproportionate to the seriousness of his conduct and the

danger that he poses to the public * * * These offenses were committed

7. while the defendant was [out] again on post-release control * * * The

Defendant was released from prison in December of 2021. While still on

post-release control, and within seven months after his release, the

Defendant didn’t just commit one sexually-oriented offense. He committed

six [sexually-oriented offenses].

{¶ 15} Counsel for appellant acknowledged, “It is true that [appellant] has been

through a number of sex offender training programs. Unfortunately, these programs

don’t appear to be enough * * * I’m asking for the consideration of an alternative [to

incarceration].”

{¶ 16} Appellant next testified to the trial court on his own behalf. Appellant

stated,

I’d like to apologize to the victim[s] * * * for invading [their] privacy and

violating what you thought was a safe place in your home * * * I was wrong for what I

did * * * I took something from you when I did that * * * I take full responsibility for

what I did. There’s no excuse for what I did * * * I’m here today to, to ask for, for some

help for chance to change. (Emphasis added).

{¶ 17} The court next reviewed in detail all requisite statutory principles and

findings. The court ultimately held, in relevant part, “The court finds that consecutive

sentencing 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

8. offender’s conduct and the danger the offender poses to the public.” Appellant was then

sentenced to a total term of incarceration of nine years, four months, and 22 days. This

appeal ensued.

{¶ 18} In the sole assignment of error, appellant claims that the record of evidence

does not support the trial court’s imposition of consecutive sentences in this case.

Appellant broadly asserts that, “The record demonstrates that consecutive sentences were

not necessary to protect the public from future crime or to punish the offender, and they

were disproportionate to the * * * danger the offender poses to the public.”

{¶ 19} In primary support of this position, appellant cites to his completion of sex

offender treatment programs on two past occasions, his participation in alternative

treatment programs in connection to past sex offenses, his expression of remorse in this

case, and his recent history of gainful employment.

{¶ 20} Under R.C. 2929.14(C)(4), when a trial court imposes multiple prison

terms for convictions of multiple offenses, it may require the offender to serve the prison

terms consecutively if it finds that consecutive sentences are necessary to protect the

public from future crime or to punish the offender and if 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 it 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

9. pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was

under post-release control for 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.

{¶ 21} We reiterate that appellant concedes that, “The trial court made the required

findings to impose consecutive sentences under R.C. 2929.14(C)(4), both at the

sentencing hearing and in its sentencing entry.”

{¶ 22} As this court recently held in State v. Bickerstaff, 6th Dist. Lucas Nos. L-

23-1013, L-23-1147, 2024-Ohio-871, ¶ 19-20, another case in which the appellant

likewise broadly disputed the trial court’s consecutive sentencing determination that the

appellant presented a danger to the public,

Recently, the Supreme Court firmly pronounced that the plain language of

R.C. 2953.08(G(2) requires an appellate court to defer to a trial court’s

consecutive sentence findings, and a trial court’s findings must be upheld

unless those findings are clearly and convincingly not supported by the

10. record. State v. Gwynne, Slip Opinion No. 2023-Ohio-3851, ¶ 4-5. The

court also emphasized that the statutory language does not require that the

appellate court have a firm belief or conviction that the record supports the

findings. The clear and convincing standard for appellate review in R.C.

2953.08(G)(2) is written in the negative. Id. at ¶ 12-15. We have reviewed

the record and do not find the trial court’s consecutive sentence findings are

clearly and convincingly not supported by the record under R.C.

2953.08(G)(2).

{¶ 23} As encapsulated by the Ohio Supreme Court in State v. Jones, Slip

Opinion No. 2024-Ohio-1083, ¶ 13,

R.C. 2953.08(G) permits an appellate court to increase, reduce,

otherwise modify, or vacate a sentence only if it clearly and

convincingly finds that the record does not support the sentencing

court’s findings or that the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2); see also State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22. The standard to be applied

is the standard set forth in the statute: an appellate court has the

authority to increase , reduce, otherwise modify or vacate a sentence

only after it has reviewed the entire trial-court record and clearly and

convincingly found either * * * [t]hat the record does not support the

11. sentencing court’s findings under [certain statutes] or [t]hat the

sentence is otherwise contrary to law. R.C. 2953.08(G)(2).

{¶ 24} In conjunction, as pertains to appellant’s additional R.C. 2929.11(A) claim

that the disputed sentence imposes an unnecessary burden on government resources, as

recently set forth by this court in State v. Eames, 6th Dist. Wood Nos. WD-23-023, 2024-

Ohio-183, ¶ 10,

However, since the Ohio Supreme Court decided Jones, the law governing

appellate review of a trial court’s consideration of R.C. 2929.11 and

2929.12 in imposing sentences is clear: R.C. 2953.08(G)(2) does not permit

an appellate court to independently weigh the evidence in the record and

substitute its judgment for that of the trial court concerning the sentence

that best reflects compliance with R.C. 2929.11 and 2929.12. State v.

Bowles, 2021-Ohio-4401, 181 N.E.3d 1226, ¶ 7 (6th Dist.), quoting Jones

at ¶ 42; see also, e.g., State v. Johnson, 6th Dist. Wood No. WD-20-056,

2021-Ohio-2139, ¶14, citing State v. Orzechowski, 6th Dist. Wood No.

WD-20-029, 2021-Ohio-985, ¶ 10.

{¶ 25} Lastly, as pertains to the potential need for consideration of the impact of

the trial court’s sentencing decision upon appellant’s aggregate sentence, as recently held

in State v. Polizzi, ¶ 8 (11th Dist.), “In its October 2023 [Gwynne] decision, the Supreme

Court, by way of a plurality decision, determined * * * R.C. 2929.14(C)(4) does not

12. require express consideration of the aggregate prison term that eventuates from the

imposition of consecutive sentences.”

{¶ 26} We have carefully reviewed and considered this matter. The record

irrefutably shows that appellant, who possesses a lengthy and persistent pattern of sexual

offense convictions, incarceration, and sexual offense recidivism shortly after release,

despite the completion of multiple sexual offender treatment programs and the provision

of other indicated services, while out on post-release control for a prior rape conviction,

covertly spied on multiple female neighbors while they were alone inside of their homes.

Appellant secretly recorded them in a state of undress, while they were engaged in

various private activities, including showering and masturbation, on numerous occasions

from April, 2022 through June, 2022. In conjunction, following these actions, appellant

relocated to a different residence without complying with sexual offender registration

requirements, began driving a different vehicle without complying with sexual offender

registration requirements, attempted to delete and destroy the incriminating video

recordings, and lastly, appellant wholly acknowledges these actions. This pattern has

recurred since the 1980s, regardless of appellant’s participation in sexual offender

treatment programs and alternative treatment programs ordered in prior cases.

{¶ 27} We find appellant’s general, unsupported claim that the record of evidence

did not support the trial court’s determination that consecutive sentences were necessary

to protect the public from future crime, and that they were disproportionate to the danger

13. posed to the public, to be unpersuasive. Appellant’s above-detailed 2022 criminal

actions, done while appellant was out on post-release control for a rape conviction,

clearly demonstrate otherwise.

{¶ 28} Based upon the foregoing, we do not find that the disputed trial court

consecutive sentence findings are clearly and convincingly not supported by the record

under R.C. 2953.08(G)(2). Accordingly, appellant’s assignment of error is found not

well-taken.

{¶ 29} Wherefore, the judgment of the Ottawa County Court of Common Pleas is

hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.

24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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