State v. Lampert

2024 Ohio 400

• Court: Ohio Court of Appeals
• Decided: February 5, 2024
• Docket: 2023-L-077
• Status: Published

Opinion

[Cite as State v. Lampert, 2024-Ohio-400.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NO. 2023-L-077

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

JOSEPH LAMPERT, Trial Court No. 2023 CR 000480 Defendant-Appellant.

OPINION

Decided: February 5, 2024 Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Joseph R. Klammer, The Klammer Law Office, LTD., The Historic Mentor Center Street School, 7482 Center Street, Unit 6, Mentor, OH 44060 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Joseph Lampert, appeals from his consecutive

sentences for Pandering Sexually Oriented Matter Involving a Minor and Failure to Notify of

Change of Email Address or Identifiers in the Lake County Court of Common Pleas. For the

following reasons, we affirm the judgment of the lower court.

{¶2} On April 28, 2023, an information was filed charging Lampert with Pandering

Sexually Oriented Matter Involving a Minor or Impaired Person, a felony of the third degree,

in violation of R.C. 2907.322(A)(5); and two counts of Failure to Notify of Change of Email

Address or Identifiers, felonies of the fourth degree, in violation of R.C. 2950.05(F)(1). {¶3} On May 11, 2023, a plea hearing was held and a written plea agreement was

filed. Lampert entered a plea of guilty to those charges alleged in the information. The State

indicated it would have proven that Lampert was in possession and control of multiple

images of preadolescent children engaged in sexual activity and that he had been convicted

previously of pandering in 2018. It also would have proven that he used social media

accounts and e-mail addresses without providing notification of these accounts as required

following his prior conviction. The court found him guilty of the offenses.

{¶4} A sentencing hearing was held on June 21, 2023. Defense counsel requested

that the court continue the hearing for 60 days to allow Lampert to enter an inpatient recovery

center, which request the court denied. Counsel emphasized that two doctors

recommended that Lampert should receive treatment rather than imprisonment. Dr.

Epstein’s letter was presented where he discussed Lampert’s mental health concerns,

including bipolar disorder. He noted that Lampert had previously been successful with a

substance abuse rehabilitation program following his first convictions for pandering and

believed that treatment would be more effective than incarceration. Dr. Epstein indicated

that Lampert’s prescribed medicine can become ineffective, which resulted in his use of

methamphetamine. A psychological evaluation completed by Dr. Rindsberg concluded that

Lampert should receive long-term residential treatment but that his prognosis is poor and

his difficulties with child pornography had continued despite his prior outpatient treatment.

Counsel also emphasized Lampert’s family ties and support. Lampert did not give a

statement. The State recommended a prison sentence based on his prior conviction.

{¶5} The trial court noted that Lampert had been convicted of Pandering Sexually

Oriented Material in 2018 and was placed on community control. It concluded that Lampert

Case No. 2023-L-077 had “a unique opportunity in 2018 after pleading guilty to those two counts and was afforded

the opportunity to get the help he needs for * * * bipolar disorder, for his drug addiction, the

methamphetamine and marijuana and for the sex offenses.” It noted that he had been under

the care of Dr. Epstein for many years and had the ability to receive treatment prior to

committing these offenses: “the time to address this to prevent having to be here now is in

2018, 2019, 2020, and 2021 when he was on community control.” It recognized the doctors’

statements but found that Lampert should have taken responsibility to utilize treatment rather

than turning to illegal drugs. It found Lampert’s violation of his reporting requirements to

cover up his actions to be “disturbing.” It observed that there were victims in various

countries throughout the world and some victims in the photographs were toddlers.

{¶6} The court stated that it had considered the PSI, the doctors’ reports, and the

relevant sentencing statutes. It ordered Lampert to serve consecutive terms of five years in

prison for Pandering Sexually Oriented Matter Involving a Minor and 18 months in prison on

each count of Failure to Notify of Change of Email Address or Identifiers, for a total term of

eight years. The trial court memorialized the sentence in a June 22, 2023 entry, which stated

the consecutive sentencing findings listed in R.C. 2929.14(C)(4).

{¶7} Lampert timely appeals and raises the following assignment of error:

{¶8} “Trial court erred in sentencing appellant to consecutive prison terms.”

{¶9} Lampert argues that there is no evidence of any quality or quantity to support

consecutive sentences and that the trial court did not cite evidence to support its consecutive

sentences.

{¶10} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing

Case No. 2023-L-077 court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise modify

a sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * * *

[t]hat the record does not support the sentencing court’s findings under division * * * (C)(4)

of section 2929.14 * * *.” Id.; State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231, ¶ 1.

{¶11} A court may order consecutive prison terms if it finds them “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 finds any of the R.C. 2929.14(C)(4)(a)-(c) factors are

present. R.C. 2929.14(C)(4). The pertinent factors here are (b) and (c): “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 * * * was so great or unusual that no single

prison term * * * adequately reflects the seriousness of the offender’s conduct” and “[t]he

offender’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.” “To impose consecutive

terms, the court ‘is required to make the findings mandated by R.C. 2929.14(C)(4) at the

sentencing hearing and incorporate its findings into its sentencing entry.’” State v. Elliott,

11th Dist. Trumbull No. 2021-T-0045, 2023-Ohio-412, ¶ 9, citing State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

{¶12} We initially note that, although Lampert cited State v. Gwynne, ___ Ohio St.3d

___, 2022-Ohio-4607, ___ N.E.3d ___ (“Gwynne IV”) for the proposition that this court

should conduct a de novo review for a consecutive sentence, this opinion was subsequently

Case No. 2023-L-077 vacated by the Supreme Court upon reconsideration in State v. Gwynne, ___ Ohio St.3d

___, 2023-Ohio-3851, ___ N.E.3d ___ (“Gwynne V”), which Lampert recognized in his reply

brief. In Gwynne V, a plurality of the court stated that “[a]ppellate review turns on whether

the trial court’s findings are clearly and convincingly not supported by the record, and if the

evidence supports the trial court’s consecutive-sentence findings, the analysis ends there.”

Id. at ¶ 24. Further, as the Supreme Court has previously concluded, “an appellate court

may vacate or modify a felony sentence on appeal only if it determines by clear and

convincing evidence that the record does not support the trial court’s findings under relevant

statutes * * *.” Marcum at ¶ 1.

{¶13} In his reply brief, Lampert argues that the “consecutive sentence analysis in

[Gwynne IV], remains the law,” such as its holdings in relation to consideration of the

aggregate term to be imposed (R.C. 2929.14(C)(4)(c) “require[s] a trial court to consider the

number of consecutive sentences that it will impose on a defendant along with the aggregate

prison term”) and allowing an appellate court to substitute its judgment for that of the trial

court (an appellate court is “authorized to substitute its judgment for the trial court’s judgment

if [it] has a firm conviction or belief, after reviewing the entire record, that the evidence does

not support the specific findings made by the trial court to impose consecutive sentences”).

Id. at ¶ 15 and 29. Citing to Gwynne IV, Lampert argues that the lower court’s findings were

not supported by the quality and quantity of the evidence and that the record merely having

“some evidence” is not sufficient to support the court’s findings. While we observe that there

was only a plurality opinion issued in Gwynne V, with one justice issuing a concurring opinion

and three concurring in the court’s lead opinion, the court granted the motion for

reconsideration and vacated Gwynne IV.

Case No. 2023-L-077 {¶14} In any event, after considering the record before the trial court, we hold that

there is an evidentiary basis, supported by evidence which is more than sufficient in quality

to sustain the required finding for multiple consecutive sentences as set forth in R.C.

2953.08(G)(2)(a); this court cannot “clearly and convincingly find * * * [t]hat the record does

not support the sentencing court’s findings under division * * * (C)(4) of section 2929.14.”

{¶15} The lower court made consecutive sentencing findings on the record at the

sentencing hearing and in its judgment entry of sentence. Lampert first contends that the

finding that the harm caused by the conduct was “great or unusual” was not supported by

the record because the harm was no greater than in any occurrence of the offenses.

{¶16} In determining that the harm was great and unusual, the trial court observed

that there were multiple victims and emphasized the harm caused by child pornography,

where those depicted in the images or videos are revictimized when the material is

repeatedly downloaded, viewed, and shared. It has been held that revictimization of children

through pandering sexual material involving minors causes great or unusual harm. State v.

Shiveley, 12th Dist. Clermont No. CA2022-04-017, 2022-Ohio-4036, ¶ 11-19. Significantly,

the PSI’s recounting of the offenses here reveals that Lampert had large numbers of images

and videos that he had in his possession and control on social media, which depicted young,

prepubescent children, including toddlers. Further, although the harm caused by failing to

provide notification of identifiers is more difficult to assess, the record demonstrated not only

that Lampert failed to disclose social media and e-mail information as required given his

prior conviction for pandering but that he used several different social media identifiers, likely

in an attempt to cover up his persistent illegal activity and possession of many child

pornography images/videos, which furthered his ability to continue the revictimization.

Case No. 2023-L-077 {¶17} Nonetheless, even if we clearly and convincingly concluded that the record did

not support this finding given the lack of evidence relating to the specific harm suffered by

the individual victims, the trial court also made the R.C. 2929.14(C)(4)(c) finding that “[t]he

offender’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.” “[T]he plain language of

the statute requires that only one of these three elements [R.C. 2929.14(C)(4)(a) through

(c)] need be found, which is evident from the statute’s use of the word ‘any.’” State v. Wauer,

11th Dist. Trumbull No. 2016-T-0043, 2017-Ohio-1337, ¶ 27.

{¶18} We observe that, although the court made the finding that Lampert’s criminal

history necessitated consecutive sentences to protect the public in the sentencing entry, the

court did not use this exact wording at the sentencing hearing. However, at the hearing, the

judge made the specific finding that there was a need to protect the public and immediately

after emphasized Lampert’s criminal record. It has been held that where the trial court

considers the defendant’s criminal record in relation to the danger posed to the public, the

failure to utilize the precise wording of R.C. 2929.14(C)(4)(c) does not constitute a lack of

compliance with the requirement to make the necessary findings. State v. Olp, 11th Dist.

Ashtabula Nos. 2015-A-0033 and 2015-A-0034, 2016-Ohio-3508, ¶ 17-18.

{¶19} There is no question that the record demonstrated Lampert has past

convictions for two pandering offenses. The commencement of the period during which the

present offenses were alleged to have taken place began five days before his community

control was terminated in the previous pandering case. His repeat offenses of pandering

and failure to respond to past treatment demonstrate the significant risk he would continue

to participate in such conduct, posing a danger to the public as a whole.

Case No. 2023-L-077 {¶20} Lampert argues that consecutive sentences were not “necessary” to protect

the public because treatment would better address his mental health and substance abuse

disorders. Although Lampert contends that treatment will protect the public by remedying

these conditions, he had been undergoing treatment with his doctor for a period of time, had

an opportunity to seek treatment after his prior conviction for pandering when he was given

community control, and yet repeated his conduct of accessing and sharing child

pornography. As noted by Dr. Rindsberg, Lampert’s difficulties with child pornography

continued despite his prior outpatient treatment. The report of Dr. Epstein referenced by

Lampert indicates that his prescribed medicines began to lose efficacy in August 2021, when

he began to take methamphetamine and marijuana, but this serves to demonstrate that

Lampert chose to disengage from treatment when he experienced difficulties, raising

concerns regarding his future conduct. Under these circumstances, it was reasonable for

the trial court to conclude that consecutive prison terms were necessary to protect the public

given Lampert’s history of criminal conduct. See State v. Thompson, 11th Dist. Lake No.

2003-L-052, 2004-Ohio-2925, ¶ 34 (“appellant’s mental health issues do not mitigate against

the imposition of consecutive sentences” and his likelihood of reoffending when under stress

demonstrated that his mental health issues “actually provide strong support for the

imposition of consecutive sentences”). Further, the decision to order multiple consecutive

sentences, resulting in an aggregate term of eight years in prison, is consistent with

Lampert’s repeated conduct of pandering and the acts he took to evade detection of such

activity.

{¶21} Lampert also argues that the court should not have considered Lampert’s prior

conduct or the harm posed to the victims, as these are both factors or elements of the

Case No. 2023-L-077 offense of Pandering, observing that R.C. 2907.322(A)(5) is a felony of the third degree

(rather than a fourth-degree felony) due to an offender’s prior conviction for the same offense

and harm to a victim is a necessary part of that offense. In support, he cites State v. Clegg,

4th Dist. Washington No. 04CA30, 2005-Ohio-4992, which held that the trial court could not

consider an element of an offense as a factor justifying a greater than minimum sentence

“without explaining why the danger was something more than a required element of the

offense.” Id. at ¶ 26. He also cites State v. Stroud, 7th Dist. Mahoning No. 07 MA 91, 2008-

Ohio-3187, wherein the court reached a similar holding, also finding that an element of the

offense, i.e., that a life was taken in a voluntary manslaughter case, cannot be used to find

that the offender committed “the worst form of the offense.” Id. at ¶ 52. As Lampert

recognizes, these opinions do not relate to consecutive sentences but address claims of an

improper maximum sentence. Nonetheless, he argues that “where the offense itself already

incorporates the consecutive sentence justification of the trial court, it should not also serve

to satisfy R.C. 2929.14(C)(4).”

{¶22} We recognize that, in State v. Polizzi, 11th Dist. Lake Nos. 2018-L-063 and

2018-L-064, 2019-Ohio-2505, this court held that the finding that an appellant was a predator

based on his relationship to the victims as their teacher, an element of sexual battery, could

not be considered to elevate his sentence or order a consecutive sentence. Id. at ¶ 35. In

Polizzi, the court considered, in ordering a consecutive sentence, the fact that the defendant

was a teacher, the very act that also made his conduct a criminal offense. In contrast,

Lampert’s act of sharing child pornography made his conduct criminal while the fact that he

had a prior conviction merely enhanced the degree of the offense. Significantly, unlike in

Polizzi, Lampert’s prior criminal conduct is specifically delineated as a relevant consideration

Case No. 2023-L-077 under the terms of the consecutive sentencing statute, which allows the court to make a

finding that “[t]he offender’s history of criminal conduct demonstrates that consecutive

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

2929.14(C)(4)(c). For this reason, and in the absence of authority prohibiting the court from

ordering consecutive sentences where the offense has been enhanced due to prior similar

offenses, we do not find the lower court was prohibited from considering Lampert’s past

criminal conduct in ordering consecutive sentences. See State v. Dixon, 10th Dist. Franklin

No. 17AP-884, 2018-Ohio-3759, ¶ 12 (upholding consecutive sentences where the level of

offense was escalated to felony domestic violence and the lower court considered the

defendant’s pattern of past assaults/domestic violence). As to the harm caused to the

victims, it is not a specific element of the offense of Pandering and, as noted above, even if

great or unusual harm was not demonstrated, the finding of the presence of the R.C.

2929.14(C)(4)(c) factor alone justifies the court’s order of consecutive sentences.

{¶23} The sole assignment of error is without merit.

{¶24} For the foregoing reasons, Lampert’s sentences for Pandering Sexually

Oriented Matter Involving a Minor or Impaired Person and Failure to Notify Change of Email

Address or Identifiers in the Lake County Court of Common Pleas are affirmed. Costs to be

taxed against appellant.

JOHN J. EKLUND, J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2023-L-077