[Cite as State v. Lantow, 2024-Ohio-2839.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-23-037
Appellee Trial Court No. 2023CR0130
v.
Justin Lantow DECISION AND JUDGMENT
Appellant Decided: July 26, 2024
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
DUHART, J.
{¶ 1} This is an appeal by appellant, Justin Lantow, from the June 26, 2023
judgment of the Wood County Court of Common Pleas. For the reasons that follow, we
affirm the judgment.
{¶ 2} Lantow sets forth one assignment of error:
The trial court erred in imposing consecutive sentences: because the
charged offense was also punished by the imposition of a reserved multi- year sentence for the community control violation, the consecutive
imposition of sentence was disproportionate to the offense [sic]
Background
{¶ 3} Lantow was in a custodial facility for drug rehabilitation (“the facility”), as a
community control sanction for drug offenses originating out of Defiance County, Ohio,
and on August 1, 2022, he attempted to bring drugs into the facility. As a result, on
March 16, 2023, Lantow was indicted on three charges: Count 1, illegal conveyance of
drugs of abuse onto grounds of a specified governmental facility, a third-degree felony;
Count 2, possession of drugs, a fifth-degree felony; and Count 3, aggravated possession
of drugs, a third-degree felony. Lantow entered pleas of not guilty to the charges.
{¶ 4} On June 26, 2023, Lantow withdrew his not guilty pleas, and pled guilty to
Counts 1 and 2. At sentencing, Lantow’s counsel and the State represented to the court
that they recommended an aggregate nine-month prison term. The court sentenced
Lantow to nine months in prison on Count 1, and six months in prison on Count 2. The
sentences imposed for Counts 1 and 2 were ordered to be served concurrently to one
another, and the sentence for Count 1 was ordered to be served consecutively to the
prison terms imposed for Lantow’s drug offenses by the Defiance County Common Pleas
Court. The court dismissed Count 3.
{¶ 5} In explaining the sentence, the trial court acknowledged that Lantow had a
drug addiction and was engaging in treatment, but the court noted Lantow’s criminal drug
history has been consistently on-going since 2006. The court found that consecutive
2. sentences were necessary to either protect the public from future crime or to punish the
offender and are not disproportionate to the seriousness of Lantow’s conduct or the
danger he poses to the public due to his addiction. The court also found that Lantow
committed the crimes while on community control, and the crimes were serious, as
conveying drugs into a treatment facility was dangerous to everyone in there. The court
further found that Lantow’s recent criminal history, from 2017 to the present, showed the
offenses he committed were progressively worsening.
{¶ 6} These same findings were reflected in the trial court’s judgment entry
memorializing Lantow’s sentence.
{¶ 7} Lantow appealed.
Lantow’s Arguments
{¶ 8} Lantow argues “[t]hough double jeopardy is not implicated by a separate
prosecution and punishment for acts which are both crimes and community control
violations, the consecutive application here is disproportionate to the offense when the
already imposed multi-year prison term is contemplated.” Lantow cites to State v.
Martello, 2002-Ohio-6661, ¶ 9. He contends “[t]he question there, though not the same
issue, is relevant to the determination of the proportionality of the aggregate sentence
when the underlying act is also the basis for a prior sanction. . . The double jeopardy
rationale was that the probation revocation was not a “punishment” in the terminology
developed, mostly by the U.S Supreme Court, in double jeopardy caselaw.”
3. {¶ 9} Lantow quotes the argument made by the State at sentencing, regarding
proportionality, and argues that “[p]rior to any sentence from Wood County, Mr. Lantow,
because he ‘messed up his judicial release’ is serving his reserved prison sentence with an
October 2017 [sic] out-date, just over 4 years from the date of writing. That time was
ordered enforced because of the same acts, which addresses the threat posed.”
{¶ 10} Next, Lantow argues the nine-month prison term is not the minimum
sentence, as the State contended, and “[t]he case as charged has no presumption for or
against prison, so the minimum sentence is community control.” Lantow submits “[i]n
fact the court, as it discussed, is required by the statute to engage in a significant analysis
in order to properly impose a consecutive sentence, as such, the true ‘minimum’ prison
sentence in this case would be a 9[-]month concurrent sentence.” (Emphasis sic.)
{¶ 11} In addition, Lantow argues that in order for the court to impose consecutive
sentences, one of the findings the court must make is that consecutive sentencing is
necessary to protect the public from future crime or to punish the offender, but he “was
not in the ‘public’ when this occurred-he was in a detention facility.” Lantow further
submits that “[t]he public need not concern itself with [him] until 2027, [and] nothing in
the record suggests that the public will benefit by paying for [his] room and board until
July of 2028 due to the consecutive sentences.”
Law and Analysis
{¶ 12} We review challenges to felony sentences under R.C. 2953.08(G)(2). State
v. Purley, 2022-Ohio-2524, ¶ 8 (6th Dist.). R.C. 2953.08(G)(2) allows an appellate court
4. to increase, reduce, or otherwise modify a sentence, or vacate the sentence and remand
for resentencing if the court finds, by clear and convincing evidence, that either of the
following apply: (1) “the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code” or (2) “the sentence is otherwise
contrary to law.”
{¶ 13} In State v. Gwynne, 2023-Ohio-3851, the Supreme Court of Ohio noted that
clear and convincing evidence is defined as ‘“that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’” Id. at ¶ 14, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus. The Gwynne court directed that an appellate court “must have a
firm belief or conviction that the record does not support the trial court’s findings before
it may increase, reduce, or otherwise modify consecutive sentences.” Id. at ¶ 15.
{¶ 14} R.C. 2929.41(A) provides that “a prison term, jail term, or sentence of
imprisonment shall be served concurrently with any other prison term, jail term, or
sentence of imprisonment” unless an exception applies. In this case, an exception found
in R.C. 2929.14(C)(4) applies, which 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
5.
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[Cite as State v. Lantow, 2024-Ohio-2839.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-23-037
Appellee Trial Court No. 2023CR0130
v.
Justin Lantow DECISION AND JUDGMENT
Appellant Decided: July 26, 2024
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
DUHART, J.
{¶ 1} This is an appeal by appellant, Justin Lantow, from the June 26, 2023
judgment of the Wood County Court of Common Pleas. For the reasons that follow, we
affirm the judgment.
{¶ 2} Lantow sets forth one assignment of error:
The trial court erred in imposing consecutive sentences: because the
charged offense was also punished by the imposition of a reserved multi- year sentence for the community control violation, the consecutive
imposition of sentence was disproportionate to the offense [sic]
Background
{¶ 3} Lantow was in a custodial facility for drug rehabilitation (“the facility”), as a
community control sanction for drug offenses originating out of Defiance County, Ohio,
and on August 1, 2022, he attempted to bring drugs into the facility. As a result, on
March 16, 2023, Lantow was indicted on three charges: Count 1, illegal conveyance of
drugs of abuse onto grounds of a specified governmental facility, a third-degree felony;
Count 2, possession of drugs, a fifth-degree felony; and Count 3, aggravated possession
of drugs, a third-degree felony. Lantow entered pleas of not guilty to the charges.
{¶ 4} On June 26, 2023, Lantow withdrew his not guilty pleas, and pled guilty to
Counts 1 and 2. At sentencing, Lantow’s counsel and the State represented to the court
that they recommended an aggregate nine-month prison term. The court sentenced
Lantow to nine months in prison on Count 1, and six months in prison on Count 2. The
sentences imposed for Counts 1 and 2 were ordered to be served concurrently to one
another, and the sentence for Count 1 was ordered to be served consecutively to the
prison terms imposed for Lantow’s drug offenses by the Defiance County Common Pleas
Court. The court dismissed Count 3.
{¶ 5} In explaining the sentence, the trial court acknowledged that Lantow had a
drug addiction and was engaging in treatment, but the court noted Lantow’s criminal drug
history has been consistently on-going since 2006. The court found that consecutive
2. sentences were necessary to either protect the public from future crime or to punish the
offender and are not disproportionate to the seriousness of Lantow’s conduct or the
danger he poses to the public due to his addiction. The court also found that Lantow
committed the crimes while on community control, and the crimes were serious, as
conveying drugs into a treatment facility was dangerous to everyone in there. The court
further found that Lantow’s recent criminal history, from 2017 to the present, showed the
offenses he committed were progressively worsening.
{¶ 6} These same findings were reflected in the trial court’s judgment entry
memorializing Lantow’s sentence.
{¶ 7} Lantow appealed.
Lantow’s Arguments
{¶ 8} Lantow argues “[t]hough double jeopardy is not implicated by a separate
prosecution and punishment for acts which are both crimes and community control
violations, the consecutive application here is disproportionate to the offense when the
already imposed multi-year prison term is contemplated.” Lantow cites to State v.
Martello, 2002-Ohio-6661, ¶ 9. He contends “[t]he question there, though not the same
issue, is relevant to the determination of the proportionality of the aggregate sentence
when the underlying act is also the basis for a prior sanction. . . The double jeopardy
rationale was that the probation revocation was not a “punishment” in the terminology
developed, mostly by the U.S Supreme Court, in double jeopardy caselaw.”
3. {¶ 9} Lantow quotes the argument made by the State at sentencing, regarding
proportionality, and argues that “[p]rior to any sentence from Wood County, Mr. Lantow,
because he ‘messed up his judicial release’ is serving his reserved prison sentence with an
October 2017 [sic] out-date, just over 4 years from the date of writing. That time was
ordered enforced because of the same acts, which addresses the threat posed.”
{¶ 10} Next, Lantow argues the nine-month prison term is not the minimum
sentence, as the State contended, and “[t]he case as charged has no presumption for or
against prison, so the minimum sentence is community control.” Lantow submits “[i]n
fact the court, as it discussed, is required by the statute to engage in a significant analysis
in order to properly impose a consecutive sentence, as such, the true ‘minimum’ prison
sentence in this case would be a 9[-]month concurrent sentence.” (Emphasis sic.)
{¶ 11} In addition, Lantow argues that in order for the court to impose consecutive
sentences, one of the findings the court must make is that consecutive sentencing is
necessary to protect the public from future crime or to punish the offender, but he “was
not in the ‘public’ when this occurred-he was in a detention facility.” Lantow further
submits that “[t]he public need not concern itself with [him] until 2027, [and] nothing in
the record suggests that the public will benefit by paying for [his] room and board until
July of 2028 due to the consecutive sentences.”
Law and Analysis
{¶ 12} We review challenges to felony sentences under R.C. 2953.08(G)(2). State
v. Purley, 2022-Ohio-2524, ¶ 8 (6th Dist.). R.C. 2953.08(G)(2) allows an appellate court
4. to increase, reduce, or otherwise modify a sentence, or vacate the sentence and remand
for resentencing if the court finds, by clear and convincing evidence, that either of the
following apply: (1) “the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code” or (2) “the sentence is otherwise
contrary to law.”
{¶ 13} In State v. Gwynne, 2023-Ohio-3851, the Supreme Court of Ohio noted that
clear and convincing evidence is defined as ‘“that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’” Id. at ¶ 14, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus. The Gwynne court directed that an appellate court “must have a
firm belief or conviction that the record does not support the trial court’s findings before
it may increase, reduce, or otherwise modify consecutive sentences.” Id. at ¶ 15.
{¶ 14} R.C. 2929.41(A) provides that “a prison term, jail term, or sentence of
imprisonment shall be served concurrently with any other prison term, jail term, or
sentence of imprisonment” unless an exception applies. In this case, an exception found
in R.C. 2929.14(C)(4) applies, which 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
5. 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 . . . 2929.17 . . . of the Revised Code[.]
...
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 15} When a trial court imposes consecutive terms of imprisonment, the “trial
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, but it has no obligation to
state reasons to support its findings.” State v. Bonnell, 2014-Ohio-3177, syllabus.
{¶ 16} Upon review, we find the trial court made the findings required by R.C.
2929.14(C)(4) both at Lantow’s sentencing hearing and in its judgment entry. As we do
not have a “firm belief or conviction” that the trial court’s findings are not supported by
the record, we find Lantow’s assignment of error not-well taken.
6. {¶ 17} The judgment of the Wood County Court of Common Pleas is affirmed.
Pursuant to App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.
Judgment affirmed.
Christine E. Mayle, J. ____________________________ JUDGE Myron C. Duhart, J. ____________________________ Charles E. Sulek, P.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/.
7.