State v. Lefkowitz

2022 Ohio 4052

• Court: Ohio Court of Appeals
• Decided: November 14, 2022
• Docket: 2021-T-0054
• Status: Published

Opinion

[Cite as State v. Lefkowitz, 2022-Ohio-4052.]

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

STATE OF OHIO, CASE NO. 2021-T-0054

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

CRAIG N. LEFKOWITZ, Trial Court No. 2021 CR 00417 Defendant-Appellant.

OPINION

Decided: November 14, 2022 Judgment: Affirmed

Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

John B. Juhasz, 7081 West Boulevard, Suite 4, Youngstown, OH 44512 (For Defendant- Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Craig N. Lefkowitz (“Mr. Lefkowitz”), appeals from the judgment

of the Trumbull County Court of Common Pleas, which sentenced him to an eight-year

term of imprisonment following his guilty pleas to four counts of sexual battery and one

count of compelling prosecution. Mr. Lefkowitz was a technology teacher and an athletic

director at Southington Local Schools, who used his former position to engage in an

inappropriate relationship with a minor student.

{¶2} Mr. Lefkowitz raises two assignments of error on appeal, contending that

the trial court erred in imposing consecutive sentences without making the statutory

findings pursuant to R.C. 2929.14(C)(4) and in imposing maximum sentences. {¶3} After a careful review of the record and pertinent law, we find Mr. Lefkowitz’s

assignments of error are without merit. Firstly, the trial court considered the R.C.

2929.14(C)(4) factors both at the sentencing hearing and in the sentencing judgment

entry. The trial court is not required to state a “talismanic incantation” of the statute, and

the necessary findings are supported by evidence in the record and incorporated in the

judgment entry. Secondly, the trial court is no longer required to make findings on the

record to support the imposition of a maximum sentence. Mr. Lefkowitz’s argument that

he is a first-time offender is unpersuasive. The trial court made numerous findings at the

hearing, including noting the severe, psychological harm the victim suffered and the

evidence of the multiple offenses Mr. Lefkowitz committed, some in the presence of other

minors, while using his position of trust as a teacher and athletic director to do so.

{¶4} The judgment of the Trumbull County Court of Common Pleas is affirmed.

Substantive and Procedural History

{¶5} A Trumbull County Grand Jury indicted Mr. Lefkowitz on nine counts of

sexual battery, third-degree felonies, in violation of R.C. 2907.03(A)(7) and (B), and one

count of compelling prostitution, a third-degree felony, in violation of R.C. 2907.21(A)(3)

and (B).

{¶6} Ultimately, Mr. Lefkowitz entered into a plea agreement with the state and

pleaded guilty to four counts of sexual battery and one count of compelling prostitution.

{¶7} At the sentencing hearing, the trial court declared Mr. Lefkowitz a Tier III

sex offender and informed him of the registration requirements. The trial court reviewed

that Mr. Lefkowitz served alcohol to underage students, developed a big brother

relationship with a minor male student so he could manipulate him, showed him

pornography, performed sexual acts with him, paid him money, took nude pictures of him, 2

Case No. 2021-T-0054 took the minor victim on a road trip, where he gave the student alcohol and had sex with

him, kept a notebook with a nude picture of the minor victim, and kept a sample of his

pubic hairs. As a result, the minor male victim has serious psychological issues, tried to

ease his pain with alcohol and drug addictions, has a broken marriage, and suffered for

years as a victim of sexual abuse. While Mr. Lefkowitz was being investigated by the

sheriff’s department, he attempted to bribe the victim not to reveal the incidents. The trial

court further noted that Mr. Lefkowitz used his position as a teacher and an athletic

director, like many other predators, to violate his victim.

{¶8} The court then made the following specific findings: the mental injury

suffered by the victim due to Mr. Lefkowitz’s conduct was exacerbated because of the

age of the victim, and the victim suffered and will continue to suffer serious psychological

harm. Mr. Lefkowitz’s manipulation of his relationship as a teacher with the student victim

facilitated the offense. Mr. Lefkowitz is likely to commit future sex crimes of the same

nature. He committed the offense in the vicinity of other children who were not victims of

the offense; he accepted no genuine responsibility for the offenses; and he has “a dearth

of remorse” for the crimes he committed.

{¶9} The trial court imposed consecutive sentences, stating, “Pursuant to R.C.

2929.14, the Court finds that consecutive sentences are necessary to protect the public

from future crimes by the Defendant, consecutive sentences are not disproportionate to

the seriousness of the Defendant’s conduct, and due to the conduct of the Defendant a

single prison term would not adequately reflect the seriousness of the conduct of the

Defendant.”

{¶10} The court then sentenced Mr. Lefkowitz to 60 months in prison on each

count of sexual battery, concurrent to each other, and 36 months in prison on the count 3

Case No. 2021-T-0054 of compelling prostitution, to be served consecutively to the concurrent 60-month terms,

for a total of 96 months or eight years in prison.

{¶11} The sentencing entry reflects that the court found “consecutive service is

necessary to protect the public from future crime and to punish the Defendant, and that

consecutive sentences are not disproportionate to the seriousness of the Defendant’s

conduct and to the danger the Defendant poses to the public. Further, the Court finds

that at least two of the multiple offenses were committed as part of the same course of

conduct, and the harm caused by two or more of the multiple offenses so committed was

so great that no single prison term for any of the offenses committed adequately reflects

the seriousness of the offender’s conduct.”

{¶12} Mr. Lefkowitz raises two assignments of error on appeal:

{¶13} “[1.] The trial court abused it[s] discretion and committed plain error when

sentencing Mr. Lefkowitz to a consecutive prison sentence for a violation of OHIO REV.

CODE ANN. §2907.219(A)(3) when the court did not also find that the offenses were

committed while Mr. Lefkowitz was awaiting trial or sentencing, under post-release control

or awaiting another sanction, the offense was not so great or unusual, or that Mr.

LEFKOWITZ’s criminal history demonstrates that consecutive sentences are necessary.

{¶14} “[2.] The trial Court Erred in Sentencing Appellant to Maximum Sentences.”

Plain Error Standard of Review

{¶15} Mr. Lefkowitz did not object to his sentence in the trial court, thus our review

is limited to consideration of whether the trial court committed plain error. State v. Ferrell,

11th Dist. Portage No. 2017-Ohio-0069, 2019-Ohio-836, ¶ 36. In order to prevail under

a plain error standard, an appellant must demonstrate that there was an obvious error in

the proceedings and, but for the error, the outcome would have been otherwise. State v. 4

Case No. 2021-T-0054 Waxler, 2016-Ohio-5435, 69 N.E.3d 1132, ¶ 7 (6th Dist.), citing State v. Noling, 98 Ohio

St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62.

Consecutive Sentences

{¶16} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a

reviewing court may overturn the imposition of consecutive sentences where the court

“clearly and convincingly” finds that (1) “the record does not support the sentencing

court’s findings under * * * [R.C. 2929.14(C)(4)] * * *,” or (2) “the sentence is otherwise

contrary to law.”

{¶17} R.C. 2929.14(C)(4) provides that in order to impose consecutive

sentences, the trial court must find (1) that consecutive sentences are necessary to

protect the public from future crime or to punish the offender, (2) that such sentences are

not disproportionate to the seriousness of the conduct and to the danger the offender

poses to the public, and (3) that one of the following applies:

{¶18} (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 postrelease

control for a prior offense.

{¶19} (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.

{¶20} (c) The offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender. 5

Case No. 2021-T-0054 {¶21} The Supreme Court of Ohio has held that “[i]n order to impose consecutive

terms of imprisonment, a 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,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus.

{¶22} “[W]hile the court has the obligation to make separate and distinct findings

under R.C. 2929.14(C)(4) before imposing sentence, support for those findings may

appear anywhere in the ‘record’ and not just at the time the court imposes consecutive

sentences.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 ¶ 22 (8th Dist.).

{¶23} The Supreme Court of Ohio has explained that “as long as the reviewing

court can discern that the trial court engaged in the correct analysis and can determine

that the record contains evidence to support the findings, consecutive sentences should

be upheld.” Bonnell at ¶ 29.

{¶24} As our review of the sentencing hearing and sentencing entry reveals, the

trial court made the necessary findings pursuant to R.C. 2929.14(C) and incorporated

those findings in the sentencing entry. Thus, the trial court found at the hearing, pursuant

to R.C. 2929.14(C)(4), that consecutive sentences were (1) “necessary to protect the

public from future crime” and (2) “not disproportionate to the seriousness” of Mr.

Lefkowitz’s conduct. Pursuant to R.C. 2929.14(C)(4)(b), the trial court found that (3) “due

to the conduct of the Defendant a single prison term would not adequately reflect the

seriousness” of Mr. Lefkowitz’s conduct.

{¶25} Preceding these findings, the court reviewed Mr. Lefkowitz’s multiple

offenses, including using his position of trust as a teacher to manipulate the minor male

victim, giving alcohol to his underage students, taking the victim on a trip where they drank 6

Case No. 2021-T-0054 alcohol and engaged in sexual relations, taking nude photographs of the minor victim,

and showing the victim pornography.

{¶26} Thus, Mr. Lefkowitz failed to demonstrate that the trial court did not make

the “necessary findings” or that there was no evidence supporting the trial court’s findings

in the imposition of consecutive sentences pursuant to R.C. 2929.14(C)(4).

{¶27} Mr. Lefkowitz’s first assignment of error is without merit.

Maximum Sentences

{¶28} In his second assignment of error, Mr. Lefkowitz contends the trial court

erred in sentencing him to maximum terms of imprisonment because he is a first-time

offender and fifteen years have passed since these offenses were committed without Mr.

Lefkowitz reoffending.

{¶29} Whether Mr. Lefkowitz is a first-time offender is not necessarily

determinative in the court’s findings of the term of an offender’s individual sentence. We

explained in State v. Burrell, 11th Dist. Portage Nos. 2020-P-0026, 2020-P-0027, & 2020-

P-0028, 2020-Ohio-6685, that relative to the imposition of maximum sentences, the

Supreme Court of Ohio has declared that trial courts have full discretion to impose a

prison sentence within the statutory range and are no longer required to make findings or

give their reasons for imposing maximum or more than minimum sentences. Id. at ¶ 9;

see State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven

of the syllabus.

{¶30} Even though the trial court is not required to make findings, as our review

of the sentencing hearing indicates, the trial court made numerous findings to support its

imposition of maximum sentences for sexual battery and compelling prostitution, including

the serious harm the victim suffered and Mr. Lefkowitz’s multiple offenses involving the 7

Case No. 2021-T-0054 victim, some in the presence of other minors. Further, Mr. Lefkowitz used his position as

a teacher and athletic director for his school as a vehicle to commit those crimes. See

State v. O’Connor, 2d Montgomery No. 28259, 2020-Ohio-4402, ¶ 41 (finding

unpersuasive the argument that maximum sentences were unwarranted because the

appellant was a first-time felony offender).

{¶31} Quite simply, Mr. Lefkowitz’s sentence is within the statutory range, and he

has failed to demonstrate an obvious error.

{¶32} Mr. Lefkowitz’s second assignment of error is without merit.

{¶33} The judgment of the Trumbull County Court of Common Pleas is affirmed.

MATT LYNCH, J.,

JOHN J. EKLUND, J.,

concur.

Case No. 2021-T-0054