[Cite as State v. Stein, 2012-Ohio-2502.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 97395


                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                        ROBERT STEIN
                                                        DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-545011

        BEFORE:            Boyle, P.J., S. Gallagher, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                         June 7, 2012
ATTORNEYS FOR APPELLANT

Anne B. Walton
Ian N. Friedman
Gregory A. Gentile
Ian N. Friedman & Associates, L.L.C.
1304 West 6th Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Jesse W. Canonico
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, Robert Stein, appeals his ten-year sentence. 1               He

raises three assignments of error for our review:

       “[1.] The defendant-appellant’s right to due process of law as guaranteed by

Article I, Section 10 of the Ohio State Constitution and the Fourteenth Amendment to the

United States Constitution was violated when he was sentenced to consecutive prison

terms totaling ten years.

       “[2.]    The    trial   court   abused    its   discretion   when    it   sentenced    the

defendant-appellant to ten years in prison, because the sentence was grossly

disproportionate to that imposed for other, similar offenders.

       “[3.] The trial court abused its discretion by considering prejudicial matters outside

the record when imposing a sentence.”

       {¶2} Finding no merit to his arguments, we affirm.

                         Procedural History and Factual Background

       {¶3} In December 2010, Stein was indicted on 102 counts relating to child

pornography. In August 2011, he pleaded guilty to one count of pandering sexually

oriented matter involving a minor in violation of R.C. 2907.322(A)(2), 54 counts of

pandering      sexually-oriented   matter    involving     a   minor   in   violation of     R.C.

2907.322(A)(1), 24 counts of illegal use of a minor in nude material or performance in


       Stein was sentenced before the effective date of H.B. 86.
       1
violation of R.C. 2907.323(A)(1), and one count of possessing criminal tools in violation

of R.C. 2923.24(A). All counts included a forfeiture specification.

       {¶4} The trial court sentenced Stein to an aggregate sentence of ten years: five

years for Count 1, pandering sexually oriented matter involving a minor in violation of

R.C. 2907.322(A)(2); five years on each of the 54 counts (Counts 2-55) of pandering

sexually-oriented matter involving a minor in violation of R.C. 2907.322(A)(1),

concurrent to one another, but consecutive to Count 1; five years on each of the 24 counts

(Counts 56-79) of illegal use of a minor in nude material or performance in violation of

R.C. 2907.323(A)(1), concurrent to one another and concurrent to all other counts; and

one year for possessing criminal tools, concurrent to all other counts.        The trial court

further ordered Stein to forfeit two cameras, a cell phone, a computer tower, 65 hard

drives, a mouse, a keyboard, and miscellaneous CDs and DVDs.           The trial court also

notified Stein that he would be subject to five years of mandatory postrelease control

upon his release from prison and that he was labeled a Tier II sex offender.

       {¶5} It is from this judgment that Stein appeals.

                                   Standard of Review

       {¶6} This court reviews felony sentences under the two-prong test set forth in

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Under the first

prong, we review whether the trial court complied with all applicable rules and statutes to

determine if the sentence is clearly and convincingly contrary to law. Id. at ¶ 4.      If the
first prong is satisfied, then we review the trial court’s decision for abuse of discretion.

Id.

                                 Ten-Year Prison Sentence

       {¶7} In his first assignment of error, Stein contends that the trial court erred

when it sentenced him to a more-than-the-minimum prison term and sentenced him to

consecutive terms. Stein acknowledges that a trial court no longer has to provide its

reasons for imposing a sentence that is more than the minimum or is consecutive, but he

nonetheless argues that the trial court “failed to provide sufficient reasoning in its

determination.”   He maintains that the question in this case is not whether a ten-year

sentence is excessive in a child pornography case, but whether it is excessive for him,

given the fact that he “without question differentiated himself from all other[s] by

engaging in a regimen of treatment that could not be surpassed.” Stein asserts that for

him, ten years “was not only unnecessary and excessive but actually counterproductive.”

       {¶8} Stein’s sentence of ten years was clearly not contrary to law.      As the trial

court indicated, it could have sentenced Stein to over 600 years in prison. Thus, under

the second prong of Kalish, we must determine if the trial court abused its discretion in

sentencing Stein to ten years in prison.

       {¶9} Before sentencing Stein, the trial court obtained a presentence investigation

report (“PSI”) and a psychological report.     The trial court heard testimony from Dr.

Michael Aronoff, the court’s chief of psychology. Dr. Aronoff testified that Stein had

depressive disorder not otherwise specified and anxiety disorder.   Dr. Aronoff stated that
Stein “scored positively” on the ABEL assessment, meaning he “has a significant sexual

interest in adolescent and adult females,” which meant that he scored normal for

heterosexual men.     But Dr. Aronoff further stated that Stein was a “possible pedophile”

because of the act of viewing child pornography occurring over a period of time and the

“clinical distress that it caused him.”

       {¶10} The trial court further heard from defense counsel, Stein, Stein’s wife, and a

family friend.    Defense counsel explained how Stein immediately sought help after

being arrested. Stein obtained individual therapy from a counselor, who also submitted

a glowing letter to the court regarding Stein’s progress over the period of his treatment.

Stein attended more than 170 meetings for sexual addicts and had obtained a “one-year

token of sobriety.” And Stein had been gainfully employed and had the support of his

wife and many family and friends, as evidenced by 19 letters from friends and family, as

well as Stein’s wife’s testimony at the sentencing hearing.

       {¶11} The trial court expressly stated that it considered the purposes and principles

of felony sentencing, as well as the factors listed in R.C. 2929.12. And although it did

not have to, the trial court expressly discussed the R.C. 2929.12 factors.            When

considering whether Stein’s conduct was more serious than conduct normally constituting

the offense, the trial court found that the “physical or mental injury suffered by the victim

of the offense due to the conduct of the offender was exacerbated because of the physical

or mental condition or age of the victim.”     Specifically, the trial court stated, “when I

refer to victim, I, of course, refer to for example the three-year old child with a penis
draped all over her in video number 279, the 48 minute video, and among the other

victims that we saw[.]”

       {¶12} The trial court found that the victims “suffered serious physical,

psychological or economic harm as a result of the offense.”       It stated, “every time the

video or photos in this matter are exchanged the child in those videos is harmed again.

Nothing ever leaves the internet.”

       {¶13} The trial court further found that Stein “committed this offense as part of an

organized criminal activity,” because he downloaded and shared child pornography

through an online site called LimeWire, where users share photographs and videos of

child pornography. During the allied offenses portion of the sentencing hearing, a child

pornography investigator explained that LimeWire is an online file sharing network, or

peer-to-peer network, that allows users to share and transfer child pornography files

between one another.

       {¶14} The trial court did not find any factors in Stein’s favor indicating that his

conduct was less serious than conduct normally constituting the offense.

       {¶15}   The trial court then found that according to the PSI, Stein’s risk of

recidivism was low, and he had not had a prior offense.    Even so, after considering all of

the factors, the trial court found that a sentence of community control would “absolutely

demean the seriousness of this offense.”

       {¶16} The trial court indicated that it read all of the letters submitted to the court

on Stein’s behalf (19 letters, including a treatment letter from Candace Risen, who had
been treating Stein since his arrest). But the trial court stated that it found the letters

“spoke formulaically in glowing terms of the defendant and his family.”

         {¶17} At the allied offenses part of the sentencing hearing, the trial court heard

evidence from child pornography investigators that they found 81 videos and 285 photos

on Stein’s computer hard drive. These images and videos included files that Stein had

obtained after searching “PTHC,” which stands for “preteen hard core.”                  The

investigators described videos and images of prepubescent girls in unimaginable sexual

situations with adult males. And although many of the files had been obtained on a

single day, Stein admitted that he had been addicted to pornography for many years, and

had been viewing child pornography for five years.

         {¶18} Further, investigators testified that there was no evidence of any “hands on”

offenses with children. But Dr. Aronoff, the court’s own witness, testified that Stein

was a “possible pedophile” because of the act of viewing child pornography occurring

over a period of time and the “clinical distress that it caused him.”

         {¶19} Thus, in reviewing the record before us, we find that the trial court gave

careful and substantial deliberation to the relevant statutory considerations in sentencing

Stein.

         {¶20} We note that in a recent case from this court, State v. Mahan, 8th Dist. No.

95696, 2011-Ohio-5154, the defendant was a first-time offender, as Stein is here. And

the defendant in Mahan also had the support of family and friends, was gainfully

employed, and had attended 100 meetings for sexual addicts. This court stated:
              We acknowledge that a 16 year prison term imposed on a first-time

       offender who has, by all accounts, led an otherwise productive, law abiding

       life is a harsh sentence and is perhaps not one that we may have imposed.

       Nonetheless, the sentence was significantly less than what the court could

       have imposed based on defendant’s 95 convictions.            There was ample

       testimony in the record of the harm that has been, and continues to be,

       inflicted upon the victims who are the subjects of the material being viewed

       in these types of cases.      The images, once uploaded, continue to circulate

       on the internet where individuals, like defendant, view them and make them

       available for viewing by others.       The wide range of sentences that have

       been apparently imposed on defendants convicted of similar offenses is the

       result of the discretion vested in the trial court.   Defendant’s sentence was

       within the statutory range, lawful, and supported by the record, thus we

       cannot say it was unconscionable or otherwise an abuse of the trial court’s

       discretion.   Id. at ¶ 63.

       {¶21} Accordingly, we find no abuse of discretion on the part of the trial court.

Stein’s first assignment of error is overruled.

                                    Disproportionate Sentence

       {¶22} In his second assignment of error, Stein argues that the trial court erred

when it sentenced him because “the vast majority of individuals convicted of child
pornography offenses in Cuyahoga County * * * have received a lesser sentence.”              As

such, Stein contends the trial court abused its discretion in sentencing him to ten years.

        {¶23} R.C. 2929.11(B) provides that: “A sentence imposed for a felony shall be *

* * consistent with sentences imposed for similar crimes committed by similar offenders.”

        {¶24} In Stein’s sentencing memorandum, he submitted a list of over 70 child

pornography cases in Cuyahoga County. In the list, he included the name of the case,

the case number, the number of counts each offender was charged with, the trial court

judge who presided over the case, and the sentence the offender received.

        {¶25} A review of the list, however, does not tell any facts about the individual

case.   Thus, we do not know whether the offenders in those cases were similar to Stein.

As this court recently stated in Mahan, in upholding a 16-year sentence on an offender

who pleaded no contest to 95 counts of various child pornography charges, “these journal

entries tell us little, if anything, of the offender characteristics and provide no information

beyond the convictions and terms of the sentences.” Id., 2011-Ohio-5154, at ¶ 60.

        {¶26} Accordingly, we overrule Stein’s second assignment of error.

                                 Matters Outside the Record

        {¶27} In his third assignment of error, Stein argues that the trial court erred when it

sentenced him because it improperly considered “prejudicial matters” outside the record.

Specifically, Stein complains of two statements made by the trial court at the sentencing

hearing; the first is the trial court’s statements on the evils of child pornography, and the
second is a statement the trial court made when discussing LimeWire being an organized

crime (in its discussion of the R.C. 2929.12 factors):

               You may not have offended on anyone that you claim, however, who
       is to say that Joe Shlabotnick from Milwaukee, Wisconsin who went into
       LimeWire and downloaded materials from your computer did not then go
       out and rape and murder a little child. We don’t know that. We will
       never know that. That’s why the Court is finding that you have done this
       as part of an organized criminal activity.

       {¶28} After a thorough review of the lengthy sentencing transcript, however, we

find no abuse of discretion on the part of the trial court. Its statements on the evils of

child pornography cannot be disputed — even by Stein. And although there was no

evidence before the trial court that Stein —    or anyone who obtained child pornography

files from Stein via file sharing — raped or murdered children, we find that those

statements alone do not cancel out the many proper factors considered by the trial court in

sentencing Stein.

       {¶29} Accordingly, we overrule Stein’s third assignment of error.

       {¶30} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.      Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
