State v. Frohlich

[Cite as State v. Frohlich, 2026-Ohio-3665.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY State of Ohio Court of Appeals No. L-25-00210 Appellee Trial Court No. CR0202402741 v. Nathan Frohlich DECISION AND JUDGMENT Appellant Decided: September 18, 2026 ***** Julia R. Bates, Prosecuting Attorney, and Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee. W. Alex Smith, for appellant. ***** OSOWIK, J. Procedural History The Indictments. {¶ 1} On December 5, 2024, a Lucas County Grand Jury returned a 25-count indictment charging Frohlich with 22 counts of pandering obscenity involving a minor or impaired person in violation of R.C. 2907.321(A)(1) and (C), a felony of the second degree (Counts 1, 4-15, and 17-25), and 3 counts of pandering sexually-oriented matter involving a minor or impaired person in violation of R.C. 2907.322(A)(1) and (C), a felony of the second degree (Counts 2, 3, and 16). The Plea {¶ 2} After a period of pretrial discovery, on June 2, 2025, a change of plea hearing was held, during which Frohlich entered a plea of guilty to Counts 1-4, 7-11, 14- 19, and 23-25. In exchange for Frohlich’s guilty pleas, the State agreed to request a nolle prosequi as to all remaining charges. {¶ 3} The court accepted his pleas and found Frohlich guilty of pandering obscenity involving a minor or impaired person in violation of R.C. 2907.321(A)(1) and (C), a felony of the second degree, in Counts 1, 4, 7-11, 14, 15, 17-19, and 23-25, and to pandering sexually-oriented matter involving a minor or impaired person in violation of R.C. 2907.322(A)(1) and (C), a felony of the second degree, in Counts 2, 3, and 16. {¶ 4} After finding that Frohlich was not amenable to community control, the court ordered him to serve a stated minimum prison term of 6 years and a maximum indefinite term of 9 years for Counts 1, 4, 7-11, 14-15, 17-19, and 23-25, pandering obscenity involving a minor in violation of R.C. 2907.321(A)(1) and (C), and Counts 2, 3, and 16, pandering sexually oriented material involving a minor in violation of R.C. 2907.322(A)(1) and (C) in Counts 2, 3, and 16, each a felony of the second degree. The 2. court ordered these prison terms to be served concurrently for a total of 6 to 9 years in prison. {¶ 5} Frohlich appeals to this court for a review of that sentence. Assignments of Error {¶ 6} Frohlich sets forth a single assignment of error for our review: ASSIGNMENT OF ERROR I: THE TRIAL COURT ERRED BY IMPOSING A PRISON SENTENCE THAT IS CONTRARY TO LAW UNDER R.C. 2953.08(G)(2) BECAUSE THE RECORD DOES NOT SUPPORT THE DISREGARD FOR MITIGATING FACTORS AND THE UNDUE WEIGHT GIVEN TO UNCHARGED AND NON- CRIMINAL CONDUCT. Mitigating factors under R.C. 2929.11 {¶ 7} Frohlich argues that the trial court ignored the recommendations of the probation department and rejected consideration of the fact that he was diagnosed with Asperger syndrome and clinical depression at age 12 and therefore the court failed to consider appropriate mitigating factors pursuant to R.C. 2929.11 and hence, his sentence is therefore contrary to law under R.C. 2953.08(G)(2). {¶ 8} However, contrary to his assertions, the trial court did consider his condition but weighed other factors. The court stated: THE COURT: The probation department was not privy to the scope and breadth of the images and the material that you had downloaded or the fact that you were actively exchanging this with other individuals. I can appreciate your attorney’s comment as to Asperger’s and your condition and how some comments and reactions to social settings may be different for you than other people. The sentence that I’m imposing today doesn’t take into account any of that. The images themselves, the fact that you were storing them on a device that was separate from your 3.  personal device, you knew that this was wrong. You knew that the place where you were going to get them was illegal and that the images themselves were illegal, and so that’s the reason for the sentence that I’m going to impose today, which is a deviation from the recommendation from the probation department. Analysis {¶ 9} In either event, since the Ohio Supreme Court decided State v. Jones, 2020- Ohio-6729, ¶ 42, the law governing appellate review of a trial court's consideration of R.C. 2929.11 and 2929.12 in imposing a sentence 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, ¶ 7 (6th Dist.), quoting Jones at ¶ 42. State v. Kynard, 2026-Ohio-758, ¶ 11-12 (6th Dist.). {¶ 10} This does not mean that a sentence cannot be “otherwise contrary to law” for other reasons. For example, the Supreme Court determined that a sentence was “contrary to law” because it was “improperly imposed based on impermissible considerations—i.e., considerations that fall outside those that are contained in R.C. 2929.11 and 2929.12.” State v. Fowler, 2022-Ohio-3499, ¶ 15 (6th Dist.). Victim Impact Statements Related to Images Not Included in the Charged Offenses {¶ 11} Frohlich further argues that the court relied on victim impact statements related to images not included in the offenses and on conduct that was not subject of the indictment or plea. However, contrary to Frohlich’s assertions, uncharged crimes and charges dismissed pursuant to plea agreements may be considered at sentencing. State v. 4. Griffin, 2021-Ohio-3137, ¶ 19 (6th Dist.), citing State v. Lanning, 2020-Ohio-2863, ¶ 17 (6th Dist.). See also State v. Staggs, 2017-Ohio-7368, ¶ 15 (4th Dist.). So long as they are not the sole basis for the sentence, a court may consider a defendant’s unindicted acts. State v. Edwards, 2025-Ohio-5774, ¶ 4 (6th Dist.). {¶ 12} Prior to sentencing in this case, on July 10, 2025, the appellee filed a “Motion to Consider Victim Impact Statements.” The motion requested the court consider the victim impact statements of “both the victim identified and accounted for in Count 10 of the twenty-five-count indictment, as well as all identified victims whose images were found on the defendant’s device during the course of the investigation.” As support, the State cited to R.C. 2947.051, which establishes a statutory right of victims to submit impact statements regarding the harm they have suffered as a result of the defendant’s actions. {¶ 13} At the sentencing hearing on July 17, 2025, the court indicated that it was granting the State’s motion. The court went on to state that it had reviewed the Pre- Sentence Investigation report and the recommended sentence but was deviating from the recommendation for several reasons. Specifically, it “didn’t take into account Asperger’s or social interaction differences. The court emphasized “the images themselves,” storage on a device separate from his personal computer at home, appellant’s knowledge of the illegality of his actions and actively exchanging these images with others as the fundamental reason for the sentence. {¶ 14} The record establishes that the trial court did not impose its sentence based solely on unindicted conduct. Despite the State encouraging the court to consider 5. any “deep fake” enterprise, it was only one of several factors considered by the trial court in considering a sentence. The court noted that the ages of the victims were between six months and sixteen years. The court further stated that this makes these offenses “more egregious than other instances of people being in possession of or distributing and exchanging these materials.” Conduct giving rise to the instant charge was relevant to the recidivism factors a sentencing court is required to consider pursuant to R.C. 2929.12. Id. {¶ 15} We note that the court referenced the victim impact statements to underscore the harm and seriousness but did not recite any new findings concerning the offenses. The record therefore does not demonstrate any improper reliance on the victim impact statements by the court when fashioning its sentence. Conclusion {¶ 16} Upon consideration of Frohlich’s arguments and our review under R.C. 2953.08, we cannot conclude that the record clearly and convincingly does not support the sentencing court's findings or that the sentence is contrary to law. {¶ 17} Based on the foregoing, the judgment of the Lucas County Common Pleas Court is affirmed. Appellant is ordered to pay the costs of this appeal under App.R. 24. Judgment affirmed. 6.  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, P.J. JUDGE Myron C. Duhart, J JUDGE Charles Sulek, J 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.