State v. Liuzzo , 2013 Ohio 5028 ( 2013 )

[Cite as State v. Liuzzo, 2013-Ohio-5028.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99545
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PAUL LIUZZO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-516760
BEFORE: Jones, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 14, 2013
ATTORNEY FOR APPELLANT
David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Francine B. Goldberg
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant, Paul Liuzzo, appeals his ten-year sentence that was
imposed after his plea to numerous counts of pandering sexually-oriented material
involving a minor and one count of possessing criminal tools. Additionally, Liuzzo
contends that his trial counsel was ineffective. We affirm.
I
{¶2} In 2008, Liuzzo was charged in a 64-count indictment. Counts 1 through 29
charged pandering sexually-oriented material involving a minor in violation of R.C.
2907.322(A)(2). Counts 30 through 63 charged pandering sexually-oriented material
involving a minor in violation of R.C. 2907.322(A)(1). Count 64 charged possessing
criminal tools. All counts contained a forfeiture specification.
{¶3} Liuzzo pleaded guilty to all counts and specifications as indicted. The trial
court sentenced him as follows: four years on each crime contained in Counts 1 through
29, to be served concurrent; three years on each crime contained in Counts 30 through 40,
to be served concurrent; three years on each crime contained in Counts 41 through 63, to
be served concurrent; and 12 months on Count 64, to be served concurrent. The
sentences on Counts 30 through 40, Counts 41 through 63, and Count 64 were ordered to
be served consecutively to each other, and concurrently to the four years for Counts 1-29.
Liuzzo was therefore sentenced to a total ten-year sentence.
II
{¶4} The charges in this case arose after an investigation by the Ohio Internet
Crimes Against Children Task Force revealed that Liuzzo had been downloading child
pornography on his computer. The pornography he had downloaded was available for
sharing with other perpetrators through Limeware, which is peer-to-peer file sharing
software.
{¶5} According to Liuzzo, he had been sexually abused as a child, and the abuse
included his violator taking pictures and videos of him. He maintained that he
downloaded the material because he was obsessed with seeing if images of himself taken
by his offender were on the internet.
{¶6} Liuzzo raises the following three assignments of error in this delayed appeal:
[I.] The trial court erred by failing to find the convictions of Pandering
Sexually-Oriented Matter Involving a Minor, R.C. 2907.322(A)(1) and R.C.
2907.322(A)(2) constitute allied offenses pursuant to Ohio Revised Code
§2941.25.
[II.] The trial court erred in failing to consider statutorily required
mitigating factors during sentencing hearing.
[III.] The failure of defense counsel to request a hearing on allied offenses
denied the appellant his right to the effective assistance of trial counsel.
III
Allied Offenses
{¶7} For his first assigned error, Liuzzo contends that the trial court erred by
failing to merge as allied offenses the convictions under the two subsections governing
pandering sexually-oriented matter involving a minor. In his third assignment of error,
Liuzzo contends that his counsel was ineffective for not requesting an allied offenses
hearing.
{¶8} R.C. 2941.25, which governs allied offenses, provides:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶9} Under subsection (A)(1) of the pandering statute, Liuzzo was convicted of
obtaining the material, and under subsection (A)(2), he was convicted of disseminating it
by having it in software accessible to other perpetrators. Liuzzo contends that he “could
not have violated (A)(2), to disseminate the materials by leaving his [peer-to-peer sharing
software] accessible, without first having obtained the material * * *.” Thus, Liuzzo
contends that in this case, the “act of downloading [was] a necessary aspect of a
dissemination of display via [the software], and therefore the “consecutive sentences
violate the statute and double jeopardy protections.”
{¶10} The consecutive sentences were not imposed on counts involving the two
subsections. Rather, the three-year concurrent sentences for Counts 30 through 40 were
ordered to be served consecutive to the three year concurrent sentences for Counts 41
through 63, and all those counts (Counts 30 through 63) charged pandering under R.C.
2907.322(A)(1).
{¶11} Further, Counts 30 through 40 involved different dates than Counts 41
through 63. Therefore, on the face of the indictment, Counts 30 through 40 constituted
separate offenses from Counts 41 through 63. See State v. Baker, 8th Dist. Cuyahoga
No. 97139, 2012-Ohio-1833, ¶ 23.
{¶12} In light of the above, we find no merit to Liuzzo’s contention set forth in his
first assignment of error that the trial court failed to merge as allied offenses the
convictions under the two subsections governing pandering sexually-oriented matter
involving a minor. We necessarily, therefore, also find no merit to his contention that
his trial counsel was ineffective for not requesting an allied offenses hearing.
{¶13} The first and third assignments of error are overruled.
{¶14} For his second assigned error Liuzzo contends that the trial court did not
consider mitigating circumstances when sentencing him. Specifically, Liuzzo contends
that the trial court “failed to consider [his] victimization as a mitigating factor to his
conduct.” We disagree.
{¶15} The trial court did consider Liuzzo’s contention that he was searching
pornographic images of children to see if images of himself were on the internet because
a perpetrator against him had taken such photographs and videos of him; the court did not
believe him. The court referenced that Liuzzo had searched under terms that suggested
young girls engaged in inappropriate relationships with older men. Therefore, the court
stated that “for you to use [those] search[es] to find potential images of yourself defies
logic.”
{¶16} The court also noted that Liuzzo’s searches of pornographic child images
began in 1995, and he had been “troubled by this alleged sexual abuse for many years, but
* * * didn’t begin counseling * * * until July of 2008,” after law enforcement searched
his house and confiscated his computer. Further, when Liuzzo did seek treatment, his
primary concern appeared to be his legal problem rather than the underlying issue of his
alleged victimization.
{¶17} In light of the above, the trial court did consider Liuzzo’s mitigation
defense. The court was not obligated, in the exercise of its discretion under R.C.
2929.12(A),1 to give any particular weight or consideration to any sentencing factor.
State v. Holin, 174 Ohio App.3d 1, 2007-Ohio-6255, 880 N.E.2d 515, ¶ 34 (11th Dist.).
So long as the sentencing court duly considers the appropriate sentencing factors, it has
full discretion to impose a sentence within the statutory range. Id.{¶18} On this record, we find that the trial court considered the appropriate
sentencing factors and sentenced Liuzzo within the permissible range. The second
assignment of error is, therefore, overruled.
{¶19} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
1
“* * * A court that imposes a sentence under this chapter upon an offender for a felony has
discretion to determine the most effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised Code.” R.C. 2929.12(A).
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.
LARRY A. JONES, SR., PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR