State v. Liuzzo

2014 Ohio 3030

• Court: Ohio Court of Appeals
• Decided: July 9, 2014
• Docket: 99545
• Status: Published

Opinion

[Cite as State v. Liuzzo, 2014-Ohio-3030.]

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: APPLICATION TO REOPEN IS GRANTED IN PART, DENIED IN PART, AND REMANDED

Cuyahoga County Court of Common Pleas Case No. CR-08-516760 Application for Reopening Motion No. 471260

BEFORE: Jones, P.J., McCormack, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: July 9, 2014 APPELLANT

Paul A. Liuzzo, pro se Inmate No. 564-694 2500 South Avon Belden Road Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: James M. Price Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:

{¶1} In State v. Liuzzo, Cuyahoga C.P. No. CR-08-516760, the applicant, Paul

Liuzzo, pled guilty to, and was convicted of 64 criminal charges, including multiple

violations of R.C. 2907.332(A)(2) and 2907.322(A)(1), pandering sexually-oriented

material involving a minor, as well as one violation of R.C. 2923.24(A), possessing

criminal tools. The trial court imposed an aggregate prison sentence of ten years, and

this court affirmed the judgment in State v. Liuzzo, 8th Dist. Cuyahoga No. 99545,

2013-Ohio-5028.

{¶2} Liuzzo, has filed an application for reopening. He asserts that he was

denied effective assistance of appellate counsel in the following respects: (1) his appellate

counsel failed to properly raise an alleged error concerning allied offenses of similar

import (first proposed assignment of error); (2) his appellate counsel failed to properly

raise errors concerning the court’s consideration of R.C. 2929.11 and 2929.12 (second

proposed assignment of error); (3) his appellate counsel failed to properly raise an issue

challenging the court’s jurisdiction to impose a lifetime prohibition on his use of a

computer (third proposed assignment of error); and (4) that appellate counsel failed to

raise any issue concerning trial counsel’s ineffectiveness with regard to the foregoing

issues (fifth proposed assignment of error). In his fourth proposed assignment of error,

Liuzzo questions whether the trial court committed plain error when it did not inform him

that he could be ordered to perform community control service to satisfy any outstanding court costs pursuant to R.C. 2947.23(C), thereby rendering his sentence contrary to law

and open to collateral attack. We presume that Liuzzo intended to allege that his

appellate counsel was ineffective for not raising that issue as well.

{¶3} The state has filed a brief in opposition to the application for reopening, and

Liuzzo has filed a reply. For the following reasons, we deny the application for

reopening in part and grant the application for reopening in part.

In State v. Spivey, 84 Ohio St.3d 24, 701 N.E.2d 696 (1998), the Supreme Court specified

the proof required of an applicant as follows:

[T]he two-prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a defense request for reopening under App.R. 26(B)(5). [Applicant] must prove that his counsel were deficient for failing to raise the issues he now presents, as well as showing that had he presented those claims on appeal, there was a “reasonable probability” that he would have been successful. Thus [applicant] bears the burden of establishing that there was a “genuine issue” as to whether he has a “colorable claim” of ineffective assistance of counsel on appeal.

Id. at 25.

{¶4} Liuzzo cannot show prejudice with regard to his argument that appellate

counsel was ineffective for neglecting to challenge the court’s jurisdiction to impose

concurrent sentences for allied offenses of similar import. This is because his appellate

counsel did raise errors concerning the imposition of multiple sentences for allied

offenses of similar import. In addition, appellate counsel asserted that trial counsel was

ineffective by not requesting a hearing on allied offenses. This court addressed and

overruled both assigned errors and, therefore, has determined that Liuzzo was not sentenced for allied offenses of similar import. To the extent Liuzzo is contending that

this court did not address whether the counts involving concurrent sentences were allied

offenses of similar import, the contention is without merit. Appellate counsel alleged

that trial counsel was ineffective by not requesting a hearing on allied offenses in the third

assignment of error, that this panel reviewed and summarily overruled. State v. Liuzzo,

8th Dist. Cuyahoga No. 99545, 2013-Ohio-5028, ¶ 12.

{¶5} To establish ineffective assistance of counsel, it must be demonstrated that

counsel’s performance fell below the objective standard of reasonable competence, and

that there is a reasonable probability that, but for such deficiency, the outcome of the trial

would have been different. Strickland at 687; State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989), paragraphs two and three of the syllabus. If the trial court had

imposed separate sentences for allied offenses, it would have been plain error even if the

sentences involved concurrent time. E.g., State v. Underwood, 124 Ohio St. 3d 365,

2010-Ohio-1922 N.E.2d 923, ¶ 7, 31.

{¶6} Because we found that trial counsel was not ineffective for not requesting a

hearing as to allied offenses, the necessary inference is that Liuzzo did not prove that the

outcome of his sentencing would have been different if counsel had requested an allied

offenses hearing. Stated differently, had we determined that there was any possibility that

Liuzzo received multiple sentences for allied offenses, the third assignment of error in his

initial appeal would have been sustained. Therefore, Liuzzo has not established

ineffective assistance of appellate counsel related to the allied offenses issue he has raised.

Appellate counsel also challenged the sentence that the trial court imposed, specifically

alleging that the trial court had failed to consider mitigating factors. Appellant’s brief

alleged, “As to R.C. 2929.12, seven jurists [in State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124] agreed that the trial court’s journal must be reviewed

to determine if the trial court considered R.C. 2929.12.” Appellant’s brief at p. 9.

Appellant’s brief also referenced R.C. 2929.11, as well as the statutory purposes of felony

sentencing. Id. In resolving the second assignment of error in the initial appeal, this

court specifically referenced R.C. 2929.12 and noted that “so long as the sentencing court

duly considers the appropriate sentencing factors, it has full discretion to impose a

sentence in the statutory range.” State v. Liuzzo, 8th Dist. Cuyahoga No. 99545,

2013-Ohio-5028, ¶ 17. Liuzzo’s contention that appellate counsel failed to properly

challenge the trial court’s compliance with R.C. 2929.11 and 2929.12 is refuted by the

record.

{¶7} In support of his contention that appellate counsel was ineffective for failing

to challenge the portion of the sentencing judgment entry that provides “defendant is not

to own, possess, or use a computer,” Liuzzo relies on State v. Jerido, 5th Dist. Stark No.

1997CA00265, 1998 Ohio App. LEXIS 2482 (May 26, 1998) (court erred by banning

defendant from Summit County because it is not a permissible penalty pursuant to R.C.

2929.21); State v. Penwell, 9th Dist. Summit No. 25724, 2012-Ohio-5872 (state conceded

assigned error that punishment of annual solitary confinement is not authorized by sentencing statutes and court agreed); State v. Beasley, 14 Ohio St.3d 74, 471 N.E.2d 774

(1984) (“Any attempt by a court to disregard statutory requirements when imposing a

sentence renders the attempted sentence a nullity or void.”); and State v. Garretson, 140

Ohio App. 3d 554, 748 N.E.2d 560 (12th Dist.2000) (finding “after Garretson’s

confinement to prison the trial court was without continuing jurisdiction to alter the

sentence or take further action upon it.”). Liuzzo also cites R.C. 2929.19 and 2929.14.

None of these cases and statutes involve a sentencing provision that banned or restricted

an offender’s use or possession of a computer. The cases, however, generally establish

that a court cannot impose a punishment that is not specifically authorized by the law.

{¶8} In opposing Liuzzo’s argument, the state refers to cases that have upheld

judicial limitations on computer use as a condition of probation or supervised release.

E.g., State v. Hultz, 5th Dist. Ashland No. 06-COA-003, 2006-Ohio-4056 (R.C. 2951.02

confers broad discretion in setting terms of probation and prohibiting an offender from

using, accessing, or possessing a computer and computer accessories “is related to the

crime and rehabilitation, and to deterring future criminality.”); see also United States v.

Taylor, 338 F.3d 1280 (11th Cir. 2003). The Ohio case cited by the state involves the

imposition of probation. The court sentenced Liuzzo to prison. The federal cases,

although instructive, are not controlling as they apply federal, rather than Ohio,

sentencing laws.

{¶9} Under Ohio law, conditions of probation must be reasonably related to three

probationary goals that trial courts must consider: (1) whether the condition “is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of

which the offender was convicted, and (3) relates to conduct which is criminal or

reasonably related to future criminality and serves the statutory ends of probation.”

State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 12,

reaffirming State v. Jones, 49 Ohio St.3d 51, 52, 550 N.E.2d 469 (1990). Probation

conditions must “not be overly broad so as to unnecessarily impinge upon the

probationer’s liberty.” Id. at ¶ 13.

{¶10} Federal district courts have reached various conclusions concerning the

validity of imposing computer restrictions and internet bans as terms of supervised

release. See United States v. Lantz, 443 Fed. Appx. 135, 2011 U.S. App. LEXIS 23461

(6th Cir. 2011), citing United States v. Demers, 643 F.3d 982 (8th Cir. 2011), United

States v. Phillips, 370 Fed.Appx. 610 (6th Cir. 2010), United States v. Brigham, 569 F.3d

220 (5th Cir. 2009), United States v. Miller, 594 F.3d 172, 176 (3d Cir.2010).

{¶11} As quoted by the court in Lantz, “consensus is emerging among our sister

circuits that Internet bans, while perhaps unreasonably broad for defendants who possess

or distribute child pornography, may be appropriate for those who use the Internet to

‘initiate or facilitate the victimization of children.’” Courts have struck down as

overboard a condition that prohibits the defendant from “accessing any computer

equipment or any ‘on-line’ computer service at any location, including employment or

education.” Lantz at 143-144.

{¶12} There is a reasonable probability that if an error had been raised that challenged this component of Liuzzo’s sentence, it would have been sustained. The

court’s rationale for imposing a computer restriction in this case is understandable and we

agree with the courts that have found that “a ban on internet access is particularly relevant

for those who distribute child pornography via the internet.” Id.; see also United States v.

Dotson, 715 F.3d 576 (6th Cir.2013) (finding “some limitations on internet access, as

well as on the use of devices that can access the internet, is undoubtedly warranted based

on the nature of the offense” that involved downloading sexually explicit images of

children from the internet.)

{¶13} The court in Dotson made “the undisputed observation that computers, cell

phones, and Internet access play a fundamental role in the modern age, a role that will

undoubtedly have increased by the time [the offender] is released from prison.” Dotson.

“Of specific concern is the role of technology in the workplace and education

institutions” and the realistic likelihood that “effective rehabilitation and return to a

productive role in society may well be dependent upon obtaining education that provides

the skills necessary for employment.” Id. at 587.

{¶14} The restriction that was imposed in this case appears to be overly broad. A

restriction on computer use and access in this case meets all three of the requisite

probationary goals set forth above, however, as currently fashioned the restriction is too

broad and should be qualified in a way that would facilitate the offender’s rehabilitation

and reintegration into society. For example, prohibiting the offender from using or

accessing the computer for any recreational purpose would satisfy the probationary goals while at the same time allowing computer use for business and educational purposes.

{¶15} However, unlike federal law (i.e., 18 U.S.C. 3583), Ohio’s sentencing

statutes do not authorize the imposition of an internet or computer ban as a term of

incarceration. Some type of computer restriction could have been imposed if a term of

community control sanction was involved, but in this case there is no term of community

control sanctions. R.C. 2929.15(A); see also State v. May, 8th Dist. Cuyahoga No. 97354,

2012-Ohio-2766 (upholding trial court’s imposition of community control sanction term

in addition, and consecutive, to a separate term of incarceration). While the restriction is

not authorized by statute, the imposition of the condition does not render the sentence

void. The proper remedy is to vacate that portion of the sentence. State v. Penwell, 9th

Dist. Summit No. 25724, 2012-Ohio-5872, ¶ 12. This proposed assignment of error has

partial merit.

{¶16} The final proposed assignment of error relates to the former version of R.C.

2947.23(A)(1)(a) and (b)1 that required the trial court to inform Liuzzo that it could order

him to perform community service to satisfy any outstanding court costs. Liuzzo argues

that this rendered his sentence void. The state concedes that under the former version of

the statute this advisement was mandatory and that the trial court did not inform Liuzzo of

1 Effective September 28, 2012, R.C. 2947.23 was amended to include subsection (A)(1)(b), which provides: “The failure of a judge or magistrate to notify the defendant pursuant to division (A)(1)(a) of this section does not negate or limit the authority of the court to order the defendant to perform community service if the defendant fails to pay the judgment described in that division or to timely make payments toward that judgment under an approved payment plan.” this provision. This court has already determined that failure to provide the

above-referenced statutory notification under the former version of the law does not

render the sentence void and that the remedy is a limited remand for the trial court to

provide the proper notification. State v. Cardamone, 8th Dist. Cuyahoga No. 94405,

2011-Ohio-818, ¶ 14. However, this court has recently held that any error by the court in

failing to give the notification is harmless because the March 22, 2013 amendments to the

statute no longer require the court to give the notification in cases where the offender is

sentenced to a term of incarceration.2 State v. Young, 8th Dist. Cuyahoga No. 99752,

2014-Ohio-1055, ¶ 31 (it would be a futile act to remand for resentencing for failing to

provide the notification where the offender was sentenced to a term of incarceration and

the notification is no longer required). In Young, this court held that the new version of

the statute would apply at resentencing. Id. Because any error by the trial court in

failing to provide the notification is harmless, Liuzzo has not established any prejudice,

which is necessary to sustain an ineffective assistance of counsel claim on this issue.

{¶17} The fifth proposed assignment of error generally asserts an ineffective

assistance of trial and appellate counsel related to each of the proposed assignments of

error. This proposed error is interrelated and dependent upon our disposition of the

previously addressed arguments and issues.

{¶18} For the foregoing reasons, the application for reopening based upon

2 Effective March 22, 2013, the notification is only required when “the judge or magistrate imposes a community control sanction or other nonresidential sanction.” R.C. 2947.23(A)(1). proposed assignments of error one, two, and four is denied. The application for reopening

based upon proposed assignment of error three is granted in part, the appeal is reinstated

to the docket of this court to sustain assignment of error three in part and to remand this

matter to the trial court with instructions to vacate the condition that “defendant is not to

own, possess, or use a computer.” The application for reopening based upon the fifth

proposed assignment of error is denied with the exception that it is sustained in part and

consistent with the resolution of the third proposed assignment error. Defendant’s

sentence is to remain unchanged in all other respects.

It is, therefore, ordered that Liuzzo recover of the state his costs herein taxed.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

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