State v. Ziska

[Cite as State v. Ziska, 2016-Ohio-390.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102798
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PATRICK ZISKA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-569007-A
BEFORE: McCormack, J., E.A. Gallagher, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: February 4, 2016
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Kyker
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Patrick Ziska, appeals from his resentencing on February 25,
2015, during which the trial court imposed a consecutive sentence of 11 years’ imprisonment.
For the reasons that follow, we affirm.
Procedural History
{¶2} On November 29, 2012, Ziska was charged in a 140-count indictment. Counts 1
through 5 charged him with pandering sexually oriented matter involving a minor in violation of
R.C. 2907.322(A)(2). Counts 6 through 139 charged him with pandering sexually oriented
matter involving a minor in violation of R.C. 2907.322(A)(1). Count 140 charged him with
possession of criminal tools in violation of R.C. 2923.24(A).
{¶3} On August 27, 2013, he withdrew his original not guilty plea and pleaded guilty to
Counts 1 through 100 and Count 140. On February 25, 2014, the trial court sentenced him to
eight years on Count 1 and three years on Count 2, to run consecutively to each other but
concurrent to the court’s sentence of eight years on Counts 3 through 100 and one year on Count
140. Ziska appealed his sentence. On October 23, 2014, this court found that the trial court
failed to find that consecutive sentences were not disproportionate to the seriousness of
appellant’s conduct and to the danger he posed to the public. We therefore vacated the sentence
and remanded the case for the trial court to consider whether consecutive sentences are
appropriate under R.C. 2929.14(C)(4) and, if so, to make the required findings on the record and
incorporate those findings into the court’s sentencing entry. See State v. Ziska, 8th Dist.
Cuyahoga No. 101168, 2014-Ohio-4692.
{¶4} On remand, the trial court held a resentencing hearing. At this time, the court
sentenced Ziska to the same aggregate 11-year prison sentence, making all of the required
consecutive sentence findings. Ziska now appeals this sentence, assigning one error for our
review claiming that his sentence is clearly and convincingly not supported by the record and is
contrary to law.
The Sentence
{¶5} In his sole assignment of error, Ziska claims that his sentence is contrary to law
and not supported by the record. Specifically, he alleges that the record does not support the
imposition of consecutive sentences. In support of his argument, Ziska contends that the trial
court did not properly consider the statutory sentencing factors, including his mental health issues
and the likelihood of reoffending.
{¶6} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, the appellate
court’s standard for review is not whether the sentencing court abused its discretion; rather, if
this 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 that (2) “the sentence is otherwise contrary to
law,” then we “may increase, reduce, or otherwise modify a sentence * * * or [a reviewing court]
may vacate the sentence and remand the matter to the sentencing court for re-sentencing.”
{¶7} R.C. 2929.14(C)(4) provides that in order to impose consecutive sentences, the trial
court must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender, that such sentences would not be disproportionate to the seriousness of
the conduct and to the danger the offender poses to the public, and that one of the following
applies:
(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.
(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.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22.
{¶8} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the
statutory findings at the sentencing hearing, “and by doing so it affords notice to the offender and
to defense counsel.” Bonnell at ¶ 29. “Findings,” for these purposes, means that “‘the [trial]
court must note that it engaged in the analysis’ and that it ‘has considered the statutory criteria
and specifie[d] which of the given bases warrants its decision.’” Id. at ¶ 26, quoting State v.
Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). A trial court is not, however,
required to state its reasons to support its findings, “provided that the necessary findings can be
found in the record and are incorporated in the sentencing entry.” Id. at ¶ 37. The failure to
make consecutive sentence findings is contrary to law. State v. Balbi, 8th Dist. Cuyahoga No.
102321, 2015-Ohio-4075, ¶ 4.
{¶9} In this case, Ziska does not allege that the court failed to make the consecutive
sentence findings. Rather, he asserts that the record does not support the findings. Our review
of a claim that the record does not support the trial court’s findings under R.C. 2929.14(C)(4) is
“‘extremely deferential.’” Balbi at ¶ 5, quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d
453, ¶ 21 (8th Dist.).
{¶10} Here, the record demonstrates that the trial court made the requisite consecutive
sentence findings:
You need to understand, Mr. Ziska, that from the court’s perspective, at least two
of the multiple offenses were committed as part of one or more course 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 your
conduct in this particular case.
And I’m specifically going to refer to the fact that this was an ongoing course of
conduct for quite a few years, including a full FBI search and then, of course, an
ICAC search, which ultimately brought you here.
***
So once again, as I’m reviewing this case, I want to make some additional
findings.
One of which is that consecutive sentences as it relates to this case, Mr. Ziska, are
necessary to both protect the public from future crime and to punish you, and they
are not disproportionate to the seriousness of the offender’s conduct and the
danger in which the offender poses to the public here.
So I have already indicated to you that these offenses were committed as part of
one or more of a course of conduct; that the harm that was caused by two or more
of the multiple offenses so committed was so great or unusual, that no single
prison term, literally no single prison term for any of the offenses committed as
part of any of the course of conduct adequately reflects the seriousness of this
offender’s conduct.
{¶11} The record also shows that prior to making its findings, the court noted that it
reviewed, and incorporated into the resentencing hearing, the following: the sentencing
memorandum submitted by defense counsel; the transcript of the original plea hearing and the
original sentencing; statements from Ziska and Ziska’s parents; letters of support from “family
members, priests, and a number of other people”; certificates of completion “for items he has
done during the course of his custody”; and additional information submitted by Ziska, which
included “mitigation materials” from Dr. Jensen.
{¶12} The record further shows that the court heard statements from the prosecutor, Ziska
and his counsel, and Ziska’s mother.
{¶13} The prosecutor, in outlining the underlying facts of the case, provided that on
December 7, 2011, an investigator with the Ohio Internet Crimes Against Children (“ICAC”)
task force identified a computer in Ziska’s residence “as being a download candidate for 399 files
of child pornography on the E-Donkey 2000 file sharing network.” The task force’s
investigation initially revealed three complete child pornography files and three partial child
pornography files on Ziska’s computer. Based upon the initial downloads, the task force
obtained a search warrant, which was executed on March 15, 2012. While in the process of
executing the search warrant, the investigators learned that the FBI had executed a search warrant
of Ziska’s residence three years earlier, which involved the sharing of child pornography on the
Gigatron network. Through further investigation, the ICAC discovered an additional computer,
an eMachine laptop, that was located under a couch in Ziska’s home. That computer revealed
43 images of child pornography, 310 videos of suspected child pornography, and 26 movies with
titles “indicative of child porn.” Due to the large number of files involved, the task force did
not conduct a full forensic examination. According to the forensic examiner, the partial
examination, however, revealed an estimated 2,000 to 3,000 files that could be suspected child
pornography.
{¶14} The prosecutor further noted that the files that were discovered prior to the search
warrant, as charged in Counts 1 through 5, were files that Ziska had shared on a file-sharing
network. The files addressed in Counts 6 through 139 pertained to separate files that Ziska
downloaded or otherwise saved to the eMachine laptop computer between October 1, 2011, and
February 14, 2012. All of the files depicted minors engaging in sexual activity, masturbation,
or bestiality. And some of the videos contained children identified by the National Center for
Missing and Exploited Children as children who had previously been rescued by law
enforcement.
{¶15} Defense counsel next addressed the court, asking that it take into consideration
Ziska’s mental health issues, namely his diagnosis of Asperger syndrome. Referring to the
report prepared by Dr. Jensen and submitted by defense counsel on Ziska’s behalf, counsel stated
that Ziska exhibits the behavior of a 12- or 13-year old child. Counsel also stated that Ziska
“has a tough time * * * grasping the reality of what he’s doing.” Counsel explained that due to
Ziska’s mental health issues, Ziska did not believe his actions were wrong when the FBI
investigated but did not immediately charge him for any crime. Finally, counsel asserted that
the likelihood of Ziska reoffending is low because the court has previously banned Ziska from
computer use and he will not have access to computers in prison.
{¶16} Thereafter, the court engaged in a discussion with Ziska. It inquired about the
federal prison in which Ziska is presently located, spoke to Ziska about his original sentencing
hearing, and discussed Ziska’s medical diagnosis, as well as Ziska’s academic success.1 Noting
his successful placement in a robotics competition in high school, the court stated that Ziska “did
a number of things with [his] mind that most of us could never even conceive of doing” and that
he was “very successful in that aspect of [his] life.”
{¶17} The court then asked Ziska why he continued to download child pornography after
the FBI raided his home in 2009, to which Ziska replied, “I don’t know why I continued. I
really do think it was just that I didn’t think I did anything wrong.” The court then reminded
1
Ziska is currently serving a prison term in FCI Elkton, Federal Correctional Institution.
Ziska that when asked the same question at the initial sentencing hearing, Ziska replied that he
did not get caught. Thereafter, the following dialogue ensued:
Court: So even if I’m taking into consideration the idea that your development [is
that of] a 12 or 13-year old, coupled with your psychological
condition, meaning your [Asperger syndrome], having [Asperger
syndrome] doesn’t mean that you don’t know the difference
between right and wrong. Neither does being 12 or 13, so when I
asked you the question originally, you said, Judge, I just didn’t get
caught. * * * I mean, the doctors didn’t say that having [Asperger
syndrome] makes you a liar. Fair enough?
Ziska: Yes, ma’am.
Court: And again, having a mentality or an age reached socialization at the age of
12 or 13 doesn’t change the fact that even at that age, you were
aware that you’ve done something wrong, correct?
Ziska: Yes, ma’am.
{¶18} The trial court then heard from Ziska’s mother, who provided that Ziska had not
received the services he should have received during his developmental years in order to help
with socialization.
{¶19} The court noted that it considered all of the required factors under R.C. 2929.11,
2929.12, and 2929.13. The court found that Ziska is not amenable to community control
sanctions, and it imposed the same sentence it had imposed at the original sentencing.
{¶20} In light of the foregoing, we cannot clearly and convincingly find that the record
does not support the court’s findings that consecutive sentences are necessary to protect the
public from future crime or to punish Ziska and that consecutive sentences are not
disproportionate to the seriousness of his conduct and the danger he poses to the public.
{¶21} Child pornography is not a victimless crime. In fact, in this case, some of the
videos Ziska had downloaded or saved to his laptop computer contained children specifically
identified by the National Center for Missing and Exploited Children as children who had
previously been rescued by law enforcement. The record shows that Ziska’s computer laptop
likely contained in excess of 2,000 to 3,000 images of suspected child pornography, which
included 43 images of child pornography, 310 videos of suspected child pornography, and 26
movies with titles indicative of child pornography. And each time an image or video was
viewed, downloaded, or shared, the children were victimized all over again. Also, due to the
sheer quantity of files discovered on Ziska’s computers, the task force did not conduct a full
forensic examination.
{¶22} Moreover, Ziska’s involvement with child pornography spanned several years.
He was initially investigated by the FBI in 2009 and then again in 2012 by Ohio’s ICAC task
force. Despite being investigated by the FBI in 2009, the record demonstrates that Ziska
continued to view or download child pornography in the years that followed, using a different
file-sharing network in 2012. Arguably, Ziska changed the network after the FBI investigation
in order to avoid detection.
{¶23} Finally, despite having been diagnosed with Asperger syndrome, asserting that he
has the social behavior skills of a 12 or 13-year old child, and failing to receive treatment he
could conceivably have received as a child, the record shows that Ziska is intelligent, has had
academic success, and knows the difference between right and wrong. And when the court
asked Ziska why he continued to view child pornography following the FBI’s investigation in
2009, he initially advised the court that it was because he believed that he had not been caught.
For these reasons, Ziska’s consecutive sentence is not contrary to law.
{¶24} Under Bonnell, however, the trial court must also incorporate its consecutive
sentence findings into its sentencing entry. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, at syllabus. Our review of the record demonstrates that the trial court’s sentencing
entry does not include the consecutive sentence findings. The trial court’s omission is a
clerical mistake and may be corrected through a nunc pro tunc entry. Bonnell at ¶ 30.
{¶25} Ziska also contends that the trial court did not properly consider the statutory
sentencing factors. Specifically, he claims that his Asperger syndrome diagnosis constitutes a
significant mitigating factor, stating that he did not comprehend the nature of his conduct in 2009
until he was actually charged with a crime several years later. Ziska also claims that “several
factors * * * suggest that [he] is unlikely to reoffend,” stating that he has led a law-abiding life,
he can now be treated for his condition, and he will no longer have access to computers.
{¶26} A sentence is not clearly and convincingly contrary to law “where the trial court
considers the purposes and principles of sentencing under R.C. 2929.11 as well as the
seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease control,
and sentences a defendant within the permissible statutory range.” State v. A.H., 8th Dist.
Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10, citing State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.
{¶27} R.C. 2929.11(A) provides that those purposes “are to protect the public from future
crime by the offender and others and to punish the offender using the minimum sanctions that the
court determines accomplish those purposes without imposing an unnecessary burden on state or
local government resources.” The factors under R.C. 2929.12(A) include the seriousness of the
offender’s conduct, the likelihood of recidivism, and “any other factors that are relevant to
achieving those purposes and principles of sentencing.” Among these sentencing factors, the
court must consider the “more serious” factors, such as “[t]he 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” and “[t]he victim of the offense suffered
serious physical, psychological, or economic harm as a result of the offense.” R.C.
2929.12(B)(1) and (2). Additionally, the court must consider any mitigating factors listed in
R.C. 2929.12(C)-(F).
{¶28} Although the trial court has a mandatory duty to “consider” the statutory factors
under R.C. 2929.11 and 2929.12, the court is not required to engage in any factual findings under
R.C. 2929.11 or 2929.12. State v. Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52;
State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 17. “While trial courts
must carefully consider the statutes that apply to every felony case, it is not necessary for the trial
court to articulate its consideration of each individual factor as long as it is evident from the
record that the principles of sentencing were considered.” State v. Gonzalez, 8th Dist.
Cuyahoga No. 102579, 2015-Ohio-4765, ¶ 6, citing State v. Roberts, 8th Dist. Cuyahoga No.
89236, 2008-Ohio-1942, ¶ 10. This court has held that a trial court’s statement in its sentencing
entry that it considered the required statutory factors, without more, is sufficient to fulfill a
sentencing court’s obligations under R.C. 2929.11 and 2929.12. Gonzalez at ¶ 7.
{¶29} Here, our review of the record demonstrates that the trial court considered R.C.
2929.11 and 2929.12. The court reviewed the sentencing memorandum submitted by defense
counsel, the transcript of the original plea hearing and the original sentencing, statements from
Ziska and Ziska’s parents, letters of support from friends and family, and evidence of mitigation
submitted by Ziska, which included an evaluation from Dr. Jensen outlining Ziska’s mental
health condition.
{¶30} Additionally, the court heard statements from the following: the prosecutor, who
outlined the facts underlying the 140-count indictment involving thousands of files containing
child pornography; defense counsel, who urged the court to consider Ziska’s mental health
issues; and Ziska’s mother, who addressed the court regarding Ziska’s need for treatment. The
court also engaged in a colloquy with Ziska, during which the court inquired about Ziska’s
actions, his mental capacities, his Asperger syndrome diagnosis, and his ability to comprehend
the nature of his actions. Finally, prior to imposing sentence, the court stated in open court that
it considered all of the required statutory factors and found that Ziska was not amenable to
community control sanction. The court reiterated in its sentencing entry that it considered “all
required factors of law [and] finds that prison is consistent with the purpose of R.C. 2929.11.”
{¶31} To the extent that Ziska contends that the trial court failed to give enough weight to
the mitigation offered by Dr. Jensen’s report, or did not sufficiently consider the statutory factors,
his argument fails.
{¶32} In considering the relevant statutory factors, the sentencing court has the discretion
to weigh the particular statutory factors as it deems appropriate. State v. Pluhar, 8th Dist.
Cuyahoga No. 102012, 2015-Ohio-3344, ¶ 19; State v. Booker, 8th Dist. Cuyahoga No.
101886, 2015-Ohio-2515, ¶ 11, citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793(2000). The reviewing court therefore has “no jurisdiction to consider whether the court abused
its discretion in how it applied the purposes and principles of felony sentencing in R.C. 2929.11
and the sentencing factors in R.C. 2929.12.” Booker, citing State v. Smith, 8th Dist. Cuyahoga
No. 100206, 2014-Ohio-1520, ¶ 17; State v. Martinez, 8th Dist. Cuyahoga No. 101474,
2015-Ohio-1293, ¶ 30.
{¶33} In light of the foregoing, it is evident from the record that the trial court considered
the purposes and principles of sentencing, the seriousness and recidivism factors, and all relevant
sentencing factors prior to the imposition of sentence. In this regard, Ziska’s sentence is
therefore not clearly and convincingly contrary to law.
{¶34} Ziska’s sole assignment of error is overruled.
{¶35} Judgment affirmed. We remand to the trial court for the limited purpose of
incorporating, nunc pro tunc, the consecutive sentence findings made at sentencing into the
court’s entry. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30.
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.
____________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR