STATE OF OHIO v. PAUL LIUZZO
No. 99545
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 9, 2014
2014-Ohio-3030
JOURNAL ENTRY AND OPINION; 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
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
{¶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
{¶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
{¶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.
{¶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
{¶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-1, 922 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
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
{¶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
{¶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 (
{¶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
{¶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
{¶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
{¶15} However, unlike federal law (i.e.,
{¶16} The final proposed assignment of error relates to the former version of
{¶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
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