Court of Appeals of Ohio, Seventh District, Mahoning
Criminal Appeal from the Court of Common Pleas of Mahoning
County, Ohio Case No. 2015 CR 462
Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M.
Rivera, Assistant Prosecuting Attorney, for
Wesley A. Johnston, for Defendant-Appellant.
Cheryl L. Waite, Carol Ann Robb, David A. D'Apolito,
OPINION AND JUDGMENT ENTRY
Appellant Mark Lucicosky appeals a January 14, 2019 Mahoning
County Common Pleas Court resentencing entry. Appellant
argues that the trial court improperly found his actions were
part of a course of conduct. For the reasons provided within
State v. Lucicosky, 2017-Ohio-2960, 91 N.E.3d 152
(7th Dist.) ("Lucicosky I "),
Appellant's arguments are without merit and the judgment
of the trial court is affirmed.
and Procedural History
On May 14, 2015, Appellant was indicted on two counts of
pandering obscenity involving a minor, a felony of the second
degree in violation of R.C. 2907.321(A)(2), (C), and fifteen
counts of pandering obscenity involving a minor, a felony of
the fourth degree in violation of R.C. 2907.321(A)(5), (C).
On March 18, 2016, Appellant pleaded guilty to the following
charges, as amended pursuant to a plea agreement: one count
of pandering involving obscenity involving a minor, a felony
of the third degree in violation of R.C. 2907.321 (A)(2),
(C), and fourteen counts of pandering involving a minor, a
felony of the fourth degree in violation of R.C.
2907.321(A)(5), (C). One count of pandering in violation of
R.C. 2907.321(A)(2), (C) was dismissed.
On July 26, 2016, the trial court sentenced Appellant to an
aggregate total of eight years of incarceration. On appeal,
we affirmed Appellant's convictions, however, we reversed
his sentence in part because the trial court failed to
properly impose consecutive sentences pursuant to R.C.
2929.14(C)(4). Lucicosky I at ¶ 20. We
specifically determined that although the trial court
correctly found Appellant's actions were committed as
part of a course of conduct, it failed to make the remaining
findings. On December 11, 2017, the trial court resentenced
Appellant to the same eight-year sentence. Appellant
appealed, again arguing that the trial court failed to
properly make the R.C. 2929.14(C)(4) findings.
In this second appeal, we reversed Appellant's sentence
and remanded the matter. Our remand was for the limited
purpose of determining whether consecutive sentences were
warranted. State v. Lucicosky, 7th Dist. Mahoning
No. 17 MA 0141, 2018-Ohio-4563 ("Lucicosky
II"). We concluded that the trial court's
findings that Appellant was on bond at the time he committed
the offense and that he had a history of criminal conduct
were not supported by the record. On January 14, 2019, the
trial court again resentenced Appellant to an eight-year
incarceration term. It is from this entry that Appellant
THE COURT COMMITTED AN ERROR WHEN SENTENCING APPELLANT TO
CONSECUTIVE SENTENCES, TOTALING 8 YEARS.
Appellant now argues that the trial court's finding that
he committed the offense as a part of a course of conduct is
not supported by the record. Appellant argues that the record
is not clear whether all of the images that are the subject
of his charges were downloaded as a result of a single click
of a computer key or whether they were downloaded one at a
time. In the event that Appellant downloaded all the files
with a single click, he argues that all of his ...