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State v. Lucicosky

Court of Appeals of Ohio, Seventh District, Mahoning

December 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
MARK LUCICOSKY, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2015 CR 462

          Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, for Plaintiff-Appellee

          Atty. Wesley A. Johnston, for Defendant-Appellant.

          BEFORE Cheryl L. Waite, Carol Ann Robb, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          WAITE, P.J.

         {¶1} 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.

         Factual and Procedural History

         {¶2} 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).

         {¶3} 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.

         {¶4} 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.

         {¶5} 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 timely appeals.

         ASSIGNMENT OF ERROR

THE COURT COMMITTED AN ERROR WHEN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES, TOTALING 8 YEARS.

         {¶6} 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 ...


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