The Akron Legal News

Appeal denied for man who continued to download child porn after FBI raid

ANNIE YAMSON
Special to the Legal News
Published: February 22, 2016

In the 8th District Court of Appeals, three empaneled judges recently affirmed a Cleveland man’s 11-year prison sentence for child pornography crimes.

Patrick Ziska appealed from the judgment of the Cuyahoga County Court of Common Pleas which resentenced him following a remand on Feb. 25, 2015.

Ziska was charged in 2012 via a 140-count indictment that included counts of pandering sexually oriented matter involving a minor and possession of criminal tools.

In 2013, he withdrew his original not guilty plea and pleaded guilty to 101 counts of the indictment.

The trial court’s original 11-year sentence was vacated for its failure to make the proper findings and the case was remanded; the same 11-year sentence was imposed at a new sentencing.

“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,” Judge Tim McCormack wrote in the opinion he authored on behalf of the court of appeals.

Upon review, the appellate panel held that the trial court made the requisite consecutive sentence findings.

According to a transcript of the resentencing, the trial court told Ziska that consecutive sentences were necessary to protect the public from future crime and that the harm caused by his conduct was so great that a single prison term would not adequately reflect the seriousness of his crimes.

It also noted that Ziska’s crimes were part of an ongoing course of conduct for several years according to FBI and Internet Crimes Against Children task force investigations.

The record showed that, prior to making its findings, the trial court considered a memorandum from the defense, the transcript of the original plea hearing, letters of support from Ziska’s family and community and mitigation materials submitted by Ziska’s doctor.

But Ziska did not argue that the trial court failed to make the proper findings. According to him, the record did not support the conclusions that the trial court made.

The appellate panel found otherwise, referencing the prosecutor’s outline of the underlying facts of the case.

According to that statement, an ICAC task force investigation in 2012 revealed that Ziska had been investigated by the FBI in 2009 though he was never charged. A subsequent search warrant revealed hundreds of videos of child pornography on Ziska’s computer.

Then, a partial forensic examination revealed an estimated 2,000 to 3,000 files of suspected child pornography on Ziska’s device.

“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,” McCormack wrote.

In mitigation, the defense presented evidence that Ziska had been diagnosed with Asperger syndrome and that he had the social development of a 12 or 13-year old.

The trial court, when it engaged Ziska in a colloquy, later stated that “having Asperger syndrome doesn’t mean that you don’t know the difference between right and wrong.”

It also noted that, at the original sentencing hearing, when asked why he continued to download child pornography after the FBI raided his home in 2009, Ziska answered, “I didn’t get caught.”

“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,” McCormack wrote.

The appellate panel made note that child pornography is not a victimless crime, specifically citing the children that were rescued by law enforcement and the videos of whom Ziska continued to watch and share over a file-sharing network.

“Each time an image or video was viewed, downloaded or shared the children were victimized all over again,” McCormack wrote.

Despite his Asperger diagnosis and stunted social development, the court of appeals held that Ziska is very intelligent and has had academic success, indicating that he would know right from wrong.

The reviewing court concluded that Ziska’s arguments failed on appeal and it affirmed the judgment of the trial court.

“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,” McCormack wrote. “In this regard, Ziska’s sentence is therefore not clearly and convincingly contrary to law.”

Presiding Judge Eileen A. Gallagher and Judge Mary Eileen Kilbane joined McCormack to form the majority.

The case is cited State v. Ziska, 2016-Ohio-390.

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