[Cite as State v. Rodano, 2017-Ohio-8221.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104176



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       DALE RODANO
                                                      DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-14-590106-A
                                  Application for Reopening
                                     Motion No. 506813

        RELEASE DATE:              October 17, 2017
FOR APPELLANT

Dale Rodano, pro se
Inmate No. A681407
Richland Correctional Institution
1001 Olivesburg Road
P.O. Box 8107
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Mary M. Dyczek
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
TIM McCORMACK, P.J.:

       {¶1} On May 3, 2017, the applicant, Dale Rodano, pursuant to App.R. 26(B),

applied to reopen this court’s judgment in State v. Rodano, 8th Dist. Cuyahoga No.

104176, 2017-Ohio-1034, in which this court affirmed Rodano’s convictions for three

counts of aggravated arson and one count of insurance fraud.       Rodano asserts that his

appellate counsel should have argued (1) that his trial counsel was ineffective for failing

to pursue a motion to dismiss the indictments because they were obtained through false

evidence in violation of his constitutional rights, and (2) that his rights under the

Confrontation Clause were violated. The state of Ohio filed its brief in opposition on

June 2, 2017, and Rodano filed a reply brief on June 14, 2017. For the following

reasons, this court denies the application.

       {¶2} In November 2013, five weeks after Rodano had obtained fire insurance on

his house, a fire erupted in the house around 2:00 p.m. Rodano claimed the fire started

when a pet knocked over a candle on a living room table.     Initially, Joanna Lambert, the

investigating agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”), opined in her report that the fire was incendiary.       The state fire marshall

investigated the fire and reached the same conclusion.     In October 2014, the grand jury

indicted Rodano on four counts of aggravated arson and one count of insurance fraud.

       {¶3} While preparing for trial, the ATF agent reviewed her report and the evidence

and revised her conclusion from incendiary to undetermined.     She had originally thought
that the fire started outside on the porch, but then concluded that the fire could have

started with a candle by a couch.      The location of the remains of the candle was not

documented. She did not know whether the candle was within the footprint of the couch

or outside of it, which would have been strong evidence of arson or accident.            Faced

with this uncertainty, she opined the cause as undetermined.

       {¶4} At trial, Rodano’s brother, his ex-girlfriend, and an estranged friend testified

that Rodano had made incriminating statements about torching his home to obtain the

insurance money. The ATF agent testified at length about her report.             The state fire

marshall did not testify, and the trial judge granted defense counsel’s motion in limine

concerning the fire marshall’s report. The jury found Rodano guilty of three counts of

aggravated arson and one count of insurance fraud.1 The judge imposed a six-year

sentence.

       {¶5} In order to establish a claim of ineffective assistance of appellate counsel, the

applicant must demonstrate that counsel’s performance was deficient and that the

deficient performance prejudiced the defense.       Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

       {¶6} In Strickland, the United States Supreme Court ruled that judicial scrutiny of

an attorney’s work must be highly deferential. The court noted that it is all too tempting


       1The  state dismissed the fourth count of aggravated arson because it did not proffer any
evidence regarding the purported victim.
for a defendant to second-guess his lawyer after conviction and that it would be all too

easy for a court, examining an unsuccessful defense in hindsight, to conclude that a

particular act or omission was deficient.     Therefore, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland at 689.

       {¶7} Specifically, in regard to claims of ineffective assistance of appellate counsel,

the United States Supreme Court has upheld the appellate advocate’s prerogative to

decide strategy and tactics by selecting what he thinks are the most promising arguments

out of all possible contentions.    The court noted: “Experienced advocates since time

beyond memory have emphasized the importance of winnowing out weaker arguments on

appeal and focusing on one central issue if possible, or at most on a few key issues.”

Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Indeed, including weaker arguments might lessen the impact of the stronger ones.

Accordingly, the court ruled that judges should not second-guess reasonable professional

judgments and impose on appellate counsel the duty to raise every “colorable” issue.

Such rules would disserve the goal of vigorous and effective advocacy.        The Supreme

Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172,

1996-Ohio-366, 672 N.E.2d 638.
       {¶8} Moreover, even if a petitioner establishes that an error by his lawyer was

professionally unreasonable under all the circumstances of the case, the petitioner must

further establish prejudice: but for the unreasonable error there is a reasonable probability

that the results of the proceeding would have been different.    A reasonable probability is

a probability sufficient to undermine confidence in the outcome.         A court need not

determine whether counsel’s performance was deficient before examining prejudice

suffered by the defendant as a result of alleged deficiencies.

       {¶9} Rodano’s first argument is that he was indicted on materially false evidence,

that the fire was incendiary.   He argues that when the ATF agent revised her report to

conclude that the origin was undetermined, the foundation of the indictment was so

undermined that it was no longer reliable and should have been dismissed.

       {¶10} Rodano’s appellate counsel did raise the issue, but raised it through the

lens of Rodano’s right to be indicted by an independent and unbiased grand jury. The

gravamen of appellate counsel’s argument was that the

       grand jurors were most certainly predisposed to indict after hearing that the
       state founded its case on the expert opinion of the ATF Agent Lambert that
       the cause of the * * * fire was “incendiary” * * *. Thus, it is clear that the
       improper information “substantially influenced the * * * grand jury’s
       decision to indict.” Bank of Nova Scotia, 487 U.S. at 256. [487 U.S. 250,
       108 S.Ct. 2269, 101 L.Ed.2d 228 (1988)] * * * Allowing the indictment to
       stand under these circumstances mocks the entire grand jury process and
       would render the Fifth Amendment’s Grand Jury clause a nullity.
       Accordingly, the Court should find that Appellant’s convictions must be
       vacated and the * * * indictment dismissed without prejudice.

Appellant’s br. 24-25.
       {¶11} Rodano now argues that his appellate counsel bungled the argument by

narrowing its focus too much. He should have argued it through the lens of ineffective

assistance of trial counsel for not pursuing a motion to dismiss.2 Appellate counsel’s

particular argument, Rodano implies, allowed this court to skirt around the issue, employ

plain error analysis, and deny the assignment of error.

       {¶12} However, that is not what the court ruled.           The court acknowledged that the

grand jury did not have, could not have had, the benefit of the ATF agent’s revised report.

 Nevertheless,

       the prosecution’s evidence was tested at trial, not in the grand jury
       proceeding. * * * At trial, Agent Lambert testified at great length before the
       jury regarding her change of opinion regarding the cause of the fire from
       “incendiary” to “undetermined.” Based on the record before us, we do not
       find the grand jury proceeding in this case fundamentally unfair resulting in
       prejudice to the defendant. There is no reversible error, plain or otherwise,
       regarding the grand jury proceeding.

Rodano, 8th Dist. Cuyahoga No. 104176, 2017-Ohio-1034, at ¶ 28.

       {¶13} Thus, Rodano has not established prejudice.                  The court examined the

irregularity and determined there was no error.            Reframing the issue would not have

made a difference. Moreover, this court will follow the Supreme Court’s admonition

and not second-guess counsel’s decisions in strategy and tactics.

       {¶14} Rodano’s other argument is that he was deprived of his right to confront the

state fire marshall whose report opined that the fire was incendiary.             However, the state


       2Rodano’s  first trial counsel did file such a motion to dismiss, but the replacement counsel did
not renew the motion or otherwise pursue it.
fire marshall did not testify. The report was not introduced into evidence, and the court

granted the motion in limine regarding the report.        The only reference to the fire

marshall was the estranged friend’s testimony that he told the fire marshall that Rodano

mentioned a scenario that a Christmas tree could conveniently fall over and knock a

candle over to collect the insurance. (Tr. 261-265.)   This is the friend’s testimony, and

he was subject to cross-examination.      The reference to the fire marshall does not

implicate the Confrontation Clause, and appellate counsel was not ineffective for not

raising the argument.

      {¶15} The court denies the application to reopen.




TIM McCORMACK, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
