[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