[Cite as State v. Rodano, 2019-Ohio-2117.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 107880 v. :
DALE RODANO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 30, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-590106-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.
Dale Rodano, pro se.
SEAN C. GALLAGHER, J.:
Dale Rodano appeals the denial of his motion for leave to file a
delayed motion for new trial. We affirm.
Rodano was convicted of aggravated arson and insurance fraud in
2014 — the state claimed Rodano set fire to his home in order to collect the insurance money. His appellate rights have been exhausted. State v. Rodano, 2017-Ohio-
1034, 86 N.E.3d 1032 (8th Dist.) (convictions affirmed); State v. Rodano, 8th Dist.
Cuyahoga No. 104176, 2017-Ohio-8221 (reopening denied); State v. Rodano, 151
Ohio St.3d 1527, 2018-Ohio-557, 91 N.E.3d 758 (discretionary appeal of direct
appeal not allowed). He is currently serving an aggregate, six-year term of
imprisonment.
In late 2018, Rodano filed a delayed motion for new trial under
Crim.R. 33. In that motion, Rodano claimed that a newly announced Supreme Court
decision, McCoy v. Louisiana, 584 U.S.___, 138 S.Ct. 1500, 1503, 200 L.Ed.2d 821
(2018), constituted “new evidence” or a new basis for relief that Rodano was
“unavoidably prevented” from obtaining an order to timely file a motion for a new
trial. The trial court disagreed and denied Rodano’s request without a hearing. This
timely appeal followed.
Although presented as multiple assigned errors, Rodano claims that
the trial court erred in denying him leave to file a motion for a new trial because the
intervening McCoy decision constituted a valid basis to seek a new trial. In McCoy,
the issue before the Court was whether it was unconstitutional to permit a
defendant’s counsel to concede guilt to the trier of fact over the defendant’s obstinate
and unambiguous objection. Never mind the inapplicability of McCoy to Rodano’s
circumstances — there is no factual argument that his counsel conceded Rodano’s
guilt to the jury at trial or at sentencing — the Criminal Rules do not provide the relief Rodano is requesting. Crim.R. 33 does not create an exception for delayed
motions for new trial based on newly announced court decisions.
Crim.R. 33 provides six reasons upon which an offender may seek a
new trial: (1) irregularity in the proceedings that deprives the defendant of a fair
trial; (2) misconduct of the jury, prosecutor, or a state’s witness; (3) accident or
surprise that ordinary prudence would not have guarded against; (4) verdict is not
sustained by sufficient evidence; (5) legal error during trial; or (6) new evidence
material to the defense is discovered that could not have been discovered with
reasonable diligence in time for trial. The motion must be filed within 14 days of the
verdict, unless the “defendant was unavoidably prevented from filing his motion for
a new trial, in which case the motion shall be filed within seven days from the order
of the court finding that the defendant was unavoidably prevented from filing such
motion within the time provided herein.” Crim.R. 33(B). Motions for a new trial on
account of newly discovered evidence must be filed within 120 days of the verdict,
also unless the defendant was unavoidably prevented from discovering the evidence.
Id. Thus, under the rule, a defendant who fails to timely file a motion for a new trial
must seek leave from the trial court to file a delayed motion for a new trial. State v.
Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 7, citing State v. Mathis,
134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999).
The trial court, in part upon the state’s urging, denied Rodano’s
motion by concluding that Rodano had not demonstrated that he was unavoidably
prevented from discovering the evidence upon which his claim for a new trial is based. The state also argues that Crim.R. 33(A) does not include newly announced
case decisions as a basis for a new trial. The latter argument is the stronger one.
Although the trial court’s determination differs from our following decision, in this
regard, we may affirm the decision of the court as long as it is legally correct. State
v. Bryan, 8th Dist. Cuyahoga No. 105774, 2018-Ohio-1190, ¶ 5, citing State v.
Gulley, 8th Dist. Cuyahoga No. 101527, 2015-Ohio-3582, ¶ 12, State v. Payton, 124
Ohio App.3d 552, 557, 706 N.E.2d 842 (12th Dist.1997), and Reynolds v. Budzik,
134 Ohio App.3d 844, 846, 732 N.E.2d 485 (6th Dist.1999), fn. 3.
Of the six bases for a new trial under Crim.R. 33(A), none
contemplates newly announced case decisions and the “authority to proceed under
Crim.R. 33 empowers a court to provide relief only under that rule.” State v.
Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 39. In his motion for leave,
Rodano cited Crim.R. 33(A)(1) and (6) as authority upon which his request was
based. Newly announced decisions are not “evidence” as contemplated under
Crim.R. 33(A)(6). State v. Ingram, 10th Dist. Franklin No. 08AP-937, 2009-Ohio-
2755.
Rodano also claims that his delayed motion for a new trial is based on
ineffective assistance of counsel, under Crim.R. 33(A)(1) because his trial counsel
refused to permit Rodano to testify at trial, and under McCoy, the Sixth Amendment
claim did not arise until after the Supreme Court issued its decision. Again, it is
noteworthy that Rodano always had the right to personally decide to testify in his
own behalf. State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 23, quoting Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d
565 (2004), and Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987
(1983). Further, that right could be secured through a claim of ineffective assistance
of counsel. See, e.g., State v. Driftmyer, 6th Dist. Ottawa No. OT-16-021, 2017-
Ohio-4016, ¶ 23 (defendant’s claim that counsel was ineffective for refusing to
permit the defendant to take the stand was considered but overruled based on the
facts of the case). McCoy did not create a new right as it pertains to Rodano’s
situation.
Nevertheless, Rodano relies on Bryan, 8th Dist. Cuyahoga No.
105774, 2018-Ohio-1190, in which it was concluded that a motion for leave to file a
motion for a new trial was properly denied because of the defendant’s five-year delay
in filing the motion after the release of a Supreme Court decision upon which the
motion rested. Id. at ¶ 8. According to Rodano, Bryan stands for the proposition
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[Cite as State v. Rodano, 2019-Ohio-2117.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 107880 v. :
DALE RODANO, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 30, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-590106-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.
Dale Rodano, pro se.
SEAN C. GALLAGHER, J.:
Dale Rodano appeals the denial of his motion for leave to file a
delayed motion for new trial. We affirm.
Rodano was convicted of aggravated arson and insurance fraud in
2014 — the state claimed Rodano set fire to his home in order to collect the insurance money. His appellate rights have been exhausted. State v. Rodano, 2017-Ohio-
1034, 86 N.E.3d 1032 (8th Dist.) (convictions affirmed); State v. Rodano, 8th Dist.
Cuyahoga No. 104176, 2017-Ohio-8221 (reopening denied); State v. Rodano, 151
Ohio St.3d 1527, 2018-Ohio-557, 91 N.E.3d 758 (discretionary appeal of direct
appeal not allowed). He is currently serving an aggregate, six-year term of
imprisonment.
In late 2018, Rodano filed a delayed motion for new trial under
Crim.R. 33. In that motion, Rodano claimed that a newly announced Supreme Court
decision, McCoy v. Louisiana, 584 U.S.___, 138 S.Ct. 1500, 1503, 200 L.Ed.2d 821
(2018), constituted “new evidence” or a new basis for relief that Rodano was
“unavoidably prevented” from obtaining an order to timely file a motion for a new
trial. The trial court disagreed and denied Rodano’s request without a hearing. This
timely appeal followed.
Although presented as multiple assigned errors, Rodano claims that
the trial court erred in denying him leave to file a motion for a new trial because the
intervening McCoy decision constituted a valid basis to seek a new trial. In McCoy,
the issue before the Court was whether it was unconstitutional to permit a
defendant’s counsel to concede guilt to the trier of fact over the defendant’s obstinate
and unambiguous objection. Never mind the inapplicability of McCoy to Rodano’s
circumstances — there is no factual argument that his counsel conceded Rodano’s
guilt to the jury at trial or at sentencing — the Criminal Rules do not provide the relief Rodano is requesting. Crim.R. 33 does not create an exception for delayed
motions for new trial based on newly announced court decisions.
Crim.R. 33 provides six reasons upon which an offender may seek a
new trial: (1) irregularity in the proceedings that deprives the defendant of a fair
trial; (2) misconduct of the jury, prosecutor, or a state’s witness; (3) accident or
surprise that ordinary prudence would not have guarded against; (4) verdict is not
sustained by sufficient evidence; (5) legal error during trial; or (6) new evidence
material to the defense is discovered that could not have been discovered with
reasonable diligence in time for trial. The motion must be filed within 14 days of the
verdict, unless the “defendant was unavoidably prevented from filing his motion for
a new trial, in which case the motion shall be filed within seven days from the order
of the court finding that the defendant was unavoidably prevented from filing such
motion within the time provided herein.” Crim.R. 33(B). Motions for a new trial on
account of newly discovered evidence must be filed within 120 days of the verdict,
also unless the defendant was unavoidably prevented from discovering the evidence.
Id. Thus, under the rule, a defendant who fails to timely file a motion for a new trial
must seek leave from the trial court to file a delayed motion for a new trial. State v.
Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 7, citing State v. Mathis,
134 Ohio App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999).
The trial court, in part upon the state’s urging, denied Rodano’s
motion by concluding that Rodano had not demonstrated that he was unavoidably
prevented from discovering the evidence upon which his claim for a new trial is based. The state also argues that Crim.R. 33(A) does not include newly announced
case decisions as a basis for a new trial. The latter argument is the stronger one.
Although the trial court’s determination differs from our following decision, in this
regard, we may affirm the decision of the court as long as it is legally correct. State
v. Bryan, 8th Dist. Cuyahoga No. 105774, 2018-Ohio-1190, ¶ 5, citing State v.
Gulley, 8th Dist. Cuyahoga No. 101527, 2015-Ohio-3582, ¶ 12, State v. Payton, 124
Ohio App.3d 552, 557, 706 N.E.2d 842 (12th Dist.1997), and Reynolds v. Budzik,
134 Ohio App.3d 844, 846, 732 N.E.2d 485 (6th Dist.1999), fn. 3.
Of the six bases for a new trial under Crim.R. 33(A), none
contemplates newly announced case decisions and the “authority to proceed under
Crim.R. 33 empowers a court to provide relief only under that rule.” State v.
Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 39. In his motion for leave,
Rodano cited Crim.R. 33(A)(1) and (6) as authority upon which his request was
based. Newly announced decisions are not “evidence” as contemplated under
Crim.R. 33(A)(6). State v. Ingram, 10th Dist. Franklin No. 08AP-937, 2009-Ohio-
2755.
Rodano also claims that his delayed motion for a new trial is based on
ineffective assistance of counsel, under Crim.R. 33(A)(1) because his trial counsel
refused to permit Rodano to testify at trial, and under McCoy, the Sixth Amendment
claim did not arise until after the Supreme Court issued its decision. Again, it is
noteworthy that Rodano always had the right to personally decide to testify in his
own behalf. State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 23, quoting Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d
565 (2004), and Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987
(1983). Further, that right could be secured through a claim of ineffective assistance
of counsel. See, e.g., State v. Driftmyer, 6th Dist. Ottawa No. OT-16-021, 2017-
Ohio-4016, ¶ 23 (defendant’s claim that counsel was ineffective for refusing to
permit the defendant to take the stand was considered but overruled based on the
facts of the case). McCoy did not create a new right as it pertains to Rodano’s
situation.
Nevertheless, Rodano relies on Bryan, 8th Dist. Cuyahoga No.
105774, 2018-Ohio-1190, in which it was concluded that a motion for leave to file a
motion for a new trial was properly denied because of the defendant’s five-year delay
in filing the motion after the release of a Supreme Court decision upon which the
motion rested. Id. at ¶ 8. According to Rodano, Bryan stands for the proposition
that a new constitutional claim is a valid basis upon which to base a motion for a
new trial. In Bryan, that argument was expressly ignored in light of the alternative
basis for affirming, namely, the delay in filing. Id. at ¶ 6 (“Although the state argues
that Bryan’s attempt to raise a new constitutional claim does not fall under any of
the grounds for a new trial and does not allow for a ‘new sentencing proceeding,’ we
need not reach these arguments herein.”). Bryan is not controlling, nor does it
provide any analysis in support of Rodano’s argument.
As the Tenth District addressed in Ingram, 10th Dist. Franklin No.
08AP-937, 2009-Ohio-2755, none of the grounds for a delayed motion for a new trial in Crim.R. 33(A) specifically refers to a newly announced Supreme Court
decision recognizing a new state or federal right. Id. at ¶ 15. According to Ingram,
the closest analog is Crim.R. 33(A)(5), discussing errors of law occurring at trial, but
that provision generally deals with rulings that are legally erroneous while the case
is pending. Id. A similar conclusion was recently reached in State v. Jackson, 2018-
Ohio-276, 105 N.E.3d 472, ¶ 17 (8th Dist.). In Jackson it was concluded that
“[i]ndeed, an error based on changes in the law that occurred after trial obviously
could not have occurred during trial” for the purposes of Crim.R. 33(A)(5). Id.
According to Jackson, the appropriate mechanism to assert claims based on newly
recognized federal or state rights that is recognized by the United States Supreme
Court fall under R.C. 2953.23(A)(1), but only if the requirements of the statute are
fulfilled.
In light of the fact that McCoy did not announce a new federal or state
right applicable to Rodano’s case, we need not address the implications of the
postconviction statute. Rodano has not demonstrated any error in the denial of his
motion for leave to file a motion for a new trial under Crim.R. 33. We affirm.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending is terminated. Case remanded to the trial court for
execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______________________________ SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and MICHELLE J. SHEEHAN, J., CONCUR