[Cite as State v. Cassano, 2013-Ohio-1888.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97228



                                      STATE OF OHIO

                                                            PLAINTIFF-APPELLEE

                                                    vs.

                                      ADAM CASSANO
                                                            DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-535072
                                   Application for Reopening
                                      Motion No. 460694

                RELEASE DATE:                 May 7, 2013
ATTORNEYS FOR APPELLANT

David L. Doughton
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: James M. Price
          Stephanie Heibertshausen
          John Wojton
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:

       {¶1} In State v. Cassano, Cuyahoga C.P. No. CR-535072, the applicant, Adam

Cassano, was found guilty following a bench trial of four counts of felonious assault, two

counts of aggravated robbery, and two counts of having a weapon while under disability.

This court affirmed that judgment in State v. Cassano, 8th Dist. No. 97228,

2012-Ohio-4047.

       {¶2} Cassano, through counsel, has filed with the clerk of this court an application

for reopening.    He asserts that he was denied the effective assistance of appellate

counsel in two alleged respects:    (1) his appellate counsel failed to properly preserve an

error on direct appeal; and (2) his appellate counsel failed to ensure that the case was

decided upon correct facts.

       {¶3} We deny the application for reopening.     As required by App.R. 26(B)(6), the

reasons for our denial follow.

       {¶4} Having reviewed the arguments set forth in the application for reopening in

light of the record, we hold that Cassano has failed to meet his burden to demonstrate that

“there is a genuine issue as to whether the applicant was deprived of the effective

assistance of counsel on appeal.”   App.R. 26(B)(5).

       {¶5} In State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, the

Supreme Court specified the proof required of an applicant as follows:

       the two-prong analysis found in Strickland v. Washington (1984), 466 U.S.
       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a
       defense request for reopening under App.R. 26(B)(5). [Applicant] must
       prove that his counsel were deficient for failing to raise the issues he now
       presents, as well as showing that had he presented those claims on appeal,
       there was a “reasonable probability” that he would have been successful.
       Thus [applicant] bears the burden of establishing that there was a “genuine
       issue” as to whether he has a “colorable claim” of ineffective assistance of
       counsel on appeal.

Id. at 25.   The applicant must demonstrate that counsel’s performance was deficient and

that the deficient performance prejudiced the defense. Strickland.

       {¶6} Cassano cannot show prejudice with regard to his argument that counsel was

ineffective for neglecting to separately argue the assignment of error concerning the

alleged insufficiency of the evidence.     This is because his appellate counsel did raise,

and properly argued, an alleged error that his convictions were against the manifest

weight of the evidence, which we addressed and overruled.

       {¶7} This court has repeatedly found that appellate counsel is not ineffective for

failing to challenge the sufficiency of evidence in the initial appeal if he or she raised, and

this court addressed and overruled, an alleged error that the convictions were against the

manifest weight of the evidence.           See, e.g., State v. Murphy, 8th Dist. No.

2012-Ohio-1186, ¶ 6.

       {¶8} In State v. Krzywkowski, 8th Dist. No. 80392, 2002-Ohio-4438, reopening

disallowed, 2003-Ohio-3209, this court ruled:

       “In determining that the judgment was not against the manifest weight of
       the evidence, this court was required to go beyond the question of law
       which a claim of insufficiency of the evidence would present and examine
       the broader issues of credibility, etc. Appellate counsel did not, therefore,
       violate any essential duty to applicant nor was applicant prejudiced by the
       absence of an assignment of error asserting insufficiency of the evidence.”
Id. at ¶ 16, quoting State v. Dines, 8th Dist. No. 57661, 1990 Ohio App. LEXIS 4748

(Nov. 1, 1990), reopening disallowed, Motion Nos. 43617, 42620, 42628, and 48243 at

*8 (May 26, 1994). Similarly, in State v. Peterson, 8th Dist. 88248, 2007-Ohio-1837, ¶

19, this court observed that although sufficiency and manifest weight are different legal

concepts, manifest weight may subsume sufficiency when conducting the analysis; i.e., a

finding that a conviction was supported by the manifest weight of the evidence

necessarily includes a finding of sufficiency.       State v. Logan, 8th Dist. No 88472,

2007-Ohio-2636, reopening disallowed, 2008-Ohio-1934. Cassano’s first ground fails

to establish a basis for reopening his appeal.

         {¶9} The second ground Cassano cites in support of reopening is that his appellate

attorney provided him ineffective assistance of counsel for allegedly failing to ensure that

his appeal was decided upon correct facts. Specifically, Cassano asserts that this court’s

opinion relies upon erroneous facts with regard to his alibi and who police spoke to at the

scene.

         {¶10} As stated, the first-prong of establishing an ineffective assistance of counsel

claim requires Cassano to prove that his appellate counsel’s performance was deficient.

         {¶11} The record reflects that appellate counsel moved the court to reconsider the

opinion that was released on July 5, 2012 due to alleged factual inaccuracies, among other

reasons. A separate motion was filed petitioning the court to allow additional oral

argument prior to reconsideration.
       {¶12} Appellate counsel also filed a notice of appeal with the Ohio Supreme

Court. The first proposition of law in Cassano’s memorandum in support of jurisdiction

asserted that his appeal was decided upon the same “erroneous facts” as are being alleged

in this application for reopening.   The Ohio Supreme Court declined to accept Cassano’s

appeal.

       {¶13} The state filed its own motion for reconsideration with this court to correct

alleged inaccuracies in the July 5, 2012 opinion. We granted the state of Ohio’s motion

for reconsideration and a new opinion was issued on September 6, 2012, which reflected

that police spoke to an unidentified male at the scene.            Cassano’s motion for

reconsideration was denied as moot.

       {¶14} Appellate counsel then filed a motion to reconsider this court’s opinion that

was released on September 6, 2012 and the court’s entry of September 10, 2012 (which

had denied his initial motion to reconsider as moot). In that motion, appellate counsel

argued that the opinion contained “misstated facts,” including those identified in the

instant application to reopen.   The motion for reconsideration was denied.

       {¶15} On October 18, 2012, appellate counsel filed another motion for

reconsideration and-or hearing en banc, which was denied.

       {¶16} Cassano does not contend that his appellate counsel misstated any facts to

this court in briefing or at oral argument. Appellate counsel moved the court to reconsider

and this court did release a new opinion with modifications. To the extent this court did

not make all of the modifications that were requested is not grounds for an ineffective
assistance of counsel claim. Based on this record, appellate counsel made numerous

efforts to have the contents of this court’s opinion reconsidered and modified and

Cassano has not identified how counsel’s performance was deficient. Further, we did

grant reconsideration and recognized that no one specifically identified Cassano as the

person who police spoke to at the scene. Upon reconsideration, this court still affirmed

Cassano’s convictions based on the record evidence. Accordingly, Cassano has not

established any reasonable probability that further reconsideration and modification of the

opinion would have changed the result.

       {¶17} Cassano has not met the standard for reopening under either prong of the

Strickland test.   Accordingly, the application for reopening is denied.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
KENNETH A. ROCCO J., CONCUR
