The opinion
[Cite as State v. Massimiani, 2026-Ohio-1056.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114755
v. :
BRIAN D. MASSIMIANI, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: March 24, 2026
Cuyahoga County Court of Common Pleas
Case No. CR-24-690976-A
Application for Reopening
Motion No. 591604
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Michael R. Wajda, Assistant Prosecuting
Attorney, for appellee.
Brian Massimiani, pro se.
ANITA LASTER MAYS, J.:
Brian Massimiani (“Massimiani”), pro se, has filed an application for
reopening pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60
(1991), based on claims of ineffective assistance of appellate counsel. Massimiani is
attempting to reopen the appellate judgment rendered in State v. Massimiani,
2025-Ohio-5137 (8th Dist.), in which this court reversed and remanded to the trial
court for resentencing on the imposition of postrelease control.
For the reasons that follow, we deny Massimiani’s application to
reopen the appeal.
I. Procedural History
Massimiani pleaded guilty to an amended indictment of two counts
of domestic violence, fourth-degree felonies, in violation of R.C. 2919.25(A); two
counts of domestic violence, second-degree misdemeanors, in violation of
R.C. 2919.25(C); two counts of aggravated menacing, first-degree misdemeanors, in
violation of R.C. 2903.21(A); one count of menacing by stalking, a fourth-degree
felony, in violation of R.C. 2903.211(A)(1); one count of menacing by stalking, a
fourth-degree felony, in violation of R.C. 2903.211(A)(2)(a); and one count of
telecommunications harassment, a first-degree misdemeanor, in violation of
R.C. 2917.21(A)(3).
At the plea hearing, the trial court reviewed the potential penalties
associated with a guilty plea. The trial court then stated in part:
I do want to further break this down for you, Mr. Massimiani. Before I
do that, I will advise you about post-release control. If you decide to
accept this plea agreement and you are sent to prison, the parole board
may monitor you after you are released from prison for up to two years.
Again, it is up to the discretion of the parole board, not this Court. It’s
not mandatory PRC at that felony four level.
Tr. 12-13.
Massimiani pleaded guilty, and the trial court stated again, in part,
that “[a]s these are all felony 4s or lower if you are sent to prison, the parole board
may monitor you up to two years, again, that’s the parole board’s decision. They
may monitor you after release from prison, that’s up to the parole board and not this
Court.” Tr. 28. At the sentencing hearing, the trial court stated in part:
I do need to advise you finally about post-release control. Given that
you are being sent to prison this morning, the Parole Board may
monitor you after you are released from prison for up to two years at
the discretion of the Parole Board. Again, that’s at their discretion, not
to this Court.
Tr. 56.
The trial court sentenced Massimiani to four years in prison. After
further dialogue between the State and defense counsel, Massimiani was given
credit for time served, 56 days. Massimiani filed this appeal, assigning one error for
our review: The trial court improperly imposed postrelease control.
On November 13, 2025, this court sustained Massimiani’s assignment
of error and reversed for a limited remanded to the trial court for resentencing on
the imposition of postrelease control. Massimiani, 2025-Ohio-5137, at ¶ 1 (8th
Dist.).
On January 20, 2026, Massimiani filed a timely application to reopen
his appeal pursuant to App.R. 26(B). Massimiani asserts that he was denied the
effective assistance of appellate counsel because appellate counsel failed to raise the
following proposed assignments of error on appeal:
The trial court committed plain error in failing to conduct an analysis
as to whether the multiple, undifferentiated counts of domestic
violence and menacing by stalking were allied offenses of similar
import, instead simply sentencing appellant to consecutive sentences
therefore, in violation of the due process clause of the Fifth and
Fourteenth Amendments to the United States Constitution.
On February 19, 2026, the State opposed the application, arguing that
Massimiani fails to raise a colorable claim of ineffective assistance of appellate
counsel because his convictions are not for allied offenses of similar import.
II. Law and Analysis
A. Standard of Review
Under App.R. 26(B), a defendant in a criminal case may apply to
reopen his or her appeal from the judgment of conviction and sentence based on a
claim of ineffective assistance of appellate counsel. The application must be filed
within 90 days from journalization of the appellate judgment unless the applicant
shows good cause for filing at a later time. App.R. 26(B)(1).
Claims of ineffective assistance of appellate counsel are evaluated
under the same standard applied to claims of ineffective assistance of trial counsel
announced in Strickland v. Washington, 466 U.S. 668 (1984). State v. Leyh, 2022-
Ohio-292, ¶ 17. Under this standard, “an applicant must show that (1) appellate
counsel’s performance was objectively unreasonable, [Strickland] at 687, and
(2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different,’ [Strickland] at 694.” Leyh
at ¶ 18. When reviewing counsel’s performance, this court must be highly
deferential and “must indulge a strong presumption that counsel’s conduct [fell]
within the wide range of reasonable professional assistance.” Strickland at 689. To
establish resulting prejudice, a defendant must show that the outcome of the
proceedings would have been different but for counsel’s deficient performance. Id.
at 687.
App.R. 26(B) establishes a two-stage procedure for adjudicating
claims of ineffective assistance of appellate counsel. Leyh at ¶ 19. An applicant must
first make a threshold showing that appellate counsel was ineffective. Id. at ¶ 19, 35.
An application for reopening “‘shall be granted if there is a genuine issue as to
whether the applicant was deprived of the effective assistance of counsel on appeal.’”
Id. at ¶ 21, quoting App.R. 26(B)(5). “The burden is on the applicant to demonstrate
a ‘genuine issue’ as to whether there is a ‘colorable claim’ of ineffective assistance of
appellate counsel.” Id., citing State v. Spivey, 84 Ohio St.3d 24, 25 (1998).
“[A]ppellate counsel need not raise every possible issue in order to render
constitutionally effective assistance.” State v. Tenace, 2006-Ohio-2987, ¶ 7, citing
Jones v. Barnes, 463 U.S. 745, 751 (1983), and State v. Sanders, 2002-Ohio-350.
If the applicant makes the required threshold showing,
demonstrating that “there is at least a genuine issue — that is, legitimate grounds —
to support the claim that the applicant was deprived of the effective assistance of
counsel on appeal[,]” then the application shall be granted and the appeal reopened.
Leyh at ¶ 25, citing App.R. 26(B)(5). The matter then “proceeds to the second stage
of the procedure, which ‘involves filing appellate briefs and supporting materials
with the assistance of new counsel, in order to establish that prejudicial errors were
made in the trial court and that ineffective assistance of appellate counsel in the
prior appellate proceedings prevented these errors from being presented effectively
to the court of appeals.’” Leyh at ¶ 22, quoting 1993 Staff Notes to App.R. 26(B).
With the foregoing standards in mind, we address Massimiani’s
proposed assignment of error.
B. Allied Offenses of Similar Import
In Massimiani’s proposed assignment of error, he argues appellate
counsel was ineffective for failing to conduct an analysis as to whether the multiple,
undifferentiated counts of domestic violence and menacing by stalking were allied
offenses of similar import.
“The allied offenses statute, R.C. 2941.25, codifies Ohio’s double
jeopardy protections regarding when multiple punishments may be imposed.” State
v. Yafear, 2021-Ohio-317, ¶ 10 (8th Dist.), citing State v. Ruff, 2015-Ohio-995, ¶ 12.
Under [R.C. 2941.25], where the same conduct by a defendant can be
construed to constitute two or more allied offenses of similar import,
the indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one offense. A defendant
charged with multiple offenses may be convicted of all the offenses,
however, if (1) the defendant’s conduct constitutes offenses of
dissimilar import; i.e., each offense caused separate, identifiable harm;
(2) the offenses were committed separately; or (3) the offenses were
committed with separate animus or motivation.
Id., citing R.C. 2941.25(B); Ruff at ¶ 14. “Thus, to determine whether offenses are
allied, courts must consider the defendant’s conduct, the animus, and the import.”
Id. at paragraph one of the syllabus.
“Where a defendant fails to raise the issue of allied offenses in the trial
court, he forfeits all but plain error review on appeal.” Yafear at ¶ 11, citing State v.
Rogers, 2015-Ohio-2459, ¶ 3. “Under the plain error standard, an error is not
reversible unless it affected the outcome of the proceeding and reversal is necessary
to correct a manifest miscarriage of justice.” Id., citing id.; see also Crim.R. 52. If
we apply the plain error standard to an allied offenses argument, the “‘accused has
the burden to demonstrate a reasonable probability that the convictions are allied
offenses of similar import committed with the same conduct and without a separate
animus’ or import.” Id., quoting id. “The defendant must meet this burden before
a reviewing court may reverse for plain error.” Id.
Massimiani’s arguments are misplaced. The trial court discussed
whether Massimiani’s offenses were allied offenses at the plea hearing. The trial
court stated: “I do note that it’s the Court’s understanding that the dates of offenses
alleged are on different dates, and accordingly, I believe those offenses would not
merge for purposes of sentencing.” Tr. 11. Again, the court stated later at the plea
hearing:
The Court notes that as alleged the dates of these offenses appear to
have occurred on different dates, at least as to, for example, counts one
and two, which leads me to believe that for the purposes of sentencing,
if convicted on counts one and two, strangulation of the third degree,
those counts would not, in fact, merge, which mean you may be facing,
just so you are aware, just on counts one and two alone, a total of six
years in prison. That’s not including counts 3 through 13.
Tr. 15-16.
In Massimiani’s application he does not argue that his offenses were
allied offenses, but rather the trial court did not make the findings, and his appellate
counsel did not raise the error at his appeal. However, the trial court did make a
finding that the offenses were not allied offenses. Massimiani pleaded guilty to two
counts of domestic violence that took place on March 9 and 15, 2024; two counts of
aggravated menacing, that took place on March 15 and 18, 2024; two counts of
menacing by stalking, in violation of R.C. 2903.211(A)(1) and
R.C. 2903.211(A)(2)(a), that took place from March 23 to April 5, 2024; and one
count of telecommunications harassment, that took place from March 23 through
26, 2024.
Massimiani’s menacing-by-stalking offenses addressed two separate
conducts. The first was committed when Massimiani caused the victim to believe
through death-threat letters and electronic posts that he would cause physical harm
to the victim and her family. The second was committed when Massimiani
threatened the victim through telephone calls. The offenses were committed
separately. Thus, they are not allied offenses.
“It is generally within the prerogative of appellate counsel to focus on
certain issues while winnowing out those that are less meritorious.” State v. Cobb,
2019-Ohio-2320, ¶ 13 (8th Dist.), citing State v. Barrow, 2015-Ohio-4579, ¶ 7 (8th
Dist.). “‘Appellate counsel is not necessarily ineffective for failing to raise a claim of
error and has no constitutional duty to raise every conceivable assignment of error
on appeal.’” Id., quoting State v. Kaszas, 1998 Ohio App. LEXIS 4227 (8th Dist.
Sept. 10, 1998), reopening disallowed, 2000 Ohio App. LEXIS 3755, 7-8 (Aug. 14,
2000), citing Jones v. Barnes, 463 U.S. 745 (1983); State v. Gumm, 73 Ohio St.3d
413, 428 (1995).
Based on the foregoing, we find the generalized claims in
Massimiani’s proposed assignment of error cannot form the basis for a reopening of
the original appeal. Massimiani has not presented a colorable claim of ineffective
assistance of appellate counsel.
The application for reopening is denied.
ANITA LASTER MAYS, JUDGE
MICHELLE J. SHEEHAN, A.J., and
MICHAEL JOHN RYAN, J., CONCUR