Fanaro v. Warden Hocking Correctional Facility

Filing 94

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Carl Fanaro. It is RECOMMENDED that the petition for a writ of habeas corpus be DISMISSED. Objections to R&R due by 12/9/2013. Signed by Magistrate Judge Norah McCann King on 11/22/13. (jcw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CARL FANARO,
Petitioner,
Case No. 2:10-CV-1002
Judge Frost
Magistrate Judge King

v.

FRANCISCO PINEDA, WARDEN,
Respondent.

ORDER AND
REPORT AND RECOMMENDATION

Petitioner

filed

this

petition

for

a

writ

of

habeas

corpus

pursuant to 28 U.S.C. § 2254. Petition, Doc. No. 1. The Petition
alleged

that

Petitioner

is

in

the

custody

of

the

Respondent

in

violation of the Constitution of the United States on the following
grounds: 1) he was denied the effective assistance of trial counsel
because his attorney rejected the State’s initial plea offer, which
would have required a four year term of incarceration, without first
consulting with Petitioner regarding the evidence against him or the
benefits and risks of accepting or rejecting the offer; 2) he was
denied the effective assistance of trial counsel because his attorney
rejected the State’s subsequent offer, which would have required pleas
of guilty to two counts for each victim and restitution, without first
consulting with Petitioner and without counseling Petitioner about the
strength of the case against him or about the risks of proceeding to
trial; 3) he was denied the effective assistance of trial counsel
because

his

attorney

failed

to

counsel
1 

Petitioner

regarding

the

advisability of accepting or rejecting the plea offers; 4) he was
denied

the

effective

assistance

of

appellate

counsel

because

his

attorney (who was not his trial attorney) failed to notify the Ohio
Court of Appeals of the pendency in the Ohio Supreme Court of a case
involving Ohio’s statute regarding allied offenses of similar import;
5) his sentence violated the Double Jeopardy Clause and; 6) he was
sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Blakely v. Washington, 542 U.S. 296 (2004).
On

May

ineffective
that

he

21,

2012,

assistance

was

denied

the
of

Court

trial

effective

dismissed

counsel

Petitioner’s

except

assistance

of

claims

“Petitioner’s
counsel

of

claim

because

his

attorney failed to properly advise him on whether or not he should
proceed to trial and of the potential sentencing ramifications that he
faced should he do so.”

Opinion and Order, Doc. No. 40.

As to that

claim, the Court directed that an evidentiary hearing be held.

Id.

Consideration

was

of

Petitioner’s

remaining

deferred pending the evidentiary hearing.

habeas

corpus

claims

Id. The evidentiary hearing

was held and the parties have submitted post-hearing memoranda.1 For
the reasons that follow, it is RECOMMENDED that the petition for a
writ of habeas corpus be DISMISSED.
I.

Facts and Procedural History
The facts and procedural history of this case have previously

been recounted in detail, Report and Recommendation, Doc. No. 28, and
will

only

be

summarized

here.

This

case

involves

Petitioner’s

1

 On Petitioner’s motion, Doc. No. 82, to which Respondent has made partial
objection, see Doc. No. 83, Petitioner’s Exhibits 1-7, 9, 10A, 10B, 12A, 12B,
13-15, 17 and 19 are ADMITTED into the record.

2 

convictions after a jury trial in the Licking County Court of Common
Pleas on 99 counts involving the sale of unregistered securities, sale
of securities without a license, fraudulent practices in the sale of
securities,

false

representation

in

the

engaging in a pattern of corrupt activity.2

sale

of

securities,

and

Petitioner was sentenced

to an aggregate prison term of 19 years plus restitution. On February
21,

2008,

the

Petitioner’s

Ohio

Fifth

convictions

District

and

Court

sentence.

of

State

Appeals
v.

affirmed

Fanaro,

No.

2006CA00168, 2008 WL 555448, at *5-6 (Ohio App. 5th Dist. Feb. 21,
2008).

On

August

6,

2008,

Petitioner’s subsequent appeal.

the

Ohio

Supreme

Court

dismissed

State v. Fanaro, 119 Ohio St.3d 1409

(Ohio 2008).
Petitioner

thereafter

pursued

post-conviction

relief;

however,

the state trial court denied the petition without a hearing.
December 4, 2009, the appellate court affirmed that judgment.

On
State

v. Fanaro, No. 2009CA00066, 2009 WL 4690421, at *1-2 (Ohio App. 5th
Dec. 4, 2009).

On March 24, 2010, the Ohio Supreme Court dismissed

Petitioner's subsequent appeal.

State v. Fanaro, 124 Ohio St.3d 1522

(2010).
On

July

8,

2008,

Petitioner

sought

reconsideration

of

the

appellate court’s February 21, 2008, denial of his direct appeal in
view of State v. Cabrales, 118 Ohio St.3d 54 (2008) (strict textual

2

 Petitioner was charged in a January 2006 indictment with 134 counts involving
alleged securities transactions. Shortly before the October 2006 trial, the
State moved to dismiss eight counts. Exhibits 3, 4 to Return of Writ. The
jury convicted Petitioner on 99 counts but could not reach a unanimous
verdict on the remaining 27 counts of receiving stolen property, and those
counts were subsequently dismissed. Exhibits 6, 7 to Return of Writ.

3 

comparison
whether

of

elements

convictions

of

offenses

constitute

Exhibit 42 to Return of Writ.

is

allied

not

required

offenses

On

September

30,

determine

similar

import).

On May 11, the appellate court denied

Petitioner’s application for reconsideration.
Writ.

of

to

2009,

Petitioner’s subsequent appeal.

the

Ohio

Exhibit 44 to Return of
Supreme

Court

dismissed

Exhibit 47 to Return of Writ.

Petitioner filed an application to reopen his appeal pursuant to
Ohio

Appellate

Rule

26(B),

alleging

that

he

effective assistance of appellate counsel.
Writ.

had

been

denied

the

Exhibit 36 to Return of

On May 11, 2008, the appellate court denied that application.

Exhibit

38

to

Return

of

Writ.

The

Ohio

Supreme

Petitioner’s subsequent appeal from that denial.

Court

dismissed

Exhibit 41 to Return

of Writ.
II.

Ineffective Assistance of Counsel
As

noted

supra,

Petitioner

alleges

that

he

was

denied

the

effective assistance of trial counsel because his defense attorney,
Thomas Tyack, failed to properly advise him on whether or not he
should proceed to trial and of the potential sentencing ramifications
that he faced should he do so.
overestimated

the

odds

of

Petitioner contends that Tyack grossly

success

at

trial

because

he

did

not

understand the law or the evidence against Petitioner and therefore
could not properly advise Petitioner on whether it was in his best
interest

to

Petitioner

also

Petitioner’s
Petitioner

plead

guilty
contends

potential

claims

to

any

that

sentence

that,

but

his

should

for

the
4 

of

the

charges

attorney
he

be

against

under-calculated

convicted

unreasonable

him.

at

advice

trial.
of

his

attorney,

he

would

not

have

proceeded

to

trial,

but

would

have

accepted the State’s guilty plea offer(s).
A.

Facts and Evidentiary Hearing

A review of the decision of the Ohio Fifth District Court of
Appeals affirming the trial court’s dismissal of Petitioner’s claims
of

ineffective

assistance

of

trial

counsel

without

an

evidentiary

hearing will assist in the resolution of Petitioner’s claim:
On January 27, 2006, the Licking County Grand Jury indicted
appellant on a total of 134 counts.
The indictment
included violations of R.C. 1707.44 for the sale of
unregistered securities, the sale of securities without a
license and false representation in the sale of securities.
The indictment also included violations of R.C. 2913.51 for
receiving stolen property and one count of engaging in
pattern
of
corrupt
activity
in
violation
of
R.C.
2923.32(A)(1).
. . .
Appellant was found guilty of having committed 32 fifth
degree felonies, 66 third degree felonies and one first
degree felony.
. . .
On December 18, 2006, the trial court sentenced appellant
to serve six months on each of the 32 fifth degree felonies
and further ordered these sentences to run consecutively to
each other for a total of 16 years. The trial court also
ordered appellant to serve one year on three of the third
degree felonies to run consecutively to each other for a
total of three years.
The trial court further ordered
appellant to serve a five year sentence for the first
degree felony conviction for engaging in a pattern of
corrupt activity.
Finally, the trial court ordered the
fifth degree (16 year) and third degree felony (3 year)
sentences to run consecutively to each other and all other
sentences to run concurrently for a total aggregate
sentence of 19 years. Appellant was further ordered to pay
restitution and the costs of the action.
The fines were
waived.
Appellant appealed his conviction and sentence in State v.
Fanaro, 5th App. No.2006CA00168, 2008–Ohio–841.
Appellant
argued the trial court engaged in judicial fact finding in
5 

sentencing and that the security violations were allied
offenses of similar import and should have been merged.
Finally, appellant argued the trial court erroneously
allowed the introduction of other acts evidence.
This
Court affirmed the decision of the trial court.
On September 17, 2007, the public defender's office filed a
petition to vacate and set aside judgment and sentence
pursuant to R.C. 2953.21. On September 19, 2007, the trial
court scheduled the petition for “non-oral hearing” for
October 17, 2007 at 8:00 A.M pursuant to Loc.R. 5.
The
State then filed a memorand[um] contra to the petition on
September 28, 2007.
On October 10, 2007, prior to the non-oral hearing, the
trial court via Judgment Entry denied appellant's petition.
On October 12, 2007, Mr. Pusateri, Appellant's present
counsel, entered a notice of appearance and filed a motion
for continuance of the non-oral hearing.
On October 15,
2007, Appellant's counsel filed a motion for status
conference. The State responded with a memorand[um] contra
appellant's motion for continuance of non-oral hearing.
On November 9, 2007, Appellant filed a notice of appeal
arguing the post-conviction petition was dismissed in
advance of the non-oral hearing date assigned in the case.
This Court reversed the decision of the trial court, and
remanded the matter for further proceedings finding the
trial court prematurely ruled on the petition for postconviction relief.
On December 22, 2008, Appellant filed an amended petition
for post-conviction relief in the trial court.
Appellee
filed a memorandum contra on January 23, 2009.
Appellant
filed a motion for summary judgment, or in the alternative,
motion to conduct discovery on March 12, 2009.
Appellee
filed a memorandum contra summary judgment on March 23,
2009. The trial court granted summary judgment in favor of
Appellee and denied the petition without conducting an
evidentiary hearing.
. . .
Appellant maintains counsel was ineffective in rejecting
plea offers without consulting petitioner, rejecting plea
agreements without adequately investigating the viability
of a defense to the charges, and in failing in his duty to
counsel Appellant regarding the advisability of accepting
or rejecting a plea offer. Specifically, Appellant asserts
[that,] had counsel properly instructed him he did not have
a viable defense, he would have accepted the State's first
6 

plea offer. Further, he alleges counsel summarily rejected
two plea offers without consulting him.
On December 22, 2008, Appellant filed his petition for
post-conviction relief, attaching ten exhibits, including
two letters from his trial counsel, a detailed billing
statement of trial counsel, and affidavits supporting his
petition.
The State initially offered Appellant a four-year prison
sentence, which Appellant maintains his counsel rejected
without properly advising him. Second, the State demanded
Appellant make restitution in exchange for a guilty plea to
two counts for each victim.
Appellant asserts his trial
counsel summarily rejected the offer without consultation
or proper advice.
Appellant's only evidence as to the
allegations is his own self-serving affidavit.
In response, the State submits an affidavit of trial
counsel averring he discussed the first plea offer with
Appellant and advised him of the potential penalties.
Counsel alleges Appellant summarily rejected the offer
because he felt he did not belong in jail. The plea offer
also involved restitution, which was unacceptable to
Appellant due to his being financially incapable of
restitution.
Appellant and his wife had filed for
bankruptcy in 2004, listing the victims at issue as
creditors.
On January 16, 2006, trial counsel sent a letter to the
prosecutor indicating the initial plea offer of four years
incarceration was not acceptable, but his client could be
persuaded to enter an Alford plea to some sort of
misdemeanor.
The
letter
was
copied
to
Appellant;
indicating Appellant had knowledge of the offer and could
have discussed the matter with counsel had it been
inaccurate. Appellant did not do so.
On October 3, 2006, trial counsel drafted a letter to
Appellant indicating the trial was set to commence over a
period of four days. In the second letter counsel explains
the subsequent offer by the State involving a plea of
guilty to two counts on each one of the alleged victims and
restitution. Trial counsel informed Appellant he told the
prosecutor it was an inferior deal to the first offer, and
he was confident Appellant would not accept the offer.
Accordingly, the letter contemplates Appellant's ability to
inform counsel he would be willing to accept the offer.
Again Appellant did not do so.
Further, Appellant's claim [that] counsel was unprepared
for trial was not substantiated by the record. Rather, the
7 

record demonstrates a set fee agreement between Appellant
and counsel rendering hourly documentation beyond the set
fee irrelevant.
A review of the record demonstrates
counsel properly cross-examined witnesses, and presented
witnesses on behalf of Appellant.
Based upon the record and the evidence submitted in support
[of] and in opposition to the motion, we conclude the trial
court did not err in granting summary judgment in favor of
the State without an evidentiary hearing as Appellant has
not set forth sufficient operative facts to establish
substantive grounds for relief, let alone a reasonable
probability Appellant would have accepted the plea in light
of his proclaimed opposition to jail and any restitution
order.
The judgment of the Licking County Court of Common Pleas is
affirmed.
State v. Fanaro, 2009 WL 4690421 (Ohio App. 5th Dist. Dec. 4, 2009).
The pertinent facts in this case are the following:

In August

2005, the State of Ohio charged Petitioner with 52 felony counts of
securities violations involving shares in limited partnerships.

After

his arrest in Florida, Petitioner retained Tyack, who first met with
Petitioner on August 2, 2005. Affidavit of Thomas Tyack, Petitioner’s
Exhibit 4, at ¶ 5.

At a pretrial conference held on August 30, 2005,

Petitioner was advised by the trial court that he faced a maximum
sentence of 260 years’ incarceration and a fine of up to $520,000,
plus an order of restitution.

Petitioner’s Exhibit 2; Transcript,

Evidentiary Hearing Vol. 1 (“Evid. Hrg. Transcrpt, Vol. 1”), Doc. No.
85, PageID #4621.

On August 31, 2005, Petitioner – who had been

detained for 75 days - was released on bond and returned to his home
in Florida.

Id.

Petitioner’s wife, Cheryl Fanaro, paid Tyack $25,000. Id., at
PageID #4675; Petitioner’s Exhibit 17;

It was her understanding that

$20,000 represented the attorney’s fee and $5,000 was intended to
8 

enable Tyack to retain a securities expert.
See

also

Transcript,

Evidentiary

Id., at PageID #4672-74.

Hearing,

Vol.

2

(“Evid.

Hrg.

Transcrpt., Vol. 2”), Doc. No. 86, PageID #4701.
Tyack credibly testified that he reviewed these initial charges
with Petitioner and that Petitioner understood the charges against
him.

Id., at PageID #4620.

Tyack and Petitioner also discussed

Tyack’s opinion that, if Petitioner were convicted, “the Judge was
going to send him to jail.”

Id., at PageID #4560.

Tyack and the assistant prosecutor then handling the case, David
Mallett, discussed in “very general” terms the possibility of a guilty
plea

in

exchange

for

a

sentence

of

four

years

and

an

order

of

restitution. Evid. Hrg. Transcrpt., Vol. 1, PageID #4621-22. Those
discussions did not, however, indicate which of the charges against
Petitioner, if any, would be dismissed pursuant to such an agreement.
Id., at PageID #4622.

Tyack presented the offer to Petitioner but,

Tyack testified, Petitioner was “adamant” that he would not plead
guilty to a felony offense, did not want to serve any additional time
in jail or prison, and had no money with which to pay restitution.
Id., at PageID #4623-24. Moreover, Petitioner had previously initiated
a bankruptcy proceeding and had listed all of the alleged victims as
creditors.
The
decision

Id., at PageID #4624.
Court
to

credits

reject

Tyack’s

this

plea

testimony

that

it

offer.

However,

was

Petitioner’s

Tyack

persuaded

Petitioner to make a counter proposal specifying the terms on which
Petitioner would agree to enter a guilty plea.

9 

Id., at PageID #4624-

25.

Tyack conveyed that counter proposal to Mallett in a letter dated

January 16, 2006, which was copied to Petitioner:
In follow up to our telephone conversation of Friday,
January 13, this will confirm my response to your offer of
a felony plea for four (4) years incarceration.
That is
not acceptable.
My client could be persuaded to enter an
Alford plea to some sort of misdemeanor for the seventyfive (75) days he spent in jail before he was transferred
up to Ohio.
Petitioner’s Exhibit 6. Although Tyack expected further discussions
with Mallett, Evid. Hrg. Transcrpt., Vol. 1, PageID #4614-15, 4642,
Mallett made no response to Petitioner’s counter offer. Id., at PageID
# 4625.3 
The
separate

State

dismissed

indictment

filed

the

2005

just

case

days

shortly

after

the

thereafter.
Mallett

In

a

proposal,

Petitioner was charged with 134 felony counts involving securities
violations.4 The Office of the Ohio Attorney General, represented by
its chief legal counsel Carol O’Brien, assumed prosecution of the
case.

Id., at PageID #4625-28; Petitioner’s Exhibit 7. Briefly, the

State’s case against Petitioner required proof that Petitioner sold
securities.
registered

Certain charges required that the securities were neither
with

the

Ohio

Division

of

Securities

nor

exempt

from

registration; other charges required evidence that Petitioner was not

  According to Petitioner, he and Tyack discussed Mallett’s plea offer only by

3

telephone and only after Tyack had rejected the offer.
Evid. Hrg.
Transcrpt., Vol. 2, PageID #4694-95. Tyack dismissed the offer and the
strength of the State’s case against Petitioner:
“‘Fuck them.
They don’t
have a case. We will get a better deal.’” Id., at PageID #4695. Petitioner
also testified that there was no discussion of a counter offer.
Id.
As
noted, the Court credits Tyack’s testimony over that of Petitioner in this
regard.

4
Throughout these proceedings, the parties refer to the 2006 indictment as
both a superseding indictment and a new case.

10 

licensed by the Ohio Division of Securities, or that Petitioner made
false representations or omissions in connection with the sales. See
Petitioner’s Exhibit 9.

As previously noted, Petitioner was also

charged with one count of engaging in a pattern of corrupt activity
and 27 counts of receipt of stolen property.
O’Brien contacted Tyack by letter dated September 25, 2006, and
proposed the following offer, which remained open until the close of
business on October 3, 2006:
Mr. Fanaro would plead guilty to two counts for each
transaction for each victim[. T]he counts would include the
sale
of
securities
with
no
license
and
the
false
representation in the sale of securities for all but Alice
Catanzaro, Lorraine Rataczak, Connison Wilson, Thomas Kerr,
Keith and Mary Emmons and Marilyn Loucks.
For the above
named victims Mr. Fanaro would plead guilty to the sale of
securities without a license and selling unregistered
securities.
Mr. Fanaro would make restitution to the
victims.
In terms of the sentencing, the State would
present their case to the Judge and leave the ultimate
decision to him.
Petitioner’s Exhibit 7.
#4627-28.

Tyack

wrote

See also Evid. Hrg. Transcrpt, Vol. 1, PageID
Petitioner

a

letter

on

October

3,

2006,

summarizing the terms of O’Brien’s plea offer and the likelihood of
trial.

Id.,

at

PageID

#4628-29.

Tyack

heard

no

response

from

Petitioner.
It was Tyack’s understanding that Petitioner had no money with
which to make restitution.

Id., at PageID #4630.

“So, phase one of

the agreement was, therefore, impossible for him to perform.”
PageID #4613-14.

Id., at

“I know we talked about the fact to even get that

plea agreement, we had to come up with the money on restitution.
we couldn’t do. Impossible to do.”

That

Id., at PageID #4616. Petitioner

testified that Tyack never discussed the issue of restitution with
11 

him.
have

Evid. Hrg. Transcrpt., Vol. 2, PageID #4707.
raised

agreement.

funds

for

payment

of

restitution

as

Petitioner could
part

of

a

plea

Id. However, Petitioner acknowledged that he could not

have raised $600,000 for restitution.

Id., at PageID #4713.5

According to Tyack, O’Brien’s offer was also unacceptable because
Petitioner did not want to serve additional time in jail or prison and
did

not

want

a

felony

conviction

shouldn’t do any more time in jail.

on

his

record:

“Carl

felt

he

He was working to try to get back

into the business, and he felt that a felony conviction would keep him
from getting relicensed. . . .”

Evid. Hrg. Transcrpt., Vol. 1, PageID

#4615. Moreover, because O’Brien’s offer required pleas of guilty to
some of the fraud, or misrepresentation, counts, Tyack believed that
the trial judge “probably would impose greater sentences than if it
was something on the lower level offenses.”

Id., at PageID #4558.

. . . [T]here is no doubt in my mind, if she wants two
counts, including the fraud count for each of the alleged
victims, depending upon how you count.
If you count a
husband and wife as two victims or one, but depending how
you do it, but you are talking somewhere in the
neighbor[hood] of 40 counts, including 20 fraud counts.
And given that circumstance, there is no way that [the
trial judge], under those circumstances, is going to give
him a concurrent minimum sentence on the, you know, on the
less serious – based on the less serious offenses.
. . .
My suspicion is, given the publicity that had gone on, I
don’t see why it would have come out much different, to be
honest with you, maybe a little bit less serious.
Id., at PageID #4558-59.
offer as meaningful:

At bottom, Tyack did not regard O’Brien’s

“[I]n reality, that [proceeding to trial] was

5

 Indeed, Petitioner has paid no restitution to date.
Vol. 2, PageID #4714.

12 

Evid. Hrg. Transcrpt.,

the

only

thing

that

could

be

done

because

their

suggestion

was

impossible and probably would have resulted in him going to jail for a
long, long time anyway.”

Id., at PageID #4617.

Petitioner testified that he first learned of O’Brien’s proposal
when he received Tyack’s October 3, 2006 letter to Petitioner.
Hrg. Transcrpt., Vol. 2, PageID 4696-97.
offer had expired.

Evid.

By that time, however, the

Id.

During the course of trial preparation, Tyack reviewed discovery
materials. Evid. Hrg. Transcrpt., Vol. 1, PageID #4517-23.

His trial

strategy6 included, inter alia, the proposition that Petitioner had not
engaged in the sale of securities:
[Tyack]:
In this particular situation, since [Petitioner]
was receiving no compensation, he had no ownership and so
forth, the question was he actually doing a sale in the
classic situation, or was he simply making an opportunity
available to his people, to deal with – or to buy into that
situation with the Mayes’ LLC.
An argument could be made
that he was really introducing these people, he wasn’t
selling. The argument could be made.
Evid. Hrg. Transcrpt., Vol. 1, PageID #4571.
[Tyack]:
I
think
that
he
provided
the
people
an
opportunity.
He gave them the documents created by the
LLCs.
And if I remember on most occasions, actually, the
money and so forth was sent directly to Mayes, it didn’t go
through Carl.
Q.[Petitioner’s Attorney]: Again, does that mean that you
believe that there was not sale?
A.: No, I didn’t say that.
Q.: Did you argue that?

6

 To be clear, Petitioner does not raise in these proceedings a claim of
ineffective assistance of counsel at trial. The Court receives evidence
relating to Tyack’s trial strategy and conduct during trial only as evidence
relevant to petitioner’s claim that, because Tyack did not understand the
elements of the charges against petitioner, he did not competently counsel
Petitioner on whether or not to accept the State’s plea offers. In
particular, the Court disregards any suggestion that Tyack misapplied any
portion of the funds paid to him, except as such allegation may relate to the
claims actually before the Court.

13 

A.: I don’t believe we argued that. There was a sale, but
the question was, was the sale directly between them and
the LLC, rather than through Carl.
Id., at PageID #4576-77.

See also id., at PageID #4524(“[Petitioner]

received no commission. He was provided the materials, including the
documents that these people filled out from the prospectus, and they
were sent to the people who were running the LLCs.”); id., at PageID
#4565 (The sale of shares in the LLCs “was a component on the edge of
what

his

primary

function

was,

which

was

selling

the

insurance

annuities.”).
Tyack also wanted to convince the jury that Petitioner had done
his “due diligence:”
[Tyack]: . . . [I]f you are doing certain types of
activities, if you undertake to do due diligence, if you
turn out to be wrong, you are not necessarily liable
civilly
or,
perhaps,
criminally,
depending
on
the
circumstances.
Id., at PageID #4565.
Tyack also took the position that the securities at issue were
exempt from registration with the Ohio Division of Securities, which
was an issue of fact for determination by the jury.

Id., at PageID

#4565-66. Tyack consulted on this issue with Dwight Hurd, a securities
lawyer,7

and

the

Florida

resident

who

had

prepared

the

prospectus

relating to the securities. Evid. Hrg. Transcrpt., Vol. 1, PageID
#4539, 4561-62.

Tyack ultimately decided not to use their testimony

at trial:

7

 Petitioner’s Reply to Respondent’s Post-Hearing Brief, PageID #4823, attempts
to refute Tyack’s testimony in this regard by referring to “Pet. Ex. 16, Hurd
Letter.” No such exhibit was referred to at the evidentiary hearing, see
Witness & Exhibit List, attached to Minute Entry, Doc. No 79, nor does
Petitioner’s Motion to Admit Petitioner’s Exhibits from Evidentiary Hearing,
Doc. No. 82, refer to such an exhibit.

14 

Q. . . . [I]t would have been risky to use an expert
because an expert could not say that these were exempt
securities. The best that an expert could do is say maybe
they are or maybe they aren’t; is that your testimony?
A. Yes.
Id., at PageID #4542-43.
Tyack testified at the evidentiary hearing that he “doubt[ed]”
that he consulted with Petitioner about his strategic decision not to
retain an expert.

Id. at PageID #4600.

could

additional

have

raised

funds

Petitioner testified that he

with

which

to

hire

an

expert.

Evid. Hrg. Transcrpt., Vol. 2, PageID #4705. Cheryl Fanaro testified
that her sons could have raised more money for Petitioner’s defense,
had they been asked to do so, and she could have sold certain real
property, which had been left to her by her father and which was worth
$100,000.

Evid. Hrg. Transcrpt., Vol. 1, PageID #4675-77. Petitioner

knew that Tyack had consulted Hurd, but he believed that Hurd was
acting as his attorney along with Tyack.

Evid. Hrg. Transcrpt., Vol.

2, PageID #4702-03.8
Tyack testified at the evidentiary hearing, erroneously, that the
sale of a security that is exempt from registration does not violate
Ohio law even if the seller is unlicensed.9

Evid. Hrg. Transcrpt.,

8

Instead of calling an expert on the issue of exemption, Tyack called
Petitioner to testify on that and other topics. Evid. Hrg. Transcrpt., Vol.
1, PageID #4564.
During the course of his testimony at trial, damaging
information was elicited, including Petitioner’s admission that he had
misrepresented his credentials in his résumé, which had been provided to
investors.
Evid. Hrg. Transcrpt., Vol. 2, PageID #4716-17.
However, there
is no evidence that Petitioner had advised Tyack prior to trial of those
misrepresentations, nor did he tell Tyack prior to trial that his Florida
securities license had been suspended. Id., at PageID #4718.  
9
 “Q. . . . If I am selling a security that is exempt, but I do not have a
license; am I committing a crime?
A.
Under the Ohio Revised Code, I don’t think so.” Evid. Hrg. Transcrpt.,

15 

Vol.

1,

PageID

#4547,

4578.

But

see

O.R.C.

§

1707.44(A)(1).

Petitioner acknowledged that he had no license to sell securities at
the

time

of

the

transactions

addressed

in

the

prosecution.

He

testified that he did not learn until after the trial that a license
Evid. Hrg. Transcrpt., Vol. 2, PageID #4691.10

was required.

“There

was never a discussion with Mr. Tyack about me not being innocent.
didn’t need a license, and the securities were exempt.”

I

Id. at PageID

#4708.
Tyack believed that “there was [a] slightly better than a 50-50
chance of winning this trial.”
#4547.

Cheryl

Fanaro

did

Evid. Hrg. Transcript., Vol. 1, PageID

not

attend

Petitioner’s

trial

based

on

Tyack’s assurance that Petitioner would be returning home immediately
upon

completion

of

trial

proceedings.

Id.,

at

PageID

#4678.

Nevertheless, Petitioner understood that he could be convicted on the
charges.

Id., at PageID #4625. Tyack also told Petitioner that he

could make a strong argument that any sentence should be “minimum
concurrent.”

Id.,

at

PageID

#4548.

However,

he

also

advised

Petitioner that the trial judge “can do anything to you that he wants
within

the

Petitioner

statutory
testified

range.”
that

Id.,

Tyack

never

at

PageID
discussed

#4552.
the

Although
sentencing

ramifications of proceeding to trial, it is clear that Petitioner knew
that he faced a possible maximum sentence of hundreds of years: “The
number of 300 years and a million dollar fine are just so – I probably

Vol. 1, PageID # 4547.
10
 However, Petitioner also testified that, as early as November 2005, he had
information “[w]hich suggested that one needed a license to sell these
securities.” Evid. Hrg. Transcrpt., Vol. 2, PageID #4692. Petitioner
assumed, however, that Tyack and Hurd had concluded that this information
“wasn’t relevant to my particular situation.” Id., at PageID #4693.

16 

didn’t pay that much attention to that.” Evid. Hrg. Transcrpt., Vol.
2,

PageID

#4703-04.

According

to

Petitioner,

Tyack

also

never

discussed the concept of judicial release, id. at PageID #4697, which
could have rendered Petitioner eligible for consideration for early
release.11
The

matter

proceeded

to

trial.

As

noted,

the

jury

convicted

Petitioner on 99 of the 134 counts with which Petitioner was charged
in the 2006 indictment.

The trial judge sentenced Petitioner to 6

months in prison on 32 counts, to be served consecutively with each
other, 1 year on 3 other counts, to be served consecutively with each
other and with the 32 counts, to 1 year in prison on 63 additional
counts, to be served concurrently with all other counts, and to 5
years

in

prison

on

the

corrupt

activity

count,

to

be

served

concurrently with all other counts – for an aggregate term of 19 years
in prison.
actual

However, the terms of O’Brien’s plea offer, which left any

sentence

sentence.

to

the

trial

judge,

did

not

guarantee

a

shorter

Indeed, the trial court could have sentenced Petitioner to

“significantly

more

time”

had

Petitioner

accepted

O’Brien’s

offer.

Evid. Hrg. Transcrpt., Vol. 1, PageID #4629.
Petitioner acknowledged that he did not direct Tyack to accept
either plea offer.

Evid. Hrg. Transcrpt., Vol. 2, PageID #4712-13.

He testified that, had he been advised by Tyack of the controlling law

11

 According to Petitioner, a sentence of 4 years would have rendered him
eligible for release after 180 days, Evid. Hrg. Transcrpt., Vol. 2, at PageID
#4697-98, and a sentence of less than 10 years would have rendered him
eligible for release after 5 years. Id., at PageID # 4698. See O.R.C. §
2929.20. The statute also provides that, if the aggregate sentence is more
than 10 years, the offender is eligible for judicial release upon the later
of ½ the stated prison term or 5 years. O.R.C. § 2929.20(C)(5). Tyack was
not asked at the evidentiary hearing about judicial release.

17 

and of the substance of the State’s case, however, he would have
accepted

Mallett’s

or

O’Brien’s

proposal.

Id.,

at

PageID

#4696.

There would have been “no alternative but to make a plea because there
would have been no defense.”
B.

Id., at PageID #4697.

Discussion

The right to counsel guaranteed by the Sixth Amendment is the
right to the effective assistance of counsel.
397 U.S. 759, 771 n.14 (1970).

McMann v. Richardson,

The standard for demonstrating a claim

of ineffective assistance of counsel is composed of two parts:
First, the defendant must show that counsel's performance
was deficient.
This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that deficient performance
prejudiced the defense.
This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.
Strickland

v.

Washington,

466

U.S.

668,

687

(1984).

Scrutiny

of

defense counsel’s performance must be “highly deferential.” Id. at
689.
With

respect

to

the

first

prong

of

the

Strickland

test,

“[b]ecause of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.”

Id.

To

establish the second prong of the Strickland test, i.e., prejudice, a
petitioner must demonstrate that there is a reasonable probability
that, but for counsel's errors, the result of the proceedings would
have been different.

Id. at 694.

“A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”
18 

Id.

Because

Petitioner

demonstrate

must

ineffective

satisfy
assistance

both
of

prongs

of

counsel,

Strickland

should

a

to

court

determine that a petitioner has failed to satisfy one prong, it need
not consider the other.

Id. at 697.

A criminal defendant is entitled to the effective assistance of
counsel during the plea negotiation process.

Lafler v. Cooper, –––

U.S. ––––, 132 S.Ct. 1376 (2012).
Having to stand trial, not choosing to waive it, is the
prejudice alleged. In these circumstances a defendant must
show that but for the ineffective advice of counsel there
is a reasonable probability that the plea offer would have
been presented to the court (i.e., that the defendant would
have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that
the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
Id. at 1385.

The United States Court of Appeals for the Sixth Circuit

has described the obligations of defense counsel as it relates to
advice during the plea negotiation stage:
A criminal defendant has a right to expect at least that
his attorney will review the charges with him by explaining
the elements necessary for the government to secure a
conviction, discuss the evidence as it bears on those
elements, and explain the sentencing exposure the defendant
will face as a consequence of exercising each of the
options available
Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003) (citing
United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)).
“[A]s

a

general

rule,

defense

counsel

has

the

duty

to

communicate formal offers from the prosecution to accept a plea on
terms and conditions that may be favorable to the accused.”
v. Frye, -- U.S. --, 132 S.Ct. 1399, 1408 (2012).
19 

Missouri

The failure to do

so

prior

to

the

expiration

constitutionally unreasonable.

of
Id.

the

terms

of

the

offer

is

However, a petitioner who later

complains of a lost plea bargain must also establish prejudice.
To show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of
counsel's
deficient
performance,
defendants
must
demonstrate a reasonable probability they would have
accepted the earlier plea offer had they been afforded
effective assistance of counsel.
Defendants must also
demonstrate a reasonable probability the plea would have
been entered without the prosecution canceling it or the
trial court refusing to accept it . . . .
Id. at 1409.

In this regard, a petitioner must show that, “if the

prosecution had the discretion to cancel [the plea offer], or if the
trial court had the discretion to refuse to accept it, there is a
reasonable probability neither the prosecution nor the trial court
would have prevented the offer from being accepted or implemented.”
Id. at 1410.
A substantial disparity between a plea offer and the potential
sentence

is

strong

evidence

of

a

reasonable

probability

properly advised defendant would have accepted the plea offer.

that

a

Smith,

348 F.3d at 552 (evidentiary hearing warranted as to whether defendant
would have pleaded guilty where attorney failed to convey plea offer
of five years and defendant sentenced to 156 months) (citing Magana v.
Hofbauer, 263 F.3d 542, 552–53 (6th Cir. 2001) (difference between ten
and twenty year sentence significant); United States v. Gordon, 156
F.3d 376, 377–81 (2d Cir. 1998) (disparity between

10 year sentence

in plea offer and 17 ½ years the defendant received was objective
evidence

that

a

plea

would

have

been

accepted)).

However,

an

attorney's failure to insist that his client accept a plea offer due
20 

to overwhelming evidence of guilt does not constitute constitutionally
ineffective assistance.
The decision to plead guilty — first, last, and always —
rests with the defendant, not his lawyer.
Although the
attorney may provide an opinion on the strength of the
government’s case, the likelihood of a successful defense,
and the wisdom of a chosen course of action, the ultimate
decision of whether to go to trial must be made by the
person who will bear the ultimate consequence of a
conviction.
Id.
In the case presently before the Court, Petitioner contends that
his

attorney

performed

in

a

constitutionally

ineffective

manner

because Tyack did not properly advise Petitioner in connection with
the plea offers.

This failure, Petitioner argues, was a consequence

of Tyack’s failure to understand the governing securities laws and
Petitioner’s potential sentence exposure.

This misapprehension was

evidenced, in Petitioner’s view, by the counter offer to Mallett of a
plea to a misdemeanor, which Petitioner characterizes as unreasonable
in light of the presumption under Ohio law that Petitioner knew or
should

have

known

all

facts

relevant

to

the

sales

of

securities,

including whether the securities were exempt from the registration
requirement. Post-Hearing Brief of Petitioner Carl Fanaro, Doc. No.
91, pp. 10-11 (citing O.R.C. § 1707.29).

Petitioner argues that Tyack

should have known that Petitioner could not carry this burden because
Tyack was unable to locate an expert willing to testify that the
securities at issue were exempt.
complains

that

Tyack

failed

to

Id., at pp. 11-13. Petitioner also
conduct

adequate

research

and

was

“reckless” in advising Petitioner to proceed to trial in the absence
of a defense expert on securities law.
21 

Id., at pp. 12-13.

He also

argues that Tyack did not understand that Petitioner must have secured
a

license

securities

prior
were

to

selling

exempt

O.R.C. § 1707.02),

from

securities,

regardless

registration,

id.,

at

of

whether

p.

13

the

(citing

and suggests that Tyack did not understand the

elements of the offenses charged.

Petitioner’s Reply to Respondent’s

Post-Hearing Brief, Doc. No. 93, p. 18.
Petitioner takes the position that his chance of winning at trial
was “essentially zero” and that Tyack – who believed that Petitioner’s
chance of winning at trial was “slightly better than . . . 50-50,
Evid.

Hrg.

Transcrpt.,

Vol.

1,

PageID

#4547

-

was

therefore

incompetent in advising Petitioner to reject the plea offers. PostHearing Brief of Petitioner Carl Fanaro, p. 13.
Finally, Petitioner contends that Tyack failed to understand the
“extreme sentencing exposure” that Petitioner faced, as evidenced by
Tyack’s testimony at the evidentiary hearing that Petitioner faced a
maximum term of 377 years’ imprisonment when in fact he actually faced
up to 678 years in prison.12

Id. at p. 14.

To summarize, Petitioner contends that competent counsel would
have advised Petitioner to accept either of the State’s proposals.
This Court is not persuaded that Petitioner has met his burden on this
claim.

12

The parties disagree on the actual maximum term of imprisonment faced by
Petitioner. Compare Post-Hearing Brief of Petitioner Carl Fanaro, p. 14 (678
years) with Respondent’s Post Hearing Brief, Doc. No. 90, p. 2 (377 years).
The trial court calculated the maximum sentence, at the time of sentencing,
at 377 years. State v. Fanaro, 2008 WL 555448, *2. Regardless, it is clear
that Petitioner knew that he faced a maximum possible sentence of hundreds of
years in prison and it is undisputed that the imposition of the maximum
sentence, however calculated, would effectively have been a life sentence for
Petitioner.

22 

The record simply does not support Petitioner’s argument that his
attorney’s telephone conversation with Mallett resulted in a formal
plea offer.
never

The offer was never reduced to writing and the parties

discussed

which,

if

any,

of

the

charges

pending

against

Petitioner would be dismissed should Petitioner plead guilty and agree
to a sentence of four years’ imprisonment and an order of restitution
in some unspecified amount.
In any event, the credible evidence establishes, in the Court’s
view, that Tyack informed Petitioner of Mallett’s offer and that it
was Petitioner’s decision to reject that offer because it would have
required a felony conviction, service of a term of imprisonment and an
order of restitution, all of which Petitioner adamantly opposed.
Unlike the Mallett offer, the offer extended on September 25,
2006 by Carol O’Brien of the Office of the Ohio Attorney General,
Petitioner’s Exhibit 7, was a formal offer as contemplated by Missouri
v. Frye:

her offer was made in writing, articulated the counts to

which Petitioner would be required to plead guilty, and explicitly
remained open “until the close of business Tuesday October 3, 20006.”
Id.

Tyack, assuming that Petitioner would reject the offer, informed

Petitioner of this offer in a letter dated the same day that the offer
expired but which was received by Petitioner approximately seven days
later.

Evid. Hrg. Transcrpt., Vol. 2, PageID #4696.

There is no

evidence that Tyack communicated O’Brien’s plea offer to Petitioner
prior to its expiration. See Missouri v. Frye, 132 S.Ct. at 1409.
Petitioner

complains

that

defense

counsel

failed

to

properly

advise him of the strength of the case against him. In this regard,
23 

Petitioner focuses on the issues of exemption of the securities and
the licensing requirement, arguing that Tyack should have known that
he could not establish an exemption in the absence of expert testimony
and that the licensing requirement was independent of the issue of
exemption.

As a consequence, Petitioner argues, he should have been

advised that he had virtually no chance of success at trial.
As

an

initial

exemption

and

Moreover,

one

matter,

licensing
of

the

the

were

positions

Court

notes

relevant
taken

by

to

that

only

Tyack

the

certain
at

trial

issues

of

charges.
was

that

Petitioner had not engaged in a sale of securities, a position which,
if accepted, could have offered a defense to most if not all charges.
Finally, although Tyack ultimately decided not to call an expert to
testify on the issue of exemption of the securities, that decision was
based on the fact that the ”best that an expert could do is say maybe
they [i.e., the securities] are or maybe they aren’t” exempt from the
registration requirement.

Evid. Hrg. Transcrpt., Vol. 1, PageID #

4542-43.
As noted, Petitioner also complains that his trial counsel failed
to accurately advise Petitioner of the potential sentence faced by
Petitioner should he be convicted at trial.

However, Petitioner’s own

testimony establishes that he knew that he faced a potential sentence
of hundreds of years.

Evid. Hrg. Transcrpt., Vol. 2, PageID #4703-04.

The Court credits Tyack’s testimony that he advised Petitioner that

24 

the trial judge “can do anything to you that he wants within the
statutory range.”

Evid. Hrg. Transcrpt., Vol. 1, PageID # 4552.13

Despite Tyack’s failure to convey O’Brien’s offer to Petitioner
prior

to

the

lapse

of

that

offer,

and

despite

Tyack’s

apparent

misapprehension of the licensing requirement underlying certain of the
charges pending against Petitioner, and even if Tyack did not discuss
the concept of judicial release with Petitioner, the Court is also not
persuaded that Petitioner has established prejudice by reason of the
rejection of either proposal.

As noted supra, in order to prevail on

his claim in this regard, Petitioner must demonstrate a reasonable
probability that a plea offer would have been accepted by Petitioner,
that

the

prosecution

would

not

have

withdrawn

it

in

view

of

intervening circumstances, that the trial court would have accepted
the agreement, and that the outcome would have been less severe than
the judgment and sentence actually imposed.

See Lafler, 132 S.Ct. at

1384.
Even assuming, arguendo, that Mallett’s offer was a formal offer
within

the

meaning

of

Missouri

v.

Frye,

the

Court

concludes

that

Petitioner has not established his claim as it relates to that offer.
On January 27, 2006, i.e., 11 days after Petitioner’s counter offer

13

 Petitioner complains that Tyack mischaracterized, in connection with
Petitioner’s sentence, the decision of the Ohio Supreme Court in Foster v.
State of Ohio, 109 Ohio St. 3d 1 (2006), which was issued shortly after the
return of the 2006 indictment and which addressed sentencing by Ohio courts
in light of Apprendi and Blakely. In light of the fact that Petitioner knew
that he faced a maximum possible sentence of hundreds of years in prison and
Tyack’s credible testimony that he advised Petitioner that the trial judge
“can do anything to you that he wants within the statutory range,” Evid. Hrg.
Transcrpt., Vol. 1, PageID # 4552, the fact that Tyack may have
mischaracterized the ultimate impact of Foster is of no moment. Similarly,
the fact that Tyack was ultimately unsuccessful in arguing that Petitioner’s
sentence should be “minimum concurrent” is likewise not determinative.

25 

“to enter an Alford plea to some sort of misdemeanor for the seventyfive days he spent in jail before he was transferred up to Ohio,”
Petitioner’s Exhibit 6, a new case was filed against Petitioner. That
new

case

included

all

of

the

original

52

charges

filed

against

Petitioner and added new charges for a total of 134 counts.

The

Office of the Ohio Attorney General, which had assumed responsibility
for the prosecution of the new case, refused to discuss a recommended
sentence because “they were pushing for maximum jail time.”
Hrg.

Transcrpt.,

Vol.

1,

PageID

#4628.

Tyack

testified

Evid.

that

the

counter offer proposed by him was intended to be merely a stage in ongoing negotiations.

Id., at PageID #4614.

The fact that he received

no response to that counter offer suggests that the prosecution was
not interested in pursuing negotiations along the lines of Mallett’s
offer.
Petitioner argues that Mallett’s plea offer would not have been
withdrawn and that the new indictment and the appearance of a new
prosecutor did not constitute intervening circumstances because all
parties were aware, at the time Mallett’s proposal was made, that a
criminal investigation into Petitioner’s activities was on-going and
that additional charges were likely.

It is true that Tyack knew as

early as August 2005 that the investigation was continuing.
Hrg. Transcrpt., Vol. 1, PageID #4643.

Evid.

However, there is no evidence

that Mallett’s proposal was made with the approval of the Office of
the Ohio Attorney General.

To the contrary, the fact that additional

victims had been located and numerous additional felony charges were
added to the prosecution undermines the likelihood that Mallett’s plea
26 

offer remained viable.

Similarly, there is no evidence whatsoever

that the trial court would have agreed to a sentence of four years
notwithstanding the quantity and seriousness of the charges against
Petitioner.

In short, Petitioner has failed to establish that he was

prejudiced by his counsel’s performance in connection with Mallett’s
plea offer.
The Court also concludes that Petitioner has failed to establish
prejudice by reason of any failure on his counsel’s part in connection
with O’Brien’s offer.
Petitioner’s

The Court specifically finds unworthy of credit

testimony

that

he

would

have

accepted

O’Brien’s

offer but for the ineffective assistance of his counsel.

plea

Rather, the

Court credits the testimony of Tyack regarding his discussions with
Petitioner

and

specifically,

his

the

conduct

Court

during

finds

plea

credible

negotiations.
Tyack’s

More

testimony

that

Petitioner was adamant in his refusal to consider any plea offer that
resulted in a felony conviction or required the payment of restitution
or

an

additional

period

of

incarceration.

The

Court

therefore

expressly finds that Petitioner would not have accepted O’Brien’s plea
offer even had he been informed of the offer prior to its expiration.
The

Court

accords

great

credit

to

Tyack’s

testimony.

Petitioner’s testimony was discredited by his general inability to
recall

nearly

prosecution,

every

except

aspect
those

of

the

matters

circumstances

supportive

of

surrounding

his

claims.

his
For

example, Petitioner could not recall the substance of his discussions
with Tyack during their meetings.
PageID #4708-10.

In particular, Petitioner could not recall if Tyack
27 

Evid. Hrg. Transcrpt., Vol. 2,

reviewed the charges, the defenses to the charges, id., at PageID
#4709, or the maximum penalties, id., at PageID #4710.

He also could

not recall the return of the 2006 indictment. Id., at PageID #4711.
Petitioner could not recall whether he discussed O’Brien’s plea offer
with Tyack.

Id., at PageID #4712-13.

Petitioner expressly denied

being present for the selection of the jury at his criminal trial,
id., at PageID #4715, and yet the trial transcript indicates that
Petitioner
Transcript,

was

seated

Jury

with

Trial,

Tyack

Vol.

at

1,

counsel

Doc.

No.

table

at

that

27-3,

PageID

time.
#1501.

Moreover, had Petitioner pled guilty pursuant to O’Brien’s plea offer,
the trial court could have imposed the same - or an even greater sentence as that actually imposed.

The Court therefore declines to

credit Petitioner’s allegation that he would have accepted O’Brien’s
plea offer had he been advised of the offer in a timely fashion and
had he been properly advised by his counsel of the strength of the
case against him and his sentence exposure.
In

short,

Petitioner

has

failed

to

establish

the

ineffective

that

was

denied

assistance of his trial counsel.
III. Claim Four
In

claim

four,

Petitioner

asserts

he

the

effective assistance of appellate counsel (who was not Petitioner’s
trial

counsel)

because

his

attorney

failed

to

notify

the

state

appellate court of the Ohio Supreme Court’s pending consideration of
Ohio’s statute on allied offenses of similar import, O.R.C. § 2941.25.

28 

See State v. Cabrales, 118 Ohio St.3d 54 (2008).14

Appellate counsel

argued on appeal that Petitioner’s sentences should have been merged
because all charges upon which Petitioner was convicted were a “part
of the same course of conduct.”
#498.

Petitioner

performed

in

a

asserts,

Exhibit 12 to Return of Writ, PageID

however,

constitutionally

that

his

ineffective

appellate

manner

by

attorney

failing

to

request a stay of proceedings pending decision by the Ohio Supreme
Court in Cabrales and that, had counsel done so, Petitioner’s argument
that the trial court improperly failed to merge his sentences would
have prevailed and his sentence would have thereby been reduced.
The

Strickland

test

for

evaluating

claims

of

ineffective

assistance of counsel also applies to appellate counsel.

Smith v.

Robbins,

U.S.

(1987).

528
The

U.S.

259,

failure

ineffective assistance.

285

to

(2000);

raise

an

Burger
issue

on

v.

Kemp,

appeal

483
can

amount

776
to

McFarland v. Yukins, 356 F.3d 688 (6th Cir.

2004) (citing Joshua v. Dewitt, 341 F.3d 430, 441 (6th Cir. 2003);
Lucas v. O'Dea, 179 F.3d 412, 419 (6th Cir. 1999); Mapes v. Coyle, 171
F.3d 408, 427–29 (6th Cir. 1999)). Where a petitioner complains that
appellate counsel improperly failed to assert a claim on appeal, a
court must assess the strength of the claim that counsel failed to
assert.

Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011) (citing

Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)).

“Counsel's

14

 Cabrales “clarified” State v. Rance, 85 Ohio St. 3d 632 (1999), and held
that Ohio courts considering whether offenses are allied offenses of similar
import are “not required to find an exact alignment of the elements” of the
offenses. “Instead, if, in comparing the elements of the offenses in the
abstract, the offenses are so similar that the commission of one offense will
necessarily result in commission of the other, then the offenses are allied
offenses of similar import.” Cabrales, at syllabus 1.

29 

failure to raise an issue on appeal amounts to ineffective assistance
only if a reasonable probability exists that inclusion of the issue
would have changed the result of the appeal.”

Id. (citing Wilson, 515

F.3d at 707).
The state appellate court rejected Petitioner’s claim on direct
appeal that his sentences violated Ohio’s statute on allied offenses
of similar import.15
In comparing the statutes, R.C.1707.44(A)(1) prohibits the
sale
of
securities
by
an
unlicensed
person,
R.C.
1707.44(C)(1)
prohibits
the
sale
of
unregistered
securities,
R.C.1707.44(B)(4)
prohibits
affirmative
misrepresentations
in
the
sale
of
securities,
R.C.
1707.44(G) prohibits both affirmative misrepresentations
and fraudulent non-disclosures in the sale of securities
(i.e. material omissions) FN4 and, R.C 2923.32(A)(1)
prohibits a pattern of conduct in the unlawful sale of
securities.
Pursuant to the threshold analysis under
[State v.] Rance, [85 Ohio St. 3d 632 (1999)] we find that,
in an abstract comparison, these security violations and
the charge of engaging in a pattern of corrupt activity do
not correspond to such a degree that the commission of one
crime will necessarily result in the commission of the
other. Therefore, we find that the charges are not allied
offenses of similar import.
FN4. “R.C. 1707.44(G) prohibits not only affirmative
misrepresentation, but also fraudulent non-disclosure where
there is a duty to disclose.”
State v. Warner (1990), 55
Ohio St.3d 31, 564 N.E.2d 18.
See also, R.C. 1707.01(J)
for the definition of “fraud.”
State v. Fanaro, 2008 WL 555448, at *4.

15

Petitioner abandoned this claim on appeal to the Ohio Supreme Court.
However, he now argues that the claim was meritorious in light of the Ohio
Supreme Court’s April 8, 2008 decision in Cabrales, which was issued four
months prior to the Ohio Supreme Court’s August 6, 2008 dismissal of
Petitioner’s direct appeal.
Petitioner filed his notice of appeal on April
7, 2008, Exhibit 14 to Return of Writ, i.e., one day before the Ohio Supreme
Court issued its decision in Cabrales, raising as his single proposition of
law a claim that the trial judge had engaged in unconstitutional judicial
fact-finding in sentencing Petitioner. Exhibit 15 to Return of Writ.

30 

The

state

appellate

court

rejected

that

same

claim

in

Petitioner’s Rule 26(A) motion for reconsideration:
This matter is before the Court for consideration of
appellant Carl Fanaro’s motion for reconsideration pursuant
to App. R. 26(A). In the motion, appellant argues that we
should reconsider our opinion on direct appeal because
several
of
appellant’s
convictions
for
securities
violations are allied offenses of similar import under the
Supreme Court’s decision in State v. Cabrales, 118 Ohio
St.3d 54 . . . decided after this Court issued its opinion
on direct appeal.
. . .
Appellant raises the same issue he raised in his motion to
re-open concerning the application of State v. Cabrales,
118 Ohio St.3d 54, 2007-Ohio-1625, to his case.
In
considering an application for reconsideration, the proper
standard for our review is whether the application “calls
to the attention of the court an obvious error in its
decision or raises an issue for our consideration that was
either not considered at all or was not fully considered by
us when it should have been.” Columbus v. Hodge (1987), 37
Ohio App.3d 68, 523 N.E. 2d 515.
The issue concerning
merger of offenses was raised and fully considered by this
Court on direct appeal based on the state of the law at
that time.
Appellant’s claim is properly raised through
his
motion
to
re-open,
alleging
that
counsel
was
ineffective for failing to alert this Court to the fact
that Cabrales was pending before the Ohio Supreme Court.
Exhibit 44 to Return of Writ.
The

state

appellate

court

also

rejected

Petitioner’s

claim,

raised in his Rule 26(B) proceedings, that he was denied the effective
assistance of appellate counsel:
. . . [A]ppellant argues that counsel was ineffective for
failing to argue that Cabrales would have affected
appellant’s claim that the charged offenses of securities
violations and engaging in a pattern of corrupt activity
were allied offenses of similar import, thereby improperly
permitting this Court to rely on State v. Rance, 85 Ohio
St.3d 632, 1999-Ohio-291, 710 N.E.2d 699.
In State v. Cabrales, the Ohio Supreme Court acknowledged
that the Rance test to determine whether separate criminal
offenses were allied offenses of similar import had
31 

produced “inconsistent, unreasonable, and, at times, absurd
results.”
Id. at paragraph 20.
The Cabrales court
rejected a “strict textual comparison” of the elements of
separate offenses, and clarified Rance:
“In determining whether offenses are allied offenses of
similar import under R.C. 2941.25(A), courts are required
to compare the elements of offenses in the abstract without
considering the evidence in the case, but are not required
to find an exact alignment of the elements.
Instead, if,
in comparing the elements of the offenses in the abstract,
the offenses are so similar that the commission of one
offense will necessarily result in commission of the other,
then the offenses are allied offenses of similar import.
(State v. Rance (1999), 85 Ohio St.3d 632 . . .).”
We note that the decision in Cabrales was issued after our
judgment on direct appeal. Appellant was sentenced in this
case on December 18, 2006, to an aggregate term of
incarceration of nineteen (19) years.
He filed a direct
appeal of his conviction and sentence to this Court on
December 29, 2006.
Our judgment affirming the conviction
and sentence was filed on February 21, 2008.
Appellant
filed a notice of appeal with the Ohio Supreme Court on
April 7, 2008.
Cabrales was decided on April 9, 2008.
Appellant’s request for jurisdiction in the Ohio Supreme
Court was denied on August 6, 2008.
In the application to re-open, appellant concedes that
appellate counsel argued on direct appeal that the charged
securities violations were allied offenses of similar
import. Counsel further argued that several of the ninetynine
counts
should
be
merged
for
the
purposes
of
sentencing.
However, appellant contends that counsel was
ineffective in failing to (1) put this Court on notice that
the Ohio Supreme Court had accepted jurisdiction in
Cabrales, (2) anticipate the Supreme Court’s ruling in
Cabrales, and (3) move this Court to stay the direct appeal
until the Supreme Court issued its decision in Cabrales.
Specifically, as previously stated, appellant argues that
counsel’s failure to address Cabrales caused this Court to
rely improperly on State v. Rance in finding that the
securities violations and engaging in a pattern of corrupt
activity were not allied offenses of similar import. State
v. Fanaro, supra at paragraph 26. We disagree.
“To
establish
ineffective
assistance
of
counsel
a
petitioner must show that his attorney failed to exercise
the customary skill and diligence of a reasonably competent
attorney.” State v. Woodson, Stark App. No. 2007-CA-0051,
2008-Ohio-3519. In this case, the viability of a challenge
32 

pursuant to Cabrales was not established at the time of the
direct appeal. Courts have held that an attorney cannot be
found to have fallen below a standard of customary skill
and diligence in failing to present what was, at the time,
a speculative, rather than an established, challenge and
for failing to anticipate developments in the law. . . .
For
these
reasons,
we
do
not
find
that
counsel’s
performance was deficient in failing to address Cabrales on
direct appeal.
Additionally, the doctrine of res judicata also prevents
this court from reopening Fanaro’s original appeal. Errors
of law that were either previously raised or could have
been raised through an appeal may be barred from further
review vis-à-vis the doctrine of res judicata.
See,
generally, State v. Perry (1967), 10 Ohio St.2d 175, 226
N.E.2d 104. The Supreme Court of Ohio has also established
that a claim of ineffective assistance of appellate counsel
may be barred by the doctrine of res judicata unless
circumstances render the application of the doctrine
unjust.
State v. Murnahan (1992), 63 Ohio St.3d 60, 584
N.E.2d 1204.
In this case, appellant argued on direct appeal that the
securities violations and the charge of engaging in a
pattern of corrupt activity were allied offenses of similar
import.
On review, this Court applied the Rance test and
found that the securities violations and the charge of
engaging in a pattern of corrupt activity did not
correspond to such a degree in the abstract that the
commission of one crime will necessarily result in the
commission of the other. State v. Fanaro at paragraph 26.
As noted above, Cabrales clarified Rance and did not change
the rule of law.
Our opinion in Fanaro does not
demonstrate that we applied Rance so as to require an exact
alignment of the elements, as the Supreme Court cautioned
against in Cabrales.
Therefore, appellant is barred from
seeking to re-open the original appeal on this issue
pursuant to the doctrine of res judicata.
Exhibit 38 to Return of Writ.
The factual findings of the state appellate court are presumed to
be correct:
In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebutting
33 

the presumption
evidence.
28

U.S.C.

§

of

2254(e)(1).

correctness

Further,

by

clear

and

convincing

this

Court

cannot

grant

habeas

corpus relief unless the decision of the state court was contrary to
or involved an unreasonable application of clearly established federal
law, or was based on an unreasonable determination of the facts in
light of the evidence presented:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim(1) resulted in a decision that was contrary to, or
involved
an
unreasonable
application
of,
clearly
established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).

The United States Supreme Court has explained:

“[A]n unreasonable application of federal law is different
from an incorrect application of federal law.” Williams v.
Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). Indeed, “a federal habeas court may not issue the
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly
established
federal
law
erroneously
or
incorrectly.”
Id., at 411, 120 S.Ct. 1495.
Rather, that
application must be “objectively unreasonable.”
Id., at
409, 120 S.Ct. 1495.
This distinction creates “a
substantially higher threshold” for obtaining relief than
de novo review.
Schriro v. Landrigan, 550 U.S. 465, 473,
127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA thus imposes
a “highly deferential standard for evaluating state-court
rulings,” Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997), and “demands that
state-court decisions be given the benefit of the doubt,”
Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154
L.Ed.2d 279 (2002) (per curiam).

34 

Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862 (2010) (footnote
omitted)(emphasis in original). “A state court’s determination that a
claim

lacks

merit

precludes

federal

habeas

relief

so

long

as

“‘fairminded jurists could disagree’ on the correctness of the state
court's

decision.”

Harrington

v.

Richter,

–––U.S.

––––,

––––,

131

S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)).

“‘If this standard is difficult to meet’ – and it is –

‘that is because it was meant to be.’”

Burt v. Titlow, -- U.S. --,

2013 WL 5904117, *4 (November 5, 2013)(quoting Harrington, at --, 131
S.Ct. at 786).16
The

state

appellate

court

held

that

counsel’s

invocation

of

Cabrales in Petitioner’s direct appeal would not have changed the
outcome of that appeal. His attorney, therefore, did not perform in a
constitutionally

ineffective

manner

by

failing

to

alert

the

state

appellate court to the pending decision in Cabrales, or by failing to
request a stay pending that decision.

Moreover, because the state

appellate court actually considered the application of Cabrales to
Petitioner’s sentences, Petitioner was not prejudiced by his appellate
counsel’s failure to notify that court of the pendency of Cabrales in
the Ohio Supreme Court.
merit.

Petitioner’s claim four is therefore without

See Strickland.

16

Petitioner argues that the decision of the state appellate court, as it
relates to the ineffective assistance of counsel claim addressed at the
evidentiary hearing, is not entitled to the deference typically afforded the
state courts under the Antiterrorism and Effective Death Penalty Act of 1996.
Petitioner’s Reply to Respondent’s Post Hearing Brief, p. 17. The state
appellate court, however, also addressed other claims and, as to those
claims, the factual findings of the state appellate court are presumed to be
correct and the decision of the state appellate court is entitled to
deference under 28 U.S.C. § 2254(d).

35 

IV. Claim Five
In a somewhat related argument, Petitioner contends in claim five
that his convictions violate the Double Jeopardy Clause of the United
States

Constitution.

Petitioner

In

traverse

argues

specifically

his

that

to
his

the

Return

sentences

of
for

Writ,
false

representation in the sale of securities, as charged in Counts 3, 8,
13, 18, 23, 28, 33, 38, 43, 48, 53, 58, 63, 76, 89, 98, and 131,
should have been merged with his sentences for securities fraud, as
charged in Counts 4, 9, 14, 19, 24, 29, 34, 39, 44, 49, 54, 59, 64,
77,

90,

and

132.17

Petitioner’s

Reply/Traverse

to

Answer/Return of Writ, Doc. No. 15, PageID #1254.

Respondent’s

Petitioner also

argues in the traverse that, because all the convictions involve the
sale of securities, his separate convictions and separate sentences on
all those charges violate Cabrales and the Double Jeopardy Clause.
Id., at PageID #1255-56. This Court disagrees.
The

Double

Jeopardy

Clause

of

the

Fifth

Amendment,

made

applicable to the states through the Fourteenth Amendment, provides
that no person shall “be subject for the same offence to be twice put
in jeopardy of life or limb.”
Jeopardy
successive

Clause

has

prosecutions

been
for

U.S. Const. amend. V.

interpreted
the

same

to

protect

offense

after

The Double
persons

from

acquittal

or

conviction, as well as from multiple punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165-66 (1977).

The traditional test for

double jeopardy claims is the “same elements” test articulated in
Blockburger v. United States, 284 U.S. 299, 304 (1932) (requiring the

17

 The sentences on many of these counts were to be served concurrently.
Exhibit 8 to Return of Writ.

36 

court to determine whether each charged offense “requires proof of an
additional fact which the other does not”).

The Blockburger test is

designed to deal with the situation where closely connected conduct
results

in

multiple

charges

under

separate

statutes.

Under

Blockburger, the critical question is whether the multiple charges in
reality

constitute

the

same

offense.

Thus,

the

Blockburger

test

focuses on whether the statutory elements of the two crimes charged
are

duplicative.

If

the

elements

of

the

two

statutes

are

substantially the same, then to charge the defendant under both will
violate the Double Jeopardy Clause.
The elements of the various counts of securities violations as
charged in the 2006 indictment are not substantially the same. As
discussed by the state appellate court, the charge of engaging in a
pattern of corrupt activity under O.R.C. § 2923.32, contained in Count
134 of the 2006 indictment, requires proof that Petitioner engaged in
a pattern of corrupt activity, see O.R.C. § 2923.32(A)(1), which is
defined as
two or more incidents of corrupt activity, whether or not
there has been a prior conviction, that are related to the
affairs of the same enterprise, are not isolated, and are
not so closely related to each other and connected in time
and place that they constitute a single event.
O.R.C. § 2923.31(E).

Ohio’s statute is patterned after the federal

RICO statute, 18 U.S.C. § 1961 et seq., and, in applying the state
statute,

“Ohio

courts

look

to

federal

case

law

applying

RICO.”

Clayton v. Warden, Corrections Medical Center, No. 3:11-cv-266, 2013
WL 811450, at *11 (S.D. Ohio Mar. 5, 2013).

The elements of an

offense under this statute are different from those under O.R.C. §
37 

1707.44(A)(1) (prohibiting the sale of securities without a license),
O.R.C. § 1707.44(B)(4) (prohibiting false representations in the sale
of

securities),

unregistered,

O.R.C.

§

1707.44(C)(1)

non-exempt

1707.44(G)(prohibiting

fraud

(prohibiting

securities),
in

connection

the

and
with

sale

of

O.R.C.
the

sale

§
of

securities), because the statute requires two or more incidents of
corrupt

activity

related

to

the

affairs

of

the

same

enterprise.

Significantly, in federal RICO prosecutions, consecutive sentences for
both the RICO violation and the predicate underlying offenses do not
violate the Double Jeopardy Clause. United States v. Sutton, 700 F.2d
1078 (6th Cir. 1983). Moreover, this Court defers to the conclusion of
the

state

appellate

court

that

the

Ohio

legislature

intended

cumulative punishments for the violation of these statutes.

See also

Clayton, 2013 WL 811450, at *15 (reaching same conclusion); Cody v.
Jeffreys, No. 2:10-cv-974, 2013 WL 170268, at *7-8 (S.D. Ohio Jan. 16,
2013) (no Double Jeopardy violation where Ohio courts have interpreted
their own statutes to permit cumulative punishment for a single act).
The Supreme Court has interpreted the multiple-punishments
aspect of the Double Jeopardy Clause as protecting
defendants from being punished more than once for a single
act
when
the
legislature
does
not
intend
for
the
punishments to be cumulative.
See Albernaz v. United
States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275
(1981).
In other words, “[w]ith respect to cumulative
sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from
prescribing
greater
punishment
than
the
legislature
intended.”
Missouri v. Hunter, 459 U.S. 359, 366, 103
S.Ct. 673, 74 L.Ed.2d 535 (1983); see White v. Howes, 586
F.3d 1025, 1035 (6th Cir. 2009) (“The current jurisprudence
allows for multiple punishment for the same offense
provided the legislature has clearly indicated its intent
38 

to so provide, and recognizes no exception for necessarily
included, or overlapping offenses.”).
When two different
statutory provisions authorize punishment for the same act,
“[t]he first step is to determine whether [the legislature]
intended to punish cumulatively the same conduct which
violates two statutes.” United States v. Johnson, 22 F.3d
106, 107–08 (6th Cir. 1994); see Ohio v. Johnson, 467 U.S.
493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (“[T]he
question
under
the
Double
Jeopardy
Clause
whether
punishments
are
‘multiple’
is
essentially
one
of
legislative intent.”).
. . .
Moreover,
“[w]hen
assessing
the
intent
of
a
state
legislature, a federal court is bound by a state court's
construction of that state's own statutes.”
Banner v.
Davis, 886 F.2d 777, 780 (6th Cir. 1989) (citing Hunter,
459 U.S. at 368, 103 S.Ct. 673; O'Brien v. Skinner, 414
U.S. 524, 531, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974)).
“Under the [D]ouble [J]eopardy [C]lause, when evaluating
whether
a
state
legislature
intended
to
prescribe
cumulative punishments for a single criminal incident, a
federal court is bound by a state court's determination of
the legislature's intent.”
Id. (citations omitted).
“Thus, for purposes of double jeopardy analysis, once a
state court has determined that the state legislature
intended cumulative punishments, a federal habeas court
must defer to that determination.”
Id.; see Bradshaw v.
Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407
(2005) (per curiam) (“We have repeatedly held that a state
court's
interpretation
of
state
law,
including
one
announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.”); Jones v.
Sussex I State Prison, 591 F.3d 707, 710 (4th Cir. 2010)
(“[W]hen the charged offenses violate state law, the double
jeopardy analysis hinges entirely on the state-law question
of what quantum of punishment the state legislature
intended.
Once a state court has answered that state-law
question, there is no separate federal constitutional
standard requiring that certain actions be defined as
single or as multiple crimes.” (internal citation and
alteration omitted)).

39 

Volpe

v.

Trim,

708

F.3d

688,

696-97

(6th

Cir.

2013)

(footnote

omitted).
The state court held that Petitioner’s convictions and separate
sentences

on

the

separate

securities

counts

and

on

the

charge

of

engaging in a pattern of corrupt activity were not improper and did
not violate state law.

It follows, then, that Petitioner’s separate

sentences on those charges did not violate the Double Jeopardy Clause.
See Volpe.

Particularly is this true in light of the fact that Ohio’s

statute on allied offenses of similar import, O.R.C.. § 2941.25, is
intended to codify the protections of the Double Jeopardy Clause.
State v. Underwood, 124 Ohio St. 3d 365, 370 (2010).
In short, claim five is without merit.
V.

Claim Six
In claim six, Petitioner alleges that, in sentencing him, the

trial court engaged in impermissible fact finding in violation of
Blakely

v.

Washington,

Petition, PageID #33-35.

542

U.S.

296,

and

the

Sixth

Amendment.

The state appellate court rejected this

claim as follows:
Under the Ohio law, and in accordance with the Foster
decision, the trial court is vested with discretion to
impose a prison term within an applicable statutory range.
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846
N.E.2d 1. However, in exercising its discretion the court
remains guided by the legislation designed to establish
uniformity, and must “carefully consider the statutes that
apply to every felony case [including] R.C. 2929.11, which
specifies the purposes of sentencing, and R.C. 2929.12,
which provides guidance in considering factors relating to
the seriousness of the offense and recidivism of the
offender [and] statutes that are specific to the case
itself.”
State v. Mathis, 109 Ohio St.3d at 62.FN3
The
fact that the trial judge explained his reasons for
imposing a particular sentence, on the record, cannot
transform a sentence within the range provided by statute
40 

into a constitutionally infirm sentence on the grounds that
the statements constitute impermissible ‘judicial factfinding.’”
State v. Goggans, Delaware App. No.2006-CA-070051, 2007-Ohio-1433, at paragraph 29.
FN3. For example, guided by the overriding purposes of
felony sentencing the court can sentence in order to
“protect the public from future crime by the offender” and
“to punish the offender.” R.C. 2929.11(A). The court can
also consider, inter alia, whether the victim suffered
serious psychological and economic harm as a result of the
offense, whether the offenders' occupation or profession
obliged the offender to prevent the offense, and whether
the offender's relationship with the victim facilitated the
offense. R.C. 2929.12(B).
In this case, the applicable statutory sentencing ranges
are as follows: for a first degree felony the court may
impose a three, four, five, six, seven, eight, nine or ten
year sentence.
For a third degree felony the court may
impose a one, two, three, four or five year sentence; and,
for a fifth degree felony the court may impose a six,
seven, eight, nine, ten, eleven, or twelve month sentence.
Furthermore, “if an offender is sentenced to multiple
prison terms, the court is not barred from requiring those
terms to be served consecutively.”
State v. Foster, 109
Ohio St.3d at 31.
Prior to the imposition of sentence the trial court
informed the parties that the maximum possible sentence
which could be imposed by the trial court was 377 years.
The trial court further stated, “the court has considered
the purposes and principles of sentences set out under
Section 2929.11 of the Ohio Revised Code, as well as the
seriousness and recidivism factors set out under Section
2929.12.” Transcript of sentencing proceeding at pages 33
and 34, hereinafter T.S. at ----).
The trial court found
that the evidence established that the appellant victimized
older, retired, financially unsophisticated people whom he
groomed with personal charm to invest their small life
savings in risky, long term, securities. The court further
found that appellant's activities had a vast effect on the
victims’ emotional and financial security.
T.S. 33-38.
The trial court then proceeded to impose a minimum six
month sentence on each of the thirty-two third degree
felonies and a minimum one year sentence on three, third
degree felonies, to run consecutively to each other, and
concurrently to all other counts, for an aggregate nineteen
(19) year sentence.
We note that appellant discusses an alleged disparity
between appellant's sentence and the sentence imposed for a
41 

co-conspirator.
We decline to consider these arguments as
they involve matters outside the record in this case.
However, we find that the record establishes that the
appellant did not receive the possible maximum consecutive
sentence of 377 years, and that the sentence imposed was
not only the minimum for each charged count within the
statutory ranges, but, was also in compliance with Foster.
Furthermore, pursuant to Goggans we do not find that the
statements made by the trial court transform the sentence
into a constitutionally infirm sentence on the grounds that
the statements constitute impermissible judicial fact
finding.
State v. Fanaro, 2008 WL 555448, at *1-3.

Again, the findings of the

state appellate court are presumed to be correct under 28 U.S.C. §
2254(e), and habeas corpus relief is warranted only where the state
court’s decision contravened or involved an unreasonable application
of federal law, as determined by the United States Supreme Court, or
resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented.

28 U.S.C. § 2254(d).

Such are not the circumstances here.
In Blakely, 542 U.S. at 296, the United States Supreme Court held
that

a

judge’s

fact

finding

cannot

form

the

basis

of

a

sentence

enhancement that imposes a term greater than the maximum sentence for
the underlying crime:
[T]he relevant “statutory maximum” is not the maximum
sentence a judge may impose after finding additional facts,
but the maximum he may impose without any additional
findings. When a judge inflicts punishment that the jury's
verdict alone does not allow, the jury has not found all
the
facts
“which
the
law
makes
essential
to
the
punishment,” and the judge exceeds his proper authority.
Id. at 303–04 (citation omitted).
Court

excised

the

fact

finding

After Blakely, the Ohio Supreme
provisions

of

Ohio’s

sentencing

statutes, but held that “trial courts have full discretion to impose a
prison sentence within the statutory range and are no longer required
42 

to

make

findings

or

give

their

reasons

for

imposing

consecutive, or more than the minimum sentences.”

maximum,

Foster, 109 Ohio

St.3d at 30. Subsequently, the United States Supreme Court held that
the

Sixth

Amendment

does

not

preclude

judges

from

making

findings prior to the imposition of consecutive sentences.

factual

Oregon v.

Ice, 555 U.S. 160, 163-64 (2009).
Nothing in the record supports any suggestion that the trial
judge

violated

Blakely

or

the

Sixth

Amendment

when

it

imposed

consecutive sentences within the statutory range for the offenses upon
which Petitioner was convicted.

Petitioner misconstrues the holding

of Apprendi v. New Jersey, 530 U.S. 466, when he argues, see Petition,
PageID #33-34, that the Sixth Amendment forbids a sentencing judge
from considering facts brought out during a jury trial or the effect
of the crimes on the victims. The sentences imposed in this case did
not

exceed

the

statutory

maximums

and

the

trial

judge

was

not

constitutionally prohibited from articulating the reasons for those
sentences.
Claim six is without merit.
For the foregoing reasons, it is RECOMMENDED that the petition
for a writ of habeas corpus be DISMISSED.
VI.

Procedure for Objections
If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
43 

28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
November 22, 2013

44