State v. Pianowski, 2013 Ohio 2764

Pianowski was indicted for aggravated robbery and having weapons under disability with gun and RVO specifications; convicted after trial and sentenced to 23 years total, with sentences for firearm and RVO set to run consecutively.
On direct appeal, convictions affirmed but sentence voided due to RVO unconstitutionality under Foster and remanded for resentencing.
In 2006, trial court resentenced Pianowski to 18 years after removing the RVO sentence; Pianowski asked counsel to file a notice of appeal.
Approximately one year later, Pianowski moved for a delayed appeal; the motion was denied/dismissed in 2007.
Pianowski filed a February 2012 petition for post-conviction relief asserting ineffective assistance for counsel’s failure to file an appeal, supported by transcript excerpts and his affidavit.
The trial court dismissed the petition as untimely and lacking substantive grounds; the appellate court affirmed, holding no prejudice established and untimeliness not excused.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of the post-conviction petition	Pianowski contends untimeliness was excused under 2953.23(A)(1) due to inability to obtain transcript.	State argues petition untimely and not excused; petitioner failed to demonstrate unavoidably prevented filing.	Untimely petition; not excused; trial court lacked jurisdiction to consider.
Prejudice from counsel’s failure to file an appeal	Pianowski asserts prejudice is presumed when counsel fails to file a notice of appeal.	State contends prejudice must be shown; presumption does not apply here because defendant had prior appellate activity.	Prejudice not presumed; petitioner failed to show actual prejudice; claim fails.
Substantive grounds for relief under ineffective assistance of counsel	Ineffective assistance due to failure to file appeal constitutes substantive Ground for relief.	No substantive prejudice shown; otherwise, prior appellate involvement under Kitchen-v-United States undermines presumption.	No substantive grounds established; petition properly dismissed.

State v. Wells, 2010-Ohio-3238 (Ohio Ct. App. 2d Dist. (2010)) (timeliness and excusal under R.C. 2953.23 analyzed)
State v. Martin, 2004-Ohio-73 (Ohio App. Dist. 2d (2004)) (unavoidably prevented filing under 2953.23(A)(1)(a))
Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court (1984)) (ineffective assistance standard: deficient performance plus prejudice)
Flores-Ortega v. United States, 528 U.S. 470 (U.S. Supreme Court (2000)) (presumption of prejudice when counsel fails to file direct appeal in certain contexts)
Kitchen v. United States, 227 F.3d 1014 (7th Cir. (2000)) (presumption of prejudice not applicable where defendant had some appellate counsel activity)
Ludwig v. United States, 162 F.3d 456 (6th Cir. (1998)) (presumption of prejudice in some failure-to-appeal cases discussed)
Castellanos v. United States, 26 F.3d 718 (2d Cir. (1994)) (context for Flores-Ortega prejudice framework)
State v. Wells, 2010-Ohio-3238 (Ohio Ct. App. 2d Dist. (2010)) (timeliness and excusal rules applied to post-conviction petitions)