State v. Nickelson - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State of Ohio, Appellee, v. Nickelson, Appellant.
[Cite as State v. Nickelson (1996), ___ Ohio St.3d ___.]
Appellate procedure -- Application for reopening appeal from judgment
and conviction based on claim of ineffective assistance of
appellate counsel -- Application denied when applicant fails to
state a colorable claim -- Reviewing court cannot add matter to
the record and then decide the appeal on the basis of the new
matter.

(No. 95-1037 -- Submitted September 12, 1995 -- Decided
March 1, 1996.)

APPEAL from the Court of Appeals for Franklin County, No. 94APA04-582.

Appellant, Leshawn Nickelson, was convicted of aggravated burglary,
aggravated robbery, and kidnapping, but his convictions were overturned on
appeal and a new trial was ordered. State v. Nickelson (July 13, 1993), Franklin
App. No. 93AP-159, unreported. Nickelson was convicted a second time, and the
Court of Appeals for Franklin County affirmed the trial court's judgment. State v.
Nickelson (Sept. 27, 1994), Franklin App. No. 94APA04-582, unreported.

On February 28, 1995, Nickelson filed a motion to reopen his appeal
pursuant to App.R.26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584
N.E.2d 1204, which the court of appeals denied on April 11, 1995. Nickelson now
appeals to this court.

Michael Miller, Franklin County Prosecuting Attorney, and Susan E. Day,
Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, and Thomas R. Wetterer, Jr.,
Assistant Public Defender, for appellant.

WRIGHT, J. In his application to reopen, Nickelson claimed that his
appellate counsel had been ineffective because he failed to raise the following
issues on appeal: (1) prosecutorial misconduct during closing argument, (2) trial
counsel's and the trial judge's failure to explore the potentially prejudicial
relationship between an assistant prosecutor and a juror, (3) trial counsel's failure
to move for a jury view, and (4) trial counsel's failure to pursue evidentiary leads
and conduct other pretrial investigation. Nickelson also claimed that his appellate

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counsel was ineffective because he failed to obtain or review the transcript of
closing argument at trial.

The court of appeals denied both Nickelson's request for the trial transcript
and application to reopen. The court denied the application because, based on the
record presented, it could not find that appellant had been prejudiced by a tainted
jury or improper closing argument. The appellate court also held that the failure to
move for a jury view could not be prejudicial, since it was not evidence, and that
appellant did not otherwise state a colorable claim.

We affirm the court of appeals insofar as it denied Nickelson's motion for a
free transcript. The right to a transcript at public expense does not attach until an
appeal is actually pending. State ex rel. Taylor v. Cuyahoga Cty. Common Pleas
Court (1969), 20 Ohio St.2d 5, 49 O.O.2d 53, 251 N.E.2d 609.

We also affirm the court of appeals' denial of the application to reopen.
We review Nickelson's application under the two-prong analysis found in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
to determine whether Nickelson has raised a "genuine issue" to his claim that he

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was denied the effective assistance of appellate counsel. State v. Reed (1996), ___
Ohio St.3d ____, ____ N.E.2d ____.

The events which Nickelson claims occurred during closing argument do
not rise to the level of prosecutorial misconduct denying appellant a fair trial,
since Nickelson concedes that his trial counsel objected to the statements in
question and that the trial court delivered a limiting instruction to the jury.
Because there would have been no "reasonable probability" of success had
Nickelson's counsel asserted this claim, appellate counsel's failure to raise the
issue on appeal was not prejudicial. See Strickland at 694, 104 S.Ct. at 2068, 80
L.Ed.2d at 698.

Moreover, we find that Nickelson has failed to demonstrate a "reasonable
probability" of success had appellate counsel raised trial counsel's failure to
explore potential juror prejudice, to move for a jury view, and to investigate.
Accordingly, we affirm the judgment of the court of appeals in its entirety.
Judgment
affirmed.

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