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

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THE STATE OF OHIO, APPELLEE, v. MCNEILL, APPELLANT.
[Cite as State v. McNeill (1998), ___ 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.
(No. 97-1974 -- Submitted February 17, 1998 -- Decided October 28, 1998.)
APPEAL from the Court of Appeals for Lorain County, No. 95CA006158.

Appellant, Freddie McNeill, Jr., was convicted of aggravated murder and
sentenced to death by the Lorain County Court of Common Pleas. The court of
appeals affirmed his conviction and death sentence. State v. McNeill (Apr. 1,
1997), Lorain App. No. 95CA6158, unreported, 1997 WL 186348. McNeill's
direct appeal of that judgment is now pending in this court (case No. 97-929). The
record of McNeill's trial was filed in this court on June 9, 1997.

On June 30, 1997, McNeill filed in the court of appeals an application to
reopen his direct appeal pursuant to App.R. 26(B). The application alleged
ineffective assistance of appellate counsel. Although App.R. 26(B)(2)(e) requires
an application for reopening to "contain * * * [a]ny parts of the record available to
the applicant," McNeill's application did not contain any part of the record.

On July 28, 1997, McNeill filed a motion with the court of appeals
requesting that court to "hold * * * in abeyance" its proceedings on his application
until his direct appeal was decided by this court. McNeill argued that, "[s]ince the
Supreme Court of Ohio is presently in possession of the record, [the court of
appeals] will be unable to properly review the case and determine the prejudicial
effect appellate counsel's deficient representation had on Mr. McNeill's
proceedings."

On August 5, 1997, the court of appeals denied McNeill's application to
reopen because McNeill "has failed to provide us with the portions of the record
this Court needs to evaluate the merits of [his] application. Because appellant's
case is currently on appeal to the Ohio Supreme Court, we do not have access to
the trial court record. Therefore, we cannot determine whether appellant even
states a colorable claim of ineffective assistance of appellate counsel."

Subsequently, the court of appeals denied McNeill's "motion to hold
proceeding in abeyance," stating that an application for reopening under App.R.
26(B) must be ruled on within forty-five days of its filing.

From the court of appeals' judgment denying his App.R. 26(B) application,
McNeill appeals to this court as of right.
__________________

Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E.
Rosenbaum, Chief Counsel, Criminal Division, for appellee.

David H. Bodiker, Ohio Public Defender, Lawrence E. Komp and Jennifer
E. Hite, Assistant Public Defenders, for appellant.
__________________

Per Curiam. In his first proposition of law, McNeill contends that the court
of appeals erred by denying his application without considering whether he made
colorable claims of ineffective assistance. We disagree.

App.R. 26(B)(2) states in pertinent part, "An application for reopening shall
contain * * * (e) Any parts of the record available to the applicant and all
supplemental affidavits upon which the applicant relies." (Emphasis added.)
McNeill failed to attach any part of the record to his application. His sole excuse
is that, when he filed the application, the record was in the custody of this court.

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However, the question is not who had custody of the record, but whether it was
"available to the applicant."

McNeill falls far short of demonstrating that the record was unavailable to
him when he filed his application. He evidently had access to the record of his
trial, or a copy thereof, at that time, for his application cites the record. Moreover,
the brief before us in the instant case quotes the record extensively. So does the
brief filed on McNeill's behalf in No. 97-929 (his direct appeal on the merits to
this court), which demonstrates that McNeill's counsel in No. 97-929 have also
had access to the record.

Counsel in the instant appeal could have copied the record when they had
access to it, or obtained a copy with the cooperation of the other attorneys now
representing McNeill in No. 97-929. Moreover, McNeill could have requested
further access to the record from the Clerk of this court for the purpose of making
a copy to attach to his App.R. 26(B) application. (We note that the state public
defender, who represents McNeill both in the instant case and in a postconviction
proceeding, recently requested and obtained a copy of the trial record from the
Clerk of this court for purposes of the postconviction proceeding.)

App.R. 26(B)(2)(e) places the responsibility squarely upon the applicant to
provide the court of appeals with such portions of the record as are available to
him. McNeill has not shown that the record was unavailable to him; hence, he was
required to attach a copy to his application. As he failed to do so, his application
was properly denied.

McNeill further contends that the court of appeals should have granted his
motion to delay its ruling on the application. The court of appeals denied that
motion partly on a ground that McNeill contends is incorrect -- that courts of
appeals must rule on App.R. 26(B) applications within forty-five days of filing.

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We need not decide this point, however. Since McNeill did not comply with
App.R. 26(B)(2)(e), the denial of his application was proper whether the motion to
hold in abeyance was granted or not. Thus, any error in this regard was harmless.

McNeill's second proposition of law alleges that inadmissible evidence was
admitted in the penalty phase of his trial. This proposition does not allege
ineffective assistance of appellate counsel. (In fact, appellate counsel raised this
issue on direct appeal to the court of appeals.) This issue therefore was not
properly raised in an App.R. 26(B) application, and is not properly before us on an
appeal from the denial of the application.

In his third proposition of law, McNeill asserts his sole substantive claim of
ineffective appellate counsel. But "[t]he court of appeals never reached that claim,
and it is not properly before us." State v. Wickline (1996), 74 Ohio St.3d 369, 372,
658 N.E.2d 1052, 1054.

We overrule each of McNeill's propositions of law. The judgment of the
court of appeals is affirmed.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.

LUNDBERG STRATTON, J., concurs separately.
__________________

LUNDBERG STRATTON, J., concurring. I agree with the majority's
determination that McNeill failed to satisfy App.R. 26(B)(2)(e) because McNeill
failed to attach any relevant portions of the record to his application and he made
no showing that the record was unavailable. Rather, McNeill moved to stay the
appellate court's determination of his application to reopen his appeal because the

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record was in the possession of this court and therefore the appellate court would
be unable to properly review his petition.

The appellate court's entry denying McNeill's application for reopening
reasoned:

"[McNeill] has failed to provide us with the portions of the record this court
needs to evaluate the merits of [McNeill's] application. Because [McNeill's] case
is currently on appeal as of right to the Ohio Supreme Court, we do not have
access to the trial court record. Therefore, we cannot determine whether
appellant even states a colorable claim of ineffective assistance of counsel."
(Emphasis added.)

It is the appellate court's second conclusion that concerns me. Availability
of the record for appellate courts to review cases is of paramount importance to
any court. It is entirely possible, and in death penalty cases probable, that a
criminal defendant will have several motions pending concurrently in different
courts. See R.C. 2953.21. In light of that probability, this court proposed and
adopted S.Ct.Prac.R. XIX(4)(D) and App.R. 11(B).1 App.R. 11(B) requires that
on direct appeal the clerk for the appellate court shall make a duplicate record or
make the record available to the trial court when a trial court is exercising
concurrent jurisdiction over a motion for postconviction relief. S.Ct.Prac.R.
XIX(4)(D) requires that on a direct appeal of a death penalty case, the clerk of the
trial court must make and retain a copy of the record for use in postconviction
proceedings that run concurrently with the direct appeal to the Ohio Supreme
Court. See Staff Notes to Rule XIX. These rules do not cover the situation in this
case or in a case where proceedings are pending in all three courts.2 But the
principle behind the rules requires that the Clerk of this court and clerks of
appellate courts should share records (if possible) when concurrent appeals or

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motions are pending in other courts. The alternative is for clerks to make copies
of the record, which in a death penalty case can be voluminous. This would result
in unnecessary labor by the courts and expense to the taxpayers, since death
penalty defendants are usually indigent.

We should encourage a system of sharing the record so that each court can
expeditiously handle its review, the defendant is not inadvertently harmed, and the
taxpayer does not have to fund the cost of unnecessary duplicate records.
FOOTNOTES:
1.
Neither of these rules is applicable in this case. S.Ct.Prac.R. XIX applies
only to offenses committed on or after January 1, 1995. McNeill was convicted of
an aggravated murder that occurred on May 13, 1994. App.R. 11(B) was amended
in July 1997, after McNeill's direct appeal had been resolved.
2.
Due to the new rules making the death penalty case directly appealable to
this court, it is unlikely that such a case will have motions concurrently pending in
all three courts. However, the new rules do not affect other criminal cases.

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