THE STATE OF OHIO, APPELLEE, v. MCNEILL, APPELLANT.
No. 97-1974
SUPREME COURT OF OHIO
October 28, 1998
83 Ohio St.3d 457 | 1998-Ohio-38
Appellate procedure—Application for reopening appeal from judgment and conviction based on claim of ineffective assistance of appellate counsel—Aрplication denied, when.
Appellate procedure—Application for reopening appeal from judgment and conviction based on claim of ineffective assistance of aрpellate 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.
{¶ 1} 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.
{¶ 2} On June 30, 1997, McNeill filed in the court of appeals an application to reopen his dirеct appeal pursuant to
{¶ 3} On July 28, 1997, McNeill filed a motion with the court of appeals requеsting 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 possessiоn of the record, [the court of appeals] will be unable to properly review the case and determine the prejudicial effect appellate counsel’s deficient represеntation had on Mr. McNeill’s proceedings.”
{¶ 4} 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.”
{¶ 5} Subsеquently, the court of appeals denied McNeill’s “motion to hold proceeding in abeyance,” stating that an application for reopening under
{¶ 6} From the court of appeals’ judgment denying his
David H. Bodiker, Ohio Public Defender, Lawrence E. Komp and Jennifer E. Hite, Assistant Public Defenders, for appellant.
Per Curiam.
{¶ 7} In his first proposition of law, McNeill сontends that the court of appeals erred by denying his application without considering whether he made colorable claims of ineffective assistance. We disagree.
{¶ 8}
{¶ 9} 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 dirеct appeal on the merits to this court), which demonstrates that McNeill’s counsel in No. 97-929 have also had access to the record.
{¶ 10} 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
{¶ 11}
{¶ 12} 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 MсNeill contends is incorrect—that courts of appeals must rule on
{¶ 13} McNeill’s second proposition of law alleges that inadmissible evidence wаs 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 dirеct appeal to the court of appeals.) This issue therefore was not properly raised in an
{¶ 14} 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.
{¶ 15} 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.
{¶ 16} I agree with the majority’s determination that McNeill failed to satisfy
{¶
“[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.)
{¶ 18} 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 рossible, and in death penalty cases probable, that a criminal defendant will have several motions pending concurrently in different courts. See
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.
{¶ 19} We should encourage a system of sharing the reсord 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.