[Cite as State v. Freeman, 2014-Ohio-5050.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 MA 112 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION AND ) JUDGMENT ENTRY GARY G. FREEMAN ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Appellant’s Motion to Reopen Appeal Pursuant to App.R. 26(B) Case No. 11 CR 770
JUDGMENT: Denied.
APPEARANCES: For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Gary G. Freeman, Pro Se #630-125 Southern Ohio Correctional Facility P.O. Box 45699 Lucasvile, Ohio 45699
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: November 7, 2014 [Cite as State v. Freeman, 2014-Ohio-5050.] PER CURIAM.
{¶1} On April 3, 2014, Appellant, Gary Freeman, filed an application to
reopen State v. Freeman, 7th Dist. No. 12 MA 112, 2014-Ohio-1030, in which we
affirmed Appellant’s convictions on kidnapping, attempted rape, and receiving stolen
property. Appellant bases his timely request for reopening on App.R. 26(B)(1), which
provides:
A defendant in a criminal case may apply for reopening of the appeal
from the judgment of conviction and sentence, based on a claim of
ineffective assistance of appellate counsel. An application for
reopening shall be filed in the court of appeals where the appeal was
decided within ninety days from journalization of the appellate judgment
unless the applicant shows good cause for filing at a later time.
{¶2} Under App.R. 26(B)(2), an application for reopening “shall contain all of
the following”:
(a) The appellate case number in which reopening is sought and the
trial court case number or numbers from which the appeal was taken;
(b) A showing of good cause for untimely filing if the application is filed
more than ninety days after journalization of the appellate judgment.
(c) One or more assignments of error or arguments in support of
assignments of error that previously were not considered on the merits
in the case by any appellate court or that were considered on an -2-
incomplete record because of appellate counsel's deficient
representation;
(d) A sworn statement of the basis for the claim that appellate
counsel's representation was deficient with respect to the assignments
of error or arguments raised pursuant to division (B)(2)(c) of this rule
and the manner in which the deficiency prejudicially affected the
outcome of the appeal, which may include citations to applicable
authorities and references to the record;
(e) Any parts of the record available to the applicant and all
supplemental affidavits upon which the applicant relies.
{¶3} Appellant initially filed an incomplete application for reopening on April
3, 2014. This application omitted both the sworn statement required by App.R.
26(B)(2)(d) and the parts of the record on which Appellant relied as required by
App.R. 26(B)(2)(e). Appellant filed a second, “supplemental” application for
reopening on May 28, 2014, which was also timely. This second application will be
accepted as if it were the sole application filed, because there is no provision in
App.R. 26 for “supplements” to applications for reopening. In his May 28, 2014 filing
Appellant noted that he recently received the trial transcripts on which to base
complete filing. (5/28/14 Supplemental Application for Reopening.)
{¶4} Although Appellant’s second filing is timely and now includes a sworn
statement, Appellant again failed to provide any portions of the record on which he
relies. “App.R. 26(B)(2)(e) places the responsibility squarely upon the applicant to -3-
provide the court of appeals with such portions of the record as are available to him.”
Where an applicant fails to do so, “his application [is] properly denied.” State v.
McNeill, 83 Ohio St.3d 457, 459, 700 N.E.2d 613 (1998). Appellant has not satisfied
the requirements of App.R. 26(B)(2)(e). Hence, Appellant’s application is properly
dismissed.
{¶5} Even assuming that Appellant had fully satisfied the requirements of
App.R. 26, his application does not present the “colorable claim of ineffective
assistance of appellate counsel” pursuant to State v. Sanders, 75 Ohio St.3d 607,
607, 665 N.E.2d 199 (1996) and would fail.
{¶6} Appellant’s appeal focused on the sufficiency and the manifest weight
of the evidence supporting his convictions as well as the propriety of his sentences
and sentencing hearing. We overruled Appellant’s weight, sufficiency, and merger
arguments, but agreed with his challenge of the omission of postrelease control
information during his sentencing hearing. We affirmed Appellant’s convictions and
sentence, but remanded the matter for a new hearing to allow the trial court to correct
this omission. Appellant argues that, although he was partially successful in his
appeal, he received ineffective assistance of appellate counsel due to counsel’s
decision not to argue that trial counsel was ineffective, that the state committed
prosecutorial misconduct by failing to call a witness, and that the trial court should
have granted Appellant’s Crim.R. 29 motion for acquittal at the close of the state’s
case. -4-
{¶7} Appellant’s representations concerning prosecutorial misconduct are
unsupported by the portions of the record necessary to substantiate such claims and
do not reflect behavior or omissions that could be construed as improper. State v.
Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984) (“[t]he test regarding
prosecutorial misconduct * * * is whether the remarks were improper and, if so,
whether they prejudicially affected the substantial rights of the defendant.”) The
state’s decision to disclose a potential witness who was not called at trial is not
misconduct. Instead, this demonstrates the state’s compliance with both the spirit
and letter of various pre-trial evidentiary disclosure requirements a criminal
proceeding may include. See e.g., State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-
3831, 935 N.E.2d 9, (discussing the various disclosures that may and may not be
required in a criminal proceeding.)
{¶8} Appellant’s arguments concerning the relationship between “sexual
conduct,” “rape,” and “attempted rape” confuse the legal significance of these terms.
The fact that Appellant’s offenses were described using different portions of the
statutory phrasing at different points in the proceeding below does not amount to
misconduct, either. The remainder of Appellant’s argument and his Rule 29 motion,
including his statements as to alleged inconsistencies in the victim’s recollection of
events, is simply repetitive of the sufficiency and manifest weight arguments made by
appellate counsel in Appellant’s direct appeal. Appellate counsel cannot be found
deficient for making the very arguments Appellant now advances. -5-
{¶9} Appellate counsel in this matter was obviously effective, since we
sustained one of Appellant’s assignments of error and remanded the matter for a new
sentencing hearing.
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[Cite as State v. Freeman, 2014-Ohio-5050.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 MA 112 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION AND ) JUDGMENT ENTRY GARY G. FREEMAN ) ) DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Appellant’s Motion to Reopen Appeal Pursuant to App.R. 26(B) Case No. 11 CR 770
JUDGMENT: Denied.
APPEARANCES: For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Gary G. Freeman, Pro Se #630-125 Southern Ohio Correctional Facility P.O. Box 45699 Lucasvile, Ohio 45699
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: November 7, 2014 [Cite as State v. Freeman, 2014-Ohio-5050.] PER CURIAM.
{¶1} On April 3, 2014, Appellant, Gary Freeman, filed an application to
reopen State v. Freeman, 7th Dist. No. 12 MA 112, 2014-Ohio-1030, in which we
affirmed Appellant’s convictions on kidnapping, attempted rape, and receiving stolen
property. Appellant bases his timely request for reopening on App.R. 26(B)(1), which
provides:
A defendant in a criminal case may apply for reopening of the appeal
from the judgment of conviction and sentence, based on a claim of
ineffective assistance of appellate counsel. An application for
reopening shall be filed in the court of appeals where the appeal was
decided within ninety days from journalization of the appellate judgment
unless the applicant shows good cause for filing at a later time.
{¶2} Under App.R. 26(B)(2), an application for reopening “shall contain all of
the following”:
(a) The appellate case number in which reopening is sought and the
trial court case number or numbers from which the appeal was taken;
(b) A showing of good cause for untimely filing if the application is filed
more than ninety days after journalization of the appellate judgment.
(c) One or more assignments of error or arguments in support of
assignments of error that previously were not considered on the merits
in the case by any appellate court or that were considered on an -2-
incomplete record because of appellate counsel's deficient
representation;
(d) A sworn statement of the basis for the claim that appellate
counsel's representation was deficient with respect to the assignments
of error or arguments raised pursuant to division (B)(2)(c) of this rule
and the manner in which the deficiency prejudicially affected the
outcome of the appeal, which may include citations to applicable
authorities and references to the record;
(e) Any parts of the record available to the applicant and all
supplemental affidavits upon which the applicant relies.
{¶3} Appellant initially filed an incomplete application for reopening on April
3, 2014. This application omitted both the sworn statement required by App.R.
26(B)(2)(d) and the parts of the record on which Appellant relied as required by
App.R. 26(B)(2)(e). Appellant filed a second, “supplemental” application for
reopening on May 28, 2014, which was also timely. This second application will be
accepted as if it were the sole application filed, because there is no provision in
App.R. 26 for “supplements” to applications for reopening. In his May 28, 2014 filing
Appellant noted that he recently received the trial transcripts on which to base
complete filing. (5/28/14 Supplemental Application for Reopening.)
{¶4} Although Appellant’s second filing is timely and now includes a sworn
statement, Appellant again failed to provide any portions of the record on which he
relies. “App.R. 26(B)(2)(e) places the responsibility squarely upon the applicant to -3-
provide the court of appeals with such portions of the record as are available to him.”
Where an applicant fails to do so, “his application [is] properly denied.” State v.
McNeill, 83 Ohio St.3d 457, 459, 700 N.E.2d 613 (1998). Appellant has not satisfied
the requirements of App.R. 26(B)(2)(e). Hence, Appellant’s application is properly
dismissed.
{¶5} Even assuming that Appellant had fully satisfied the requirements of
App.R. 26, his application does not present the “colorable claim of ineffective
assistance of appellate counsel” pursuant to State v. Sanders, 75 Ohio St.3d 607,
607, 665 N.E.2d 199 (1996) and would fail.
{¶6} Appellant’s appeal focused on the sufficiency and the manifest weight
of the evidence supporting his convictions as well as the propriety of his sentences
and sentencing hearing. We overruled Appellant’s weight, sufficiency, and merger
arguments, but agreed with his challenge of the omission of postrelease control
information during his sentencing hearing. We affirmed Appellant’s convictions and
sentence, but remanded the matter for a new hearing to allow the trial court to correct
this omission. Appellant argues that, although he was partially successful in his
appeal, he received ineffective assistance of appellate counsel due to counsel’s
decision not to argue that trial counsel was ineffective, that the state committed
prosecutorial misconduct by failing to call a witness, and that the trial court should
have granted Appellant’s Crim.R. 29 motion for acquittal at the close of the state’s
case. -4-
{¶7} Appellant’s representations concerning prosecutorial misconduct are
unsupported by the portions of the record necessary to substantiate such claims and
do not reflect behavior or omissions that could be construed as improper. State v.
Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984) (“[t]he test regarding
prosecutorial misconduct * * * is whether the remarks were improper and, if so,
whether they prejudicially affected the substantial rights of the defendant.”) The
state’s decision to disclose a potential witness who was not called at trial is not
misconduct. Instead, this demonstrates the state’s compliance with both the spirit
and letter of various pre-trial evidentiary disclosure requirements a criminal
proceeding may include. See e.g., State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-
3831, 935 N.E.2d 9, (discussing the various disclosures that may and may not be
required in a criminal proceeding.)
{¶8} Appellant’s arguments concerning the relationship between “sexual
conduct,” “rape,” and “attempted rape” confuse the legal significance of these terms.
The fact that Appellant’s offenses were described using different portions of the
statutory phrasing at different points in the proceeding below does not amount to
misconduct, either. The remainder of Appellant’s argument and his Rule 29 motion,
including his statements as to alleged inconsistencies in the victim’s recollection of
events, is simply repetitive of the sufficiency and manifest weight arguments made by
appellate counsel in Appellant’s direct appeal. Appellate counsel cannot be found
deficient for making the very arguments Appellant now advances. -5-
{¶9} Appellate counsel in this matter was obviously effective, since we
sustained one of Appellant’s assignments of error and remanded the matter for a new
sentencing hearing. Appellant’s reference to the trial transcripts and multiple
citations to the record in his argument demonstrate that he was in possession of
material he failed to produce. Appellant has failed to comply with App.R. 26 but has
also failed to otherwise present a colorable claim of ineffective assistance of counsel.
Sanders, supra. For these reasons, Appellant’s application for reopening is denied.
Waite, J., concurs.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.