[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.
