[Cite as State v. Rose, 2014-Ohio-5049.]
                           STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO                                    )    CASE NO. 12 JE 18
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )    OPINION AND
                                                 )    JUDGMENT ENTRY
SOL ROSE, III                                    )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                             Appellant’s Application for Reopening
                                                      Pursuant to App.R. 26(B)
                                                      Case No. 12 CR 32

JUDGMENT:                                             Denied.

APPEARANCES:
For Plaintiff-Appellee:                               Atty. Jane M. Hanlin
                                                      Prosecuting Attorney
                                                      Atty. Jeffrey J. Bruzzese
                                                      Assistant Prosecuting Attorney
                                                      Jefferson County Justice Center
                                                      16001 State Route 7
                                                      Steubenville, Ohio 43952

For Defendant-Appellant:                              Sol Rose, III, Pro se
                                                      #624-937
                                                      Belmont Correctional Institution
                                                      P.O. Box 540
                                                      St. Clairsville, Ohio 43950


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                      Dated: November 10, 2014
[Cite as State v. Rose, 2014-Ohio-5049.]
PER CURIAM.


        {¶1}     On September 22, 2014, Appellant Sol Rose, III filed an application to

reopen State v. Rose, 7th Dist. No. 12 JE 18, 2014-Ohio-2929, in which we affirmed

his convictions on felonious assault and aggravated robbery. 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}    Although Appellant has filed a timely application for reopening that

includes a sworn statement, Appellant has failed to include those portions of the

record on which he relies but appears to refer to throughout his application. “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.” Where the

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, his application may be dismissed on this

basis.

         {¶4}    Assuming, however, that Appellant had satisfied the requirements of

App.R. 26, his application does not present the “colorable claim of ineffective
                                                                                     -3-

assistance of appellate counsel” pursuant to State v. Sanders, 75 Ohio St.3d 607,

607, 665 N.E.2d 199 (1996) and also fails.

      {¶5}   Appellant’s appeal as of right involved three assignments of error. The

first challenged the manifest weight of the evidence against him. The second alleged

ineffective assistance of trial counsel.     The third challenged the imposition of

consecutive sentences.       Appellant now argues that appellate counsel was

inadequate and that his appeal should be reopened because his conviction is against

the weight of the evidence and because trial counsel’s representation was

insufficient. Appellant contends that appellate counsel should have emphasized the

victim’s loss of blood, consumption of oxycontin, and the resulting limited recollection

of the night he was attacked. Appellant also believes that appellate counsel and trial

counsel should have emphasized the absence of DNA evidence on the pair of pants

sent for testing and inconsistencies in the physical descriptions given by the victim.

However, these very arguments were among those made by appellate counsel, and

fully considered when we evaluated Appellant’s sufficiency and manifest weight

challenges to his conviction. Appellant has not provided the portions of the record on

which he relies and has not presented new or different arguments from those

presented and fully evaluated in his underlying appeal. Clearly, appellate counsel

cannot be found deficient for making the very arguments Appellant now advances.

      {¶6}   Appellant’s speculation concerning trial counsel’s decision not to further

emphasize the extent and nature of the victim’s wounds by extended questioning of

the victim is not the exact ineffective assistance argument made by his appellate
                                                                                  -4-

counsel. But it is unsupported by the record on which Appellant relies, and in any

event would be subject to the exact analysis we applied in his appeal:

      The United States Supreme Court originally explained in Strickland v.

      Washington that an “ineffectiveness claim * * * is an attack on the

      fundamental fairness of the proceeding whose result is challenged,”

      and that, “the ultimate focus of inquiry must be on the fundamental

      fairness of the proceeding whose result is being challenged.” Id. at

      697, 670.     A defendant/appellant’s burden when challenging the

      effectiveness of counsel is to demonstrate that some action or inaction

      by counsel operated to undermine or call into question the integrity of

      the process that resulted in conviction. State v. Calhoun, 86 Ohio St.3d

      279, 289, 714 N.E. 2d 905 (1999). When evaluating the performance of

      counsel, “courts ‘must indulge a strong presumption that counsel’s

      conduct falls within the wide range of reasonable professional

      assistance.’” State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575,

      999 N.E.2d 557, ¶81. “Judicial scrutiny of counsel’s performance must

      be highly deferential, and a fair assessment of attorney performance

      requires that every effort be made to eliminate the distorting effects of

      hindsight, to reconstruct the circumstances of counsel’s challenged

      conduct, and to evaluate the conduct from counsel’s perspective at the

      time.”   Strickland at 669.   “It is all too tempting for a defendant to

      second-guess counsel’s assistance after conviction or adverse
                                                                                  -5-

      sentence, and it is all too easy for a court, examining counsel’s defense

      after it has proved unsuccessful, to conclude that a particular act or

      omission of counsel was unreasonable.” Id. at 689.


      Although Appellant notes the two prongs of the Strickland test, his

      arguments do not address prejudice, the second prong of the test.

      Because Appellant has failed to connect any of the alleged deficiencies

      of counsel to actual evidence of prejudice suffered by him, even if we

      were to conclude that counsel’s performance was deficient, Appellant

      has not satisfied his burden under Strickland.

Rose, supra, ¶13-14. Appellant has failed to comply with App.R. 26 and has also

failed to 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.

Vukovich, J., concurs.
