[Cite as State v. Brown, 2014-Ohio-4831.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO                                )    CASE NO. 11 MA 117
                                             )
        PLAINTIFF-APPELLEE                   )
                                             )
VS.                                          )    OPINION AND
                                             )    JUDGMENT ENTRY
MILOUS BROWN                                 )
                                             )
        DEFENDANT-APPELLANT                  )

CHARACTER OF PROCEEDINGS:                         Appellant’s Application for Reopening

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:                          Milous Brown, Pro se
                                                  #603-569
                                                  Belmont Correctional Institution
                                                  P.O. Box 540
                                                  St. Clairsville, Ohio 43950


JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                  Dated: October 24, 2014
[Cite as State v. Brown, 2014-Ohio-4831.]
PER CURIAM.


        {¶1}    On March 5, 2014, Appellant Milous Brown filed an application to

reopen State v. Brown, 7th Dist. No. 11 MA 117, 2013-Ohio-5528, in which we

affirmed Appellant’s convictions on gross sexual imposition. Appellant was originally

indicted for sexually oriented offenses against three different minor children.

Charges included one count each of gross sexual imposition against Minor Child X,

then five years old and Minor Child Y, then four years old, and one count of rape

involving another child. Prior to trial the gross sexual imposition and rape counts

were severed, to be tried separately. There are several details that emerged during

Appellant’s trial that are particularly relevant to Appellant’s application for reopening

and can be found in our Opinion in his underlying appeal.

        {¶2}    Child X and Child Y are half siblings. As a result of Appellant’s actions,

custody of Child X was permanently changed and immediately following the

disclosure of Appellant’s actions this child was evaluated by medical professionals

and began a course of treatment and counselling that was ongoing at the time of trial.

The social worker who was assigned to investigate the allegations was given access

to Child X and conducted a videotaped interview.             The social worker and all

evaluating and treating professionals testified at trial.      Unlike Child X, Child Y

remained in the home where the acts occurred. The social worker was initially given

access to Child Y and conducted a thorough videotaped interview with the child in

the days following the disclosure of sexual misconduct, but after that interview the

child’s mother refused to allow further access to the child. Child Y was not evaluated

medically and did not receive treatment or counselling. Child Y did not testify at trial.
                                                                                       -2-

       {¶3}    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.

       {¶4}    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

       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
                                                                                   -3-

      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.

      {¶5}     Although Appellant has filed a timely application for reopening that

includes a sworn statement, Appellant has failed to provide the portions of the record

on which he relies but cites 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 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, we need not reach the merits of his arguments.         Even if

Appellant had satisfied the requirements of App.R. 26, his application does not

present the “colorable claim of ineffective assistance of counsel” necessary to

demonstrate a genuine issue that merits reopening. State v. Sanders, 75 Ohio St.3d

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

      {¶6}     Appellant’s underlying appeal contained three assignments of error.

The first two challenged the sufficiency and the manifest weight of the evidence

against him.     The third challenged the trial court’s decision denying Appellant’s

motion for mistrial. Appellant now presents three additional issues in his application
                                                                                    -4-

for reopening that he claims were not considered on appeal and which he frames as

“assignments of error.”

                          ASSIGNMENT OF ERROR NO. 1

      Trial counsel provided ineffective assistance for the reasons listed

      below which violated the Appellants rights to a fair and impartial trial

      against the Fifth, Sixth and Fourteenth Amendments of the United

      States Constitution.

                          ASSIGNMENT OF ERROR NO. 2

      The sufficiency and the weight of the evidence should be reviewed to

      the evidence actually presented at trial.

                          ASSIGNMENT OF ERROR NO. 3

      The trial court was in error when it sentenced the appellant to the

      maximum term on each count and ran the terms consecutive.

      {¶7}   Appellant also raises appellate counsel’s decision to withdraw after the

matter had been fully briefed due to counsel’s change of employment. Brown, supra.

Appellant did not request oral argument. Appellant’s arguments were completely

presented to this Court before his counsel withdrew. Appellant was not prejudiced by

counsel’s withdrawal after fully preparing this matter for appeal but just prior to our

actual decision.

      {¶8}   When evaluating the effectiveness of appellate counsel, we must

determine whether counsel’s performance fell below an objective standard of

reasonableness and whether there is reasonable probability the result of the appeal
                                                                                        -5-

would have been different but for serious error. See State v. Were, 120 Ohio St.3d

85, 2008-Ohio-5277, 896 N.E.2d 699, ¶10-11, citing Strickland v. Washington, 466

U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant has the

burden of demonstrating a “genuine issue” and establishing a “colorable claim” of

ineffective assistance of appellate counsel.        Id.at ¶11.    When conducting this

evaluation, we bear in mind that appellate counsel has discretion to choose the

issues addressed and need not raise every possible issue in order to render

constitutionally effective assistance. State v. Tenace, 109 Ohio St.3d 451, 2006-

Ohio-2987, 849 N.E.2d 1, ¶7, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct.

3308, 77 L.Ed.2d 987 (1983). Discretion is necessary, because an attempt to raise

every conceivable issue in the limited page allowance can result in a dilution of the

force of stronger arguments. Id. at 751-752. “Experienced advocates since time

beyond memory have emphasized the importance of winnowing out weaker

arguments on appeal”. Id. at 751. Counsel is entitled to strong deference in deciding

a course of action, as there is a wide range of reasonable professional assistance.

State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, ¶8.

       {¶9}   To the extent that Appellant bases his claim on trial counsel’s alleged

failure to accumulate exculpatory evidence through interview and investigation,

Appellant mistakes our role and the nature of his application for reopening. It is well-

established that appellate counsel cannot add material to the record that was not part

of the record before the trial court. State v. Ishmail, 54 Ohio St.2d 402 (1978),

paragraph one of the syllabus.        Our role is limited to reviewing what actually

transpired in the trial court as reflected in that record. Id. A claim regarding failure to
                                                                                       -6-

present mitigation evidence on appeal that requires the generation or consideration

of evidence outside the record cannot be raised on direct appeal. State v. Keith, 79

Ohio St.3d 514, 536, 684 N.E.2d 47 (1997); see also State v. Adams, 7th Dist. No.

08MA246, 2012-Ohio-2719, ¶67-68 (evidence de hors the record cannot be added

on appeal and thus appellate counsel was not ineffective in failing to brief an issue

that required evidence outside of the record). Appellant is claiming for the first time in

his application for reopening that Child Y, who was four years old when the

misconduct was revealed, would deny that the acts occurred and was available as an

alibi witness. Apart from the evidence in the trial court record that directly contradicts

this statement and the evidence concerning Child Y’s experiences prior to trial that

raise serious questions about his current claim, neither a direct appeal nor an

application for reopening can be used to address information de hors the record. It is

impossible to conclude that appellate counsel was ineffective for failing to raise an

issue that could not be resolved in a direct appeal.

       {¶10} Appellant’s second proposed assignment of error was fully addressed

by our analysis of the first and second assignments of error in his underlying appeal.

As we explained in ¶14-15 of our Opinion:

       Appellant’s arguments in support of his first and second assignments of

       error do not address the sufficiency or weight of the evidence actually

       presented at trial, but instead seek to undermine the quality of the

       underlying investigation. Our role on appeal, however is to address the

       evidence presented at trial. In this matter, the jury heard testimony

       from Child X, her older sister, Child X’s father Marco, his former
                                                                                     -7-

      girlfriend, the Child and Family Services Investigator, Child X’s

      counselor and the examining physician.        Each witness was able to

      separately discuss both what they heard from the children, the father,

      and the sister, as well as what they themselves had observed. Most

      importantly, Child X testified specifically as to the conduct that satisfied

      each element of the offense and was subjected to cross-examination on

      those issues. Appellant had every opportunity to advance his theory

      that Child X’s father created and manipulated the situation to further his

      goal of obtaining custody of Child X, and the jury heard that theory,

      beginning with opening statements, throughout the case. Appellant’s

      theory of his defense does not alter the fact that the testimony

      presented at trial, if believed, clearly established each element of the

      offenses charged and thus was sufficient to convict.


      ***


      On review, the jury’s verdict will not be disturbed where, as here, there

      is probative evidence in the record which goes to all of the elements of

      the crime and which, if believed, would convince the average mind

      beyond a reasonable doubt of the guilt of the accused.          Jenks and

      Barnhart, supra.

      {¶11} Again, Appellant’s second proposed assignment of error is not

supported by any reference to the record. As such, it is not properly before us now.

Nevertheless, these issues were completely addressed in our original Opinion.
                                                                                     -8-

         {¶12} Appellant’s third assignment of error is likewise not properly supported.

Even if Appellant had provided the necessary material, his argument is not based on

any law applicable to his sentence. He cites State v. Kershaw, 132 Ohio App.3d 243,

724 N.E.2d 1176 (1999), which addresses the introduction of inappropriate

information concerning gender and race considered by the sentencing court. State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, concerns impermissible

judicial fact-finding. Neither applies to Appellant’s case. Appellant has not provided

the portions of the record on which he relies and has not presented new or different

arguments aside from those presented and fully evaluated in his original appeal.

         {¶13} Appellant has failed to comply with App.R. 26 and has failed to present

material establishing a colorable claim of ineffective assistance of counsel. Sanders,

supra.      For these reasons, Appellant’s application for reopening is denied.

Appellant’s motion for clarification is made moot by our decision to deny his

application for reopening. No further ruling is necessary.


Waite, J., concurs.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.
