[Cite as State v. Moon, 2014-Ohio-108.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 93673




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   MICHAEL E. MOON
                                                       DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-522061
                                   Application for Reopening
                                      Motion No. 467941

        RELEASED DATE:                    January 15, 2014
                                                 -i-
ATTORNEYS FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

Sarah M. Schregardus
Barry W. Wilford
Kura, Wilford & Schregardus
492 City Park Avenue
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEES

Timothy McGinty
Cuyahoga County Prosecutor

Jesse W. Canonico
Mary H. McGrath
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Michael Moon has filed an application for reopening pursuant to App.R.

26(B). Moon is attempting to reopen the appellate judgment, rendered in State v. Moon,

8th Dist. Cuyahoga No. 93673, 2010-Ohio-4483, which affirmed his convictions for four

counts of pandering, 45 counts of illegal use of a minor in nudity-oriented material, and

two counts of possession of criminal tools. Pursuant to App.R. 26(B)(6), the application

is denied for the reasons that follow.

       {¶2} The appellate judgment that Moon seeks to reopen was journalized on

September 23, 2010. The application for reopening was not filed until August 30, 2013,

and beyond the 90-day deadline for reopening.    Moon argues that there is good cause for

his untimely filing based on a decision issued by the United States District Court for the

Northern District of Ohio concerning his petition for a writ of habeas corpus. Moon v.

Robinson, N.D. Ohio No. 1:12,1396, 2013 U.S. Dist. LEXIS 108799 (N.D. Ohio, Aug. 2,

2013) (“Habeas Corpus decision”).

       {¶3} In the Habeas Corpus decision, the district court found that Moon had received

ineffective assistance of both trial and appellate counsel for their respective failures to

pursue a motion to unseal the search warrant and add it to the trial court and appellate

records. The district court, however, found that because the search warrant was not part of

the record in the state courts, he could not consider it. Id. at 18,19, citing, Cullen v.

Pinholster, 563 U.S. ___, 131 S.Ct. 1388, 1398 (2011). The district court permitted Moon
to return to state court to further litigate his challenge to the validity of the search warrant

within thirty days of his decision, “whether by an appeal of the trial court’s denial of his

motion to correct the record under Ohio App.R. 9(E), a motion to re-open his direct appeal

under Ohio App.R. 26(B), or other appropriate post-conviction review proceedings.”

Robinson, 2013 U.S. Dist. LEXIS 108799, 21.             Moon opted to pursue the instant

application for reopening.

       {¶4} The state opposes the application to reopen. It is the state’s position that the

application is untimely and that the Habeas Corpus decision does not create good cause for

the delayed filing. The state argues that Moon knew about the sealed document, which was

raised in the direct appeal, and that nothing prevented him from moving to have the

document unsealed and filing a timely application for reopening following the release of

the appellate judgment over two years ago.

       {¶5} App.R. 26 is “intended to allow the belated presentation of colorable claims

that defendants/appellants were prevented from presenting timely by particular

circumstances.” State v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784 (1995). Moon

largely relies upon the Habeas Corpus decision in arguing that good cause exists for his

untimely filing.   Neither party presents us with any other case where an untimely App.R.

26(B) application was filed at the instruction of a federal district court. Even assuming that

the Habeas Corpus decision provides good cause for accepting the delayed filing of this

App.R. 26(B) application, Moon still cannot establish that there is a genuine issue on the

ineffective assistance of appellate counsel claim he asserts here.
       {¶6} In State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, the

Supreme Court specified the proof required of an applicant as follows:

       the two-prong analysis found in Strickland v. Washington (1984), 466 U.S.
       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess a
       defense request for reopening under App.R. 26(B)(5). [Applicant] must
       prove that his counsel were deficient for failing to raise the issues he now
       presents, as well as showing that had he presented those claims on appeal,
       there was a “reasonable probability” that he would have been successful.
       Thus [applicant] bears the burden of establishing that there was a “genuine
       issue” as to whether he has a “colorable claim” of ineffective assistance of
       counsel on appeal.

Id. at 25.

       {¶7} Moon alleges that his appellate counsel was ineffective for (1) failing to

request a copy of a sealed search warrant and then moving to add it to the record; and (2)

for failing to argue that trial counsel was ineffective for failing to file a motion to suppress

based on an alleged invalid search warrant. Both aspects of Moon’s claim flow from his

primary contention that appellate counsel should have moved the trial court to unseal the

search warrant and then, if successful, moved to have it added to the appellate record

pursuant to App.R. 9(E).

       {¶8} App.R. 9(E) provides:

       If any difference arises as to whether the record truly discloses what

       occurred in the trial court, the difference shall be submitted to and settled by

       the trial court and the record made to conform to the truth. If anything

       material to either party is omitted from the record by error or accident or is

       misstated, the parties by stipulation, or the trial court, either before or after
       the record is transmitted to the court of appeals, or the court of appeals, on

       proper suggestion or of its own initiative, may direct that omission or

       misstatement be corrected, and if necessary that a supplemental record be

       certified, filed, and transmitted. All other questions as to the form and

       content of the record shall be presented to the court of appeals.

App.R. 9(E) does not apply in this case because the sealed document was never part of the

trial court record. There is no contention that the trial record that was transmitted on

appeal failed to accurately reflect the record that was made in the trial court. The sealed

search warrant was never filed with the court.

       {¶9} Appellate counsel cannot be deemed ineffective for failing to obtain the sealed

search warrant and then move to add it to the appellate record on the direct appeal

pursuant to App.R. 9(E).       In order to do so, appellate counsel would have been required

to initiate further proceedings in the trial court in an effort to have the document unsealed.1

 It is within the trial court’s discretion whether to grant or deny such motions.          E.g., State

v. Lawson, 11th Dist. Lake No. 2001-L-071, 2002-Ohio-5605, citing In re Search Warrant

# 5077/91, 96 Ohio App.3d 737, 741, 645 N.E.2d 1304 (10th Dist.1994) (holding that the

trial court did not abuse its discretion by unsealing the affidavit for a search warrant). As

the Eleventh District has noted, persons do generally have a right under the Warrant


       1
        However,“once an appeal is perfected, the trial court is divested of jurisdiction over matters
that are inconsistent with the reviewing court’s jurisdiction to reverse, modify, or affirm the
judgment.” State ex rel. Rock v. School Emp. Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957,
772 N.E.2d 1197, ¶ 8.
Clause of the Fourth Amendment to inspect and copy the affidavit upon which a search

warrant issued, but the right is not absolute. Id., citing In re Search Warrant for 2934

Anderson Morris Rd. Niles, Ohio 44406, 48 F.Supp.2d 1082, 1083 (N.D. Ohio 1999) and

In re Search Warrants Issued August 29, 1995, 889 F.Supp. 296, 301, on reconsideration

(S.D. Ohio 1995).

       {¶10} While Moon’s current counsel successfully moved to unseal the search

warrant, this was after his convictions had been affirmed on appeal and the Ohio Supreme

Court had already declined to accept the matter for further review.           Further, counsel

requested that the warrant be unsealed for “the limited purpose of providing a copy to [his]

counsel.” ( R. 22.) Notably, Moon’s motion was unopposed by the state and the trial

court’s order provides that it was being “granted without objection.” Id. Finally, the state

did oppose, and the trial court denied, Moon’s motion to add the unsealed search warrant

to the official record. Moon did not appeal that ruling.

       {¶11} Even if we could infer from those circumstances that appellate counsel would

have been successful in obtaining a copy of the search warrant during the pendency of the

direct appeal, the new material could not have been added to the record for purposes of

resolving the appeal.

       {¶12} It is well settled that “appellate review is strictly limited to the record.” State

v. Ellis, 8th Dist. Cuyahoga No. 90844, 2009-Ohio-4359, ¶ 6, citing The Warder, Bushnell

& Glessner Co. v. Jacobs, 58 Ohio St. 77, 50 N.E. 97 (1898) (other citations omitted);

State v. Corbin, 8th Dist. Cuyahoga No. 82266, 2005-Ohio-4119, ¶ 7. A reviewing court
cannot add material to the appellate record and then decide the appeal on the basis of the

new material. Id., citing State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500; State v.

Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 62; State v. Thomas, 97

Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 50. “Nor can the effectiveness of

appellate counsel be judged by adding new matter to the record and then arguing that

counsel should have raised these new issues revealed by the newly added material.” State

v. Moore, 93 Ohio St.3d 649, 650, 2001-Ohio-1892, 758 N.E.2d 1130. There is no

indication that the trial court ever considered or reviewed the sealed document and it was

not part of the trial court record. For the same reasons that the federal court could not

consider it in resolving Moon’s petition for a writ of habeas corpus, we could not have

done so in the direct appeal either.

       {¶13} A postconviction action, rather than a direct appeal, is the proper mechanism

for asserting an ineffective assistance of trial counsel claim that is based on evidence de

hors the record. State v. Cooperrider, 4 Ohio St.3d 226, 228-229, 448 N.E.2d 452 (1983);

State v. Curtis, 8th Dist. Cuyahoga No. 89412, 2008-Ohio-916, ¶ 8 (“The law is

well-settled that when allegations of ineffective assistance of counsel hinge on facts not

appearing in the record, the proper remedy is a petition for postconviction relief rather than

direct appeal.”)

       {¶14} Because the law precluded appellate counsel from adding new material to the

record on direct appeal that was not part of the trial court record, applicant cannot satisfy

his burden of demonstrating that “there is a genuine issue as to whether the applicant was
deprived of the effective assistance of counsel on appeal.”   App.R. 26(B)(5).

       {¶15} Although Moon’s application is denied, the various search warrants and

affidavits, including the previously sealed document are part of the App.R. 26(B) record.

Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 10-11

(“proceedings under App.R. 26(B) are collateral postconviction proceedings and not part

of the original appeal process.”)

       {¶16} For all of the foregoing reasons, the application for reopening is denied.



________________________________________
PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR
