State v. McNeill , 83 Ohio St. 3d 457 ( 1998 )

Per Curiam.

In his first proposition of law, McNeill contends that the court of appeals erred by denying his application without considering whether he made colorable claims of ineffective assistance. We disagree.

App.R. 26(B)(2) states in pertinent part, “An application for reopening shall contain * * * (e) Any parts of the record available to the applicant and all supplemental affidavits upon which the applicant relies.” (Emphasis added.) McNeill failed to attach any part of the record to his application. His sole excuse is that, when he filed the application, the record was in the custody of this court. However, the question is not who had custody of the record, but whether it was “available to the applicant.”

McNeill falls far short of demonstrating that the record was unavailable to him when he filed his application. He evidently had access to the record of his trial, or a copy thereof, at that time, for his application cites the record. Moreover, the brief before us in the instant case quotes the record extensively. So does the brief filed on McNeill’s behalf in No. 97-929 (his direct appeal on the merits to this court), which demonstrates that McNeill’s counsel in No. 97-929 have also had access to the record.

Counsel in the instant appeal could have copied the record when they had access to it, or obtained a copy with the cooperation of the other attorneys now representing McNeill in No. 97-929. Moreover, McNeill could have requested further access to the record from the Clerk of this court for the purpose of making a copy to attach to his App.R. 26(B) application. (We note that the state public defender, who represents McNeill both in the instant case and in a postconviction proceeding, recently requested and obtained a copy of the trial record from the Clerk of this court for purposes of the postconviction proceeding.)

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. McNeill has not shown that the record was unavailable to him; hence, he was required to attach a copy to his application. As he failed to do so, his application was properly denied.

McNeill further contends that the court of appeals should have granted his motion to delay its ruling on the application. The court of appeals denied that motion partly on a ground that McNeill contends is incorrect — that courts of appeals must rule on App.R. 26(B) applications within forty-five days of filing. We need not decide this point, however. Since McNeill did not comply with App.R. 26(B)(2)(e), the denial of his application was proper whether the motion to hold in abeyance was granted or not. Thus, any error in this regard was harmless.

McNeill’s second proposition of law alleges, that inadmissible evidence was admitted in the penalty phase of his trial. This proposition does not allege ineffective assistance of appellate counsel. (In fact, appellate counsel raised this issue on direct appeal to the court of appeals.) This issue therefore was not properly raised in an App.R. 26(B) application, and is not properly before us on an appeal from the denial of the application.

In his third proposition of law, McNeill asserts his sole substantive claim of ineffective appellate counsel. But “[t]he court of appeals never reached that claim, and it is not properly before us.” State v. Wickline (1996), 74 Ohio St.3d 369, 372, 658 N.E.2d 1052, 1054.

We overrule each of McNeill’s propositions of law. The judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur. Lundberg Stratton, J., concurs separately.