[This opinion has been published in Ohio Official Reports at
75 Ohio St.3d 10.]
THE STATE OF OHIO, APPELLEE, V. NICKELSON, APPELLANT.
[Cite as State v. Nickelson, 1996-Ohio-5.]
Appellate procedure—Application for reopening appeal from judgment and
conviction based on claim of ineffective assistance of appellate counsel—
Application denied when applicant fails to state a colorable claim—
Reviewing court cannot add matter to the record and then decide the
appeal on the basis of the new matter.
(No. 95-1037—Submitted September 12, 1995—Decided March 1, 1996.)
APPEAL from the Court of Appeals for Franklin County, No. 94APA04-582.
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{¶ 1} Appellant, Leshawn Nickelson, was convicted of aggravated burglary,
aggravated robbery, and kidnapping, but his convictions were overturned on appeal and
a new trial was ordered. State v. Nickelson (July 13, 1993), Franklin App. No. 93AP-
159, unreported. Nickelson was convicted a second time, and the Court of Appeals for
Franklin County affirmed the trial court’s judgment. State v. Nickelson (Sept. 27, 1994),
Franklin App. No. 94APA04-582, unreported.
{¶ 2} On February 28, 1995, Nickelson filed a motion to reopen his appeal
pursuant to App.R.26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60,
584 N.E.2d
1204, which the court of appeals denied on April 11, 1995. Nickelson now appeals to
this court.
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Michael Miller, Franklin County Prosecuting Attorney, and Susan E. Day,
Assistant Prosecuting Attorney, for appellee.
David H. Bodiker, Ohio Public Defender, and Thomas R. Wetterer, Jr.,
Assistant Public Defender, for appellant.
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SUPREME COURT OF OHIO
WRIGHT, J.
{¶ 3} In his application to reopen, Nickelson claimed that his appellate counsel
had been ineffective because he failed to raise the following issues on appeal: (1)
prosecutorial misconduct during closing argument, (2) trial counsel’s and the trial
judge’s failure to explore the potentially prejudicial relationship between an assistant
prosecutor and a juror, (3) trial counsel’s failure to move for a jury view, and (4) trial
counsel’s failure to pursue evidentiary leads and conduct other pretrial investigation.
Nickelson also claimed that his appellate counsel was ineffective because he failed to
obtain or review the transcript of closing argument at trial.
{¶ 4} The court of appeals denied both Nickelson’s request for the trial
transcript and application to reopen. The court denied the application because, based
on the record presented, it could not find that appellant had been prejudiced by a tainted
jury or improper closing argument. The appellate court also held that the failure to
move for a jury view could not be prejudicial, since it was not evidence, and that
appellant did not otherwise state a colorable claim.
{¶ 5} We affirm the court of appeals insofar as it denied Nickelson’s motion for
a free transcript. The right to a transcript at public expense does not attach until an
appeal is actually pending. State ex rel. Taylor v. Cuyahoga Cty. Common Pleas Court
(1969), 20 Ohio St.2d 5,
49 O.O.2d 53,
251 N.E.2d 609.
{¶ 6} We also affirm the court of appeals’ denial of the application to reopen.
{¶ 7} We review Nickelson’s application under the two-prong analysis found
in Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674, to
determine whether Nickelson has raised a “genuine issue” to his claim that he was
denied the effective assistance of appellate counsel. State v. Reed (1996), ___ Ohio
St.3d ____, ____ N.E.2d ____.
{¶ 8} The events which Nickelson claims occurred during closing argument do
not rise to the level of prosecutorial misconduct denying appellant a fair trial, since
Nickelson concedes that his trial counsel objected to the statements in question and that
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January Term, 1996
the trial court delivered a limiting instruction to the jury. Because there would have
been no “reasonable probability” of success had Nickelson’s counsel asserted this
claim, appellate counsel’s failure to raise the issue on appeal was not prejudicial. See
Strickland at 694,
104 S.Ct. at 2068,
80 L.Ed.2d at 698.
{¶ 9} Moreover, we find that Nickelson has failed to demonstrate a “reasonable
probability” of success had appellate counsel raised trial counsel’s failure to explore
potential juror prejudice, to move for a jury view, and to investigate. Accordingly, we
affirm the judgment of the court of appeals in its entirety.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
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