[Cite as State v. Green, 2014-Ohio-5051.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 MA 226
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
SHAWN N. GREEN )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Appellant’s Application for Reopening
Case No. 12 CR 299
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: Shawn N. Green, Pro se
#633-157
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 7, 2014
[Cite as State v. Green, 2014-Ohio-5051.]
PER CURIAM.
{¶1} On May 5, 2014, Appellant, Shawn N. Green, filed an application to
reopen judgment in State v. Green, 7th Dist. No. 12 MA 226, 2014-Ohio-648. In our
decision, we affirmed Appellant’s convictions on felonious assault, assault, resisting
arrest, and possession of cocaine. 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} Appellant’s appeal focused on the trial court’s decision to admit security
footage from the bar where the incidents occurred. Appellant now argues that
appellate counsel was deficient in failing to interview and investigate and in failing to
challenge the officers’ compliance with R.C. 2935.07.
{¶3} 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
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
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burden of demonstrating a “genuine issue” and establishing a “colorable claim” of
ineffective assistance of appellate counsel. Id.at ¶11.
{¶4} 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.
{¶5} To the extent that Appellant bases his claim on appellate counsel’s
alleged failure to accumulate exculpatory evidence through interview and
investigation, Appellant mistakes the role of appellate counsel and of this Court. 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 review is limited to reviewing what actually
transpired in the trial court as reflected in that record. Id. A claim regarding failure to
present mitigation evidence that requires the generation or consideration of evidence
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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). It is impossible to conclude that appellate counsel
was ineffective for failing to attempt to introduce material de hors the record.
{¶6} Appellant’s argument under R.C. 2935.07 is similarly inapposite. R.C.
2935.07 provides:
Person arrested without warrant shall be informed of cause of
arrest.
When an arrest is made without a warrant by an officer, he shall inform
the person arrested of such officer's authority to make the arrest and
the cause of the arrest.
When an arrest is made by a private person, he shall, before making
the arrest, inform the person to be arrested of the intention to arrest him
and the cause of the arrest.
When a person is engaged in the commission of a criminal offense, it is
not necessary to inform him of the cause of his arrest.
Appellant mistakes the requirements of a private person attempting to utilize arrest
powers with the requirements for a police officer to make an arrest. R.C. 2935.07.
Appellate counsel is not deficient for omitting an argument that has no basis in law;
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there is no requirement that a police officer inform an arrestee of the charge prior to
attempting an arrest. R.C. 2935.07.
{¶7} It is clear that Appellant’s application for reopening is based upon a
misunderstanding of the applicable law. As a result, it does not demonstrate
ineffective assistance of appellate counsel. Appellant’s application for reopening is
denied.
Waite, J., concurs.
Donofrio, J., concurs.
Vukovich, J., concurs.