[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
                                                                                        -2-

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
                                                                                      -3-

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;
                                                                                    -4-

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.
