[Cite as State v. Ashcraft , 2021-Ohio-3897.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsRICHARD ASHCRAFT Defendant-Appellant JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. : : : Case No. 2021-CA-0024 : : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richlad Count y Court of Common Pleas, Case No. 2020- CR-0734

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: November 2, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP ANDREW S. WICK Prosecutor 23 East High Street By: VICTORIA BALL-MUNSON Mt. Gilead, OH 43338 Assistant Prosecutor 38 South Park Street, #2 Mansfield, OH 44902Richland County, Case No. 2021-CA-0024 2

Gwin, P.J. {¶1} Defendant-appellant Richard Ashcroft [“Ashcroft”] appeals his c onviction and sentence after a jury trial in the Richland County Court of Common Pleas. Facts and Procedural History {¶2} Ashcroft has failed to file a transcript with this Court as req uired by App.R. 9. Accordingly, absent a complete transcript we are unable to revi ew the facts underlying Ashcroft’s jury trial and conviction. The record transmitted to this Court establishes the following facts. {¶3} On December 7, 2020, the Richland County Grand Jury indicted th e Richard Ashcraft on a two-count indictment for assault on a police offi cer as a felony of the fourth degree in violation of R.C. 2903.13(C)(5) and aggravated posses sion of drugs as a felony of the fifth degree in violation of R.C. 2925.11(C)(1)(A) as a result of an incident that occurred while the Ashcroft was attending the VOA program in Ma nsfield, Ohio. {¶4} Jury trial in this matter was originally scheduled to commence on February 23, 2021, but was continued until March 23, 2021. Defense couns el filed a precipe for subpoenas for three persons: Josh Eaton, Residential Operations Manager; Nicole Chinn, Program Coordinator; and Dispatch and Communications on March 2 2, 2021. Defense counsel then filed a precipe for subpoena on Sgt. Patrick Willi ams on March 23, 2021. With the exception of Dispatch and Communications all subpoenas were returned undelivered due to no service on March 25, 2021 the last day of jury trial. {¶5} Ashcraft was found guilty by the jury on both counts and sente nced by the court on March 26, 2021 to serve 18 months on the assault charg e, 6 months on the aggravated possession of drugs offense consecutive to the 18 mo nths on the assaultRichland County, Case No. 2021-CA-0024 3

charge and then 900 days of PRC to be served consecutive to the previously ordered 24

months from counts one and two. Assignment of Error {¶6} Ashcroft has raised one Assignment of Error, {¶7} “I. APPELLANT LACKED EFFECTIVE ASSISTANCE OF COUNSEL

THROUGHOUT HIS COURT APPOINT COUNSEL'S REPRESENTATION AND TRIAL COMMENCING MARCH 23, 2021.” Law and Analysis {¶8} In his sole assignment of error, Ashcroft maintains that his tr ial counsel was ineffective because counsel failed to investigate or follow-up on an eyewitness and delayed in issuing subpoenas until the day before the first day of trial leading to the lack of witness testimony to refute the state's claims. Ashcroft arg ues the failure to issue timely subpoenas and investigate the presence of an eyewitness were no t strategic decisions on counsel's part. [Appellant’s Brief at 5]. Standard of Appellate Review – In effective Assist ance of Counse l {¶9} To prevail on a Sixth Amendment claim alleging ineffective assi stance of counsel, a defendant must show that his counsel’s performance w as deficient and that his counsel’s deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 694 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficie ncy, a defendant must show that “counsel’s representation fell below an objective sta ndard of reasonableness.” Id., at 688, 104 S.Ct. 2052. And to establish prejudice, a def endant must show “that there is a reasonable probability that, but for counsel’s unprofessio nal errors, the result of theRichland County, Case No. 2021-CA-0024 4

proceeding would have been different.” Id., at 694, 104 S.Ct. 2052. Andtus v. Texas, 590 U.S. __, 140 S.Ct. 1875, 1881 (June 15, 2020).

Issue for Appellate Review: Whether there is a reasonable probability that, but for counsel’s failure to timely file subpoenas and investigate potential eyewitness to the occurrence as set forth in Ashcraft’s First Assignments of Error the result of the proceeding would have been different. {¶10} Ashcraft argues that his attorney should have found eyewitnesse s to the event and filed subpoenas sooner in the case. However, as no t ranscript has been filed, we do not know the evidence that was presented to the jury. No r can we discern what any purported eyewitness may have testified to at trial. {¶11} Factual assertions appearing in a party's brief, but not in any papers submitted for consideration to the trial court below, do not co nstitute part of the official record on appeal, and an appellate court may not consider these assertions when deciding the merits of the case. Akro-Plastics v. Drake Industries , 115 Ohio App.3d 221, 226, 685 N.E.2d 246, 249(1996). In Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980), the Supreme Court of Ohi o held the following: “[t]he duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to

matters in the record. See State v. Skaggs (1978), 53 Ohio St. 2d 162. This principle is recognized in App.R. 9(B), which provides, in part, that ‘* * * the appellant shall in writing order from the reporter a complete transcript or a transcript o f such parts of the proceedings not already on file as he deems necessary for inclu sion in the record. * * *.’ When portions of the transcript necessary for resolution of ass igned errors are omittedRichland County, Case No. 2021-CA-0024 5

from the record, the reviewing court has nothing to pass upon a nd thus, as to those assigned errors, the court has no choice but to presume the val idity of the lower court's proceedings, and affirm.” (Footnote omitted). {¶12} Additionally, under App.R. 12(A)(2), an appellate court may “di sregard an assignment of error presented for review if the party raising i t fails to identify in the record the error on which the assignment of error is based[.]” Ashcraf t’s brief on appeal fails to identify in the record the grounds for his claims of ineffectiv e assistance of counsel. {¶13} Generally, counsel’s decision whether to call a witness falls w ithin the rubric of trial strategy and will not be second-guessed by a reviewing court.” State v. Treesh , 90 Ohio St.3d 460, 490, 739 N.E.2d 749(2001); State v. Hughbanks , 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, ¶ 82. Moreover, “‘[a]ttorneys need not pursue every conceivable avenue; they are entitled to be selective.’” State v. Murphy , 91 Ohio St.3d 516, 542, 747 N.E.2d 765(2001), quoting United States v. Davenpo rt 986 F.2d 1047, 1049(7th Cir. 1993). {¶14} In the case at bar, Ashcroft’s arguments additionally concern m atters de

hors the record in the form of conversations between himself and hi s trial counsel, his family’s attempts to find private counsel, private counsel’s re presentations and his family’s conversations with trial counsel. [Appellant’s Brief at 2]. F urther, Ashcroft has failed to even identify the name of the alleged eyewitness that he wished to call at trial. [Appellant’s Brief at 5]. {¶15} Ashcroft has failed to provide a complete transcript of the tri al proceedings or identify in the record the grounds for his claims of error. Without a transcript of the jury trial and any hearings involving Ashcroft’s claims he had diffi culty with assigned counsel,Richland County, Case No. 2021-CA-0024 6

we cannot determine whether Ashcroft requested assigned counsel call any particular witness, or whether the expected substance of the testimony wou ld have aided in his defense at trial. Ashcroft further has based many of his conten tions that counsel was

ineffective on matter outside the trial court record. There is simply nothing for us to review that substantiates any of the claims made in this appeal. Thus, we must presume the regularity of the proceedings and affirm. Knapp v. Edwards Lab., 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). {¶16} Ashcroft has failed in his burden to demonstrate that there is a reasonable probability that, but for counse l’s unprofessional errors, the result of the proceeding would

have been different. {¶17} Ashcroft’s sole Assignment of Error is overruled. {¶18} The judgment of the Richland County Court of Common Pleas is af firmed. By Gwin, P.J., Wise, John, J., Delaney, J., concur