Antonio Demarion Coley v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 12, 2000

ANTONIO DEMARION COLEY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 99-284

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, (NO. CR89-421 & CR 89-423), HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

In 1989, Antonio Demarion Coley was convicted of multiple offenses in two separate criminal cases. In CR 89-421, Coley was convicted of aggravated robbery, theft of property, and theft by receiving. He was sentenced to an aggregate term of forty five years' imprisonment. We affirmed that conviction and sentence in Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990). In CR 89-423, Coley was convicted of aggravated robbery and forgery. He was sentenced as a habitual criminal to consecutive prison terms of life and thirty years, respectively. We affirmed that conviction and sentence in Coley v. State, 304 Ark. 304, 801 S.W.2d 647 (1991).

At the time of Coley's convictions, Arkansas Criminal Procedure Rule 37 had been abolished and replaced with Rule 36.4. Under Rule 36.4, a criminal defendant who wished to raise a claim of ineffective assistance of counsel had to do so in a motion for a new trial within thirty days of the date of the judgment. Coley did not file such a motion, but sought habeas corpus relief pursuant to28 U.S.C. § 2254 in federal court. The federal district court apparently issued a conditional writ of habeas corpus that provided that a writ would issue within 120 days unless Coley was permitted to pursue postconviction relief in state court.

Pursuant to the order of the federal court, Coley filed a petition for postconviction relief in circuit court. In his petition, he alleged that he was denied due process when the court that tried him in CR 89-421 refused to grant his pro se motion for a continuance. He also alleged that in both cases, he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. The circuit court denied relief on all the claims in Coley's petition. We find no error and affirm.

Coley first argues that he was denied due process of the law when the trial court denied his pro se motion for a continuance in CR 89-421. Prior to the trial of this case, Coley's attorney, John Ogles, represented him during a revocation hearing and in another criminal trial. At the conclusion of these cases, there was a dispute over the payment of attorney's fees that motivated Ogles to seek a withdrawal from representing Coley. The trial court, noting that the trial in CR89-421 was set to begin in the next month, denied the motion. On the day of the trial for CR 89-421, the trial court also denied Coley's pro se motion for a continuance in order to obtain new counsel.

Coley argues that the denial of his motion for a continuance violated his right to due process and also led to the denial of his right to effective assistance of counsel in the remaining matters in which Ogles represented him. In response, the State argues that this claim should have been raised in the direct appeal from the judgment in CR 89-421, and therefore, is not cognizablein a postconviction proceeding. We agree.

Coley's claim involves an allegation of trial error, and is not a collateral attack on the judgment. We have previously held that even constitutional issues must be raised in the trial court and on direct appeal rather than in Rule 37 proceedings. Kennedy v. State, 338 Ark. 125, 991 S.W.2d 606 (1999). Rule 37 is a postconviction remedy, and as such, does not provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Id. Rule 36.4, which was in effect at the time that Coley was convicted, was even more limited. Only ineffective assistance of counsel claims were cognizable under that rule.1 Consequently, Coley cannot assign error to the trial court's denial of his motion for a continuance in this proceeding.

Coley next claims that in several instances, he did not receive effective assistance of counsel during the trials in cases CR 89-421 and CR 89-423. Specifically, he claims that Ogles was too inexperienced to provide effective assistance; that Ogles should have sought a severance of the offenses in CR 89-421; that Ogles failed to investigate and subpoena witnesses who could have been helpful to the defense; that Ogles failed to challenge a habitual offender allegation; that Ogles should have requested a mistrial when a police officer made a statement that implied Coley was charged with other robberies; that Ogles failed to challenge the admissibility of forged checks; and that Ogles failed to properly move for a continuance in CR 89-421. The State argues that these claims are procedurally barred because Coley has not abstracted the evidence that wasintroduced during either of his trials. We agree that all but one of Coley's ineffective assistance of counsel claims is barred by his failure to abstract the trials.

A court considering a claim of ineffective assistance of counsel must view it through the perspective of the totality of the evidence put before the jury. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995); Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998). Coley's failure to abstract the trial testimony so that the totality of the evidence may be viewed precludes appellate review. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994).

Coley's argument that Ogles was ineffective for failing to challenge the habitual offender allegation in CR 89-423 is also procedurally barred. This claim was not raised in Coley's petition, and even more important, it was not ruled upon by the circuit court in its written findings of fact and conclusions of law.

It is the appellant's obligation to obtain a ruling at trial in order to properly preserve an issue for review. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). We stated in Oliver that when the trial court does not specifically rule on an issue when it denies Rule 37 relief, and when we cannot tell from the court's order whether the issue was considered or decided, the issue is not preserved for appellate review and we will not address the point. Id.; see also Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000); Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998).

Affirmed.

1 Rule 36.4 provided: The trial judge must address the defendant personally and advise the defendant that if the defendant wishes to assert that his or her trial counsel was ineffective a motion for a new trial stating ineffectiveness of counsel as a ground must be filed within thirty days from the date of pronouncement of sentence and entry of judgment....