John Kelly a/k/a John Kenneth Kelley v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

June 7, 2001

JOHN KELLEY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-930

AN APPEAL FROM THE CIRCUIT COURT OF GRANT COUNTY,

NO. CR 97-5-1

HONORABLE JOHN W. COLE JR.,

CIRCUIT JUDGE

AFFIRMED

John Kelley, who is also known as John Kenneth Kelly, was found guilty by a jury in 1997 of rape and sentenced to a term of 420 months' imprisonment. The court of appeals affirmed appellant's conviction and sentence. Kelley v. State, CACR 97-1336 (Ark. App. May 6, 1998). On August 17, 1998, Kelley filed in the trial court a petition for postconviction relief pursuant to Ark. R. Crim. P. Rule 37.1. The petition was denied, and this appeal followed.

The claims as advanced by appellant in this appeal were not raised in the Rule 37 petition filed in the trial court. In his original petition, appellant alleged that his constitutional rights were violated when he was not allowed to confront his accuser, that counsel was ineffective because counsel failed to preserve issues for appeal, that counsel failed to challenge information submitted by the prosecutor, and that counsel failed to seek out the victim and question her. None of theseissues are raised on appeal.1 Appellant has set forth new arguments directly challenging his conviction and new arguments challenging his counsel's performance. We have consistently held that issues not before the lower court will not be addressed here for the first time. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995); Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974). Consequently, we do not reach the merits of appellant's arguments on appeal.

Affirmed.

1 Appellant also filed an amended petition; however, the trial court found that appellant's amended petition had been filed without permission of the court. In turn, the trial court dismissed the amended petition. Appellant does not challenge that ruling by the trial court, thus, we will not consider appellant's amended petition when reviewing this appeal.