Johnny Paul Dodson v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-605

NOT DESIGNATED FOR PUBLICATION

JOHNNY PAUL DODSON

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered 12-9-04

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT, NO. CR-1999-93-2, HON. PHILLIP H. SHIRRON, JUDGE

AFFIRMED

PER CURIAM

A jury convicted appellant of attempt to manufacture methamphetamine and sentenced him as an habitual offender to fifty years' imprisonment. The Court of Appeals affirmed on direct appeal. Dodson v. State, CACR 00-1160 (Ark. App. June 6, 2001)(unpublished). Appellant timely filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. The circuit court held a hearing on the petition, and thereafter denied relief. We affirm.

The Supreme Court's enunciated standard for assessing the effectiveness of counsel requires showings that counsel's performance "fell below an objective standard of reasonableness", and that counsel's errors "actually had an adverse effect on the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 693 (1984). We have held that this "cause and prejudice" test, in combination with our Ark. Sup. Ct. R. 4-2(a)(5) (2003), requires an appellant to include an abstract of his trial when appealing the denial of a Rule 37 petition. See e.g., Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998).

In this appeal, appellant failed to include an abstract of his trial in his brief on appeal. Even so, we are not ordering rebriefing pursuant to Rule 4-2(b)(3) because it is clear from our review of appellant's claims that he could not prevail on appeal. An appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003).

Appellant's contends on appeal that his trial counsel was ineffective for failing to adequately visit and communicate with him prior to trial. We cannot consider the merits of this claim because the circuit court never ruled on it. It is an appellant's obligation to obtain a ruling in order to properly preserve an issue for review. Huddleston v. State, 347 Ark. 226, 226, 61 S.W.3d 163, 167 (2001). Because appellant failed to preserve for our review the issue raised on appeal, we affirm the circuit court's order denying relief. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002).

Affirmed.