Lawrence Edward Martin v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 20, 2001

LAWRENCE EDWARD MARTIN

APPELLANT

VS.

STATE OF ARKANSAS

CR 00-60

AN APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 94-2146

HONORABLE MORRIS W. THOMPSON, CIRCUIT JUDGE

AFFIRMED

In 1995, appellant was convicted of capital murder during the course of an aggravated robbery and was sentenced to life imprisonment without parole. We affirmed appellant's conviction and sentence in Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997). Appellant subsequently filed a timely pro se petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. He alleged that his trial counsel was ineffective for failing to assert in his motion for directed verdict that there was insufficient evidence to find Martin guilty of capital murder and that his appellate counsel was ineffective for conceding on appeal that the evidence was in fact sufficient for the jury to conclude that he was guilty of capital murder. In its first order, without a hearing, the circuit court found that appellant's former claim was cognizable under Rule 37, while his latter claim, whether it occurred or not, was a contextual error from which Martin failed to indicate any prejudice. In its second, amended order, also without a hearing, the court found that a review of the transcript revealed that Martin's trial counsel didin fact argue that the evidence was insufficient as it related to his identification and fingerprints. The court held that such undoubtedly goes to who committed the crime. Accordingly, the circuit court ruled that appellant's claim failed, and that even if Martin's trial counsel was ineffective, Martin failed to show that the outcome of his trial would have been different under Strickland v. Washington, 466 U.S. 668 (1984). Appellant now brings this appeal pro se, submitting ten points on appeal regarding various errors by his trial counsel and his appellate counsel which were not raised in his Rule 37 petition filed in the trial court.1 We affirm.

Appellant raises the following claims regarding ineffective assistance of counsel, again, none of which was raised below, nor ruled upon by the circuit court in either of its orders: (1) that counsel was ineffective in not securing the original warrant from the municipal court; (2) that counsel was ineffective in not presenting evidence to prove the form and contents of the original; (3) that counsel was ineffective in not presenting evidence to dismiss the charges; (4) that counsel was ineffective in not presenting evidence of improper conduct of "a judge drunkenness;" (5) that it was prejudicial error for the petitioner not to be afforded a timely copy of the order entered by the trial court on July 28, 1998; (6) that counsel was ineffective for allowing and waving the rule for witnesses to remain in the courtroom; (7) that counsel was ineffective in not arguing police misconduct upon appeal; (8) that counsel was ineffective for not arguing upon appeal that Richard Alexander could not testify; (9) that appellate counsel was ineffective for notarguing that these justices were lied to during an official proceeding; and (10) that counsel was ineffective for not arguing and reporting that the judge's certificate was false.

Where a trial court has concluded, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) of the Arkansas Rules of Criminal Procedure requires that the trial court make written findings specifying the parts of the record that form the basis of the trial court's decision. See Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999) (citing Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997) (per curiam)). Martin does not contend that the trial court erred in denying relief without the benefit of a hearing, nor does he allege that the circuit court's order lacked the required written findings pursuant to Rule 37.3(a).2 However, we note that the trial court's order was in compliance with the rule.

As to the allegations actually raised upon appeal, we must affirm. Appellant failed to challenge the court's rulings on those issues raised in his original Rule 37 petition. Instead, he has appealed the trial court's order by raising ten new claims, never before examined, and more importantly, not ruled upon by the court below. We have consistently held that issues not before the lower court will not be addressed here for the first time. See 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 numerous motions during the time in which this appeal was pending. Per curiam opinions were issued accordingly. See Martin v. State, CR 00-60 (Ark. Dec. 14, 2000); Martin v. State, CR 00-60 (Ark. July 7, 2000); Martin v. State, 340 Ark. 719, 13 S.W.3d 576 (2000).

2 Rule 37.3(a) of the Arkansas Rules of Criminal Procedure provides that "[i]f the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings."