Daron Ray Barnett v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 4, 2001

DARON RAY BARNETT

Appellant

v

STATE OF ARKANSAS

Appellee

CR 00-395

APPEAL FROM THE CIRCUIT COURT OF DREW COUNTY, CR 96-73-1, 97-12-1, HONORABLE DON EDWARD GLOVER, JUDGE

AFFIRMED

Appellant pled guilty to thirteen counts of residential burglary, one count of theft of property, and one count of theft by receiving. He was sentenced to a total of fifteen years' imprisonment. Contending that he had entered a conditional plea, appellant appealed the denial of his suppression motion. We dismissed the appeal for lack of jurisdiction because appellant failed to reserve in writing his right to appeal under the strict requirements of Ark. R. Cr. P. 24.3(b). Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999).

Appellant then filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37, claiming that his counsel was ineffective for failing to properly enter a conditional guilty plea pursuant to Ark. R. Cr. P. 24.3(b). The circuit court held a hearing on the petition and subsequently denied it, and appellant submits that it erred in doing so. We decline to consider appellant's argument because he has failed to produce a record on appeal sufficient to demonstrate error.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that

counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing the denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against thepreponderance of the evidence. Noel, 342 Ark. at 38, 26 S.W.3d at 125.

Arkansas Supreme Court Rule 4-2(a)(6) requires an appellant to include an abstract of the record consisting of the material parts of the record that are necessary to an understanding of the questions presented for decision. It is the appellant's burden to produce a record sufficient to demonstrate error. Johnson v. State, 342 Ark. 357, 361, 28 S.W.3d 286, 288 (2000). With the exception of materials included in the addendum, the record on appeal is confined to that which is abstracted. Huddleston v. State, 339 Ark. 266, 273, 5 S.W.3d 46, 50-51 (1999). We have noted that with only one record on appeal and seven justices, it is essential that the material parts of the record be abstracted. Id. We will not explore the record for prejudicial error. Owens v. State, 325 Ark. 93, 94, 924 S.W.2d 459, 459 (1996).

Appellant contends that if his counsel would have properly entered a conditional guilty plea, the denial of his motion to suppress evidence that was collected pursuant to a nighttime search warrant would have been reversed on appeal. Appellant, however, has failed to abstract the search warrant, his suppression motion, or any of the evidence adduced on the matter showing the basis of the warrant or the circumstances of the search. Thus, we are unable to discern whether the outcome of appellant's appeal from the alleged conditional guilty plea would have been different. Additionally, appellant has failed to cite any applicable authority or show why the evidence collected should have been suppressed. This court has consistently refused to consider an argument where it is not apparent without further research that the argument is well taken. Pyle v. State, 340 Ark. 53, 58-59, 8 S.W.3d 491, 495 (2000). As we are unable to review the claims before us, the order of the circuit court denying his petition is affirmed.

Affirmed.