David Lane Bedwell v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 8, 2001

DAVID LANE BEDWELL

Appellant

v.

STATE OF ARKANSAS

Appellee

CR00-488

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-3844 HONORABLE JOHN LANGSTON, JUDGE

AFFIRMED

Appellant was convicted of possession of a controlled substance with intent to deliver, manufacture of a controlled substance, simultaneous possession of drugs and firearms, possession of drug paraphernalia, and maintaining a drug premises. Appellant was sentenced to 120 months' imprisonment to be served concurrently. The Court of Appeals affirmed his conviction in an unpublished opinion. Bedwell v. State, CA CR 98-1321 (Ark. App. Sept. 29, 1999). Appellant filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Appellant's sole claim raised in his petition was that trial counsel failed to request a severance from appellant's co-defendant.

The circuit court denied the petition on the basis that it made a conclusory allegation, it did not identify why a severance should be granted, and it did not show how appellant was prejudiced by being tried with his co-defendant. From that order comes this appeal. We decline to consider appellant's claim, because he has failed to produce a record on appeal sufficient to demonstrate error. The additional claims raised by appellant on appeal were not raised in his petition. It is well settled that we will not address arguments raised for the first time on appeal. Miner v. State, 342 Ark. 283, 288, 28 S.W.3d 280, 283 (2000).

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.1 The abstracting requirement applies to those appellants who proceed pro se. Jackson v. State, 316 Ark. 509, 510, 872 S.W.2d 400, 400 (1994). 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). "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 has failed to properly abstract his petition and simply included it in the addendum. This is a violation of Ark. Sup. Ct. R. 4-2(a)(8), as the addendum should only include a copy of the order or judgment from which appellant appeals. Appellant's failure to abstract a critical document precludes this Court from considering issues concerning it. Watson v. State, 329 Ark. 511, 512, 951 S.W.2d 304, 305 (1997). Further, appellant failed to abstract any of the original trial testimony. A court considering a claim of ineffective assistance of counsel must view it through the perspectiveof the totality of the evidence put before the jury. Matthews v. State, 333 Ark. 701, 705-06, 970 S.W.2d 289, 292 (1998) (per curiam), reh'g denied, 333 Ark. 701, 975 S.W.2d 836. Absent this material information, we cannot evaluate appellant's claim according to the "cause and prejudice" test in Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, we cannot say that the circuit court erred in denying appellant's petition.

Affirmed.

1 Cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001, will no longer be affirmed because of the insufficiency of the abstract without the appellant first having the opportunity to cure the deficiencies. See In re: Modification of the Abstracting System -- Amendments to Supreme Court Rules 2-3, 4-2, 4-3, 4-4, Ark. Appx. __, __ S.W.3d __ (2001) (per curiam).