Antonio Williams v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

November 1, 2001

ANTONIO WILLIAMS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-540

APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY, CR 97-439A, HONORABLE DAVID BURNETT, JUDGE

AFFIRMED

Appellant was convicted of capital murder for which he was sentenced to life imprisonment without parole. We affirmed his conviction and sentence on direct appeal. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). Appellant subsequently filed in the Crittenden County Circuit Court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. The circuit court denied the petition without a hearing, and appellant now 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 mustshow 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 the preponderance 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 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). The abstracting requirementapplies to those appellants who proceed pro se. Jackson v. State, 316 Ark. 509, 510, 872 S.W.2d 400, 400 (1994). 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 the circuit court erred by rejecting his claim that his trial counsel was ineffective for failing to make a timely motion to have his trial severed from his two codefendants. We cannot reach the merits of this claim because appellant has failed to include an abstract of his trial in his brief. See Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998). Appellant has failed to abstract any of the evidence presented by the State, and has abstracted only some of the evidence presented by the three defendants. A court considering a claim of ineffective assistance of counsel must view it through the perspective of 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 claims according to the "cause and prejudice" test in Strickland. Hubbard, supra; see also Ark. Sup. Ct. R. 4-2(a)(6). Accordingly, we cannot say that the circuit court erred in denying appellant's petition.

Affirmed.