Corey Harris v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 6, 2001

COREY HARRIS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR00-715

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 98-3264, HONORABLE JOHN B. PLEGGE, JUDGE

AFFIRMED

Appellant was convicted of aggravated robbery, kidnapping, and theft of property and sentenced to life imprisonment. This Court affirmed his convictions. Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999). Appellant filed a timely, pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37, raising five claims, including three claims of ineffective assistance of counsel. The circuit court denied the petition, and from that order comes this appeal. We decline to consider appellant's claims, because he has failed to produce a record on appeal sufficient to demonstrate error.

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 abstract his petition, which is required for postconviction relief under Rule 37. Id. at 93, 924 S.W.2d at 459. 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 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 v. Washington, 466 U.S. 668 (1984). Accordingly, we cannot say that the circuit court erred in denying appellant's petition.

Affirmed.

Imber, J., not participating.

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).