Carolyn Lanore Arnett v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 31, 2002

CAROLYN LANORE ARNETT

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-265

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY, NO. CR 98-42B and CR 98-44, HONORABLE JOHN N. FOGLEMAN, JUDGE

AFFIRMED

Appellant was convicted of capital murder and hindering apprehension . She was sentenced to life without the possibility of parole for capital murder and sixty months' imprisonment for hindering apprehension with the sentences to run concurrently. This court affirmed appellant's convictions. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000). Appellant filed a timely pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging, among other things, ineffective assistance of trial counsel. The circuit court denied appellant's petition and from that order comes this appeal.

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 a showing that counsel's errors were so serious as todeprive 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.

Id. at 687. Thus, a defendant must first show 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.

Appellant's first claim on appeal is that counsel was ineffective for failing to subpoena Judge Ralph Wilson to testify that his court was in session on February 20, 1998, and that this failure resulted in her statements to the police being admitted against her at trial. According to appellant, Judge Wilson's testimony would have shown that appellant suffered an unnecessary delay under Ark. R. Crim. P. 8.1, because she was not brought to court for her first appearance until February 23, 1998. However, we decline to consider appellant's arguments because she 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). With the exception of material 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 will not explore the record for prejudicial error. Owens v. State, 325 Ark. 93, 94, 924 S.W.2d 459, 459 (1996).

A court considering a claim of ineffectiveness must consider the totality of the evidence before the factfinder. Matthews v. State, 333 Ark. 701, 705-A, 970 S.W.2d 289, 292 (1998). An abstract of the trial record is needed to evaluate claims for ineffective assistance of counsel according to the "cause and prejudice" test in Strickland. See Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998). Appellant's abstract is devoid of any evidence suggesting that Judge Wilson's court was in session during the time appellant claims. Accordingly, we are precluded from reviewing appellant's claim on appeal.

Appellant's second claim is that the circuit court erred when it did not hold an evidentiary hearing to allow Judge Wilson to testify. Again, appellant has failed to abstract the part of the record that shows that Judge Wilson's court was in session during the time appellant claims. Therefore, this claim is also procedurally barred.

Appellant's third claim consists of three different arguments: (1) prosecutors violated her rights by withholding discoverable information; (2) counsel was ineffective for failing to reveal to her certain letters written by her accomplice; and (3) counsel was ineffective for failing to introduce the letters at trial. Appellant's claim of wrongdoing on the part of prosecutors is one that should have been raised on direct appeal and is not proper grounds for postconviction relief.

This court has held that Rule 37 does not provide a remedy when an issue could have been raised in the trial court or argued on direct appeal, unless the issue represents a question so fundamental that the judgment of conviction is rendered absolutely void. Malone v. State, 294 Ark. 127, 131, 741 S.W.2d 246, 249 (1987). Accordingly, we will not consider the merits of appellant's argument on this point. As for the remaining two claims, we also decline to consider appellant'sarguments because she has failed to produce a record on appeal sufficient to demonstrate error. Without a full synopsis abstract of the letters that appellant purports are "material" to her defense, we cannot assess appellant's claims of ineffectiveness under the standard set forth in Strickland. Therefore, appellant's claims are procedurally barred.

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). The record in the instant case was filed before September 1, 2001.