John Hardin, III v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 10, 2001

JOHN HARDIN III

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-563

AN APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY,

NO. CR 95-927

HONORABLE JOHN FOGLEMAN,

CIRCUIT JUDGE

AFFIRMED

Appellant, John Hardin, was convicted by a jury of rape and was sentenced to eighteen years in the Arkansas Department of Correction. The court of appeals affirmed appellant's conviction and sentence. Hardin v. State, CACR 97-265 (Ark. App. March 4, 1998). On May 4, 1998, appellant filed a petition for post-conviction relief pursuant to Ark. R. Crim. P. 37. A hearing was held, and the trial court subsequently denied appellant's petition. Appellant appealed the trial court's decision, and we determined that the trial court had failed to make written findings in denying appellant's petition; thus, we remanded. Hardin v. State, CR 99-563 (Ark. March 22, 2001). The trial court complied with our order, and this appeal is back before us.

On appeal, appellant argues that the trial judge, John Fogleman, abused his discretion when he failed to recuse from presiding over appellant's Rule 37 petition. Appellant argues that the trial judge was biased because he had contacted appellant's physician on the day of appellant's original trial and placed undue pressure on the physician to release appellant from the hospital prematurely. We disagree.

It appears from the abstracted record that appellant had been hospitalized on August 4, 1996, because his blood sugar was too low. Appellant was given orange juice that day, and he stabilized. Appellant was discharged from the hospital two days later. Judge Fogleman stated at the Rule 37 hearing that appellant's allegation that he placed pressure on the doctor to release appellant was totally untrue. Dr. Marian Barr, appellant's treating physician at the emergency room, testified at the Rule 37 hearing. She said that no one placed any pressure on her to discharge appellant. She testified that she did not speak to anyone by the name of John Fogleman and that she was never compelled to say that appellant was fit to be released.

This court has held that the judge who presides over a defendant's trial can also preside over that defendant's postconviction proceeding. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). The Arkansas Constitution, Article 7, § 20, as well as the Arkansas Code of Judicial Conduct, Canon 3(c), provide that judges must refrain from presiding over cases in which they might be interested and must avoid all appearances of bias. Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1999); Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993). In addition, there exists a presumption of impartiality. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). The decision to recuse is within the trial court's discretion, and it will not be reversed absent abuse. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. Id. at 244.

In Turner, supra, we stated that the party seeking the disqualification bears the burden of proving bias or prejudice on the part of the trial court. See also Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997). Applying that rule, appellant has alleged no credible instances of bias or shown in what way he was prejudiced by the judge's denial of his motion to recuse. Consequently, we cannot say that the trial court abused its discretion in denying appellant's motion.

Next, appellant argues that counsel was ineffective for failing to request a continuance on the day of trial because appellant was not fully recovered from his diabetic episode. Appellant contends that he was not mentally competent to stand trial because of his condition.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The petitioner 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; Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Thomas, 322 Ark. 670, 911 S.W.2d 259.

Appellant has failed to abstract any of the trial record to demonstrate what occurred at the trial level. There are no medical records abstracted indicating appellant's mental condition at the time of his hospitalization or at the time of trial. The only evidence submitted in appellant's abstract which relates to appellant's condition at the time of trial is the Rule 37 testimony of Dr. Barr. This testimony reveals that the morning that appellant was admitted to the hospital his mental thinking, his ideas, and his thoughts were very clear. She testified that appellant's thought pattern or thoughtprocess was not affected by appellant's low blood sugar.

It is the appellant's burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). Without abstracting the trial record and any medical records to support his arguments on appeal, appellant has failed to comply with our abstracting requirements and has failed to demonstrate prejudice. After a thorough review of the record before us, we cannot say that the trial court's denial of appellant's Rule 37 petition is clearly against the preponderance of the evidence.

Affirmed.