Kenneth Lamar Turner v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

October 3, 2002

KENNETH LAMAR TURNER

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-459

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 98-653, HONORABLE MARION A. HUMPHREY, JUDGE

AFFIRMED

Appellant was charged with aggravated robbery and theft of property. Immediately prior to trial, appellant asked that his court-appointed attorney be relieved. The trial court granted the request after instructing appellant of the potential harm in proceeding pro se; however, appellant elected to proceed pro se. Appellant was convicted of aggravated robbery and theft of property and sentenced to sixty-five years' imprisonment. The Arkansas Court of Appeals affirmed. Turner v. State, CA CR 99-428 (Ark. App. Mar. 15, 2000).

Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, as well as a motion for a new trial. Appellant was appointed new counsel, and a hearing was held. The trial court found that because appellant elected to proceed pro se, a claim of ineffective assistance of counsel was not available. However, the court concluded that if the actions or inactions of counsel prior to being relieved may be made applicable to the Rule 37 petition, the court would consider the matter. After doing so, the trial court denied both the petition and motion. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup.Ct. R. 4-3(j)(1)(2002), asserting that any appeal would be without merit. Appellant has filed pro se points for reversal pursuant to Ark. Sup. Ct. R. 4-3(j)(2) (2002). In addition, appellant filed a pro se motion to file a supplemental brief, which was denied. Turner v. State, CR 01-459 (Ark. July 5, 2002). Of the various points for reversal, only two are preserved for appellate review.

In its order denying appellant's petition and motion for a new trial, the trial court addressed the merits of only two claims: (1) appellant's pretrial counsel was ineffective for failing to procure Sherri Johnson as a witness; and (2) pretrial counsel was ineffective for failing to file a motion to suppress an eyewitness identification. As for the remaining claims, it is appellant's obligation to obtain a ruling in order to properly preserve an issue for review. See Beshears v. State, 340 Ark. 70, 72, 8 S.W.3d 32, 34 (2000). Therefore, we decline to consider the remaining issues on appeal.

In an attempt to convince this court to consider these barred claims, appellant cites Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000), in which we held that we would consider claims raised for the first time on appeal from the denial of a Rule 37 petition in death cases. Id. at 5-6, 8 S.W.3d at 485. Jones does not apply, as appellant was not sentenced to death.

Regarding appellant's claims of ineffective assistance of counsel on which the trial court did rule, he has not provided a proper abstract of the trial record; therefore, we will not consider these claims on appeal.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 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). Without an abstract of the original trial, we are unable to consider the totality of the evidence put before the jury. See Johnson v. State, 325 Ark. 44, 49, 924 S.W.2d 233, 235 (1996). Accordingly, we cannot consider appellant's claims of ineffective assistance of counsel.

Finally, we affirm the trial court's finding that the motion for new trial was untimely as it was not filed within thirty days of the entry of judgment as required by Ark. R. Crim. P. 33.2. See Cigainero v. State, 310 Ark. 504, 507-08, 838 S.W.2d 361, 363-64 (1992).

Affirmed.

1 The record in this case was lodged on April 23, 2001, before the current version of Ark. Sup. Ct. R. 4-2 went into effect on September 1, 2001. Therefore, the prior version of Rule 4-2, which 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, applies.