Robert Lee Hunter, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-432

NOT DESIGNATED FOR PUBLICATION

ROBERT LEE HUNTER, JR

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered October 6, 2005

APPEAL FROM THE CIRCUIT COURT OF GARLAND COUNTY, NO. CR 2002-119, HONORABLE TOM SMITHERMAN, JUDGE

AFFIRMED

PER CURIAM

Appellant was convicted by a jury of possession of a controlled substance and possession of drug paraphernalia. He was sentenced to respective sentences of 324 months' imprisonment and 12 months' imprisonment, to run concurrently. His attorney filed a motion to withdraw on the grounds that the appeal had no merit. See Anders v. California, 386 U.S. 738 (1967); Ark. Sup. Ct. R. 4-3(j)(1) (2003). Appellant filed pro se points for reversal pursuant to Ark. Sup. Ct. R. 4-3(j)(2), and the State filed a brief responding to his points of appeal. The Arkansas Court of Appeals affirmed. Hunter v. State, CA CR 02-1036 (Ark. App. Feb. 18, 2004). Appellant subsequently filed a timely pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied without a hearing. An appeal of that order has been lodged with this court.

Appellant filed a brief which was not in proper form. We granted a motion filed by the State for appellant to be required to submit a substituted brief that conforms to our rules. Hunter v. State, CR 04-432 (Ark. Nov. 18, 2004) (per curiam order). Appellant was afforded fifteen days to file the substituted brief. Before the substituted brief was due, appellant filed a motion seeking an extension of ninety days' time to file the brief. The motion was granted; however, the time was extended only thirty days from the date of the opinion.

Appellant's substituted brief does not conform to Ark. Sup. Ct. R. 4-2. He has included what appear to be excerpts from the transcript of the trial in his addendum, but for those portions included, he has not abstracted the testimony or condensed it. Even if the transcript excerpts included in appellant's addendum had been adequate to serve as appellant's abstract, he would not have provided enough of the relevant testimony for an adequate review of his arguments. Appellant has asserted ineffective assistance of counsel. An appeal from the denial of postconviction relief that is based upon a claim of ineffective assistance of counsel requires a complete abstract of the trial proceedings for a meaningful review. In determining a claim of ineffective assistance of counsel, the totality of the evidence before the factfinder must be considered. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). An appellant must provide an abstract sufficient to conduct a meaningful review. Campbell v. State, 349 Ark. 111, 76 S.W.3d 271 (2002).

Appellant was provided an opportunity to submit a conforming brief. He has failed to do so, and the denied of his petition must be affirmed for noncompliance in accordance with Ark. Sup. Ct. R. 4-2(b)(3).

Affirmed.