Curtis Ashlock v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 10, 2001

CURTIS ASHLOCK

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 99-972

APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY, NO. CR-96-264, HONORABLE FLOYD G. ROGERS, JUDGE

AFFIRMED

Appellant was convicted by a jury in the Crawford County Circuit Court of kidnaping and rape. He received a sentence totaling one-hundred ten years' imprisonment. On direct appeal, the Arkansas Court of Appeals affirmed. Ashlock v. State, 64 Ark. App. 253, 983 S.W.2d 448 (Ark. Ct. App. 1998). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. The circuit court conducted a hearing, and thereafter denied the petition. In this appeal, appellant submits two reasons why the circuit court erred in denying relief. We find no error and affirm.

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 showingthat counsel's errors were so serious as to deprive 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.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, 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.

In reviewing the denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant 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. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, 342 Ark. at 38, 26 S.W.3d at 125.

Appellant claims that his trial counsel was ineffective in failing to investigate and present two witnesses who could have given testimony disputing his victim's story that she was held against her will. Appellant also contends that his trial counsel was ineffective in failing to individually poll each juror as to the verdict rendered. We cannot reach the merits of these claims because appellanthas failed to include an abstract of his trial in his brief. See Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998).

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), reh'g denied, 333 Ark. 701, 975 S.W.2d 836. Here, appellant has failed to abstract the testimony presented at his trial, including that of his victim, or those portions of the record related to his claim that a polling of the jury would have led to a mistrial. Absent this material information, we cannot evaluate appellant's claims according to the "cause and prejudice" test in Strickland. Hubbard, supra; see also Ark. Sup. Ct. R. 4-2(a)(6). We will not explore the record for prejudicial error. Owens v. State, 325 Ark. 93, 94, 924 S.W.2d 459, 459 (1996). Accordingly, we cannot say that the circuit court erred in denying appellant's petition.

Affirmed.