Mario Antwuan Nelson v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-408

NOT DESIGNATED FOR PUBLICATION

MARIO ANTWUAN NELSON

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered October 27, 2005

PRO SE MOTION TO SUPPLEMENT THE RECORD [ APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 2003-3047, HON. BARRY SIMS, JUDGE

MOTION GRANTED; REBRIEFING ORDERED

PER CURIAM

Mario Antwuan Nelson entered negotiated pleas of guilty to murder in the first degree and a terroristic act, and was sentenced to consecutive sentences of 480 months on the murder charge and 120 months on the terroristic act charge, for a total sentence of 600 months the Arkansas Department of Correction. Nelson filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, which was denied without a hearing. The record has been lodged in this court on appeal, and appellant Nelson and the State have filed briefs. Before us now is appellant's motion to supplement the record.

Appellant requests an opportunity to supplement the record with the transcript of his plea hearing. The transcript of the plea hearing may indeed serve to elucidate the issues raised by appellant's petition and preserved for appeal. We will allow appellant to supplement the record on appeal in accordance with Ark. R. App. P.-Civ. 6(e), as applied through Ark. R. App. P.-4(a), by transmission of a certified record of the plea hearing.

Because we will allow appellant to supplement the record, we must also order rebriefing. However, we note that, as the State points out in its brief, the majority of the issues raised by appellant in his brief were not raised in his petition. This court has repeatedly stated that we will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, ___ Ark. ___, ___ S.W.3d ___ (June 23, 2005); see also, Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). Accordingly, rebriefing is only appropriate as to those issues in appellant's original brief which were also raised in appellant's petition. Appellant is permitted to file a substituted brief addressing only the issues concerning his allegation of ineffective assistance of counsel for failure to investigate and seek evaluation of appellant's competency, and the appropriateness of a hearing on that point.

The appellant is directed to supplement the record and file his substituted brief within fifteen days from the date of entry of this order. The State shall have an opportunity to file a responsive brief within fifteen days, following service of the substituted brief.

Motion granted; rebriefing ordered.