There is now no dispute that Pearson would have been entitled to a second bite at the apple had he timely moved for ineffective assistance relief after his appeal ended. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387, 388 (1994). (We note that the dicta in Burk v. State, 313 Ark. 652, 856 S.W.2d 14 (1993), stating that a petitioner like Pearson was not entitled to a second-chance Rule 37 remedy has been supplanted by the explicit contrary holding in Pogue.)
Few cases address the availability of post-conviction relief when Rule 36.4 was in effect at the time of conviction and Amended Rule 37 was in effect at the time of direct appeal. In Pogue v. State of Arkansas, 316 Ark. 428, 872 S.W.2d 387 (1994), the Arkansas Supreme Court held that "a Rule 37 petition, filed after January 1, 1991, is timely brought if it is within 60 days of the date the mandate was issued by the appellate court . . . even if the conviction occurred during the time period when former Rule 36.4 was in effect." Id. at 388.
His trial testimony was wholly consistent with the defense of denial. [1, 2] This court will reverse a trial court's denial of post-conviction relief only if its findings are clearly erroneous or clearly against the preponderance of the evidence. Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). This court summarized the standard of review applicable to ineffective assistance of counsel claims in Pogue v. State, 316 Ark. 428, 432-33, 872 S.W.2d 387, 389 (1994): [C]laims of ineffective counsel . . . must be examined in light of the standard set in Strickland v. Washington, 466 U.S. 668 (1984).
We have said repeatedly that the record on appeal is confined to that which is properly abstracted because it is not feasible for the seven justices of this court to each examine the record. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1984); Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). When an abstract is deficient, the lower court's judgment or order must be affirmed.
We reverse and remand for a new trial because Wicoff was denied effective assistance of counsel. [1-3] This court will reverse a trial court's denial of post-conviction relief only if its findings are clearly erroneous or clearly against the preponderance of the evidence. Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995); Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). In Vickers, this court reiterated its previous summary of the standard of review applicable to ineffective assistance of counsel claims in Pogue v. State, 316 Ark. 428, 432-33, 872 S.W.2d 387, 389 (1994), as follows: [C]laims of ineffective counsel . . . must be examined in light of the standard set in Strickland v. Washington, 466 U.S. 668 (1984).
See In the Matter of the Reinstatement of Rule 37, 797 S.W.2d 458 (Ark. 1990) (per curiam), and In re Post-Conviction Procedures, 797 S.W.2d 458 (Ark. 1990) (per curiam). Under the new (and current) scheme, a petition to the trial court for a new trial on the ground of ineffective assistance of counsel at trial may not be made until after an appeal is decided, see Ark. R. Crim. P. 37.2(a), and must be made within 60 days of the mandate from the state appellate court, see Ark. R. Crim. P. 37.2(c). Even though that rule was not in effect at the time of Mr. Pearson's trial, the magistrate noted that because the rule was in effect when Mr. Pearson's appeal was decided, Mr. Pearson could have petitioned for relief under the rule after his appeal. See, e.g., Pogue v. State, 872 S.W.2d 387, 388 (Ark. 1994). The magistrate found that Mr. Pearson had not offered any reason for his failure to petition for a new trial under Ark. R. Crim. P. 37.1(a) after his appeal. The magistrate therefore recommended that Mr. Pearson's habeas petition be denied.
The Court therefore cannot consider petitioner's assertion of cause unless he first raised the claim as an independent claim in state court. He clearly did not; all but one of the claims raised in this application are therefore procedurally barred. He could have challenged the representation provided by his appellate attorney in a motion filed pursuant to Ark.R.Crim.P. 37.2. See Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994).EXCLUSION OF VICTIMS. The only claim not procedurally barred is petitioner's claim that the trial court failed to exclude the victims from the courtroom.
A defendant who was convicted while Rule 36.4 was in effect, but whose conviction was affirmed after Rule 37 was reinstated, was permitted sixty days from the date of the mandate in which to file a petition. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994). Ray was convicted when Rule 36.4 was in effect.
We have stated repeatedly that we will not go to the record to reverse a judgment of conviction, because there is only one record and seven justices. See, e.g., Johnson v. State, 342 Ark. 357, 28 S.W.3d 286 (2000); Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994). Patrick's only attempt to comply with our per curiam order was to state generally what the hearings were about and when they took place.
Counsel may only advise the accused in making the decision. The decision to testify is purely one of strategy." Chenowith v. State, 341 Ark. 722, 734, 19 S.W.3d 612, 618 (2000) (citations omitted); Pogue v. State, 316 Ark. 428, 433, 872 S.W.2d 387, 389 (1994) ("This dispute over Pogue's taking the stand appears to be more a debate over trial strategy than evidence of ineffectiveness of counsel. Such matters do not form the basis of post-conviction relief.");