ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 10, 2001

GILBERT WALDON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-1223

AN APPEAL FROM THE CIRCUIT COURT OF SEVIER COUNTY,

NO. CR 98-48

HONORABLE TED C. CAPEHEART,

CIRCUIT JUDGE

AFFIRMED

Appellant, Gilbert Waldon, was convicted by a jury of aggravated robbery and was sentenced to twenty years in the Arkansas Department of Correction. The court of appeals affirmed his conviction in Waldon v. State, CACR 98-1182 (Ark. App. April 7, 1999). Appellant subsequently filed a petition pursuant to Ark. R. Crim. Pr. 37 alleging ineffective assistance of counsel. The trial court held a hearing on appellant's petition and later denied relief. This appeal followed.

For his first point on appeal, appellant argues that counsel was ineffective for failing to request a continuance to gain more time to investigate and prepare for trial. Specifically, appellant argues that counsel was ineffective for calling his girlfriend, Sherrie Miller, to the stand when counsel knew or should have known that the witness would "waffle."

When reviewing this point, we discovered that appellant failed to raise this argument in his Rule 37 petition and at the Rule 37 hearing. Our general rule is that specific allegations ofineffectiveness of counsel must be pleaded, and specific issues of ineffectiveness of counsel cannot be raised for the first time on appeal. Tisdale v. State, 311 Ark. 220, 227, 843 S.W.2d 803, 807 (1992). A court will not consider matters outside the scope of a Rule 37 petition. Morgan v. State, 296 Ark. 370, 757 S.W.2d 530 (1988). Because appellant failed to raise this issue below, we decline to address it.

Next, appellant argues that counsel was ineffective for failing to request an instruction on robbery. Appellant contends that the evidence was lacking with regard to whether appellant had a gun, thus, there was a rational basis for the instruction.

We measure the effectiveness of trial counsel according to the standard enunciated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). According to that standard, the petitioner must show first 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 petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). We conclude that the CircuitCourt was not clearly erroneous when it denied relief on the ineffective assistance of counsel claim. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).

We reject appellant's argument because appellant's defense at trial was a general denial of the offense. It would have made no sense to instruct on robbery when appellant contended he was not involved in the incident. See Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996). As a matter of strategy, appellant's trial counsel could have foregone arguing any lesser offense, especially since the lower offense was inconsistent with his defense at trial. Matters of trial tactics and strategy are not grounds for postconviction relief, and this reason alone is sufficient to affirm on this point. See Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995).

Affirmed.