ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

June 14, 2001

CURTIS WINFREY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 99-1063

APPEAL FROM THE CIRCUIT COURT OF LITTLE RIVER COUNTY, NO. CR-96-13, HONORABLE CHARLES A. YEARGAN, JUDGE

REVERSED AND REMANDED.

Appellant, Curtis Winfrey, was convicted of delivery of a counterfeit substance and sentenced to thirty years' imprisonment. The Arkansas Court of Appeals affirmed his conviction and sentence in an unpublished opinion. Winfrey v. State, CA CR 98-878 (Ark. App. Feb. 17, 1999). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37 that he later amended. Appellant raised several claims in his petition, including claims of ineffective assistance of trial counsel. The trial court denied relief without holding an evidentiary hearing. Because we find that the trial court's order is not in compliance with Rule 37.3(a), we reverse and remand.

Arkansas Rule of Criminal Procedure 37.3(a) provides that the trial court need not hold a hearing if "the files and records of the case conclusively show that the petitioner is entitled to no relief." See also Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000). But in doing so,the trial court "shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." Id. If the trial court fails to make these findings in accordance with the Rule, it is reversible error. Id. If, however, the record before this court conclusively shows that the petition is without merit, we will affirm despite the trial court's failure to make written findings. Id.

This court does not presume error simply because an appeal is made. It is the appellant's burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Johnson v. State, 342 Ark. 357, 361, 28 S.W.3d 286, 288 (2000); Ark. Sup. Ct. R. 4-2(a)(6). An appellant must include an abstract of his trial in his brief for this court to properly evaluate claims of ineffective assistance of counsel according to the "cause and prejudice" test in Strickland v. Washington, 466 U.S. 668 (1984). Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998). Although appellant failed to abstract any of the material parts of his trial relevant to review of his claims, the appellee cured this defect by submitting a supplemental abstract pursuant to Ark. Sup. Ct. R. 4-2(b)(1). The record presented does not conclusively show that appellant's claims are without merit. Accordingly, the circuit court erred when it failed to hold an evidentiary hearing on appellant's claims.

Appellant first claims that his trial counsel was ineffective for failing to file a motion to dismiss the charge against him on speedy trial grounds. The appellee's supplemental abstract includes four orders by the trial court granting motions for continuance filed by appellant that ultimately led to his trial being held 700 days after he was charged by information with delivery of a counterfeit substance. The parties disagree, however, as to the number of days that shouldbe excluded from the one-year time period in which it was required to bring appellant to trial. See Ark. R. Crim. P. 28. An evidentiary hearing pursuant to Rule 37 will provide an opportunity to make a record of the circumstances surrounding the delay of appellant's trial. It also will provide a basis for evaluating whether appellant's attorney was ineffective according to the "cause and prejudice" test in Strickland. We reverse and remand the case to the circuit court on this issue.

Appellant additionally submits that his trial counsel was ineffective for failing to object pursuant to Ark. R. Crim. P. 25.4 and Ark. R. Evid. 410 to the introduction of evidence regarding his plea negotiations. He alleges that during plea negotiations he signed a waiver of rights form and gave a statement that was to be attached to the completed plea agreement. Appellee's abstract reflects that a waiver of rights form and a statement signed by appellant were introduced as exhibits during appellant's trial, and that Officer Gary Gregory of the Ashdown Police read appellant's statement into evidence. Appellee, however, disagrees with the characterization of these events as plea negotiations.

Appellant claims that his trial counsel was ineffective for failing to object to the introduction of the rights form, his signed statement, and the testimony of Officer Gregory regarding the plea negotiations. It is well settled that appellant may not change the grounds for objection on appeal but is limited by the nature and scope of his objections and arguments presented at trial. Woods v. State, 342 Ark. 89, 93, 27 S.W.3d 367, 370 (2000). Moreover, we cannot consider arguments raised for the first time on appeal. Id. Although the claims are factually connected, appellant did not allege in his petition that his trial counsel was ineffectivefor failing to object to the introduction of the rights form. We are therefore precluded from addressing that argument on appeal.

Appellant did raise below the claims that his attorney was ineffective in failing to object to the introduction of his statement and the testimony of Officer Gregory. As with appellant's speedy trial claim, an evidentiary hearing pursuant to Rule 37 will provide an opportunity to make a record of the circumstances surrounding appellant's statement, including whether it was given during plea negotiations, and will provide a basis for evaluating whether his attorney was ineffective under Strickland. We therefore reverse and remand the case to the circuit court on the issue of whether appellant's trial counsel was ineffective for failing to object to the introduction of appellant's statement and Officer Gregory's testimony.

In summary, we reverse and remand the case for an evidentiary hearing on appellant's claims that his trial counsel was ineffective for failing to move to dismiss the charge against him on speedy-trial grounds, and for failing to object to the introduction into evidence of the statement he gave during plea negotiations and the testimony given by Officer Gregory regarding that statement. The circuit court's duties on remand are limited to these issues because all other claims raised below but not argued on appeal are considered abandoned. See Echols v. State, 344 Ark. 513, __, 42 S.W.3d 467, __ (2001). As required by Rule 37.3(c), the circuit court's resolution of these claims shall be reflected in written findings of fact and conclusions of law. This order is to be completed and the record of the evidentiary hearing lodged with this court within ninety days of the date the mandate is issued. The clerk is directed to establish a new briefing schedule.

Reversed and remanded.