ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 10, 2002

STANLEY NORTON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-1003

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CR 96-5-3, HONORABLE FRED D. DAVIS III, JUDGE

AFFIRMED

After a bench trial, appellant was convicted of first degree battery. The trial court sentenced him to twenty-two years' imprisonment in the Arkansas Department of Correction. Appellant did not appeal his conviction and sentence, but he did file a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37 alleging ineffective assistance of counsel. After a hearing, the circuit court denied relief. On appeal, we reversed and remanded because the circuit court did not enter written findings of fact and conclusions of law as required by Rule 37.3(c). Norton v. State, CR 98-84 (Ark. May 27, 1999) (per curiam). The circuit court subsequently entered written findings again denying appellant relief on his claims. We decline to consider appellant's argument that the circuit court erred in doing so because he has failed to produce a record on appeal sufficient to demonstrate error.

Arkansas Supreme Court Rule 4-2(a)(6) requires an appellant to include an abstract consisting of the material parts of the record that are necessary to an understanding of the questionspresented for decision. Moreover, it is the appellant's burden to produce a record sufficient to demonstrate error. Johnson v. State, 342 Ark. 357, 361, 28 S.W.3d 286, 288 (2000).

Appellant contends that his trial counsel was ineffective for failing to subpoena and have available witnesses to testify at trial, for failing to adequately advise and discuss appellant's waiver of a trial by jury, and for failing to perfect an appeal of his conviction and sentence. We cannot reach the merits of these claims for two reasons. First, appellant has failed to include an abstract of his trial in his brief.1 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)(per curiam), reh'g denied, 333 Ark. 701, 975 S.W.2d 836. 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). Second, appellant has abstracted his Rule 37 hearing, but the transcript of the hearing cannot be found in the record on appeal. We cannot consider evidence on appeal that is not included in the transcript. Adams v. Owen, 316 Ark. 99, 101, 870 S.W.2d 741, 741 (1994). Appellant's noncompliance with Rule 4-2(a)(6) requires that we affirm the order of the circuit court.

Affirmed.

Imber, J., not participating.

1 Cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001, will no longer be affirmed because of the insufficiency of the abstract without the appellant first having the opportunity to cure the deficiencies. See In re: Modification of the Abstracting System -- Amendments to Supreme Court Rules 2-3, 4-2, 4-3, 4-4, 345 Ark. Appx. , __ S.W.3d __ (2001) (per curiam).