ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 24, 2002

LONNIE STRAWHACKER

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-1417

APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY,

NO. CR-89-760

HONORABLE WILLIAM STOREY,

JUDGE

AFFIRMED

Appellant, Lonnie Strawhacker, was convicted of rape and first degree battery and received a life sentence, as a habitual offender, and thirty years respectively. Appellant's sentences were run concurrently. We affirmed appellant's conviction and sentence. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). Appellant subsequently filed a motion for appointment of counsel and requested a hearing pursuant to Ark. R. Crim. P. 36.4 alleging ineffective assistance of counsel. After a hearing, the circuit court denied appellant's requested relief. This appeal followed.

Appellant raises two issues arguing that he was denied effective assistance of counsel. The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel's representation fell below an objective standard of reasonableness and thatcounsel's deficient performance prejudiced his defense. Judicial review of counsel's performance must be highly deferential, and a fair assessment of counsel's performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). A reviewing court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Id.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. 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. Id. In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id; Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Thomas, 322 Ark. 670, 911 S.W.2d 259.

First, appellant contends that counsel was ineffective for failing to discover that appellanthad made a spontaneous statement to the police. Appellant argues that had counsel properly investigated the case he would have discovered this evidence and timely prevented it from being introduced at trial. There is no indication from the record that this specific issue was raised below at the Rule 37 hearing or in appellant's Rule 37 petition. We have consistently held that issues not before the lower court will not be addressed here for the first time. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995); Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974).

Appellant also argues that had trial counsel fully investigated the case he would have discovered other physical evidence, specifically appellant's clothing, which the State intended to introduce at trial. An allegation which is general in nature with no showing of actual prejudice to the defense is not deserving of post-conviction relief. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). Here, appellant has only set forth an allegation without any showing of prejudice. Petitions which state only a conclusion are patently deficient in that there can be no showing of actual prejudice to the petitioner without factual support for the allegations made by him. A showing of actual prejudice is necessary to warrant relief under the rule. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992); Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989). Because appellant has failed to demonstrate prejudice, we affirm the trial court's finding on this point.

For his last point on appeal, appellant asserts that counsel was ineffective for failing to file material pretrial motions. Specifically, appellant argues that counsel failed to file a motion to suppress allege statements made by appellant and a motion to suppress clothing seized from appellant's residence. We find no basis for concluding that counsel was ineffective for failing to file the motions to suppress. Appellant has not set forth any factual support to show that the motions to suppress would have been meritorious or that the outcome of the trial would have been different had the motions been presented. Appellant has only set forth conclusory allegations. It is wellsettled that a ground for relief under Rule 37 which is entirely conclusory in nature is not sufficient to demonstrate that the petitioner is entitled to any relief under the rule. Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996). Even had counsel made meritorious motions to suppress, the judgment must stand, unless the petitioner demonstrates that the failure to file the motions had a prejudicial effect on the outcome of the trial. See Wilburn v. State, 292 Ark. 416, 730 S.W.2d 491 (1987). Appellant has simply failed to show that the outcome of the trial would have been altered.

Affirmed.