ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 7, 2002

JERRY DEWAYNE JOHNSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00 1421

APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY, NO. CR 93-465 AND CR 93-866, HONORABLE DAVID BURNETT, JUDGE

AFFIRMED

Appellant pled guilty to rape and aggravated robbery and he received a sentence of fifteen years' imprisonment, which was suspended. The suspension was later revoked, and appellant was sentenced to two concurrent terms of twenty years' imprisonment. The Arkansas Court of Appeals affirmed. Johnson v. State, CA CR 97-1351 (Ark. App. June 24, 1998). Appellant filed a pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied by the trial court as untimely. This court subsequently reversed and remanded the case for a hearing on the merits. Johnson v. State, 339 Ark. 487, 5 S.W.3d 477 (1999). A hearing was held by the trial court, and appellant's petition was denied. From that order comes this appeal.

Appellant's first point on appeal is that the trial court abused its discretion by failing to grant appellant's motion for a continuance. On December 16, 1999, this court reversed and remanded appellant's petition for a hearing, which was held several months later on July 6, 2000. On that date,prior to the hearing, appellant requested a continuance to hire an attorney. The court denied the request and proceeded to hear the testimony of the State's witnesses and those subpoenaed by appellant.

This court has consistently held that:

[A] motion for a continuance is addressed to the sound discretion of the trial judge and his judgment will not be reversed on appeal in the absence of clear abuse. Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). The burden of establishing such abuse rests squarely on the shoulders of the appellant. Freeman v. State, 258 Ark. 496, 527 S.W.2d 623 (1975). We have also recognized that the right to counsel of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979).

Leggins v. State, 271 Ark. 616, 618, 609 S.W.2d 76, 78 (1980).

Appellant has not established abuse on the part of the trial court. At the time appellant requested the continuance, almost seven months had passed since this court remanded the case for a hearing. Appellant had more than enough time to hire an attorney. Moreover, there is no entitlement to counsel at postconviction proceedings. McCuen v. State, 328 Ark. 46, 56, 941 S.W.2d 397, 402 (1997). Accordingly, we find no error.

Appellant's second point on appeal is that the trial court erred in determining that appellant's counsel was not ineffective at the revocation hearing. We decline to consider appellant's claim because he has failed to abstract the transcript of the revocation hearing.1 A court considering a claim of ineffectiveness must consider the totality of the evidence before the factfinder. Matthews v. State, 333 Ark. 701, 705-A, 970 S.W.2d 289, 292 (1998). An abstract of the revocation hearing is needed to evaluate claims for ineffective assistance of counsel according to the "cause and prejudice" test in Strickland v. Washington, 466 U.S. 668 (1984). See Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998). Because appellant has failed to include a proper abstract, this claim is procedurally barred.

Affirmed.

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, Ark. Appx. __, __ S.W.3d __ (2001) (per curiam). The record in the instant case was filed before September 1, 2001.