ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 21, 2002

BRIAN LEONARD FAULKENS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-907

APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY, NO. CR 97-85,86,88, HONORABLE RALPH WILSON, JR, JUDGE

AFFIRMED

Appellant was convicted of two counts of aggravated robbery and one count of robbery and was sentenced as a habitual offender to a total of sixty years' imprisonment. The Arkansas Court of Appeals affirmed appellant's convictions in an unpublished opinion. Faulkens v. State, CA CR 00-698 (Ark. App. Feb. 14, 2001). Appellant subsequently filed in the trial court a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging ineffective assistance of trial counsel. The circuit court denied the petition, and appellant filed a notice of appeal. However, our clerk refused to lodge the record on appeal because the notice of appeal was untimely. Appellant moved this court for permission to file a belated appeal, which was granted. We find no error and affirm.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show 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 defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. Thus, a defendant must first show that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing a denial of relief under Rule 37, we must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant 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. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.

Ineffective assistance of counsel cannot be established by a mere showing of error by counsel or by revealing that counsel's failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, supra.

On January 16, 1997, the State filed three separate informations charging appellant with twocounts of aggravated robbery and one count of robbery. The State subsequently filed three amended informations, the last of which was filed on December 3, 1999, alleging that appellant had six prior felony convictions. This information did not charge appellant with a substantive offense. It merely charged him as a habitual offender. Appellant's trial counsel did not object to the final amended information, and appellant was convicted. On appeal, appellant claims that trial counsel was ineffective for failing to object to the information because it did not charge appellant with a substantive offense.

The State may amend an information at any time prior to the case being submitted to the jury as long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. Stewart v. State, 338 Ark. 608, 612, 999 S.W.2d 684, 687 (1999). We have held that an amendment to an information adding an allegation of habitual offender does not change the nature or degree of a crime. Nance v. State, 323 Ark. 583, 600, 918 S.W.2d 114, 122 (1996). Therefore, any objection by trial counsel would have been unsuccessful. Because appellant cannot demonstrate prejudice as required by Strickland, he is not entitled to postconviction relief for ineffective assistance of counsel.

Affirmed.