ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

June 12, 2003

WILLIE HUTCHERSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-373

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, 1999-1834, HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

Appellant was convicted of four counts of aggravated robbery, three counts of misdemeanor theft of property and one count of felony theft of property and sentenced to an aggregate term of 240 years' imprisonment. Appellant also pleaded guilty to being a felon in possession of a firearm and was sentenced to a term of five years' imprisonment. The Arkansas Court of Appeals affirmed. See Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied. On appeal, we ordered rebriefing because appellant failed to adequately abstract the record as required by Ark. Sup. Ct. R. 4-2(a)(5) and (7) (2002). See Hutcherson v. State, CR 02-373 (Ark. Feb. 6, 2003) (per curiam). Appellant filed a substituted brief; however, the State has elected to stand on its original brief. The State did file a motion to strike the new arguments raised in appellant's substituted brief, which was granted without a written opinion. However, we cannot reach the merits of appellant's remaining claims because again, he has failed to include a proper abstract of his trial as required by Rule 4-2(a)(5). 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 claim according to the "cause and prejudice" test in Strickland v. Washington, 466 U.S. 668 (1984). Moreover, appellant's abstract does not permit a review of his claim of prosecutorial misconduct, as there is no evidence presented on this issue. Therefore, pursuant to Rule 4-2(b)(3), the trial court's denial of relief is affirmed for noncompliance with the Rule.

Affirmed.

Corbin, J., not participating.