ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
October 2, 2003

CALVIN LASHAWN CAMPBELL

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-953

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 99-514, HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of rape and sentenced to forty years' imprisonment. The Arkansas Court of Appeals affirmed. Campbell v. State, CA CR 01-29 (Ark. App. Jan. 23, 2002). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Appellant had previously filed a Rule 37 petition with respect to convictions on two additional counts contained in the instant case, residential burglary and battery in the first degree. The instant petition is limited to the rape conviction.

Appellant also filed a motion to amend his petition, which was filed simultaneously with the instant petition and an amended Rule 37 petition. According to appellant's motion, he needed to amend the original petition because he was unable to present all of his allegations within the ten-page limit. After reviewing appellant's original petition, the trial court concluded that appellant had failed to demonstrate that he was unable to adequately present his claims within the page limit; therefore, his motion to amend his original petition was denied. Accordingly, the trial court only considered the ineffective assistance of counsel claims presented in appellant's original petition and denied both claims. From that order comes this appeal.

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

Appellant's first point on appeal is that the trial court erred in denying his claim that trial counsel was ineffective for failing to proffer a jury instruction noting the victim's failure to tell the police officers who responded to the scene that, in addition to being repeatedly stabbed, she was also raped. In denying the claim, the trial court held that such an instruction would have been a "comment on the evidence and improper" and that the allegation was an "attack on the credibility of a witness, and a direct, not collateral, challenge to the judgment," which is not proper under Rule 37. The credibility of a witness is a matter for trial since such an issue constitutes a direct attack on the judgment. Wainwright v. State, 307 Ark. 569, 580, 823 S.W.2d 449, 455 (1992). Accordingly, we affirm the ruling below.

Appellant's second claim is that trial counsel and appellate counsel were ineffective for failing to adequately challenge the sufficiency of the evidence to uphold appellant's rape conviction. Specifically, appellant argues that the issue of sufficiency of the evidence should have been pursued on direct appeal instead of counsel's filing a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j)(1). In denying postconviction relief, the trial court held that the court of appeals considered the issue of sufficiency of the evidence and determined that there was sufficient evidence to support appellant's conviction for rape. According to the court of appeals, "[t]he testimony of a rape victim satisfies the substantial-evidence requirement in a rape case." Rule 37 does not provide an opportunity to reargue points settled on direct appeal. Dunham v. State, 315 Ark. 580, 581, 868 S.W.2d 496, 497 (1994). Accordingly, we affirm the trial court's denial of relief. Appellant also presents those additional claims included in his amended petition. However, the trial court did not grant appellant leave to amend his original petition, and consequently, never ruled on these claims. It is appellant's obligation to obtain a ruling from the trial court in order to properly preserve an issue for review. Beshears v. State, 340 Ark. 70, 72, 8 S.W.3d 32, 34 (2000). Because the trial court did not rule on these issues, appellant is procedurally barred in raising those issues now.

Affirmed.

Thornton, J., not participating.