Bishop v. State

2017 Ark. App. 246

• Court: Court of Appeals of Arkansas
• Decided: April 26, 2017
• Docket: CR-16-1057
• Status: Published

Opinion

Cite as 2017 Ark. App. 246

ARKANSAS COURT OF APPEALS DIVISION IV No. CR-16-1057

MAX DOUGLAS BISHOP Opinion Delivered: April 26, 2017 APPELLANT APPEAL FROM THE BENTON V. COUNTY CIRCUIT COURT [NO. 04CR-08-1150]

STATE OF ARKANSAS HONORABLE BRADLEY LEWIS APPELLEE KARREN, JUDGE

REBRIEFING ORDERED

RITA W. GRUBER, Chief Judge

Max Douglas Bishop was tried by a jury in the Circuit Court of Benton County on

thirty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct

involving a child. He was found guilty on all counts and was sentenced to a total of 720

months’ imprisonment in the Arkansas Department of Correction. On direct appeal, we

rejected his challenge to the sufficiency of the evidence and affirmed the convictions. Bishop

v. State, 2015 Ark. App. 436, 467 S.W.3d 763. Bishop then filed a petition for postconviction

relief and an amended petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016),

raising claims that his trial counsel had been ineffective. The trial court conducted a Rule 37

hearing and issued a written order denying Bishop’s claims of ineffective assistance of counsel.

Bishop now appeals the denial of his petition for postconviction relief. Our jurisdiction is

pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, ___ S.W.3d ___ (per curiam). Cite as 2017 Ark. App. 246

Bishop raises five arguments in his appeal from the denial of his Rule 37 claims of

ineffective assistance of counsel. He argues that (1) the appeal record is incomplete; (2) the

trial court erred in determining that probable cause existed to search his residence; (3) the trial

court erred in determining that a valid search warrant existed for forensic analysis of seized

equipment; (4) the trial court erred in determining he was not prejudiced “by the lack of

metadata of alleged chat transcripts entered into evidence”; and (5) the trial court erred in

concluding that he could be charged with multiple counts under Ark. Code Ann. § 5-27-602

(Repl. 2013). We remand for rebriefing because Bishop’s brief, particularly the abstract

portion, is deficient such that we are unable to understand the case and to decide the issues

on appeal.

Arkansas Supreme Court Rule 4-7 governs pro se briefs filed by incarcerated persons

in appeals of postconviction-relief proceedings and civil appeals. Ark. Sup. Ct. R. 4-7(a)

(2016). Except for the specific provisions in this rule, a pro se party’s brief shall otherwise

comply with the Rules of the Supreme Court and Court of Appeals. Id. Rule 4-7(c)(1)(A)

requires the appellant to abstract “such parts of the transcript . . . as are material to the points

to be argued in the appellant’s brief, for the appellate court to understand the case and to

decide the issues on appeal.” Id. The rule instructs the appellant to summarize the testimony

of witnesses as well as discussions between the judge and any person needed for an

understanding of the issues on appeal; further, material parts of a prior trial must be abstracted

when important to an understanding of the issues raised on appeal. Id.; see Newman v. State,

2013 Ark. 324, at 2 (citing the rule and ordering rebriefing because abstract and addendum

2 Cite as 2017 Ark. App. 246

were deficient on appeal from order denying a writ of error coram nobis).

On review, we assess the effectiveness of counsel under the two-pronged standard of

Strickland v. Washington, 466 U.S. 668 (1984), whereby a petitioner must demonstrate that

counsel made errors so serious that it prejudiced the outcome of the trial. Sartin v. State, 2012

Ark. 155, at 2–3, 400 S.W.3d 694, 697–98. Without a proper abstract of an appellant’s trial,

we cannot evaluate ineffective-assistance-of-counsel claims under the “cause and prejudice”

test of Strickland v. Washington, supra.

The abstract section of Bishop’s brief consists solely of a two-page photocopy from the

trial court’s hearing on his Rule 37 petition. These pages concern the court’s taking judicial

notice of the trial record as a self-authenticating document, the State’s belief that affidavits for

search warrant were sufficient to establish probable cause, counsel’s reasons for not pursuing

Bishop’s alibi defense based on work records, and the introduction into evidence of binders

of chat transcripts with metadata attached. The abstract lacks anything to support Bishop’s

argument, for example, that his counsel failed to object to Bishop’s being charged with thirty

counts instead of one. An appellant arguing in a Rule 37.1 appeal that his attorney failed to

make an objection at trial must abstract the part of the transcript where he alleges that such

an objection would have been appropriate. Ark. Sup. Ct. R. 4-7(c)(1)(A). Additionally,

without an abstract of the trial proceedings, we are unable to ascertain whether Bishop’s

claims on appeal demonstrate that his counsel made errors so serious as to prejudice the

outcome of the trial. See also Ark. Sup. Ct. R. 4-7(c)(1)(B) (requiring that page numbers of

the abstract or addendum be included in the argument section of a brief if reference is made

3 Cite as 2017 Ark. App. 246

to material found there).

Pursuant to Arkansas Supreme Court Rule 4-7(c)(3)(B), we allow Bishop 15 days from

the date of this opinion to file with our clerk a substituted abstract, addendum, and brief

curing all deficiencies. After service of the substituted brief, the State shall have opportunity

to file a responsive brief. Id. The briefing deficiencies we have noted are not to be taken as

an exhaustive list; we encourage Bishop to thoroughly review our rules to ensure that no

additional deficiencies are present. We caution him that if he fails to file a complying brief,

abstract, and addendum within the prescribed time, the order denying his petition for

postconviction relief may be affirmed for noncompliance with the rule. Id.

Rebriefing ordered.

GLADWIN and VAUGHT, JJ., agree.

Max Douglas Bishop, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.