FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-08-1150]
HONORABLE BRADLEY LEWIS KARREN, JUDGE
Douglas Bishop, pro se appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
W. GRUBER, Chief Judge
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).
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.
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 were deficient on appeal from order denying a
writ of error coram nobis).
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.
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 to material found there).
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.
Gladwin and ...