FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCR-10-855] HONORABLE J. MICHAEL FITZHUGH, JUDGE
& Co., PLLC, by: Tim J. Cullen, for appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, Judge
Wayne Bartlett appeals the revocation of his suspended
sentence. Bartlett claims that his trial lawyer rendered
ineffective assistance of counsel because he presented no
theme, no evidence, no defense, no mitigation evidence, and
no plea for leniency. Having reviewed the record before us,
we conclude that Bartlett's argument is not preserved for
appeal and, therefore, we affirm.
pleaded guilty in 2011 to failure to comply with the
reporting requirements of the Sex Offender Registration Act,
a Class C Felony. The plea consisted of a two-year prison
sentence and eight years' suspended imposition of
sentence. Bartlett completed his two-year sentence of
imprisonment on December 14, 2012. The State petitioned to
revoke Bartlett's suspended imposition of sentence on
July 5, 2016, alleging that Bartlett had violated the terms
of his suspended sentence by committing robbery and battery
in the second degree; failing to pay court costs, fees and
fines of $1000; and failing to register as a sex offender.
revocation hearing, the victim, Glenn Forte, testified that
Bartlett beat him with a can of paint and a lamp, cut his leg
with a saw, and stole money from him. Forte had hired
Bartlett to perform repair work on his residence, and
Bartlett stayed in a room in the residence until Forte told
Bartlett that his services were no longer needed. Bartlett
had been homeless when Forte hired him. Before the robbery
and battery, Bartlett was staying in Forte's backyard. At
the conclusion of the hearing, the circuit court revoked
Bartlett's suspended imposition of sentence based on all
grounds alleged in the petition and sentenced him to eight
years in the Arkansas Department of Correction.
appeals the revocation of his suspended imposition of
sentence on the sole ground that his counsel did not provide
effective legal assistance. Bartlett raises this issue for
the first time on appeal. Bartlett also raises for the first
time on appeal the issue that he is in an impossible
situation because his trial counsel filed a notice of appeal
before he was appointed appellate counsel, thereby preventing
him from having the opportunity to file a posttrial motion
asserting ineffectiveness of counsel. He alleges that the
ineffectiveness of his counsel is apparent on its face and
meets an exception that the claim may be considered on appeal
without first being raised in the circuit court.
of ineffective assistance of counsel must be raised at the
circuit court for the appellate courts to consider the
claims. Gordon v. State, 2015 Ark. 344, at 4, 470
S.W.3d 673, 675. Appellate courts will not consider
ineffective-assistance-of-counsel claims on direct appeal
unless the circuit court considered the issue. Id.;
see also Ratchford v. State, 357 Ark. 27, 159 S.W.3d
304 (2004); Anderson v. State, 353 Ark. 384, 108
S.W.3d 592 (2003); Willis v. State, 334 Ark. 412,
977 S.W.2d 890 (1998); Reed v. State, 323 Ark. 28,
912 S.W.2d 929 (1996). The reason for this rule is that an
evidentiary hearing and finding as to the competency of
appellant's counsel by the circuit court better equips
the appellate court on review to examine in detail the
sufficiency of the representation. Ratchford,
supra (citing Willis, supra;
Reed, supra). We decline to recognize an
exception to the rule that ineffective- assistance-of-counsel
claims must first be raised at the circuit court; therefore,
Bartlett's argument is not preserved for this court's
attempts to distinguish Ratchford, arguing that the
record at Bartlett's hearing makes clear on its face that
trial tactics and strategy are not reasonable explanations
for his counsel's decisions and inactions. However,
Ratchford directly addresses this argument. There,
the appellant sought reversal of his conviction on the sole
ground that he received ineffective assistance of counsel at
his trial. Id. at 32, 159 S.W.3d 307.
Ratchford did not raise the issue to the circuit court.
Id. He argued that his counsel's ineffectiveness
was apparent on its face and thus warranted an exception to
the rule. Id. In arguing for this exception,
Ratchford contended that his trial counsel's
"across-the-board inaction" could not be part of a
"rational trial strategy." Id. Our supreme
court reiterated its longstanding policy that the facts
surrounding a claim of ineffective assistance of counsel must
be developed before appeal and the circuit court is in a
better position to assess the quality of legal representation
than an appellate court. Id. The Ratchford
court declined to create this exception and affirmed the
conviction because the defendant failed to raise the issue of
ineffective assistance of counsel at the circuit court.
Id. Following the decision in Ratchford, we
decline to recognize an exception for Bartlett on the facts
of this case.
further attempts to distinguish his case from
Ratchford by arguing that he was placed in an
impossible position in that his appellate counsel did not
have an opportunity to raise the issue of ineffective
assistance of counsel because his notice of appeal was filed
by trial counsel approximately two months before appellate
counsel was appointed. Ratchford also addresses this
argument. In Ratchford, the notice of appeal was
filed four days after the entry of the judgment of
conviction. Ratchford argued that filing a Rule 37 petition
at that juncture would unduly prolong his prison time.
Id. Our supreme court rejected that argument,
holding that Ratchford was not without a remedy, as he could
have filed a Rule 37 petition rather than a direct appeal.
Id. The same is true for Bartlett-he could have
filed a Rule 37 petition instead of a direct appeal.
Bartlett's appeal is identical to the appeal in
Ratchford, and Bartlett can still file a Rule 37
petition. Therefore, his position is not impossible.
also relies on Tisdale v. State, 311 Ark. 220, 843
S.W.2d 803 (1992), to support his claim that he meets an
exception to the rule that ineffective-assistance-of-counsel
claims will not be addressed for the first time on appeal.
Specifically, Bartlett alleges that the circuit court in
Tisdale applied an exception and addressed such a
claim on direct appeal. In Tisdale, the circuit
court considered several motions to remove trial counsel.
After conviction, Tisdale filed a motion for a new trial
arguing that counsel provided ineffective assistance, and our
supreme court found that these motions preserved his claim.
Id. Tisdale is clearly distinguishable from this
case because Tisdale preserved his claim by raising the issue
at trial. Bartlett did not raise his claim at the circuit
court and, therefore, it is not preserved on appeal.
Bartlett's claim of ineffective assistance of counsel was
not raised to the circuit court, the issue cannot be
considered on appeal. Therefore, we ...