Brown v. State

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                   SUPREME COURT OF ARKANSAS
                                         No.   CR-13-514

BRUCE WAYNE BROWN                                   Opinion Delivered March   5, 2015
                                APPELLANT
                                                    PRO SE APPEAL FROM THE
V.                                                  GARLAND COUNTY CIRCUIT
                                                    COURT
                                                    [NO. 26CR-10-272]
STATE OF ARKANSAS
                                  APPELLEE          HONORABLE MARCIA R.
                                                    HEARNSBERGER, JUDGE

                                                    REMANDED FOR FINDINGS OF
                                                    FACT.


                                          PER CURIAM


       In 2011, appellant Bruce Wayne Brown was found guilty by a jury in the Garland County

Circuit Court of the rape of his minor stepdaughter, B.B., and he was sentenced to a term of life

imprisonment. This court affirmed. Brown v. State, 

, 

. Appellant

subsequently filed in the circuit court a timely pro se petition for postconviction relief pursuant

to Arkansas Rule of Criminal Procedure 37.1 (2011). The circuit court summarily denied

appellant’s request for postconviction relief without a hearing, and appellant now brings this

appeal.1

       On appeal, the appellee State alleges that appellant’s Rule 37.1 petition may not have

been properly verified. Specifically, the State contends that the dates on the petition seem to

indicate that appellant did not sign the affidavit until two days after the notary had affixed her

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       Appellant also filed in the circuit court a pleading entitled, “Petition to Supplement the
Record and Request Permission to add these D.N.A. Facts to Petitioner’s Rule 37 Petition,”
which was also denied in the circuit court’s March 6, 2013 order.
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signature and seal to the petition.

       Rule 37.1(c) requires that the petition be accompanied by an affidavit that is sworn before a

notary or other officer authorized to administer oaths; in substantially the form noted in that

provision; and attesting that the facts stated in the petition are true, correct, and complete to the

best of petitioner’s knowledge and belief. Rule 37.1(d) requires that the circuit court reject an

unverified petition and that the circuit court or the appellate court dismiss a petition that fails

to comply with Rule 37.1(c). Branning v. State, 

 (per curiam); Slocum v. State, 

 (per curiam).

       In the instant case, while appellant’s signature on the petition was notarized on December

9, 2012, it is unclear from the face of the petition whether the affidavit was sworn to before a notary

as is required by Rule 37.1(c). The handwritten affidavit attesting that the facts stated in the

petition are true, correct, and complete to the best of appellant’s knowledge is not dated and is

sandwiched between two blocks of text containing the date, December 11, 2012.

       The verification requirement for a postconviction petition is of substantive importance

to prevent perjury. Stewart v. State, 

 (per curiam); Fowler v. State, 

 (per

curiam); Paige v. State, 

 (per curiam); Williamson v. State, 

 (per curiam).

We have held that a circuit court lacks jurisdiction to consider arguments raised in an unverified

Rule 37.1 petition. Williamson, 

. When the circuit court lacks jurisdiction, the

appellate court also lacks jurisdiction. Winnett v. State, 

 (per curiam); Talley v. State,

 (per curiam).

       Because the issue of whether the underlying petition is properly verified is determinative



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of our jurisdiction to hear the instant appeal, we remand to the circuit court for factual findings

concerning the verification of appellant’s Rule 37.1 petition. The circuit court shall return its

findings of fact, along with a transcript of any hearing on the matter, within ninety days from

the date of this order.

       Remanded for findings of fact.

       HANNAH, C.J., and DANIELSON and WOOD, JJ., concur.

       PAUL E. DANIELSON, Justice, concurring. I concur but write separately to express my

concern regarding the trend in our case law to hold that lack of verification of a petition filed

pursuant to Arkansas Rule of Criminal Procedure 37 is a jurisdictional defect. This court has

consistently held that the verification requirement for a postconviction-relief petition is of

substantive importance to prevent perjury. See, e.g., Carey v. State, 

, 

(1980). To serve this purpose, a petitioner must execute the verification, and if the petitioner

is represented by counsel, counsel may not sign and verify the petition for him. See, e.g., Boyle v.

State, 

, 

 (2005) (per curiam). Historically, if a petition lacked the

proper verification, this court simply affirmed a circuit court’s denial of postconviction relief.

See, e.g., Knappenberger v. State, 

, 

 (1983). But, in recent years, there

has been a trend to dismiss appeals if a postconviction petition lacked the proper verification.

       It appears to me that some of the conflicting holdings can be traced back to this court’s

decision in Shaw v. State, 

, 

 (2005) (per curiam). There, the State

filed a motion to dismiss an appeal from the denial of a Rule 37 petition because the petitioner

failed to verify his petition or amended petition. The Shaw court granted the State’s motion,



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observing that a circuit court cannot consider issues in a petition which does not comply with

the verification requirement of the Rule. But, the Shaw court then held that the petition must

be dismissed because the circuit court lacked jurisdiction where a subsequently verified petition

was not filed within the ninety-day time limit of Rule 37.2(c). Similarly, in Worthem v. State, 

, 

 (2002) (per curiam), this court held that an unverified petition was

“invalid” and a subsequent verified petition that was filed outside the time limits of the rule

deprived the circuit court of jurisdiction to consider the merits of the petition. 

, 

. Unfortunately, however, this court began citing to the decisions in Shaw and

Worthem for the proposition that “a circuit court lacks jurisdiction to consider arguments raised

in an unverified Rule 37.1 petition.” See, e.g., Stephenson v. State, 

, at 2 (per curiam).

       Although Rule 37.1(d) plainly states that a circuit court shall not accept an unverified

petition for filing and further requires a circuit or appellate court to dismiss an unverified

petition, this court has not traditionally treated this rule as being jurisdictional in nature, as it

does Rule 37.2(c). This distinction is important because this court has remanded death-penalty

cases to the circuit court with instructions that petitioners be allowed to file verified Rule 37.5

petitions. See Howard v. State, 

, 

 (2006) (per curiam); Collins v. State,

, 

 (2006). If the failure to file a verified petition creates a

jurisdictional defect, then this court would have lacked jurisdiction to remand in both Howard

and Collins.

       Clearly, our case law is not consistent on the question of whether the lack of verification

deprives a circuit court or this court of jurisdiction. Because that issue is not raised to us in this



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particular case, nor do we have the benefit of adversarial briefing on the issue, I concur in the

per curiam. However, when the issue is properly before us, I think it will be necessary for this

court to address and determine whether lack of verification deprives a court of jurisdiction.

       For these reasons, I respectfully concur.

       HANNAH, C.J., and WOOD, J., join.

       Bruce Wayne Brown, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.




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