MOTION FOR ENLARGEMENT OF TIME TO FILE APPEAL BRIEF; MOTION
TO FILE BELATED APPEAL [APPEAL FROM THE WASHINGTON COUNTY
CIRCUIT COURT, NO. 72CR-12-1865]
DISMISSED; MOTIONS MOOT.
October 2013, appellant Rene Garcia was convicted of two
counts of rape involving a thirteen-year-old girl and was
sentenced to an aggregate term of 600 months'
imprisonment with 120 months' suspended. His convictions
and sentences were affirmed on direct appeal by the Arkansas
Court of Appeals. Garcia v. State, 2015 Ark.App.
filed a timely petition for postconviction relief pursuant to
Rule 37.1 of the Arkansas Rules of Criminal Procedure (2015).
He alleged that he had been denied effective assistance of
appellate counsel and that the trial court had violated his
right to due process by allowing an amendment of the nature
and degree of the charges and by excluding a video
"proving that the suspect on the video was not the
accused standing trial." The trial court denied the
petition without conducting an evidentiary hearing, and
Garcia filed a timely notice of appeal. Now pending before
this court is Garcia's motion for an extension of time to
file his brief, and a second motion styled "Motion to
File a Belated Appeal, " which requests permission to
file a belated brief.
is clear from the record that the appellant cannot prevail on
appeal of an order that denied postconviction relief, we
dismiss the appeal. Wheeler v. State, 2015 Ark. 233,
463 S.W.3d 678 (per curiam). As it can be determined from the
record that Garcia could not prevail, the appeal is
dismissed, which renders the motions moot.
claims for relief focused on allegations that appellate
counsel failed to timely file an appellate brief. However,
Garcia could not demonstrate prejudice because, due to the
dilatory conduct cited in his Rule 37.1 petition,
Garcia's original appellate counsel had been replaced and
new appellate counsel was appointed. Garcia's remaining
allegations were conclusory and lacked sufficient facts to
establish a basis for postconviction relief. See
Henington v. State, 2012 Ark. 181, at 6, 403 S.W.3d 55,
60 (Conclusory allegations that are unsupported by facts do
not provide a basis for either an evidentiary hearing or
postconviction relief.). Moreover, Garcia's conclusory
allegations were based on claims of trial-court error which
are generally not cognizable in Rule 37.1 proceedings.
See Green v. State, 2013 Ark. 455, at 9 (per curiam)
(Assertions of trial error, even those of constitutional
dimension, must be raised at trial and on direct appeal.).
while Garcia filed a timely Rule 37.1 petition, which was
signed and notarized, he failed to verify his petition as
required by Rule 37.1(c). Randle v. State, 2016 Ark.
228, at 2, 493 S.W.3d 309 (per curiam). In 2006, Rule 37.1
was amended to more clearly require that a Rule 37.1 petition
be verified. Id. That amendment also required that a
form affidavit be attached to the petition, which Garcia did
not attach to his petition. Id.
Rule 37.1(c)(2015), Garcia was required to complete this form
and to swear that he had read the petition and that the facts
stated in the petition are true, correct, and complete to the
best of the his knowledge and belief. Randle, 2016
Ark. 228, at 3, 493 S.W.3d 309, 310. Moreover, the
affidavit must be executed before a notary or other officer
authorized by law to administer oaths, in substantially the
petitioner states under oath that (he) (she) has read the
foregoing petition for postconviction relief and that the
facts stated in the petition are true, correct, and complete
to the best of petitioner's knowledge and belief.
and sworn to before me the undersigned officer this ...