KEVIN V. BARNES APPELLANT
STATE OF ARKANSAS APPELLEE
MOTIONS FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF,
FOR APPOINTMENT OF COUNSEL, AND FOR TRANSCRIPT [PULASKI
COUNTY CIRCUIT COURT, NO. 60CR-14-3790] HONORABLE HERBERT T.
WRIGHT, JR., JUDGE
DISMISSED; MOTIONS MOOT.
January 26, 2016, judgment was entered in the Pulaski County
Circuit Court reflecting that appellant Kevin V. Barnes had
entered a plea of guilty to four felony offenses in case
number 60CR-14-3790. He was sentenced to serve an aggregate
term of 240 months' imprisonment.
April 6, 2016, Barnes filed in the trial court a pro se
"belated motion to retract" his plea of guilty on
the ground that he had not been afforded effective assistance
of counsel. Because claims of ineffective assistance of
counsel are raised in Arkansas courts pursuant to Arkansas
Rule of Criminal Procedure 37.1 (2016), the trial court
properly treated the motion as a petition for postconviction
relief pursuant to Rule 37.1. A petition for postconviction
relief mounting a collateral attack on a judgment, regardless
of the label placed on it by the petitioner, is considered
pursuant to our postconviction rule. Bailey v.
State, 312 Ark. 180, 182, 848 S.W.2d 391, 392 (per
curiam); see also Millsap v. Kelley, 2016 Ark. 406,
at 2 (per curiam). The trial court held that the motion was
without merit and denied relief.
lodged an appeal from the order in this court. Now before us
are Barnes's motions for extension of time to file the
appellant's brief, for appointment of counsel, and for a
copy of the transcript lodged in this appeal.
dismiss the appeal because it is evident from the record that
Barnes could not succeed on appeal. This court will not
permit an appeal from an order that denied a petition for
postconviction relief to go forward where it is clear that
the appellant could not prevail. Justus v. State,
2012 Ark. 91. The motions are rendered moot by the dismissal
of the appeal.
the request for postconviction relief filed by Barnes was
timely filed in accordance with Rule 37.2(c), which requires
that, when a petitioner entered a plea of guilty, a petition
under the Rule must be filed in the trial court within ninety
days of the date of entry of judgment, the request for
postconviction relief filed by Barnes was not properly
verified. For that reason, it was subject to dismissal by the
trial court. Keck v. State, 2013 Ark. 139, at 5 (per
curiam). Barnes could not circumvent the requirement that a
petition for postconviction relief be verified by labeling
his petition as a motion to retract his guilty plea. See
Lambert v. State, 2012 Ark. 310, at 2 (per curiam)
(holding that, because the petitioner had already filed a
Rule 37.1 petition, he was barred from submitting a
subsequent petition under that Rule, and his petition was
subject to dismissal on that basis, regardless of the label
he placed on it); see also Livingston v. State, 2014
Ark. 364, 439 S.W.3d 693 (per curiam) (holding that a
petition to correct sentence was properly considered as a
petition for postconviction relief pursuant to Rule 37.1
because it challenged a judgment entered on a plea of guilty
on grounds cognizable under the Rule).
though Barnes's petition was signed and notarized, he
failed to abide by the requirements of Rule 37.1(c).
Randle v. State, 2016 Ark. 228, 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 Barnes did not attach to his
petition. Id. Under Rule 37.1(c), Barnes 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 his knowledge and
belief. Randle, 2016 Ark. 228, at 3, 493 S.W.3d, at
310. Moreover, the affidavit should have been executed before
a notary or other officer authorized by law to administer
oaths, in substantially the following terms: 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.
court has held that the verification requirement for
postconviction petitions is of substantive importance to
prevent perjury. Id. at 3, 493 S.W.3d at 310;
see also Bradley v. State, 2015 Ark. 144, at 3, 459
S.W.3d 302, 304-05; Boyle v. State, 362 Ark. 248,
250, 208 S.W.3d 134, 136 (2005). Accordingly, pursuant to
Rule 37.1(d) "the circuit court or any appellate court
shall dismiss any petition that fails to comply with
subsection (c) of this rule." Bradley, 2015
Ark. 144, at 4, 459 S.W.3d at 305. Because Barnes filed a
petition for postconviction relief raising claims of
ineffective assistance of counsel, which are allegations for
relief from a judgment under Rule 37.1, he was obligated to
comply with this substantive requirement of Rule 37.1(c). He
failed to meet the requirements of the Rule, rendering his
motion to retract his plea and this appeal subject to summary
dismissal. Garcia v. State, 2016 Ark. 402, at 2-4
dismissed; motions moot.
Effective March 2, 2017, the Arkansas
Court of Appeals will assume appellate jurisdiction of all
appeals arising from a petitioner's allegation that the
petitioner was denied effective assistance of counsel at
trial or on direct appeal from a judgment of conviction
except in instances when the death penalty or life
imprisonment has been imposed on the petitioner. The Arkansas
Court of Appeals will also assume jurisdiction of petitions
for postconviction relief pursuant to Arkansas Rule of
Criminal Procedure 37.1 in cases wherein the Rule required
the petitioner in cases where the judgment was ...