Branning v. State

Cite as 2014 Ark. 256
SUPREME COURT OF ARKANSAS
No. CR-13-332
CHRISTOPHER BRANNING Opinion Delivered May 29, 2014
APPELLANT
PRO SE MOTION FOR RULE ON
V. CLERK
[BOONE COUNTY CIRCUIT COURT,
NO. 05CR-04-244]
STATE OF ARKANSAS
APPELLEE HONORABLE GORDON WEBB,
JUDGE
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
In 2005, appellant Christopher Branning was found guilty of second-degree stalking, two
counts of first-degree terroristic threatening, and misdemeanor violation of a protective order.
He was sentenced to concurrent terms of 120 months, 72 months, 72 months, and 259 days,
respectively. On direct appeal, appellant argued that the trial court erred in denying his motions
to dismiss the judgments based on double-jeopardy and speedy-trial grounds. In an unpublished
opinion, the Arkansas Court of Appeals reversed and dismissed appellant’s convictions for
second-degree stalking and one count of terroristic threatening based on double-jeopardy
grounds; appellant’s speedy-trial argument was not addressed. Branning v. State, CR-05-989 (Ark.
App. Apr. 4, 2007) (unpublished) (original docket no. CACR 05-989). After granting the State’s
petition for review, we vacated the opinion of the court of appeals and affirmed the circuit
court’s denial of the motions to dismiss based on both double-jeopardy and speedy-trial
grounds. Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007).
Cite as 2014 Ark. 256
On January 18, 2007, appellant filed a timely petition for postconviction relief pursuant
to Arkansas Rule of Criminal Procedure 37.1 (2005). Based on the requirement that a person
must be in custody to be eligible for postconviction relief, the circuit court dismissed the petition
on the basis that appellant was on parole such that he was not in custody at the time that he filed
the petition or at the time of the hearing. However, when the trial court’s written order denying
relief was filed on January 5, 2009, appellant’s parole had been revoked. On appeal, appellant
raised a number of allegations of error, including the argument that he was eligible for relief
because his parole had been revoked such that he was in custody at the time that the written
order was entered. Reversing the trial court’s denial of postconviction relief and remanding the
case, we held that, because an oral order is not effective until entered of record, the trial court
did not dispose of appellant’s petition until January 5, 2009, at which time appellant was in
custody. Because we reversed and remanded on this issue, we did not address the remaining
allegations of error. Branning v. State, 2010 Ark. 401.
On remand, appellant filed a pro se amended petition for postconviction relief on
February 25, 2011. A second pro se amended petition was filed on July 6, 2011. On July 7,
2011, appellant filed a notarized affidavit verifying the contents of the petition filed on July 6.
The record indicates that the allegations in both the February 25 and July 6 amended petitions
were substantially the same. While the trial court stated at the Rule 37.1 hearing that the July 6
amended petition would be accepted and considered, it referred solely to the February 25
amended petition in its written order denying relief. When there are differences between the oral
ruling and the written order, the circuit court’s written order controls. State v. Williams, 2013
Ark. 164. Appellant timely lodged an appeal of the trial court’s order in this court. Because the
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Cite as 2014 Ark. 256
February 25 amended petition was not included in the record, a writ of certiorari was issued to
bring up a copy of the pleading. Branning v. State, 2014 Ark. 58 (per curiam). The writ has been
returned. Now before us is appellant’s motion for rule on clerk in which he seeks an order
directing the clerk to file his brief-in-chief that was tendered one day past the due date.
We need not consider the merits of the motion for rule on clerk because it is clear from
the record that appellant could not prevail if an appeal were permitted to go forward. An appeal
from an order that denied a petition for postconviction relief will not be allowed to proceed
when it is clear that the appellant could not prevail. Holliday v. State, 2013 Ark. 47 (per curiam);
Bates v. State, 2012 Ark. 394 (per curiam); Martin v. State, 2012 Ark. 312 (per curiam).
Accordingly, the appeal is dismissed, and the motion is moot.
The February 25 amended petition now before us was not in compliance with Rule 37.1
in that it was not verified in accordance with Rule 37.1(c). 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 must dismiss a petition that fails to comply with Rule 37.1(c). Stewart
v. State, 2014 Ark. 85 (per curiam); Fowler v. State, 2013 Ark. 340 (per curiam); Paige v. State, 2013
Ark. 135 (per curiam); Williamson v. State, 2012 Ark. 170 (per curiam); Stephens v. State, 2011 Ark.
506 (per curiam). Appellant’s signature on the amended petition was not notarized, and there
was no verification that the facts stated in the petition were true, correct, and complete as
required by the Rule.
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Cite as 2014 Ark. 256
The verification requirement for a postconviction petition is of substantive importance
to prevent perjury. Stewart, 2014 Ark. 85; Fowler, 2013 Ark. 340; Martin v. State, 2012 Ark. 312
(per curiam); Williamson, 2012 Ark. 170; Tucker v. State, 2011 Ark. 543 (per curiam); see Carey v.
State, 268 Ark. 332, 596 S.W.2d 688 (1980). We have held that a circuit court lacks jurisdiction
to consider arguments raised in an unverified Rule 37.1 petition. Martin, 2012 Ark. 312;
Williamson, 2012 Ark. 170; Stephenson, 2011 Ark. 506. Because appellant’s amended Rule 37.1
petition was not in compliance with Rule 37.1(c), it should not have been accepted for filing, and
it did not act to confer jurisdiction on the trial court to consider the merits of the petition.
Stewart, 2014 Ark. 85; Paige, 2013 Ark. 135; Hatton v. State, 2012 Ark. 286 (per curiam); see also
Keck v. State, 2013 Ark. 139. When the circuit court lacks jurisdiction, the appellate court also
lacks jurisdiction. Stewart, 2014 Ark. 85; Paige, 2013 Ark. 135; Williamson, 2012 Ark. 170; Talley
v. State, 2011 Ark. 497 (per curiam); Gilliland v. State, 2011 Ark. 480 (per curiam).
Appeal dismissed; motion moot.
Christopher Branning, pro se appellant.
No response.
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