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                   SUPREME COURT OF ARKANSAS.
                                       No.   CR-16-714


RENE GARCIA                                      Opinion Delivered November   17, 2016
                                  APPELLEE
V.                                         PRO SE MOTION FOR
                                           ENLARGEMENT OF TIME TO FILE
STATE OF ARKANSAS                          APPEAL BRIEF; MOTION TO FILE
                                  APPELLEE BELATED APPEAL
                                           [APPEAL FROM THE
                                           WASHINGTON COUNTY CIRCUIT
                                           COURT, NO. 72CR-12-1865]


                                                 APPEAL DISMISSED; MOTIONS
                                                 MOOT.

                                       PER CURIAM


        In 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. 673.

        Garcia 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
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to file his brief, and a second motion styled “Motion to File a Belated Appeal,” which

requests permission to file a belated brief.

       When it 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.

       Garcia’s 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.).

       Furthermore, 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.

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Under 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 following form:

                                        AFFIDAVIT

       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.

                                                    __________________________
                                                    Petitioner’s signature

       Subscribed and sworn to before me the undersigned officer this ____ day of

__________, 20___.

                                                    ___________________________
                                                    Notary or other officer

       This 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) (2015) “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 Garcia failed to

comply with this substantive requirement of Rule 37.1(c), this appeal would be subject to




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summary dismissal even if Garcia’s Rule 37.1 petition had not consisted of conclusory claims

and allegations that were not cognizable under the Rule.

       Appeal dismissed; motions moot.




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