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                     SUPREME COURT OF ARKANSAS.
                                         No.   CR-16-77


ANTHONY LAMONT RANDLE                             Opinion Delivered May   26, 2016
                  APPELLANT
                                            APPELLEE’S MOTION TO DISMISS
V.                                          APPEAL FOR LACK OF
                                            JURISDICTION, AND,
                                            ALTERNATIVELY, MOTION FOR
STATE OF ARKANSAS                           EXTENSION OF BRIEF TIME
                                   APPELLEE [PULASKI COUNTY CIRCUIT
                                            COURT NO. 60CR-06-2589]

                                                  HONORABLE LEON JOHNSON,
                                                  JUDGE

                                                  MOTION GRANTED IN PART AND
                                                  MOOT IN PART; APPEAL
                                                  DISMISSED.


                                        PER CURIAM


           Appellant Anthony Lamont Randle was found guilty, after a jury trial, of capital

 murder in the death of Ranson Harrison, for which he was sentenced to life imprisonment

 without parole. Randle appealed, and this court affirmed his conviction and sentence.

 Randle v. State, 372 Ark. 246, 273 S.W.3d 482 (2008). Randle filed a timely petition under

 Arkansas Rule of Criminal Procedure 37.1 (2008); however, the petition was not verified.

 On October 2, 2015, the trial court denied relief, and Randle lodged an appeal from that

 denial.     The appellee State now seeks that the appeal be dismissed, claiming lack of

 jurisdiction and, alternatively, seeking an extension of brief time.

           In its motion, the State argues that Randle’s Rule 37.1 petition was not verified,

 which requires dismissal of the appeal pursuant to Rule 37.1(d). The State additionally
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contends that Randle’s claim on appeal arose out of a pleading he filed below challenging

the State’s response to his Rule 37.1 petition. Because he had not sought leave to amend,

Randle’s responsive pleading could not be considered an amended Rule 37.1 petition.

Consequently, the State contends that appellate review of the claim is precluded because it

is raised for the first time on appeal. We agree with the State’s claims regarding dismissal of

Randle’s appeal.

       In his petition for Rule 37.1 relief, Randle argued three claims as follows: his counsel

was ineffective for failing to present the fact that the State’s chief witness, Gloria Cole, was

intoxicated from the use of crack cocaine at the time of the crime and while she was

testifying during trial; trial counsel was ineffective for failing to establish the lack of proof of

premeditation and deliberation supporting the capital-murder conviction; and trial counsel

was ineffective for failing to object to erroneous jury instructions, in that the State failed to

prove any underlying felony or premeditation or deliberation, for failing to include a lesser-

included felony instruction for second-degree murder, and for failing to file a motion in

limine to exclude Cole’s testimony. On appeal, Randle’s sole claim encompasses the claim

raised in his reply to the State’s response that his trial counsel was ineffective for failing to

appeal the trial court’s ruling granting the State’s motion in limine precluding evidence that

the victim had an illegal substance in his body.

       This court has consistently held that an appeal of the denial of postconviction relief

will not be permitted to go forward where it is clear that the appellant could not prevail.

Ransom v. State, 2009 Ark. 215 (per curiam). Here, Randle failed to verify the petition he

filed as required by Rule 37.1(c). See, e.g., Ranson, 2009 Ark. 215, at 1 (appellant’s failure

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to verify the Rule 37 petition precluded the trial court from considering the petition).

“Effective March 1, 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 Randle did not attach to his petition. To complete this form, the

affiant swears that he has read the petition and that the facts stated in the petition are true,

correct, and complete to the best of the petitioner’s knowledge and belief. Ward v. State,

2015 Ark. 62, 455 S.W.3d 830, reh’g denied (Apr. 9, 2015), cert. denied, 136 S. Ct. 485 (2015).

Pursuant to Rule 37.1(c), the petitioner's 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 a postconviction relief petition ‘is

of substantive importance to prevent perjury.’” Id. at 3, 455 S.W.3d at 832 (quoting Boyle

v. State, 362 Ark. 248, 250, 208 S.W.3d 134, 136 (2005)). Because Randle’s Rule 37.1




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petition was not properly verified, the State’s motion to dismiss is granted.1 See Ark. R.

Crim. P. 37.1(d) (“The circuit court or any appellate court shall dismiss any petition that

fails to comply with subsection (c) of this rule.”); Ransom, 2009 Ark. 215; see also Croft v.

State, 2010 Ark. 83 (per curiam) (A petition under the rule not verified in accordance with

Rule 37.1(c) is subject to dismissal.).

       Furthermore, in addition to its claim that the Rule 37.1 petition was not verified,

the State’s claim that Randle’s sole argument on appeal is not properly before this court

serves as additional grounds for dismissal of Randle’s appeal. On appeal, Randle contends

that trial counsel was ineffective for failing to appeal the State’s motion in limine because he

was not able to present evidence that he was attacked by a “madman on drugs” or to show

that the victim and the State’s chief witness acted in concert while smoking crack cocaine.2

Under Rule 37.2(e), a Rule 37.1 petition may be amended only with leave of court.

Otherwise, “[a]ll grounds for relief available to a petitioner under this rule must be raised in




       1
        In the unique case involving a defendant sentenced to death, we have remanded,
rather than summarily affirming the denial of postconviction relief or dismissing the appeal,
so that the defendant can verify his petition and supplement the record with the verified
petition. See Howard v. State, 366 Ark. 453, 236 S.W.3d 508 (2006).
       2
         On direct appeal, this court addressed Randle’s argument that the trial court’s ruling
on the State’s motion in limine denied him a fair trial. Although he argued a general denial
during trial, on appeal, Randle argued more specifically that the victim was killed by a drug
dealer to whom the victim owed money and that the presence of cocaine in the victim’s
body would have shed light on a similar intoxication by Cole, who Randle claimed
fabricated her testimony. Randle, 372 Ark. 246, 273 S.W.3d 482. We did not address
Randle’s arguments on direct appeal because they were raised for the first time on appeal.
Id. at 250-51, 273 S.W.3d at 485–86.


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his or her original petition unless the petition was denied without prejudice.” Ark. R.

Crim. P. 37.2(b). The failure to comply with Rule 37.1(b) is not a jurisdictional defect,

and the trial court may rule on a petition that does not conform to the Rule. See Smith v.

State, 2015 Ark. 23, 454 S.W.3d 219 (per curiam).

       Here, the trial court noted in its order denying postconviction relief that Randle did

not raise the issue of the alleged prejudicial error regarding an appeal of the State’s motion

in limine in his original Rule 37.1 petition but rather raised it only as a part of his reply to

the State’s response. Because Randall had not asked permission to amend the original

petition, the trial court refused to consider the argument raised in a responsive pleading.

There is no mention by Randle or any documentation that can be found in the record that

evinces Randle’s attempt to seek leave to file an amended Rule 37.1 petition. Because

Randle failed to file a verified Rule 37.1 petition and failed to seek permission to file a

properly verified amended petition, the claim raised in his reply to the State’s response will

not be reached on appeal. See Butler v. State, 367 Ark. 318, 239 S.W.3d 514 (2006). As

such, the State is correct in its assertion that Randle’s sole argument on appeal was not

considered below by the trial court and is raised for the first time on appeal. This court will

not consider new matters not raised in the Rule 37.1 petition for first time on appeal. See

Frazier v. State, 2016 Ark. 55 (per curiam).

       Moreover, even had the reply to the State’s response been treated as an amended

Rule 37.1 petition, as stated, it also lacked a verification, as did the “original” petition.3



       3
        Although Randle’s reply to the State’s response, which encompasses this claim, is in
the record, it is not included in his addendum.
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Based on the foregoing, the appeal is dismissed. Because we dismiss the appeal, the State’s

motion for extension of brief time is moot.

       Motion granted in part and moot in part; appeal dismissed.




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