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                SUPREME COURT OF ARKANSAS
                                      No.   CR-13-406

OSIRES GUEVARA                                   Opinion Delivered MAY 8, 2014

                               APPELLANT         APPEAL FROM THE BENTON
                                                 COUNTY CIRCUIT COURT
V.                                               [NO. CR-2008-1627-1(B)]
STATE OF ARKANSAS                                HONORABLE ROBIN F. GREEN,
                                 APPELLEE        JUDGE

                                                 REVERSED AND REMANDED.


                          DONALD L. CORBIN, Associate Justice

       Appellant Osires Guevara appeals the order of the Benton County Circuit Court

denying his petition for postconviction relief filed pursuant to Rule 37 of the Arkansas Rules

of Criminal Procedure. On appeal, he argues that the circuit court erred (1) in denying his

requested relief without a hearing because the files and record did not conclusively show that

he was not entitled to relief and (2) in considering email correspondence between his trial

counsel and a deputy prosecuting attorney, because it was extraneous to the record. We

reverse and remand.

       Appellant was convicted by a jury in the Benton County Circuit Court of possession

of a controlled substance with intent to deliver—methamphetamine—and was sentenced, as
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a habitual offender, to a term of life imprisonment. His conviction and sentence were

affirmed by this court in Guevara v. State, 2012 Ark. 351.1

       On December 17, 2012, Appellant filed a timely petition for postconviction relief

pursuant to Rule 37, asserting multiple grounds to support his contention that he was denied

the effective assistance of counsel, including that (1) counsel was impaired by a conflict of

interest; (2) counsel failed to adequately investigate his case, both at trial and in preparation

to present mitigating evidence; (3) counsel did not properly interview witnesses; (4) counsel

failed to properly inform Appellant of a plea offer by the State; (5) counsel did not adequately

advise Appellant of the consequence of a potential sentence enhancement; and (6) counsel

committed several errors in interviewing witnesses and in not challenging certain evidence

introduced by the State.

       The State filed a response to Appellant’s Rule 37 petition, asserting that his claims were

without merit. In support of its position, the State attached photocopies of email exchanges

purportedly between Appellant’s trial counsel and a deputy prosecutor handling Appellant’s

case. The State also attached photocopied portions of a transcript from a pretrial hearing, as

well as select portions of the trial transcript.

       In an order entered on January 11, 2013, the Benton County Circuit Court denied

Appellant’s petition for Rule 37 relief. In so doing, the circuit court found that Appellant’s



       1
       The opinion in Appellant’s direct appeal mistakenly states that Appellant was
sentenced to a term of life imprisonment without the possibility of parole, but the judgment-
and-commitment order reflects that Appellant received a life sentence.


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trial counsel provided adequate representation during trial and that Appellant failed to

demonstrate that he suffered actual prejudice due to his attorney’s conduct. In rejecting many

of Appellant’s claims, the circuit court often cited to the email correspondence as a basis to

refute Appellant’s claims. Appellant filed a timely notice of appeal on February 11, 2013.2

       This court does not reverse a denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. Johnson v. State, 2014 Ark. 74; Davenport v. State, 2013 Ark.

508, ___ S.W.3d ___. A finding is clearly erroneous when, although there is evidence to

support it, after reviewing the entire evidence, we are left with the definite and firm

conviction that a mistake has been committed. Adams v. State, 2013 Ark. 174, ___ S.W.3d

___.




       2
         In looking at Appellant’s petition and comparing it to the trial court’s order, it is
apparent that the circuit court did not rule on Appellant’s claim that counsel was ineffective
because he “requested monies to seek removal from his case, prior to the Pretrial Status
Conference.” Nor did the circuit court rule on Appellant’s claim that counsel was ineffective
in failing to investigate whether prior convictions stemmed from the same transaction so as
to limit his exposure as a habitual offender. Appellant failed to seek rulings on either of these
issues prior to filing his notice of appeal; thus, this claim is not preserved for review. E.g.,
Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000). Additionally, there are claims that were
raised by Appellant in his petition and ruled on by the circuit court that Appellant does not
appear to pursue in the instant appeal. Such claims include that counsel was ineffective in
(1) failing to interview or call character witnesses; (2) failing to conduct an adequate
investigation of mitigation evidence for sentencing; (3) failing to impeach law enforcement
witnesses with their prior inconsistent statements and subsequently failing to renew a motion
to suppress; and (4) failing to object to evidence introduced by the State during sentencing
regarding Appellant’s alleged affiliation with the MS-13 gang. It is axiomatic that claims
raised below but not pursued on appeal are considered abandoned. E.g., Hayes v. State, 2011
Ark. 327, 383 S.W.3d 824 (per curiam).


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       Although raised as his second point on appeal, we will first consider Appellant’s

argument that the circuit court erred in relying on email correspondence, which was attached

to the prosecutor’s response to Appellant’s petition, because it was extraneous to the record

in this case. Specifically, Appellant asserts that these emails were not part of the court files,

the record, or his Rule 37 petition and, thus, were not proper to consider under Rule 37.3(a).

According to Appellant, the emails were not disclosed prior to the filing of the State’s

amended response, were submitted out of order, and were without disclosure of the entire

communication; thus, it was error for the circuit court to rely on them. The State argues that

this court should reject Appellant’s argument on this point because it is not preserved for our

review, is not supported by any citation to authority, and in any event, is without merit.

       Pursuant to Rule 37.3 of the Arkansas Rules of Criminal Procedure, an evidentiary

hearing should be held in a postconviction proceeding unless the files and record of the case

conclusively show that the prisoner is entitled to no relief. Wooten v. State, 338 Ark. 691, 1

S.W.3d 8 (1999) (citing Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997) (per curiam)).

If the files and the record show that the petitioner is not entitled to relief, the circuit court is

required to make written findings to that effect. Ark. R. Crim. P. 37.3(a). When the circuit

court fails to make such findings, it is reversible error, except in cases where it can be

determined from the record that the petition is wholly without merit or where the allegations

in the petition are such that it is conclusive on the face of the petition that no relief is

warranted. Rodriguez v. State, 2010 Ark. 78 (per curiam); see also Sanders v. State, 352 Ark. 16,

98 S.W.3d 35 (2003).


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       Thus, Rule 37.3, allows for the summary disposition of Rule 37 petitions in certain

instances, and provides as follows:

               (a) If the petition and the files and records of the case conclusively show that
       the petitioner is entitled to no relief, the trial court shall make written findings to that
       effect, specifying any parts of the files, or records that are relied upon to sustain the
       court’s findings.

The rule does not define or otherwise specify what comprises “the files and records” of a case.

Although the State asserts that “the petition and response, along with supporting documents

(attached as exhibits, in this case), are part of the file and record in a Rule 37 proceeding,”

it provides no support or citation to authority for this proposition. In fact, looking further at

Rule 37.3, subsection (c) provides in relevant part:

               (c) When a petition is filed in the circuit court and the court does not dispose
       of the petition under subsection (a) hereof, the court shall cause notice of the filing
       thereof to be served on the prosecuting attorney and the petitioner’s counsel of record
       at the trial court level.

Thus, Rule 37.3 contemplates that a circuit court will look at the face of the petition and the

files and records to determine whether the petition can be summarily denied without holding

an evidentiary hearing. If the court does not summarily dispose of a petition, then it is to be

served on the prosecuting attorney. Thus, under a plain reading of this rule, the circuit court

should make a determination whether to proceed under subsection (a) before the prosecutor

even files a response to the petition because a response is not necessary if it is conclusive from

the face of the petition and the record that relief is not warranted.

       Moreover, the circuit court’s reliance on these emails was in contravention of the

Arkansas Rules of Evidence. Although postconviction hearings are relatively informal, the


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rules of evidence still apply. Poe v. State, 291 Ark. 79, 722 S.W.2d 576 (1987). This court

in Poe further explained that, in order for testimony to be admissible, it must be under oath

and subject to cross-examination. Id.; see also Lewis v. State, 251 Ark. 128, 471 S.W.2d 349

(1971).

       Here, in looking at the circuit court’s order denying Appellant’s petition, it is clear that

the circuit court relied on the statements in the email exchanges in lieu of testimony properly

adduced at a hearing. By way of example, Appellant asserted that counsel was ineffective in

failing to inform him of plea negotiations. In rejecting this argument, the circuit court stated,

“Email correspondence between Mr. Powell and Mr. Carter shows that Mr. Powell did keep

Petitioner informed of plea negotiations.” Appellant also argued that counsel was ineffective

in failing to inform him of the consequences of the State filing an amended complaint seeking

enhancement as a habitual offender. The circuit court rejected this claim on the basis that

“[c]ontemporaneous email correspondence between Mr. Powell and Mr. Carter shows that

Petitioner was informed through his attorney that failure to accept the State’s offer would

result in a habitual offender filing prior to trial.”3

       Thus, we agree with Appellant that it was error for the circuit court to consider the

email correspondence attached by the prosecutor in his response to Appellant’s petition.

Moreover, we agree with Appellant that it was error for the circuit court to deny his petition


       3
         Although in both of these instances, the circuit court also included references to the
record in rejecting Appellant’s claims, our review of those parts of the record cited by the
circuit court does not establish that Appellant’s claims were wholly without merit and subject
to summary dismissal.


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in the absence of a hearing because the files and records do not conclusively show that

Appellant was entitled to no relief. Here, the circuit court’s repeated reliance on the email

correspondence belies a conclusion that it was evident from the petition, the file, and the

record that Appellant was not entitled to any relief. The circuit court’s reliance on the

statements in the email exchanges was comparable to a circuit court relying on testimony at

an evidentiary hearing, except the emails here lacked the indicia of reliability that sworn

testimony offers.

       Accordingly, it was error for the circuit court to deny Appellant’s petition by relying

on the email correspondence that was not part of the file, record, or petition as contemplated

in the context of Rule 37.3(a). Further, the circuit court erred in denying the petition in the

absence of an evidentiary hearing because, if the circuit court had to rely on the email

correspondence, it cannot be said that the file, record, and petition conclusively showed that

Appellant was not entitled to relief.

       Reversed and remanded.

       Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Kimberly R. Weber, for

appellant.

       Dustin McDaniel, Att’y Gen., by: Rachel H. Kemp, Ass’t Att’y Gen., for appellee.




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