Brown v. State

474 S.W.3d 498

Bruce Wayne Brown, Appellant,

v.State of Arkansas, Appellee.

No. CR–13–514

Supreme Court of Arkansas.

Opinion Delivered November 19, 2015

Bruce W. Brown, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

PER CURIAM

In 2013, appellant Bruce Wayne Brown filed in the trial court a pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2015). The timely petition challenged his conviction for the rape of his minor stepdaughter and life sentence, following this court affirming the judgment in Brown v. State, 2012 Ark. 399, 424 S.W.3d 288 (" Brown I "). The trial court summarily denied the Rule 37.1 petition and a petition to supplement in an order entered on March 6, 2013. Brown lodged an appeal in this court.

After the State alleged that the petition had not been properly verified, this court remanded the matter for findings of fact. Brown v. State, 2015 Ark. 97 (per curiam) ("Brown II "). Following the remand, the trial court returned an amended order that found, without a hearing, that the petition had not been verified as required by the rule, based on the face of the document, and that the petition should therefore be dismissed. Brown filed a motion in response to the amended order in which he sought to introduce evidence concerning the verification issue. On July 23, 2015, this court remanded for a second time, directing the trial court to hold an evidentiary hearing and return findings of fact on the verification of the Rule 37.1 petition within ninety days. Brown v. State, 2015 Ark. 311, 2015 WL 4498143 (per curiam) (" Brown III ").

The trial court has now returned a transcript and findings of fact on the verification issue.¹ The findings indicate that the State has stipulated that the verification that appears on the petition is in substantial compliance with the requirements of Rule 37.1. Having resolved the question of whether the petition was properly verified, we now turn to the summary disposition of Brown's Rule 37.1 petition.

We note that it is unclear from the initial order on what basis the trial court relied to deny the petition and the petition to supplement. The March 6, 2013 order simply states that "from the matters and representations to the Court, the Court finds that both of the Defendant's Petitions should be denied." Under Arkansas Rule of Criminal Procedure 37.3. in order to summarily deny a Rule 37.1 petition without a hearing, the trial court is required to make written findings of fact, which specify any parts of the files or records that are relied on to sustain the court's findings, and those findings must conclusively show that the petitioner is entitled to no relief. Beverage v. State, 2015 Ark. 112, 458 S.W.3d 243. It is not incumbent on this court to scour the record in a Rule 37 appeal to determine if the petition is wholly without merit when there are no written findings. Rackley v. State, 2010 Ark. 469, 2010 WL 4922390 (per curiam). The failure to make sufficient written findings is reversible error. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003).

The circuit court's original order denying Rule 37 relief lacks the requisite findings. Accordingly, we reverse and remand for an appropriate order complying with Rule 37.3. See Barrow v. State, 2012 Ark. 197, 2012 WL 1631806. On remand, the trial court may, at its option, determine that it should in fact conduct a hearing in order to enter an order that complies with our rules of procedure. See, e.g., Rackley, 2010 Ark. 469, 2010 WL 4922390. If the order then entered is adverse to Brown, he will be required to perfect an appeal of the new order in compliance with our rules of procedure. See, e.g., Walden v. State, 2014 Ark. 10, 2014 WL 197824 (per curiam).

Reversed and remanded.

1 The supplemental record on the verification issue was lodged here on October 29, 2015. On November 12, 2015, ...